
    George Miln v. Thomas Russell.
    Whether, in the Marine Court, the summons may be served by a person under the age of twenty one years? Quere. 
      
    
    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. 
    
    
      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.
    
      
      
        а) The 117th section of the act of 1813, “ to reduce several laws, relating particularly to the city of New York,' into one act,” (see 2 Rev. Laws, 334,) provides that the process shall be executed by a constable or marshal, “ unless the assistant justice [now district court justice], or the court to be holden before the said justices [now the Marine Court], as the case may be, shall, at the request of the plaintiff, judge it expedient to depute some other proper person, other than the plaintiff, who will voluntarily undertake to execute the same, without fee or reward ; and when any person shall be so deputed, the deputation shall be endorsed on the process, and if issued by an assistant justice, he shall sign his name to such deputation, and if issued out of the court to be holden by the said justices, the clerk of the court, as such, shall sign his name to the deputation.”
      The act of April 7, 1857, “ in relation to the Marine Court," permits the service of the summons by the sheriff, “ or by any other person not a party to the action.” (Session Laws of 1857, vol 1, chap. 295, § 1, p. 599.)
      The act of April 13, 1857, “to reduce the several acts relating to the district courts in the city of New York into one act,” directs that the service in the district or justices’ courts shall be by a constable or by a person not interested in the cause. (Session Laws of 1857, vol. 1, chap. 344, § 14, p. 711.)—Rep.
    
    
      
       See Bray v. Andreas, 1 E. D. Smith, 387; Monteith v. Cash, ib. 412; Andrews v. Thorp, ib. 615; Hogan v. Baker, 2 ib. 22; Paulding v. The Hudson Manufacturing Co. ib. 38. But see, in connection with these cases, Snyder v. Goodrich, ib. 84, and Beattie v. Larkin, ib. 244.
    
   By the Court. Woodruff, J.

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.  