
    Carter v. Spencer.
    To authorize a judgment by default in the Probate Court against an administrator, under the E. S. 1843, he must have been served with process at least twenty days before the first day of the term.
    Where the declaration consists of a special and the common count, and the defendant has made default, the common count should be dismissed, or the damages assessed by a jury; otherwise the judgment will be erroneous.
    ERROR to the Cass Circuit Court.
    
      Tuesday, May 24.
   Perkins, J.

Assumpsit by Spencer against Carter, administrator upon the estate of Tipton, deceased, in the Cass Probate Court. The declaration contained a special count on an order for the payment of money, and the common counts. Process was served on the defendant less than twenty days before the first day of the term of the Court to which the writ was returnable. There was a judgment for the plaintiff on the default of the defendant, and an assessment of damages by the Court.

Process should have been served twenty days before the first day of the term of the Court at which judgment was rendered. Jones v. Roland, 8 Blackf. 272. This case is under the statutes of 1843. As to the common counts a nolle prosequi should have been entered, or the damages should have been assessed by a jury. Starbuck v. Lazenby, 7 Blackf. 268.

D. D. Pratt, for the plaintiff.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  