
    The State v. Williams.
    
      Monday, November 24.
    A writ, issued in A. county against three persons, was returned “ not found ” as to two of them, and the return suggested of record. The other defendant pleaded in abatement, that all the defendants were, when the writ issued, and still were, resident in B. county. Held, that the plea was bad.
    ERROR to the Marion Circuit Court.
   Blackford, J.

— This was an action of debt commenced by the state against William Williams, Junior, William Williams, and Jonathan Williams, in the Marion Circuit Court. The suit is founded on the joint and several bond of the defendants. The declaration was filed on the 18th of October, 1844; and, at the next term of the Court, the plaintiff suggested of record that William Williams and William Williams, Junior, had not been found as appeared by the return of the writ.

The defendant, Jonathan Williams, then pleaded in abatement, that neither he, nor either of the other defendants, resided in Marion county when the writ issued, nor had any of them ever resided in said county; and that they were, when the writ issued, and still were, residents of Morgan county, &c.

Demurrer to this plea, and judgment for the defendant.

This judgment is wrong. Upon the return of the writ executed on one of the defendants, and “not found” as to the others, the plaintiff having entered a suggestion of the return of “ not found,” could, by statute, proceed against the defendant alone on whom the writ was served. R. S. 1843, p. 675. And it was of no consequence where any of the defendants resided. The statute relied on by the defendant has no apP^ca^on to ^is case- ^ auth01’izes a plaintiff to proceed against a defendant not resident in the county where suit is brought, provided process be executed on a defendant in the suit resident in that county. R. S. 1843, p. 674. But in the case before us, the plaintiff did not attempt to proceed against William Williams and William Williams, Junior, resident in Morgan county. On the contrary, he showed, by the suggestion he entered, that it was not his intention to do so. The demurrer should have been sustained.

H. and H. Brown, for the plaintiff.

W. Quarles, J. II Bradley, and W. W. Wick, for the defendant.

Per Curiam.

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