If the objection were open after a full defense on the merits, it would not avail the defendant, for there is nothing in it. The statute does not provide for or intend that a copy of the petition should be served. The purpose was to give a summary remedy on motion at the same term at which the petition was filed. But to prevent surprise, it requires the notice in writing of the intention to file the petition. That was just the course in the court of chancery before the statute required the master to send a copy of the bill with the subpoena. Before that the plaintiff sued out his subpoena often before his bill was filed; and the defendant being served with the process, brought the bill for himself if he wished one. In respect to petitions of this kind, we believe a practice has grown up of serving a copy of the petition in order to obviate possible objections for omissions in the notice. Though unnecessary, it may thus be convenient to the petitioner to serve the copy. That is at his own expense, and can by no possibility do any wrong to the defendant.
PER CURIAM. Affirmed.
(141)