
    Bennet v. Howard.
    In the Court below,
    James Bennett, Plaintiff¡ Nathaniel Howard, jun. Defendant.
    
    Where the defendant in error has a known place of residence out of the state, and an attorney within, service upon that attorney is not sufficient, without notice to the defendant pursuant to the rule of
    rp X IiE defendant pleaded in abatement of this writ of error, “ that the same had been no otherwise served on the “ defendant, than by leaving a paper, purporting to be a true “copy thereof, with Nathaniel Terry, Esquire, of Hartford, “ attorney to the defendant; whereas the defendant being “ described in said writ as late of Windsor in the county of “ Hartford, now of the city, county, and state of New- York, a “ true ancl attested copy thereof should have been left at “ the place of abode of the said Nathaniel Howard, jun. in said City of New-York, by an indifferent person, or a pro- “ per officer!”
    
      To this plea, the plaintiff replied, “ that at the time when “ the judgment was recovered in the Superior Court, and at u the time when said service of this writ was made, by leaving “ said copy with Nathaniel Terry, Esquire,, he, said Terry, “ was the attorney of the defendant.”
    To this replication the defendant demurred.
    
      Daggett, and N. Terry, in support of the demurrer.
    The service of process is fiodtivi juris. We have but two statutes, which relate to this subject. One is the act regulating civil actions ; 
       but that clearly makes no provision for service upon the party out of the state, by leaving a copy with his attorney here. The other is the act concerning absconding debtors, 
       That, also, is wholly inapplicable to a case like the present; the “ attorney” mentioned therein, must be one who has effects of the principal in his hands ; the process is sui generis; and is limited to a single class of cases bearing no resemblance to a writ of error. This service is obviously not conformable to the rule of 1804 ; for that rule requires a copy to be left with the party out of the state, not with his attorney within, 
    
    
      Jngersoll, and Bradley, Contra,
    insisted, that the practice had uniformly been, in cases like the present, to make service by leaving a copy with the attorney ; that this practice was considered-as settled, when the rule of 1804 was made ; and that that rule was not made with reference to such cases. They contended also, that if the rule were applicable, it would not follow conclusively, that this service is bad ; for the rule goes no further than to say, that the service therein specified “ will be deemed sufficientit does not say, that no other service shall be made. The spirit of the rule is, you may omit, if you please) to leave a copy with the attor« hey; the service will be deemed sufficients'll you leave one with the defendant out of the state.
    
      
      
         Stat. 24, edit. 1796.
    
    
      
      
         Ib. 137.
    
    
      
      
         Ante, vol. 1. p. 330.
      
    
   By the Court,

unanimously, the replication was adjudged insufficient, and the process abated.  