Citation Numbers: 18 Abb. Pr. 138
Judges: Morgan
Filed Date: 6/15/1864
Status: Precedential
Modified Date: 1/12/2023
I think it is the usual practice to put a memorandom upon the copy of the summons as served, to indicate that the original is properly stamped as required by the Act of Congress. But there is no authority which requires this to be done. Although stamping is required in England, by sundry Acts of Parliament, to give validity to a variety of instruments, it is not necessary, nor is it usual, in pleading, to'
As the original summons was duly stamped in this case, the service of a copy thereof without notice of the stamp would be an irregularity, at most. It is treated as such by the judge at at special term. As an irregularity, it was cured by the general appearance of the defendant; and the motion might have been denied upon that ground. (See 1 Abbotts' Dig., 190, sub. IV.)
In my opinion, however, there is no authority for requiring the copy to indicate that the original was duly stamped; and for this reason I think the order at special term should be reversed with $10 costs to the plaintiff on this appeal.
Order accordingly.
Present, Morgan, Bacon, and Foster, JJ.