
    No. 59.
    Luke Bliss, plaintiff in error, vs. Seth C. Stevens, defendant in error.
    
       When it appears by a liberal construction of the acknowledgements of service, and waivers of further service on the papers, that it was the intention of the defendant’s counsel to dispense with service of the citation, the writ of error will not be dismissed.
    
       The true construction of the Act of 1851, is, that it requires the writ of error, original citation and notice, to be filed and served, and the bill of exceptions to be filed only.
    Motion, to dismiss the writ of error.
    Counsel for defendant in error moved to dismiss the writ of error, upon the grounds :
    1st. Because there was no service of the original citation.
    2d. Because there was no service of the original bill of exceptions, as contemplated by the Act of 1851.
    
      • The facts were these : Upon the original citation was endorsed the following acknowledgement of service :
    “ April 28th, 1858.
    Service acknowledged of the within notice of the signing'and certifying of the bill of exceptions, and farther service waived.”
    LYON & ’CLARK, Defendant’s Attorneys.
    Upon the original notice was endorsed the following acknowledgement of service:
    “ 28th April, 1853.
    We acknowledge notice of the signing and certifying of the bill of exceptions, and farther service waived.
    LYON & CLARK, Defendant’s Attorneys.”
    No copy of the bill of exceptions was served upon the defendant, nor was service acknowledged or copy waived.
    Lyon & Clark, for the motion.
    Andrews & Strozier, contra.
    
   By the Court.

Starnes, J.

delivering the opinion.

Liberally construing the record and the acts of the parties in this case, as we are always inclined to do, for the purpose of insuring to every case a hearing upon the merits, we think that the entry upon the citation, acknowledging the signing and certifying the bill of excepttons, and waiving further service, which entry is signed by defendant’s counsel, must be held, (as it was no doubt understood by the defendant’s counsel to be,) a waiver of all farther service; and as a consequence, of service of the citation. It may thus be regarded as a compliance with the rule.

The construction which we place upon the Act of 1851, is, that the writ of error, original citation, and notice shall be filed and served, and the bill of exceptions filed only; and that it was not the intention of the Legislature to make any change of the law, so as to require service, of the bill of exceptions.

The motion is refused.  