We have often heretofore held that an appearance by the defendants, and pleading to the merits, is a waiver of defects in the form or service of the summons. (Lighter v. Haskins, Nov. 1851; Bray v. Andreas, 1 E. D. Smith, 387; Monteith v. Cash, ib. 412; Cushingham v. Phillips, ib. 416; Andrews v. Thorp, ib. 615; Hogan v. Baker, 2 ib. 22; Paulding v. The Hudson Manufacturing Company, ib. 38.) The defendants, whether they were rightly proceeded against by summons or not, having appeared, and without objection to the mode in which their attendance was *580required, and having voluntarily pleaded to the complaint, forming thereby an issue on the plaintiff’s claim, .must be deemed to submit themselves to the. jurisdiction of the court; and, even if the process was void, which we by no means intend to say, they are now precluded from raising that objection ; for, if the process be deemed void, their act is tantamount to- a consent to proceed as upon an action, entered by agreement without process. (2 R. S. p. 383, § 111.)
The only other question involved in this appeal is, whether there was proof that the segars, for the taking of which the action was brought, were taken by the defendants, or by their authority; or, whether there was any error, in respect to this point, in the charge of the justice before whom the cause was tried, which calls for a reversal.
I apprehend that no unbiased mind can fail to infer from the whole case, as developed by the evidence, that the taking was by the authority as well as for the benefit of the defendants, and I think, also, that the evidence was sufficient in law to warrant such an inference, although it is a matter of some surprise that more specific and positive proof was not furnished, when it might apparently have been obtained without difficulty. Still the jury have found that the taking was by the authority of the defendants, and the evidence in support of that finding is briefly this:
A writ of replevin-in favor of the present defendants, against Clarke and Eowe, was issued to the sheriff. An undertaking was executed by them, by which they became bound for the prosecution of the suit, and for the return of the property, if such return should be adjudged and for the payment of whatever they might be adjudged to pay. Upon the receipt of the writ and of this undertaking, the sheriff, by the direction of a clerk in the office of the attoimey by whom the writ was issued, seized and took from the possession of the present plaintiff the goods in question.
If the evidence stopped here, the writ itself not being produced, nor anything showing that the personal property, mentioned in the undertaking, was the identical property which *581the sheriff seized, the plaintiff must have failed; for, to this point in the evidence, it does not appear that the present defendants contemplated the taking of the property which was taken, and there heing no proof that the defendants gave any authority to the attorney or his clerk to take this particular property, they would not be bound by the levy and taking of the property tortiously taken.
But it appears by the evidence that, after the sheriff had taken the identical property now in question, upon a process issued in their names, the defendants, in order to entitle themselves to an actual delivery to them of the property seized, came forward voluntarily and justified as sufficient sureties for the performance of the terms of the undertaking. This, I think, was an adoption of the act of the sheriff in taking these identical goods, and warranted the inference that they directed such taking. It was, at least, prima facie evidence that the attorney and his clerk and the sheriff* were acting under their authority, and called upon the defendants to show, if they could do so, that the taking was without their authority, and that such undertaking was given and such justification took place with a view to the seizure of other and different property.
In the absence of any evidence, whatever, that any other property was mentioned in the writ, or referred to in the undertaking, and with the prima facie case thus made by the plaintiff, I do not perceive that it was error in the justice to charge the jury that “it appeared from the bond” (undertaking and justification), “that the defendants were indemnitors for the taking.” This was plainly true if the jury found that the particular property seized was taken by the defendants’ authority or direction, and that question he left to the jury.
I think the judgment should be affirmed.
Judgment affirmed.