
    Stevens & Pillet v. Richer.
    Service of writ on defendant’s agent and an appearance by attorney and plea, held to be a good appearance of the party.
    A defect in the writ cannot be taken advantage of after a plea to the merits.
    The statute requires that a list of the names of the persons returned by the assessor to serve as jurors shall be set down by the clerk in a book to be kept by lfim for that purpose; and also, set down by him on separate slips of paper, and put into a box marked No. 1; and that a sufficient number of jurors shall be drawn therefrom. The drawing does not take place until the sitting of the court.
    ERROR to Wilkinson county.
    The defendant in error in 1834 brought suit against Stevens & Pillet as partners. The writ was duly served on Pillet, and on John Henderson as agent for Stevens.'
    The defendant, Pillet, pleaded in abatement, that the writ was not tested in the name of Cotesworth P. Smith, the presiding judge of the third judicial district, but in the name of C. P. Smith; to which plea plaintiff replied, and defendant demurred thereto. T_,eave was given the parties to amend, and there was also a demurrer to the amended plea, and respondeat ouster awarded.
    The defendant Stevens, by John Henderson his attorney, filed his plea, and an issue was made up by both defendants. A jury was presented and defendant Pillet challenged the array for causes to wit:
    1. That there was no assessor of taxes for the county of Wilkinson in the year 1833, to take and return a list of all freeholders and householders in said county liable to serve as jurors.
    2. That since the first day of January, 1833, there has not been taken and returned by the assessor of taxes for the county of Wilkinson in manner and form as required by the statutes and laws of Mississippi, a list of the names of such persons, freeholders and householders of said county, liable to serve on juries for said county, out of which list any jurors have been, or could have been drawn in manner and form as the law requires.
    3. At the time the persons sworn on the original venire to serve as jurors at the present term were drawn, there was not among the records or papers of said court, or in the books thereof, any such list of persons so taken and returned by the assessor aforesaid, or any copy of such list out of which the names of said persons so summoned to serve at the present term were lawfully drawn.
    4. That the clerk of the circuit court of said county, and the assessor did not in manner and form as the law requires, compare the book in which had been recorded the names that had been previously deposited in bok marked number one, with the list last returned by the assessor.
    5. That the box out of which the law requires the jury to be drawn, and from which the original venire were drawn, did not contain the names, as the law requires, from which said persons could be lawfully drawn to serve on juries.
    6. That none of the said jurors* empannelled in this case were lawfully returned, drawn; or summoned.
    The plaintiff demurred to said challenges, and the demurrer was overruled as to all except the third cause. Issue was taken on the others, and on hearing, the challenges were disallowed.
    Webber and Dunn, for plaintiff in error,
    contended—
    1. That the plea in abatement was good, and the replication thereto was bad, and the demurrer to the replication ought to have been sustained, and judgment given for defendants. Because the court was bound to know ex officio, the name of the judge of the circuit court at April term, 1833, in whose name the writ ought to have" been tested; and also the demurrer admitted the name of. the judge to be Cotesworth P. Smith, and not C. P. Smith. See Revised Code, p. 106, sec. 20.
    2. That the amended plea was good, because the substantial fact, stated in said plea, to wit, that Cotesworth P. Smith, was the presiding judge, and not C. P. Smith, in whose name the writ was tested, was stated with sufficient certainty, that the same might have been replied to, and the verification in said plea was correct; but if incorrect, was matter of form, and not of substance. Revised Code, p. 106, sec. 20.
    3. That the service of the writ on John Henderson, as agent of the defendant, John Stevens, was bad, and that a plea filed in obedience thereto, did not authorise the trial of the issue as to defendant, John Stevens. Revised Code, p. 125, sec. 94; Gow on Partnership, 177-79.
    4. That the challenge to the array ought to have been allowed, and the demurrer overruled; and when the challenge was replied to, and an issue made up, it ought to have been decided in favor of the challenge. See Act of November Session, 1830, p. 25, sec. 1, 2 and 3.
    5. That the suit was against both Stevens and Pillet, and there was only a legal service of the writ on Pillet; and as there was no verdict against both, the judgment ought to have been arrested. Gow on Partnership, p. 176-9; Revised Code, p. 124, sec. 91.
    6. That the motion for a new trial ought, at least, to have been heard, and ought to have been granted; because the suit is founded on notes made, and payable in New Orleans, in the State of Louisiana, and by comparing the amount of the notes with the amount of the judgment," it will be seen that the verdict is for more than the amount of the notes; and if the motion for a new trial had been hoard, and overruled, it would have been the duty of the circuit court to certify the substance of the evidence before the jury, and whether there was or was not any testimony to prove the interest in the state of Louisiana; and if there was no such evidence, it was the duty of the court below to grant a new trial. 3 Chitty’s Criminal Law, 536; Doug. Rep. 745.
    Story and Norris, contra.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

Amongst the numerous points, raised in the argument of this case, there are only two which are fairly presented for consideration.

First, was it error to give judgment against Stevens, who was not served with process, except by service on his agent, although he appeared and pleaded to the merits? And secondly, did the court err in sustaining the demurrer to the third cause of challenge to the array? There certainly is nothing in the decision on the pleas in abatement, which can be considered as error; and as regards the other causes of challenge to the array, the plaintiff’s demurrer was overruled, and issue táken, and the defendants failed to prove the causes of challenge. They took no exception to the decision of the court on the issue, nor have they shown the testimony offered.

It is true, the plaintiff excepted to the admission of certain testimony; but this cannot avail the defendants. If they were dissatisfied with the decision of the court, they should have embodied all the evidence in a bill of exceptions, but not having done so, we have no means of knowing whether the court decided correctly or not.

The writ was served on John Henderson as agent of Stevens, and although the service was hot good, yet Stevens appeared and pleaded to the merits, which was a waiver of the defect in the service. A party who means to avail himself of a defect in the writ, or the service, must do it by motion or plea in an early stage of the proceeding, and cannot, after pleading to the merits, take advantage of such defect. 1 Tidd’s Prac. 101; 2 Pick. Rep. 592. Although the party appeared by attorney, yet the. appearance was good. We cannot question the authority of an attorney of the court, and especially when it is not even now objected to by Stevens, but by his partner.

The court properly sustained the demurrer to the third cause of challenge. The law requires that a list of the names of the persons returned'by the assessor, shall be set down by the clerk in a book to be kept by him for that purpose, and also set down by him on separate slips of paper, and put into the box marked No. 1; and that a sufficient number shall be drawn therefrom.

There is -no violation of law charged in the third cause of challenge, because it does not aver that the names of the persons summoned were not taken from a list returned as the law directs. It is averred, “ that at the time the persons summoned on the original venire, to serve as jurors at the present term, were drawn, there was not among the records or papers of said court, or in the books thereof, any list of persons so taken and returned by the assessor as aforesaid, or any copy of such list, Sic.”

The law requires that when the list is returned, the names shall be set down on separate slips of paper, and put into the box; but the drawing does not take place until the silting of court. There is no failure to return a list alleged, or that the clerk failed to deposit the names in the box; and that there was no list in the records of the court at the time of drawing the names from the box would not, of itself, be good ground of challenge, when it is manifest the names must have been taken from the list, and deposited in the box, as the law requires.

The judgment must be affirmed.

Smith, J. gave no opinion.  