
    Benjamin D. Harris vs. William M. Gwin.
    The want of service or insufficient service of process, is cured by the appearance and plea of the party.
    G. filed his bill, alleging, that a judgment at law had been obtained against him as indorser of a note, on which the maker and other parties were sued; that the service of process was not in accordance with the statute, and he had no knowledge of the pendency of the action ; that two attorneys filed a plea for him, and not employed by him, and without his authority or knowledge, and that due notice of the protest was not served upon him; the bill did not set up any facts that if proved, would constitute a good de-fence at law ; it did not aver that the attorney was irresponsible in damages; one of the attorneys who filed the plea, proved that the plea was filed either by himself or his co-attorney at the request of the principal for all the parties to the note ; the deposition of the other attorney was not taken; held, that on this state of case the bill must be dismissed,
    In error from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    William M. Gwin filed his bill in the superior court of chancery, against Benjamin D. Harris, in which he charges, that it appears from the records of the circuit court of Hinds county, that a judgment at the November term, 1838, was rendered in favor of Harris, against Gwin, Benjamin E. Phillips and William Trahern, for six thousand four hundred and fifty dollars and thirty-one cents besides costs; this judgment was rendered on a note drawn by Benjamin W. Edwards for six thousand dollars, payable to, and indorsed by Benjamin E. Phillips, William Tra-hern, William H. Washington, George W. House, Gwin, and Charles W. Allen; that process in the suit was executed as to Gwin in this form: “ Served by leaving a copy at William Gwin’s dwelling-house, with James C. Moseley, the defendant not being at home, 4th May, 1838;” and he avers, that his wife, at the day of execution, was at his house, and that James C. Moseley was not a member of his family; and that he had no notice of the pendency of the suit, until informed by the sheriff of Hinds that he had an execution against him; that a plea was filed in said suit by Hutchinson and Kemp, as attorneys at law, for defendants ; that Hutchinson and Kemp were not his general attorneys, and he did not employ them to defend or appear in this suit; that he believes he never had notice of the dishonor of the note sued on, having supposed it had been arranged in some way. He has examined the records of the notary who protested the- note for non-payment, and cannot find evidence of notice to him, and he believes, on a trial, it will clearly appear, that he had no notice of the dishonor of the note. He prays that Harris be enjoined from proceeding on the judgment, and for general relief.
    Harris’s answers insist that the notice on the writ is good and constructive notice to Gwin; says he is advised that Gwin is bound by the appearance entered by Hutchinson and Kemp; and if he is injured, he must look to them. He believes Gwin had notice of the dishonor of said note. He saw the notary who protested the note, make out the notices — one for Gwin, addressed to him at Natchez — take them in his hand, and start to the post-office; he accompanied him until within a short distance of the post-office. The notary went on, and returned, saying he had deposited the notices in the office. He further states, that he has been informed by the judge who tried the cause, that, on the trial at law, the suit was tried on the merits, and proof made to charge Gwin. He pleads the trial at law in bar.
    
      James C. Moseley, a witness for Gwin, testifies that he does not recollect having received from the sheriff the copy of writ mentioned in the return; does not recollect having ever given notice to Gwin as to the service of the writ. He was not a member of the family of Gwin. Mrs. Gwin was at the residence of Gwin, in Natchez, on the 4th May, 1838.
    Anderson Hutchinson, Esq., testifies that he was not, nor was Hutchinson and Kemp, the general attorney of Gwin. He was not, himself, nor does he believe Kemp was, employed by Gwin, to defend the suit on which judgment was rendered. He is confident that the plea was filed either by Kemp or himself, at the instance of Phillips, for him whose attorney he was, and for the other defendants; he never gave notice to Gwin of the pendency of the suit, and at the time the plea was filed, did not give notice to Harris that the plea was filed, without authority from Gwin.
    The chancellor, on this state of pleading and proof, perpetuated the injunction.
    
      Hughes, for plaintiff in error,
    Insisted, that, on the facts disclosed, Gwin was liable on the judgment; he cited Denton v. Noyes, 6 John. Rep. 301-2; Miller v. Ewing, 8 S. & M. 421.
    
      William and William G. Thompson, on the same side,
    Cited 1 How. M. R. 17; 5 lb. 525; 6 John. Rep. 34; 1 Salk. 86; 6 John. Rep. 296; 8 S. & M. 421.
    
      W. Yerger, for defendant in error.
   Mr. Justice Thachee

delivered the opinion of the court.

Gwin filed his bill in the superior court of chancery. He charged therein, that Harris recovered a judgment against him, as the indorser of a promissory note, at the November term, 1838, of the Hinds county circuit court; that the original writ in this action was returned by the officer, served as to him, in this wise: — “Served, by leaving a copy at William M. Gwin’s-dwelling-house, with James C. Moseley, the defendant not being at home — 4th May, 1838; ” that the plea of the general issue to the action was filed in his behalf by Hutchinson and Kemp, attorneys at law, without his authorization in any manner; that he was not informed of the pendency of the action, and that due legal notice of protest was not given to him, as indorser of the promissory note.

It was proved, by Hutchinson, that it was his confident impression that the plea for all the defendants was filed either by Kemp or himself, but at the request of the principal in the promissory note. The testimony of Kemp was not introduced.

The service of the process was probably insufficient, according to the requisitions of the statute; but this was cured and supplied by the appearance by plea. There was no attempt to show that the appearance was procured by fraud; but the testimony proves that it was made under the authority of one of the defendants, for all. The case is not fully made out by the complainant, as to the appearance. No attempt seems to have been tried to procure the evidence of Kemp.

The bill does not set up any facts that, if proved, would constitute for the complainant a good defence at law,' and the record shows that there was a trial upon the merits, and a judgment thereon.

The bill does not set up that the attorneys are not responsible in damages.

The decree reversed, injunction dissolved, and bill dismissed.  