Watson v. Morton , 18 Abb. Pr. 138 ( 1864 )

By the Court.^* —Morgan, J.

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' aver that such instruments have been duly stamped. (See Daniel's Ch. Pl. & Pr., 418.) It was never necessary to imitate the seal upon the copy of process when served. (Clutterbuck a. Wildman, 2 Tyrwhitts Ex. R., 276; 3 Chitty’s Gen. Pr., 251.) hi or was it necessary in serving- the copy, though usual, to show the original process unless demanded. (Tidd's Pr., 148.) The defendant cannot take it for granted that the original summons is not properly stamped to give it validity, merely because the copy served takes no notice of it. The summons is required to be filed with the clerk of the court within ten days- after the service thereof (§416 of the Code), and it can then be seen whether or.not it is properly stamped. If it ■ can be shown, however, by affidavits, that it was not properly stamped before the commencement of the action, it will be set aside on motion; and the objection will be taken by the court without a motion, whenever the fact comes to its knowledge. (Daniels Pl. & Pr., supra, 1188.)

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.