
    John Whiting, Plaintiff in Error, versus William Cochran.
    After a party has appeared -and defended in an action before the jury, upon an issue tendered by the plaintiff, but not joined, the verdict in such issue and ;udgment thereon, will be supported.
    
      The principal defendant in a foreign attachment cannot avail himself, on a writ of error, of the wcyit of service on one summoned as his trustee against whom execution was awarded.
    This was a writ of error brought to reverse a judgment of this Court, rendered in an action wherein Cochran was plaintiff and Whiting was defendant. The judgment was against Whiting as principal, and against his goods, effects, and credits, in the hands' of Andrew Dexter and another, who had been summoned as trustees, and defaulted.
    The errors assigned were, in substance, that no issue was joined, upon which the verdict in the case could be given ; and that Dexter was never served with a copy of the original writ.
    The defendant in error pleaded in nullo est erratum.
    
    Upon the record being read, it appeared that the defendant, in the Common Pleas, pleaded the general issue to the action, to which the plaintiff demurred with reservation, and appealed from the judgment rendered on the demurrer. The record then states that, in this Court, “ the demurrer being waived, and the issue, as tendered at said Court of Common Pleas, and on file, being joined,” the cause was committed to a jury, &c., who returned their verdict for the original plaintiff.
    It seemed, however, to be understood that the plaintiff had, in truth, omitted to waive his demurrer, and to join the issue.
    
      Bigelow,
    
    for the defendant in error, relied on the record as to the joining of the issue. But even if he were to * agree the fact that it had not been joined, he insisted that this omission was cured by the defence made on the part of a Whiling before the jury.  As to the want of service upon Dexter, this was nothing to the plaintiff in error. There was, in fact, no judgment against Dexter, but merely an order for execution to issue against the effects of Whiling in his hands. And if this amounts to a judgment against Dexter, he ought to have joined in bringing the writ of error.  Or the judgment may be reversed as to the awarding such execution, and affirmed as to the rest.
    
      Whitman for the plaintiff in error.
    
      
      
        Bac. Abr. Title Verdict, Y.
    
    
      
       2 Saund. 101, e.
      
    
   By the Court.

The plaintiff in error has assigned for error that no issue was joined in the original action. But the record before us says otherwise, and we are bound by the record. If, however, it were true that the plaintiff below had neglected to join the issue tendered, and had gone to trial, and the defendant had appeared and defended the action before the jury, the verdict would have been good, and the judgment to be supported.

As to the want of service on Dexter, one of the supposed trus tees of the defendant, he is alone interested in that question, and the plaintiff in error loses nothing by the erroneous proceeding against him. If Dexter were to bring his writ of error, we should reverse only that part of the judgment which awards execution against Whiting’s effects in his hands.

Judgment affirmed.  