This action was originally brought against James Potter, and upon his death, during its pendency, the scire facias issued within the time prescribed by the act of 1799, Rev. St., ch. 2, secs. 7, 8, 9. Some of the heirs were of age, others were infants. At the return term of the sci. fa. the heirs all appeared — the infants by their guardians, we presume — and entered *Page 97 into the common rule and pleaded not guilty. After the suit had been pending for several terms a motion was made by the defendants that "the court should make an order that the suit had abated, because no declaration had been served upon them." This motion was refused by the court. By the act of 1799 it is directed "that after the death of a defendant the action of ejectment may be revived by serving on the heirs at law, within two terms after his decease, a copy of the declaration, together with a notice to the heirs to appear and defend the suit, and, after such service, the suit shall stand revived." To complete the service in such a case, there is no doubt a copy of the declaration must accompany the notice. This was not done, and there was no obligation upon the heirs to appear. But they did appear, and made themselves parties defendant by entering into the common rule. If they had declined to appear, the court, upon the fact being brought to their notice, would have made an order that a copy of the declaration should be served upon them, or have dismissed the sci. fa. and abated the suit; or if the cause had been proceeded in, without their appearance, and judgment entered against them, it would have been erroneous, not affecting their rights. Love v. Scott, 26 N.C. 79. The defendants came too late; the time was passed for them to make their motion; their appearance cured the defect complained of. There is a proper time and mode for taking advantage of errors in proceedings. If there (123) has been no process, or if it be defective in point or form, or in its direction, service or nature, the defendant may move to set aside the proceedings for irregularity. But he cannot, after he has appeared, take advantage of any such error. His application must be made as early as possible, or, as it is commonly said, in the firstinstance. He cannot, when he has overlooked it, or taken subsequent steps in the cause, turn back and object to it. 1 East, 77; 3 Term, 7; 1 Tidd Pr., 161, 162. For the reasons assigned, we are of opinion that no error was committed. The case of Scott only proves that, in an ejectment, when the defendant dies a sci. fa. and a copy of the declaration must be served on the heirs within two terms after the death of the defendant, or the suit will stand dismissed. It is not sufficient to apply for the process within two terms. If the proceeding attempted in this case could succeed, it would be in the power of an heir to come into court, cause himself to be made defendant without any process against him, enter into the common rule and lie by until after two terms have passed, and then throw the case out of court for the want of a declaration being served as the act directs. This would be a surprise upon *Page 98 the plaintiff and depriving him of a privilege secured to him by the law — that of reviving his suit against the heirs within two terms.
PER CURIAM. Judgment below affirmed.
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