¶1— Vermilya and Stewart commenced an action of assumpsit against Davis before W. G. Johnson, a justice of the peace, and recovered judgment against the defendant by default. On the application of the defendant, the judgment was opened and a new trial granted. A ' change of venue was awarded on the affidavit of the defendant, transferring *159the cause before J. Johnson, another justice of the peace. He issued a summons to the defendant, returnable on the 16th day of September, 1842, “ at 10 o’clock, p. m.” On that day the parties appeared ; and the defendant making no defence, judgment went for the plaintiff. The defendant appealed, moved the Circuit Court to dismiss the action on account of irregularity in the proceedings before justice J. Johnson, and the motion prevailed. Judgment for costs against the plaintiff.
¶2The irregularity complained of is, that the summons was returnable at an improper time of the day, to wit, 10 o’clock, p. m.
¶3We think the appearance of the defendant before the justice, without objecting to the process, was a waiver of all right to object to it in the Circuit Court; and that an error was committed by dismissing the action.
¶4— The judgment is reversed with costs. Cause remanded, &c.