#### John Gulick and others, at the suit of Joseph I. Thompson.

'otodebtorsT joint e tois. (a)

Return of C. C. as to one. •

baiiaTCr °f

Judgment against alL

Affidavit of

Judgment rulTto pl¿d (b)

^IHIS suit was commenced by capias, directed to the g|ier-£f 0f *£[wnier¿on¡*returnable to *February*term 1819, for 2000 dollars. The sheriff returned “ *O. G J.*Herbert,” *’*one of the defendants who lived in the county, and “ *non est>”*as to eack others, all of whom lived out of the county. At *February*term, the plaintiff entered on the minutes of the court, a waver of bail; filed his declaration; and at *May*term, took judgment *by default and writ of inquiry of damages. An affidavit of *J. Gulick,*one ^ie defendants, was read, stating that process had not been served on himself, or other defendants, except *Herbert,*nor had they any notice of the existence of the suit, until he was notified to attend the execution of the writ of inquiry on the *Satwrday*following; that he had frequently seen the plaintiff and *Herbert,*but neither of them ever mentioned the suit. That two other actions had existed between the same parties, and nothing had been said of the demand now set up : that he did not know until the day before the application, what was the ground of claim which the plaintiff pretended; that having discovered what it was, he was perfectly satisfied that the defendants owed nothing, and had a good and full defence.

*333*R. Stockton*moved,

that the interlocutory judgment be opened on two grounds.

1. The judgment had been irregularly entered. *Pat.*254, sec. 3, provides, where several joint debtors shall be sued and any of them, shall be taken and *brought into court,*by virtue of the process, such as are taken and brought in shall answer, and if judgment pass for the plaintiff, it shall be as well against those brought in, as against the other joint debtors named in the *pi'ocess,*in the same manner as if all had been taken, &c. Under this section, the defendant must be brought in; a mere service of process, or return of *cepi corpus,*is not sufficient ; ho must file bail, or be in custody and a committitur be entered. The 50th section of the Practice Act, *Pat.*360, forbids the plaintiff to file his declaration until special bail be filed, the defendant be returned in custody, or be brought in on rule and a committitur entered, unless plaintiff enter a waver of the bail; and in that case, if the sheriff have returned that he has taken the body or taken it into custody, the plaintiff may proceed. This section authorises a waver of bail; but it applies only to the defendant taken, and has no relation to the previous act; lie is, by this, only in court for proceedings against him, not against others. The object, in requiring defendant to be brought in, before they could be proceeded against, was to *ensure notice to them;*a notice more likely to be neglected where he came in voluntarily, by waver of bail. If this view be correct, the judgment is irregular, and must be set aside without payment of *costs. But, 2. The affidavit shews merits, surprise and contrivance. If judgment therefore be regular, it will be opened. 2 *Str.*823, 1242. This is a case, stronger than one of mere merits; being against joint debtors, under the statute, and the judgment by default establishing the partnership, which is a serious matter. The party who was served ought to give notice; his neglecting it, is a reason for the interference of the court, as in cases of ejectment against tenants. 4 *Pur.*1997. The defendants being in no laches and being kept in the dark, ought not to be subjected to costs.

*334*Wall*in answer.

Here is no ground for an allegation surprise or contrivance; the writ was regularly served on the only defendant in the county, and the rest must have notice before the writ of inquiry was executed. If the affidavit shews sufficient merits, the power of the court, will not be questioned. Upon the other point it is to be remarked that, the statute designed to avoid the necessity of actually bringing all the defendants into coqrt, or proceeding to outlawry, and its construction must be decided, by our own statute not by the common law. Now the appearance, or bringing into court may be in several ways, viz. Filing special bail; being in custody; entry of committitur; or *waving bail. Herbert*was therefore in court, and the proceedings against him were regular; and if so, they were regular against all, by the express words of the statute.

(a)

*Ford vs. Munson, ante 93. Harker vs. Brink, 4 Zab. 334. Fleming vs. Freese, 2 Dutch. 263. American Thread Co. vs. Sheldon, 2 Vr. 420.*

(b)

*Truax vs. Roberts, ante 288. Alderman vs. Diament, 2 Hal. 197. Den. vs. Evaul, Coxe 201. Den. Sheppard*vs. --, *2 Hal. 161.*

'By the Court.

The judgment must be opened, on the usual terms, upon the affidavit of merits. The nature of these proceedings furnish peculiar reason why the affidavit should be regarded favourably. It is true that the defendant may appear or be brought into court, under our statute, in a number of ways ; and when he is in, the plaintiff may file his declaration and progress in his cause. But the proceedings against joint debtors, are of a harsh character and sometimes subject them to unfair and unjust judgments. See *Ford*v. *Munson,*page 93.

Judgment opened and rule to plead.