Murphy v. Crain

59 N.H. 244

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1879
• Status: Published

Opinion

Smith, J.

Whether the warrant could be used again after the respondent had once been discharged without a trial, it is unnec essa,ry to consider. If the objection could be interposed, it should have been made when the respondent was brought before the magistrate. Any objection to the exercise of jurisdiction intended for the benefit of a party must be taken by him at the earliest practicable opportunity after he has become aware of it, or he will be deemed by his delay to have waived it. Warren v. Glynn, 37 N. H. 340. The plea of the general issue alone is a waiver of such defence. Hanson v. Hoitt, 14 N. H. 56. Appearance by the respondent before the magistrate and pleading to the merits, with full knowledge of the alleged defect and with full opportunity to avail himself of the objection, cured the defect in these proceedings, and the objection now comes too late. Collins v. Conners, 15 Gray 49. See, also, Hanson v. Hoitt, 14 N. H. 56; Rogers v. Odell, 39 N. H. 417; Corey v. Sumner, 52 N. H. 479; Murphy v. Spence, 9 Gray 399; Hawes v. Gustin, 2 Allen 402.

The objection that W.’s commission as justice of the peace had expired cannot be considered, unless the case is amended to show the fact.

Exceptions overruled.

Dob, J., did not sit: the others concurred.