process upon both of you. On the trial, I must show first, the rendition of the previous judgment, and the amount; and second, that you were partners, and that the money lent, for which the original judgment was recovered, was lent to and for the use of both of you: in this, or some other way, establishing the liabilty of your partner. Having succeeded in establishing this liability, I would be entitled to a judgment against both of you for the amount of the first judgment and interest. No doubt your co-defendant might contest the question of his joint liability, but that is the extent to which he could go. He would not be permitted to introduce evidence to reduce the amount of the claim.(k) Under this statute, judgment may be rendered as well where the defendant, not served with process and not appearing, is an infant, as where he is an adult; and consequently, a judgment thus rendered against an infant defendant would not be reversed on certiorari.(1) We saw, ante, p. 462, that upon the return of a summons not personally served, and the defendant not appearing, that a second summons or warrant should issue. But suppose there are two or more defendants named in the summons, and a personal service is not made upon all of them, what course should then be pursued? The statute makes no provision for such a case. If the action be against the defendants as joint debtors, and not as joint trespassers or tort feasors, the proper course would undoubtedly be for the plaintiff to proceed and take his judgment in the manner above prescribed. And so, if the suit be instituted by process of warrant, and all of the defendants are not arrested; or by attachment, which is served on only a part of the defendants. And it seems to me, in the absence of any statutory provision on the subject, that the same course should be pursued where the action is for a wrong; that is, that the plaintiff should go on and take his judgment against those upon whom process is personally served; or else, if he wishes to obtain judgment against all, withdraw his action against those upon whom process is personally served and take another process, and so on until he can bring all the parties into court by personal service or arrest, as the case may be. The provisions of this statute relate to those only who are joint debtors, legally so called, that is, debtors upon some matter of contract, judgment, &c.; and not to those who have committed a joint trespass, or other wrong;(m) for wrongdoers could always be sued jointly or seve (k) Vid. in relation to this subject 6 John. 59; 1 id. 62; 2 id. 87; 6 id. 98; 16 id. 66; 10 Wen. 630; 6 id. 206; 11 id. 612. (1) 11 Wen. 612. (m) 2 John. 365. 12 id. 434. rally, though, we have seen it was otherwise with joint debtors.(n) And where a justice gave judgment against two joint trespassers, on process served upon one only, the judgment was reversed on certiorari.(o) Though in such case, there can be little doubt that the justice may treat the defendants as severing, and go on to judgment, against the one who is taken, or personally served. (p) And where, in such case, the plaintiff declares against the one served with process, or brought into court, alleging that he committed the wrong with the others named in the process, and he pleads not guilty, or otherwise, and goes to trial upon the merits, this cures all defect in the declaration ;(9) and, in such case, it is perfectly proper for the plaintiff to declare against those who are personally served or brought in, and to disregard the others, or declare that he will not further prosecute as to them; (r) and if he declare against all, stating that certain ones were not served with process, this is only saying, that those who are served committed the wrong with those not served, and is good after verdict ;(s) and would probably be considered mere matter of form in a justice's court, provided the judgment be right. (n) 2 John. 365, and vid. 6 id. 61. (0) 12 id. 434. (p) Id. (q) 2 id. 365. CHAPTER IV. Of the Service and Return of the Original Process. SECTION I. OF SERVING THE SUMMONS. THIS process must be served, at least six days before the time of appearance mentioned therein, by reading the same to the defendant, and (if he require it) by delivering him a copy. This is, in case the defendant shall be found. (a) If not found, the service is, by leaving a copy of the summons at the defendant's last place of abode, in the presence of some one of the family, of suitable age and discretion, who shall be informed of its contents. (b) The six days are computed, as we mentioned before, one day exclusive and the other inclusive, so that a summons returnable on Friday, must be served as early, at least, as the Saturday preceding ;(c) and if returnable in the forenoon of the eighth day of a month, it is well served in the afternoon of the second day of the same month; for the law does not regard fractions of a day in the computation of time, in the service of process, notices and pleadings. (d) The constable is to find the defendant if he can; but he is not bound to look for him at any other than his usual place of residence, or last place of abode. (e) And it is at such place, that the copy is to be left, when the constable cannot find the defendant; and not where he may have been on business, visiting, or may have stopped on his travels, or the like.(ƒ) The constable serving a summons, shall return thereupon, in writing, the time and manner in which he executed the same, and sign his name thereto.(g) (a) 2 R. S. 160, § 15. (b) Id. Ante, 262, 458. 10 Wen. 422. (e) 2 R. S. 160, § 15. Vid. Penning. on Small Causes, 21. (f) Id. and vid. 15 John. 196. (g) 2 R. S. 160, § 16. As this service is, in the one case, to enable the justice to proceed and give judgment, ex parte; or, in the other, may form the foundation of a warrant, or a second summons, the constable should be particular in the service and return he makes. In the case of personal service, the summons should be actually read to the defendant, and in his hearing, unless he expressly waives that formality, or evades the hearing it, by leaving the constable or otherwise; in which cases, information of its contents, or an unsuccessful attempt to read it in the defendant's hearing, would, without doubt, be considered equivalent to a literal compliance with the statute. Where he leaves a copy, he should inscribe it thus: "COPY," O. H. Lockwood, Constable." This is, in order that the defendant may have full notice of the authority by which the process is served. He should inform himself, by proper enquiry, and in the best way he can, of the defendant's usual or last place of abode, as well as the fact, whether the person, in whose presence he leaves the copy, is of the proper age and discretion, (that is, of the age of fourteen years(h),) and a member of the family. The information of its contents should convey a clear idea of the name of the magistrate who issued the summons, the parties plaintiff and defendant, and the time and place of return. In Wheeler v. Lampman, (i) the supreme court held a constable's return of the service of a summons in the following words, "Personally, as the law directs, by me, S. De Grote," to be insufficient, on the ground that no time of service was mentioned. And in a subsequent case,(j) the same court remarked, in speaking of the case of Wheeler v. Lampman, that the time was material, that it might appear whether the service was made six days before the return day. The constable is to return not only the time but the manner of service; that is, whether personal or by copy. But he is not required to return particularly that he read the summons to the defendant, or that he read and delivered a copy, or that he left a copy at the defendant's last place of abode, in the presence of A. B., one of the family, of the age of fourteen years and upwards. A return in the following form, in case of service by reading, is sufficient:(k) "Personally served, February 1st, 1840. Fees, 12 cts. O. H. Lockwood, Const." If a copy is required by, and left with the defendant, it would be well, though, perhaps, not strictly necessary, that the return should be thus: 66 Personally served, and copy left with defendant at his request, February 1st, 1840. O. H. Lockwood, Const." If the service be by leaving a copy at the defendant's last place of abode, a general return of service by copy would undoubtedly be sufficient. Thus : "Served by copy, defendant not being found, February 1st, 1840. Fees, 12 cts. O. H. Lockwood, Const." It is said, that in case of service by copy, the reason why it should appear in the return, that the defendant was not found is, that it is only where the defendant is not found, that this manner of service can be resorted to;() and this ought to appear by the return, as an evidence of record, that the summons was legally served.(m) An appearance before the justice, for the purpose of making an objection to the sufficiency of a return, is not a waiver of the defect. (n) The return must be upon the summons, (o) that is, by endorsement. It would, however, without doubt, be held a compliance with the statute, if the return should be written on a separate piece of paper and attached to the summons. If there are several defendants, some of whom are served personally, and some by copy, the time and manner of service on each should be stated in the constable's return. The above forms can be modified and adapted to such cases. And should he be incapable of making any service upon some of the defendants, they not being found, or he being unable to ascertain their last place of abode in the county, or there being no person in whose presence the copy can be properly left, the constable may state this in his return, as follows: "A. B. and C. D., two of the within named defendants, not found, and I am unable to ascertain their last place of abode in the county." (1) 2 R. S. 160, § 15. (n) 14 John. 481. (m) Penning. on Small Causes, 22, 23. § 16. |