Parsons v. Ely

Swept, Oh. J. Every plea in abatement must be complete in itself, and must contain all the averments essential to shew, that the writ ought to abate# In all cases of attachment, or where the plaintiff lives out of the state, so that bonds are required by law, a material alteration, after the writ has been signed and issued, and while the bond continues necessary, will destroy the writ; for it will cease to be the writ on which the bond was taken ; and to permit such an alteration might subject the person giving the bond to responsibilities that he did not contemplate. An alteration in the date, or the court to which it is returnable, is material. But in this plea there is no allegation, that the plaintiffs were not inhabitants of this state ; so that it does not appear from the plea, that a bond for prosecution is necessary. The process, therefore, as appears from the plea, stands on the footing of a summons, in favour of an inhabitant of this state ; and in such cases it has been the immemorial usage for magistrates to sign writs in blank, and for the parties to fill them up in any proper manner. Of course, the alteration in the writ, alleged to have been made, could not affect its validity. [380] I am of opinion, that there is nothing erroneous in the judgment complained of. Trumbuu,, EdmoNd, Smith, Brais arh and Peters, Js. were oí the same opinion.