Cook v. Lothrop

[261] The opinion of the Court was by Weston C. J. The writ in this case ran against the bodies of the defendants, which was not warranted by law. This was matter which might have been pleaded in abatement ; and as it appeared on the face of the writ, the objection might have been taken on motion, if it had been made seasonably. It is an immunity granted to the defendant. He has a right to object to the form of process, running against his body, or he may waive that objection. The want or omission of an indorser, is apparent upon the writ. But as it is for the benefit of the defendant, if he does not take the objection at the first term, it is considered as waived. It appears to us, that the objection here is of the same character, and not therefore available after a general continuance. The condition of the bond was, that Lothrop, the principal defendant, should pay such costs and damages, as Cook, the present plaintiff, should recover against him, in the action instituted by Lothrop v. Cook. Costs were recovered against him, which Lothrop has not paid. Both were parties to the suit. Lothrop was as much bound to take notice of tho rendition of judgment as Cook. Each had the same means of knowledge; and neither had a right to claim notice of the other. If Lothrop neglected to pay upon tho rendition of judgment, the condition of the bond according to its plain tonor and import, was broken. We have no right to superadd tho further condition, that the original defendant, the present plaintiff, should first sue out and prosecute a writ of execution on that judgment. Exceptions overruled.