Roberts v. Johnson , 2 Stew. 13 ( 1829 )

By CHIEF JUSTICE LIPSCOMB.

There is some ambiguity in the sherifl’s return; a fair constructioii of it perhaps would be, that it was served on Roberts only, and if so, it was competent for the plaintiff to discontinue as to the other. But if the service had been perfected on both, the declaration being against one only, it should have been taken advantage of in the Court below by plea. The defendant suffered judgment by default, and opened the default on affidavit of merits, and then again permitted the judgment by default to be entered for want of a plea. The judgment must be affirmed.

Judgment affirmed.