“ The original jurisdiction of the circuit court was invoked upon the sole ground of diversity of citizenship. The defendant assailed the jurisdiction of that court because of an alleged defective writ, and also because of the alleged defective service of that writ. Such a question of jurisdiction could be brought by writ of error to the circuit court of appeals along with other questions arising upon the trial of the merits of the case. ”

“ It is objected by the defendant that Folsom was not a proper party on whom to serve the writ. Sections 3948 and 3949 of the Vermont statutes are cited to that effect. It is provided by § 3948 that the lessee of a railroad, not resident in that state, shall appoint a person resident in the state upon whom service of process may be made; and, by § 3949, if the lessee do not appoint such agent, then the service may be made by leaving a copy of the process with a station agent or depot master, in the employment of such trustee or lessee. ”

“ To this replication the defendant demurred. The demurrer was overruled. Without going into the question whether the motion to dismiss, and also the demurrer, were not waived by pleading to the merits after the motion had been denied and the demurrer overruled, we think the facts sufficiently appear that Folsom, the division superintendent, was an agent within the Vermont statute, upon whom attachment process, such as was issued in this case, might be regularly served. ”