Quow v. Conlin

31 Vt. 620 | Vt. | 1859

Redfield, Ch. J.

It was held in Edgerton v. Barrett, 21 Vt. 196, that a justice process should not be addressed to an indifferent person for service, but that the deputation must be upon the.-back of the writ, as required by the statute. The present is a proceeding in bastardy, and the warrant was addressed to and served by an indifferent person, and no Objection was made upon that account until the case came into the county court, where this is pleaded in abatement.

The question made was whether this is to be regarded as process returnable in the county court. If so, the form of the process was confessedly correct. But if not, we think this objection should have been taken when and where it was returnable, at the earliest opportunity. In one sense undoubtedly the process is to be regarded as returnable before the justice, and the objection might have been then taken, and if so, and overruled, might properly have been renewed in the county court. But as it was not, and, if it had been, might have been easily remedied, but the defendant entered into the recognizance-without objecting to the regularity of the-arrest,, we think it ought, upon every principle, to be regarded as a waiver of any irregularity on account of the warrant or service. When the recognizance was entered into, the office of the wai'rant seems to have been accomplished. And if it were not in proper form, or not in fact signed by the justice, even, or not legally served, we think the justice has authority to abate it and issue one in proper form, and that the plaintiff has the right to be informed of all formal defects, at this time, to enable her to remedy them with the least expense and delay.

Judgment re versed, _ and judgment that the plea in abatement is insufficient, and that the defendant answer over. Case remanded.