
    Chester Hull, Jr. vs. Joseph Joesbury.
    The defendant sued by capias in tort, one appears and puts in special bail and the other returned non est inventus, and the declaration is drawn and served only against the defendant appearing. A motion to set aside the declaration on the ground that’it does not conform to the capias and that one defendant in an action of tort in such a case can not be declared against alone, will be denied with costs.
    
      Motion by defendant to set aside declaration for irregularity.—The capias was issued against Joseph Joesbury and Samuel Lugard, for libel, and an order thereon endorsed requiring the defendants to be held to bail. Joesbury appeared by Adams & Watson, his attorneys, and put in special bail in the cause, “ Joseph Joesbury impleaded with Samuel Dugard ads. Chester Hull Jr. On the 8th May, 1845, Adams & Watson were served with p declaration against Joseph Joesbury alone. The capias was not served on Dugard.
    R. W. Peckham, Defts Counsel. Adams & Watson, Defts Attys.
    
    H. H. Martin, Plffs Counsel. Wi. Duer, Plffs Atty.
    
   The defendant moved on the ground that the declaration must conform to the capias. That one defendant only could not be declared against in tort, where the capias was returned personally served on him, and a return of non est inventus as to the other.

Jewett, Justice.

Thought differently—and denied the motion, with costs.  