
    Knox & Crawford v. Summers and Thomas.
    Appearance.— Waiver.
    
    An appearance of the defendant, by attorney, cures all antecedent irregularity of process.
    
      Qiuere? Whether a deputy-marshal can plead in abatement, that the capias was not served on him by a disinterested person ?
    
    Knox v. Crawford, 1 Cr. C. C. 260, reversed.
    Error to the Circuit Court of the district of Columbia.
    The plaintiffs in error brought an action of debt on a bond, against the defendants, in the court below; to which the defendant, Summers, after oyer of the writ, pleaded in abatement, that on the day of the issuing of the original writ, as well as on the day of its service on him, he was one of the marshal’s deputies for the district of Columbia, and that the writ was not directed to a disinterested person, appointed by the court of the district of Columbia, or by any justice or judge thereof, to execute the same.
    To which plea, the plaintiffs demurred specially; 1st. Because the plea was filed long after the appearance of the defendant, Summers.; 2d. Because, after his appearance to the suit, no objection can be urged to the irregularity of the service of the process ; 3d. Because, if the process was irregularly issued, directed or served, the remedy was by motion, and not by plea; and 4th. Because the process was duly issued, directed and served. *4971 court below adjudged the *plea to be good, and ordered the -1 writ to be quashed as to both defendants. Whereupon, the plaintiffs sued out their writ of error.
    By the 28th section of the act of congress of the 24th of September 1789 (1 U. S. Stat. 87), it is enacted, “That in all causes wherein the marshal, or his deputy, shall be a party, the writs and precepts therein shall be directed to such disinterested person, as the court, or any justice or judge thereof, may appoint: and the person so appointed, is hereby authorized to execute and return the same.”
    
      Swann, for the plaintiffs in error.
    The provision of the act of congress was not intended for the benefit of the marshal, or his deputy, but of the other party. The word “ shall,” in this, as in many other cases, means may. It shall be directed to a disinterested person, if the other party shall request it. But if the direction of the writ to the marshal was an informality, it is cured by the general appearance of the deputy-marshal. Co. Litt. 825. Blenkinson v. Iles, 2 Ld. Raym. 1544. The record states, that there was judgment by default, at the rules, against both defendants, and that at the next court, on the motion of the defendants, by Walter Jones, jr., their attorney, it was ordered, that the suit be returned to the rules for proceedings anew. At the next rules, the record states, that “ the said Lewis Summers, in his proper person, comes and defends the force and injury, &e., and prays oyer of the writ,” &c. So that this plea in abatement was not put in, until after he had appeared by his attorney, and set aside the office-judgment.
    But this is not a matter pleadable in abatement. If a person is improperly arrested, his remedy formerly was by a writ of privilege, but now it is by motion to be discharged. He cannot plead it.
    
      C. Lee, contrá.
    When the cause was sent back to the rules for proceedings anew, it was as if nothing had been done at the rules. Everything was to begin de novo. The defendant, Summers, is to be considered as then appearing for the first time ; and instantly, upon his appearance, he pleaded in abatement in propriá persond.
    
    ^oes not aPPear upon the writ, that he was a deputy-marshal. It could not, therefore, be taken advantage of, upon motion. Or, if it could, yet that is not the most regular way. Upon a motion, the fact must appear by affidavit, and the court must decide the fact. But upon a plea, the fact is put in issue and tried by the jury, the proper tribunal to try a question of fact.
    The law is express and positive ; “ the writ shall be directed ” to a disinterested person. There is no discretion in the court. Where it appears to the court, from the writ itself, that it ought to abate, there the court, ex officio, ought to give judgment against the plaintiff, though the defendant does not plead it in abatement; but it is otherwise, where it does not appear in the writ. 4 Bac. Abr. 44. Where the fact does not appear upon the record, it must be pleaded in due time.
    Washington, J. — The defendant could not set aside the office-judgment, without entering his appearance.
    
      
      C. Lee.
    
    If such, an appearance is to cure all antecedent error, no plea in abatement could be put in, although the office-judgment was irregularly obtained; nor could the defendant take advantage of irregularity, at the rules ; although the court is, by the express provisions of the law, authorized to set aside the proceedings at the rules.
    
      
       See the opinion of the court below, 1 Cr. C. C. 260.
    
   The Court were unanimously of opinion, that the appearance by attorney cured all irregularity of process. The defendant, perhaps, might have appeared in propria personó,, and directly pleaded in abatement. But having once appeared by attorney, he is precluded from taking advantage of the irregularity.

The judgment reversed, the defendant ordered to answer over, and the cause remanded for further proceedings.  