Morse v. Calley

By the court. The question intended to be submitted to our decision in this case, cannot be decided in this shape. All defects in the service of a writ, which are not apparent on the face of the record, are cured by an appearance, unless exception is taken to the service by a regular plea in abatement. 4 N. H. Rep. 142, Tilton v. Parker. The manner in which the question, intended to be raised in this case, is brought before us is altoget her irregular. It does not appear, that any plea in abatement has been filed in the case, and we are of opinion that we cannot be called upon to decide, whether the matter stated in a case agreed, would, if regularly pleaded, be sufficient to abate a writ. There is another objection to the decision of the question, intended to be raised, in this case. The writ was served by a person, de facto, exercising the office of a deputy sheriff in this county, and the question whether he was de jure a deputy sheriff, cannot be settled in a cause to which he is not a party. 3 N. H. Rep. 413 ; 9 Mass. Rep. 231.