¶1The defendant in this case objected to the service of the summons, upon the ground that the same was served by a person deputed by the justice, who was not a constable.
¶2This objection was overruled by the justice. He then in his answer renewed the objection, and also answered as to the merits. The justice again disregarded the objection to the jurisdiction, and the cause was tried upon the merits.
¶31st. We have heretofore held, that where a defendant pleads to the jurisdiction, that is a plea in abatement; and if he wants to have that question reviewed, he cannot plead to the merits. And that if a defendant unites, in one plea or answer, matter in abatement and also matter in bar, the court may disregard *414the former, and try the cause upon the merits. The one defence is inconsistent with the other, and the judgments to he rendered are different. (Lighter v. Haskins, Nov. G. T. 1851.)
¶42d. The plea to the jurisdiction was also properly overruled. The statute expressly authorizes the justice to make the deputation, either in the justice’s court or marine court, and the objection taken by the defendant in the court below was entirely groundless. (2 R. L. 1813, p. 384, § 117.)
¶5Judgment affirmed with coats.