
    MELVIN et al. vs. CLARK, Adm’r.
    [action by payee against MAKES OE PBOMISSOBY NOTE ; DISCONTINUANCE.]
    1. Continuance on account of bankruptcy; when will be presumed to be rightfully done. — The continuance of a cause as to some of several defendants, on their plea of bankruptcy, will be presumed to have been properly done, unless the contrary is made to appear.
    2. Plea in abatement; what can be taken advantage of only by.— The objection that the initial only of the first name of a defendant is set out in the summons and complaint can only be taken advantage of by plea in abatement.
    3. Service; what does not amount to. — A return by the sheriff, “executed by leaving a copy at J. F. Reynolds’,” shows no service at all.
    Appeal from Circuit Court of Hale.
    Tried before Hon. M. J. Saeeold.
    Action by payee against Thos. W. DeYampert, Lewis Turpin, B. S. Melvin and J. E. Reynolds, makers of a promissory note. At the spring term, 1869, as appears from the judgment entry, “ the plea of bankruptcy having been filed by the defendants DeYampert and Turpin, it is considered that this suit be continued as to them; and the defendants, J. E. Reynolds and B. S. Melvin, having been solemnly called, and came not, but wholly made default, it is considered by the court that plaintiff recover,” &c., &c.
    The plea of bankruptcy does not appear in the record.
    The return by the sheriff on the summons and complaint for J. E. Reynolds, was as follows :
    “Executed by leaving a copy at J. E. Reynolds’, Sept. 23d, 1868. J. S. Williams, Sheriff.”
    In the summons, complaint and record, Melvin and Reynolds are described only by the initials of their first name.
    Melvin and Reynolds now appeal, and assign for error—
    1st, That the court rendered judgment against Melvin and Reynolds by default, on their initials only, and because their full names no where appear in the process, pleadings, or record.
    
      2d. That the court erred in rendering judgment against Reynolds, no summons and complaint having been served on him.
    3d. That the court erred in rendering a judgment against Melvin and Reynolds, after granting a continuance as to DeYampert and Turpin.
    Jno. C. Reid and W. T. Hendon, for appellants.
    A. A. Coleman, contra.
    
   B. F. SAFFOLD, J.

When it appears from the record that a cause against several defendants was continued as to some of them on their plea of bankruptcy, this court will presume that sufficient evidence of the truth of the plea was shown to the court, unless the contrary is made to appear.

The objection that the initials only of the first names of two of the defendants were set out in the summons and complaint, can only be made by plea in abatement, setting out the full names.— Cantley & Co. v. Moody, 7 Port. M3.

The return of the sheriff, “ executed by leaving a copy at J. E. Reynolds’,” shows no service at all of the summons and complaint upon Reynolds. — Rev. Code, § 25l4.

For this error, the judgment is reversed and the cause remanded,  