Smilie v. Runnels

HutchinsoN, J. delivered the opinion of the court. The whole question rests Up'On die sufficiency o'f the officer’s return*.The defendants do not contend for the right to contradict that re-turn by a plea in abatement, nor does'the plaintiff contend that the clerk in the store with the ordinary powers of one in that employment*, could bind the defendants by any acceptance of service of the writ, or Waiver of a copy required By law, or any agrees'ment to accept one copy for' both defendants. The return, then, shows that the officer delivered a copy to the defendants. He says nothing about a copy for'each defendant.The legal inference is, that he delivered one copy where he took the property, 'or with One defendant. And no inference can be drawn from that return that more than one copy was left. Indeed such inference is negatived by 'the officer’s procuring the clerk to agree to accept one copy for both defendants. This return ’ must have borne the same construction had there been twenty defendants, and they had resided not only in different towns, but in different counties, or in different states. If the effect of the judgment in this case had only been to affect and bind the joint property of the two defendants, and could never be used against their bodies, nor against their individual property, there would be no impropriety in establishing such a return as this-. But the case is otherwise. The judgment would stand against the defendants individually, as well as in their partnership character. The statute refered to by the defendants, clearly requires a copy to be left with each defendant, in order to make the service [151] legal. Alter a legal service is made, notice i n fact to one partner in a suit upon contract, may be sufficient notice to both. But the service must be regularly made on both. Such have been the repeated decisions in this state ; and such they ought to be. The judgment of the court is that the writ abate and the defendants recover their cost. , Mead and Beardsley, for plaintiff. Hunt, for defendant.