
    Gaylord against Payne and others.
    
      June, 21.
    An acknowledgment of service, made by husband and wife, defendants in the suit, on the back of the writ, does not dispense with actual service on her.
    A writ of error must, in all cases, be served on such of the defendants as re- . side within the state, at least twelve days before the sitting of the court to which it is returnable ; otherwise, the cause will not be considered as pending.
    There were several defendents in error, some of whom were inhabitants of this state, and others resided out of the state. Payne and his wife, inhabitants of this state, pleaded in abatement, the want of service on them. It appeared, that they had subscribed an acknowledgement, on the back of the writ, that it had been duly served on them; but no actual service on them had been made. A copy had been left with M. F. Mills, Esq. as attorney to the defendants out of the state.
    
      Litchfield,
    
    
      Bacon, in support of the plea in abatement,
    contended, that the acknowledgment in question, did not either furnish evidence of service, or supply the want of it, especially with respect to the wife of Payne. A feme covert can do no act in pais, which will bind her. Any agreement of Mrs. Payne, in relation to her rights, must, of course, be nugatory. If the plaintiffs in error thought proper to make her a party, she was entitled to legal service ; and no agreement made by her, or by her and her husband jointly, could dispense with it.
    
      Benedict and P. Miner, contra,
    contended, that Payne and his wife, by the written acknowledgment, subscribed by them, on the back of the writ of error, were estopped from objecting the want of service. It is equivalent to a waiver of all exceptions, in the face of the court.
    
      Per Curiam. The plea in abatement is sufficient.
    
      Benedict then moved for a continuance of the cause to the next term, with an order of notice to be given, in the vacation, by leaving copies with the defendants ; and deferred to the rule of June term, 1804, 1 Day 330.
    
      Bacon, contra,
    remarked, that that rule was applicable only
    to cases, where the service is not prescribed by law ; but there was no reason why the service required by statute, in ordinary cases, could not be made upon Payne and his wife.
   Per Curiam.

It is matter of positive law, that service must be made upon the defendants in the state twelve days at least before the sitting of the court. Until that has been done, there is no cause pending.

Motion denied.  