
    DANIEL and JOTHAM HEDDEN, in Co., and Adm’rs of JOTHAM HEDDEN, dec’d. against VAN NESS.
    OS' OERTIOEAEI.
    Administrators of deceased partner, not to be sued with survivors. Return on summons “served on defendant,” error
    
    
      In debt. This iras a proceeding, in the absence of the defendants below, one of whom was dead, and his administrator sued jointly with himself. Judgment for ninety-five dollars debt with costs. The constable returned the summons “ served on the defendant.”
    
    
      Williams, for plaintiff.
    
      
       Vide ante, *63. — Ed.
    
   Kirkpatrick, C. J.

— Among the reasons assigned for the reversal of this judgment, are these, viz.:

That Jotham Hedden, one of the defendants, was dead before the action brought, as appears by the record itself.

That administrators of Jotham Hedden are joined with himself and Daniel Hedden, as defendants.

That the summons, if served at all, ivas served on the day of trial, and the cause tried without the appearance of the defendants, or any of them. And all these reasons, as to matter of fact, are grounded on the record.

The judgment must be reversed.

Rossell, J. — Concurred.

[*] Pennington, J.

— The whole of the proceedings in this cause, are irregular. I shall only note a common error in the return of the constable; that is, that the summons was served on the defendant, without anything more. The act of Assembly, and the reason of the thing requires, that the time and maimer of service must be set out in the return. Hoivever, this may be cured by the appearance of the defendant, and subsequent proceedings, yet in the case of a proceeding by default, in the absence of the defendant, it is a fatal error. I concur in the reversal.

Judgment reversed.

Cited in Murat v. Hutchinson, 1 Harr. 46.  