Butts v. Francis

Hosmer, Ch. J. In an action on joint contract, service must be made on all the persons named in the writ, or it is abateable. If there are two defendants, an attested copy, when the notice is not by a personal summons, must be left with each of them, or at the place or places of their usual abode. They may jointly plead a defect of service in abatement; because it is a defence, in which they have a joint interest. The cases of joint trespassers and of a prosecution qui tam for an assault, rest on a different principle. It is at the option of the plaintiff to institute his suit jointly or severally; and if one is not legally notified, the other has no cause of complaint. The case of Hallam & al. v Mumford, 1 Root 58., in which it was adjudged, that one defendant cannot take advantage of the other’s minority, to avoid a note, proceeded on the principle, that the person within age, has a right to waive his privilege of infancy; which is entirely incompatible with a supposed right in the co-promiser, to insist upon it, by separate plea of abatement. With respect to, the sheriff’s return, it was prima facie evidence of the facts contained in it, but not conclusive; and it only increased the weight of testimony, requisite to support the defendant’s plea. The other Judges were of the same opinion. Judgment reversed.