
    Henry & Hoyle et al. vs. Halsey & Haight, use, &c.
    The service of a writ by a deputy sheriff, although not the person specially deputized to serve it, is valid.
    In the absence of proof of the legal rate of interest of another state, the finding of the jury must he presumed to be correct.
    A verdict by the jury in favor of the plaintiff, instead of plaintiffs, when the record shows they were empaneled to try the issue in the case at bar, is sufficient.
    Where there are several defendants, on all of whom process is served, and an appearance and plea as to one only, a judgment against that one, without taking any notice of the others, is erroneous.
    Tn error, from the circuit court of Jeiferson county. Hon. Charles C. Cage, judge.
    This was an action of assumpsit, brought to the May term, 1842, of the circuit court of Jefferson county, by John Halsey and Richard K. Haight, merchants, doing business under the firm and style of Halsey & Haight, for the use of James Brewster, against Warren G. Henry and Edward Hoyle, partners, under the name and style of Henry & Hoyle, and Samuel N. Robb. The declaration was in the usual form, and founded on a joint promissory note, by the defendants, for four hundred and fifty dollars and fifty cents, dated Rodney, Mississippi, 28th March, 1839, and payable, twelve months after date, at the counting-room of Samuel Wright, New Orleans, with interest, after maturity, at the rate of ten per centum per annum until paid. Upon the writ which issued thereon, are the following indorsements, to wit:
    “ Received 28th March, 1842. Samuel Laughman, Sheriff.”
    “ State of Mississippi, ) Jefferson County, $
    
      “ I hereby authorize, deputize, and require George Torrey to execute and return this writ. Given under my hand and seal, April 11th, 1842. Samuel Laughman, Sheriff. [Seal.] ”
    
      “ Executed on Samuel N. Robb, April 11th, 1842, and on Warren G. Henry, April 12th, 1842.
    “ Samuel Laughman, Sheriff.
    
    “ By Geouge Torrey, D. S."
    
    “Executed — Edward Hoyle, April 23d, 1842.
    “Samuel Laughman, Sheriff.
    
    “ By William A. C. Torrey, D. S.”
    
    At the return term, the defendant, Samuel N. Robb, appeared, and pleaded the general issue, and infancy. The plaintiff took issue on the first, and replied to the second plea. No appearance was entered or plea filed for either of the other defendants. At the November term the cause was submitted to a jury, who returned the following verdict, to wit: “We, the jury, find for the plaintiff, and assess his damages at the sum of five hundred and forty-four dollars and fifty cents.” On which verdict judgment was entered, in these words: “ It is therefore considered by the court that the plaintiff have and recover of the defendant the sum of money above assessed, and all costs of suit.” From which judgment the defendants have brought the case to this Gourt, by writ of error.
    
      Sanders and Price, for plaintiffs in error.
    We contend that the judgment is erroneous, and ought to be reversed, for several causes.
    First. The service or execution of the process upon Edward Hoyle is not sufficiently shown. The return is, “ Executed Edward Hoyle, April 23. Samuel Laughman, Sheriff, by William A. C. Torrey, Deputy Sheriff.” George Torrey was deputed to execute the writ, and not William A. C. Torrey.
    Second. The note being usurious on its face, the court cannot lawfully render judgment for more than the principal of the note. The note is for four hundred and fifty dollars and fifty cents. Judgment, for five hundred and forty-four dollars and fifty cents.
    
      Third. The verdict and judgment are erroneous, because they, nor either of them show what defendant the damages are assessed against, or against whom the judgment is rendered.
    Fourth. The record does not show for what purpose the jury were sworn. No default was taken, no writ of inquiry awarded, and no issue but as to one defendant. Whether to try one or more issues, or between what parties, does not appear.
    Fifth. The finding is for the plaintiff, not plaintiffs, and the jury assess his damages, not theirs.
    Sixth. The jury had no right to estimate interest, under any state of proof, at more than five per cent., the rate of interest in Louisiana, the place of payment of said note. But the note is illegal on its face, and the court cannot enter judgment for more than the principal. The amount found by the jury shows that they added to the amount of the note sued upon eight per cent, per annum, as interest or damages.
    For which causes we most respectfully urge a reversal. The defendant, Robb, was confined in his bed at the time of the trial, and is desirous for a new trial, that the true nature of the transaction may be shown. We confidently believe that the errors relied upon are well taken, and are not covered by the case of Rappleye et al. v. Hill et al. 4 How. 295. There the judgment was against all three, on a verdict against the defendants, although only one of them plead, but process was duly executed upon the others.
    
      William G. Thompson, for defendants in error.
    There is no judgment, in this case, against the defendant, Henry. And, if there is no return of the service of the writ on him, he cannot complain. It is presumed, however, that this honorable court will not consider the return invalid.
    The note sued on is made payable at New Orleans. And the parties might legally contract for ten per cent, interest on a debt to be paid at that place.
    There is an issue as to only one defendant, and it is plain that the judgment was rendered against that defendant.
    
      The suit is instituted for the use of James Brewster, and the verdict is rightly rendered for the plaintiff.
   Mr. Justice Thachek.

delivered the opinion of the court.

Writ of error to Jefferson county circuit court.

Suit was instituted against Henry & Hoyle, copartners, and Samuel N. Robb, joint makers of a promissory note.

The first objection is to the sufficiency of the service of the writ on defendant Hoyle. It is true that the record shows a special deputation to George Torrey to serve the writ, and that it was in fact returned executed, as to Hoyle, by another deputy. The service was made by a legal officer, as we are bound to consider, although not by the deputy designated by the sheriff. This may be a matter between the deputies, if it is not determined by the statute, H. & H. 293, § 9, but it cannot invalidate the service of the writ. The return — “Executed— Edward Hoyle,” &c., is necessarily return of service upon defendant Hoyle, because the writ shows that all the other parties defendant had been previously served.

The objection to the usurious character of the note is unavailing, since there is no evidence in the record respecting the rate of legal interest in Louisiana; and, in the absence of evidence on this point, we are bound to presume the finding of the jury to be correct. Martin, Aiken et al. v. Martin, Pleasants & Co. 1 S. & M. 176.

The objection that the verdict, in this case, was found for the plaintiff instead of the plaintiffs, is a mere technical error. The record shows that the jury were empaneled to try the issue in the case at bar, which is sufficient to identify the parties plaintiff.

The judgment of the court below, however, is in the singular number, against the defendant. There was an issue submitted to the jury by one defendant only, to which the verdict responded, and upon which the judgment was so far authorized ; but, there were other defendants, duly served, who had made no answer, and entered no appearance. Although the record makes no notice of their default, the conclusion of law is, that they were in default, and judgment should have been entered up against them likewise. Rappleye et al. v. Hill et al. 4 How. 295.

The judgment of the court below is therefore reversed, and this court, giving such judgment as should have been given, directs judgment to be entered up against all the plaintiffs in error.  