Miln v. Russell — 3 E.D. Smith 303

Majority

p. 303

George Miln v. Thomas Russell.

Headnote

Whether, in the Marine Court, the summons may be served by a person under the age of twenty one years? Quere.^[1]

Objection to the manner of the service of the summons in the Marine and Justices’ Courts, is matter in abatement only, and is waived by pleading to the merits.^[2]

p. 304

This was an appeal by the defendant from the Marine Court. The alleged grounds of the appeal were, principally, that the person by whom the summons was served, and who was deputed for that purpose, was under the age of twenty one years ; that the deputation, signed by the justice, did not state that it was made at the plaintiff’s request, nor that the individual was a fit and proper person; and that such deputation was not endorsed upon the summons or process itself.

These objections were taken in the court below and were overruled, whereupon the defendant pleaded to the merits and proceeded to trial.

Peter Miol/oey, for the defendant. ;

Ghcn'les Donohue, for the plaintiff.

In this case the defendant on the trial objected, first, to the service of the summons, insisting that it was only served by a person under the age of twenty-one years, and that such a deputation was not lawful. Had he rested upon his objection in that respect, as well as to the manner of the appointment, we incline to the opinion that the judgment would have been reversed; but all his objections to the deputation and service of the summons were matter in abatement only, and being overruled, they were waived by pleading to the merits. We have repeatedly held that all defects in the summons and in the service thereof are waived by going to trial upon the merits, and this, we apprehend, was long since settled.

The judgment must be affirmed, with costs.

Judgment affirmed.