
    HERBERT et al. vs. VARNER.
    [Action on pbóMissoby note by payee against makes. ]
    •L Matters affecting validity of service must he pleaded. — Matter of defense affecting the validity of the service of the process must be pleaded in the court below, in order that the rulings of the court thereon may be tevised by the appellate court.
    Appeal from the Circuit Court of Lowndes.
    Tried before the Hon. George Goldthwaite.
    This action was brought by the appellee against the appellants, as makers of a promissory note, payable to the appellee, and was commenced 8th October, 1862. Upon the summons and complaint was endorsed the following: “ I accept service of the within, and wave all irregularities, October 14th, 1862. (Signed.) L. E. Lloyd.” “Eeceived in office, October 10th, 1862. Executed, October 14th, 1862, by leaving copies of summons and complaint with defendants, Thos. S. Herbert, E. H. Cook, and E. H. Herbert. (Signed.) L. E. Lloyd, sheriff.” Judgment was rendered against the defendants at the spring term, 1867. As the bill of exceptions states, “ it was admitted that said Lloyd, (who was one of the makers of said note,) at the time of the issuance of the summons and complaint, and at the time of its service, was sheriff of the county. At the fall term, 1866, a motion was entered on the motion docket, to set aside the service and quash the-writ, on account of the irregularity of the service. The counsel of defendants stated that the name of W. E. Witcher was entered on the trial docket at the said fall term, 1862, for the purpose of moving to set aside the service of the process, and to quash the writ, and for no other purpose ; and said Witcher was sworn, and defendants offered to prove by him, that such was the purpose for which the appearance was entered; and that at said fall term, 1862, of said court, he then made a verbal motion to set aside the service of said process, and to quash the writ, and that said motion was not then decided; but the case was continued with said motion pending, and said motion was not again called up until the fall term, ] 866, when the case being again called, the motion was again renewed, and the. judge presiding required the motion to be put upon the motion docket, which was accordingly done, and continued to this term. The court refused to hear the evidence of said Witcher, and refused to hear the motion to quash, to which ruling of the court defendants excepted, and appealed to this court, and assigned the same as error.
    Clements & Williamson, for appellants.
    J. Buell, contra.
   A. J. WALKER, C. J.

The matter of defense set up by motion affected the validity of the service of the process, and the ruling of the court upon it could only be revisable here when it was pleaded in the court below. — Nabors v. Nabors, 2 Porter, 162; Roberts v. Beesan, 4 Porter, 164; Mitchell v. Allen, 2 S. & P. 247 ; Sawyer v. Price, 6 Ala. 285.

Affirmed.

Judge, J., not sitting.  