The case of Day v. Wilber, (2 Caines' Rep. 134.) and the uniform decisions since that time, have established the rule, that if the defendant neglects to take his exception to the first process, but joins issue upon the declaration of the plaintiff, in the court below, upon the merits, he is deemed to have waived all objection to the process, and the cause stands upon, the same footing as though the parties had voluntarily joined issue, and gone to trial without process.
Upon the 2d point, the decision in the.case of Falls & Smith v. Belknap, (1 Johns. Rep. 476.) is in point against the plaintiff in error. It is true, that the penalty, if recovered,, is to be applied for the support of the poor of the town in which the witness is liable to be taxed for that object; but such an interest is too remote and contingent to exclude the witness.
Judgment affirmed.