¶1This suit, which was founded on contract, was commenced before a justice of the peace, and was taken by appeal to the Circuit Court.
¶2The justice’s transcript is to the following effect:
¶3James M. Cornwell, by his next friend, George H. Cornwell, v. Moses Usher.
¶4This action is founded upon an account. Damages $30.00.
¶5Be it remembered that on this 27th of June, 1850, the *211plaintiff filed in my office the following account as a cause of action, to-wit:
¶6“ Moses Usher to James M. Cornwell, Dr. To three months’ work at ten dollars per month, $30.00. June 27th, 1850. James M. Cornwell.”
¶7Whereupon a summons issued made returnable on the 2d of July, 1850, at ten o’clock, A. M., and one subpoena for plaintiff’s witnesses. Summons returned indorsed served 28th June, 1850, by copy; also subpoena returned served. The parties appeared; and the cause being called, the witnesses sworn and examined, and all things touching the same fully heard, it is considered that the plaintiff recover of the defendant the sum of 26 dollars and 90 cents damages, and 3 dollars and 36 cents costs, with interest till paid, and the defendant in mercy, &c. Given under my hand and seal this 2d of July, 1850 Wesley Davis, J. P., [seal].
¶8This transcript, duly certified, was filed in the clerk’s office on the 17th of July, 1850. At the next ensuing term of the Circuit Court, to-wit, in September, 1850, the parties appeared, and the defendant moved the Court to dismiss the cause.
¶9The grounds of the motion were, that the plaintiff was an infant; that no prochein amy had been appointed for him by the justice; and that no person had consented in writing to act as prochein amy for the plaintiff.
¶10It was slhown that the plaintiff was an infant; that, on the day the summons of the justice issued, George H. Cornwell filed with the justice his written acknowledgment as security for costs; and that the summons required the defendant to answer the plaintiff, by his next friend George II. Cornwell, of a plea, &c.
¶11The motion was overruled.
¶12The cause was afterwards tried by the Court, and judgment rendered for the plaintiff for 26 dollars and 90 cents, with costs.
¶13The overruling of the motion to dismiss the suit is the only eiTor assigned.
¶14We think that the naming of a person as prochein amy, *212by the justice, in the summons, may be considered as an appointment of such person as prochein amy.
¶15We have further to inquire whether the fact that the prochein amy had not, in terms, consented in writing to his appointment, required the Circuit Court to dismiss the suit.
¶16The statute says that, whenever requested, the justice shall appoint some suitable person, who will consent thereto in writing, to be named by such [infant] plaintiff, to act as his next friend in such suit, who shall be responsible for the costs therein; R. S. p. 869.
¶17In this case, the prochein amy agreed in writing to be responsible for the costs; but the defendant says that such’ agreement is not a written consent to his appointment.
¶18This is, certainly, a very technical objection, and one which, at all events, does not show the summons to be a nullity. The omission of the written consent in question, was, at most, but a mere irregularity, which the defendant might subsequently waive, or take advantage of, as he should think proper. If, however, he wished to object to the irregularity, he should have made the objection in the first instance. Here, the defendant appeared to the suit before the justice, went to trial on the merits, and suffered judgment to be rendered against him, without making the objection. The Circuit Court were not informed, by affidavit or otherwise, that the defendant did not know of the omission complained of, whilst the suit was pending before the justice. The Circuit Court, under these circumstances, were justified in refusing to dismiss the suit. The objection, if otherwise available, was made too late. It had been waived by the proceedings before the justice.
¶19The judgment is affirmed, with 5 percent. damages and costs.