The cases of Stone v. Sprague and Meserve v. Hicks are cited for the purpose of showing that the signatures to the petition in question are not sufficient. The position taken by the defendants is, that the petition in question is to be considered as if it had no names written upon it; and that in all such cases, whenever it appears by inspection that a writing upon the files of the court is in pencil, it must be treated as blank, and any proceedings dependent upon it must be void. To support this view, the cases above mentioned are cited.
It seems to me that the learned judges who delivered the opinions in those cases would have been very much surprised at such a proposition. The head-note in the case of Stone v. Sprague is as follows: "An endorsement in pencil of the officer's name on the summons left with the defendant, whose estate is attached in mesne process, is not sufficient;" and the learned judge who delivered the opinion says, — "We think the legislature never intended that these endorsements should be made except in a permanent manner, that would effectually secure the object of the law, and that an indorsement in pencil, such as appears in this case, is not sufficient."
In those cases the question came up on a plea in abatement for defective summonses, the indorsements not appearing at the time upon the summonses. The matter being brought to the attention of the court in this way, and the quality of the pencil writing being made apparent by the trial, such indorsements were held to be insufficient. But after all, the gist of the matter seems to be, that the writing must be permanent, and it is pencil writing, which had apparently disappeared in a few days, which is held insufficient.
It appears to me that the court cannot be expected to determine on a simple inspection the question of the permanence of a writing. It should be brought to the notice of the court by a plea in abatement; and, on issue framed and trial of the fact, the question of permanence may be determined.
The doctrine of the cases of Stone v. Sprague and Meserve v. Hicks appears to be, that by law it is required that writings used in legal proceedings should be of a permanent nature, and not like the pencil writings brought in question in those cases; and that when this is made to appear on the trial of an issue framed on a plea in abatement, writings not permanent would be held insufficient. But this is by no means holding, that at any stage of the proceedings the court can, on simple inspection, adjudge a proceeding void for such cause, which the defendant's argument seems to require. *Page 247
But it seems to me that a writing such as at common law would be held sufficient — and this writing appears to be such — ought to be held to give the court jurisdiction; and that any parties interested to object should be held to bring it to the notice of the court by plea in abatement, or motion to dismiss, made within the time required for other pleas in abatement, and that this motion being made at the second term, and after expensive proceedings had been had must be denied.