
    Lewisburg.
    Harman v. Odell.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    l.On a warrant of unlawful entry and detainer against two, the warrant is executed on one, but not on the other. The plaintiff may proceed against the one upon whom the warrant has been executed.
    2. No further proceedings can be had upon that warrant, against the one upon whom it has not been executed before the return day thereof.
    
    
      3. So much of the judgment of the Court below as affects the appellant, being affirmed, although the appellate Court reverses so much of the judgment as affects a third party who has not appealed, costs will be given to the appellee as the party substantially prevailing.
    
      John Odell obtained from a justice of the peace of the county of Tazewell, a writ of unlawful entry and detainer against John B. Harman and Hezekiah Billups. On the return of the writ the Court met and was organized, and the sheriff returned the writ served upon Harman, but not served upon Billups. The Court thereupon, on the motion of Harman, quashed the writ, because it had not been served upon Billups ; and Odell having excepted to the opinion of the Court, applied for and obtained a supersedeas to bring up the case to the Circuit court of Tazewell.
    
    When the cause was heard in the Circuit court, that Court reversed the judgment of the Court below, with costs: And ordered that the cause be sent back to the County court for further proceedings to be had therein, with this instruction; that if the plaintiff will cause his warrant to be served on the defendant Billups eight days before the regular term of said County court, in the mode prescribed by the act of 1814, the sheriff shall be allowed to amend his return, shewing such service, and then the County court shall proceed to try the cause upon its merits. Prom this judgment Harman applied to this Court for a supersedeas, which was awarded.
    
      Fulton, for the appellant,
    referred to the act 1 Rev. Code, ch. 115, §. 7, 8, under which this proceeding was instituted, to shew that the failure to serve the writ on the defendants before the return day thereof, was fatal.
    
      Caperton, for the appellee,
    insisted, that as this was a proceeding founded in tort, it might be carried on against the party served with the process, although as to the other, it was at an end. And ho further insisted, that although the Circuit court erred in directing the writ to be served on Billups, this was an error which did not affect Harman. He therefore had no right to complain of the judgment; and if the Court reversed the judgment for this error, it would be with costs to the appellee.
    
      
       The act 1 Rev. Code, ch. 115, § 7, 8, provides, that the warrant shall be directed to the sheriff, serjeant or coroner ; shall be made returnable to a day certain, not less than ten, nor more than twenty days, after its date ; and shall be forthwith executed by the proper officer, who shall make due return to the justices, at the time and place therein mentioned, of the manner in which he shall have executed the same.
      That the said warrant shall be served on the defendant at least eight days before the return day.
    
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as the warrant for unlawful entry was duly executed on one of the two defendants therein named, the failure of the sheriff to execute the same on the other defendant was no ground for dismissing the warrant; as it was competent for the plaintiff to have proceeded to a trial against the defendant upon whom the warrant appeared to have been duly served. It is therefore considered that so much of the judgment of the Circuit court as reverses the judgment of the County court with costs, and remands the cause to the said County court for further proceedings to be had therein, be affirmed.

The Court is further of opinion, that so much of the order and judgment of the Circuit court as contains the instruction, that if the plaintiff will cause his warrant to be served on the defendant Billups eight days before the regular term of the said County court, in the mode prescribed by the act of 1814, the sheriff shall be allowed to amend his return, shewing such service, and then the County court shall proceed to try the cause upon its merits, was irregular, as there could be no regular service of the said warrant after the same had been returned; the law requiring that every such warrant shall be made returnable on a day certain, not less than ten, nor more than twenty days after its date. It is therefore considered, that so much of said order and judgment of the Circuit court as contains said instruction, be reversed and annulled. But as the error in this particular was not to the prejudice of the plaintiff in error, and the defendant in error is the party substantially prevailing, it is further considered that the defendant in error recover of the plaintiff in error his costs by him about his supersedeas in this behalf expended.  