Jones' Executors v. Wilkinson , 3 Stew. 44 ( 1830 )

By JUDGE CRENSHAW.

In this case the judgment reversed on the ground, that process was served on one only 0f the executors, when both were parties. We know of no rule of practice better settled than that each and all the defendants must be served with process, in order to make them parties in Court. Indeed before the argument of this case, I never heard the rule called in question as it existed, and now exists at common law. In England, the statute of Elizabeth hath made an exception as to executors and administrators, and this statute has been adopted in the State of Kentucky; but decisions made under the statute cannot be recognised as authority here; we must be governed by the common law.

The assignment of error, that the action -was discontinued by reason of the plaintiff’s having failed to give security for costs in pursuance of an order of the preceding term, we think ought not to prevail. We are inclined to the opinion that where the order for security is made by the Court, not under the statute, the Court in its discretion may receive the security at any time before advantage is taken of the omission.

As to the assignment that there was no replication to the pleas, nor issue for the jury to try, from the current of our own decisions, this objection ought to prevail; but we decline an expression of opinion, because it was suggested that former decisions on this point of practice have been overruled by an adjudication of more recent date, but which I have not had leisure to find and examine.

Judgment reversed.