Morris v. Knight , 1820 Ind. LEXIS 32 ( 1820 )

Blackford, J.

This was an action of debt for rent by the plaintiff below against Bethuel F. Morris and Daniel Hankins, founded on a joint contract made by the defendants. The plaintiff suggested on the record the sheriff’s return, that Hankinswas not found in his county.. Morris appeared and filed a general demurrer to the declaration, and the plain tiff joined in demurrer. Judgment was rendered for the plaintiff against Morris alone.

The principal error assigned in this cause is, that the action is founded on a joint demand, and the judgment is against one of the defendants only. In this case the contract was joint, and the, only reason for taking judgment against one of the defendants alone was the sheriff’s return, that the other was not found in his county. The act of assembly only authorizes this mode of proceeding in actions against joint or joint and several obligors, when the sheriff or other officer returns that any of the 'defendants are “not inhabitants of his county.” Ind. Stat. 1817, p. 25. This is a remedial statute, and we aré disposed to give it a liberal construction. The provisions may be considered applicable to ail persons jointly, or jointly and severally, liable on contracts by deed or otherwise. It must appear, however, by the return, that the defendants not served with process are “not inhabitants of the county.” That is not the fact in the case before us; and the proceedings, therefore, subsequent to the return of the writ are erroneous. 2 Bibb, 227. — 3 Bibb, 363 ⁽¹⁾.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the return of the writ are set aside, with costs. Cause remanded, &c.

(1) Vide Barton v. Petit, 7 Cranch, 194. In England when there are two defendants, and one only has appeared or is in custody, the plaintiff, after proceeding to outlawry against the other, may declare against the one has appeared, alone, stating the outlawry of the other in the commencement of the declaration. Haigh v. Conway, 15 East, 1. — Goldsmith v. Levy, 4 Taunt. 299. — Fort v. Oliver, 1 M. and Selw. 242. — 2 Arch. Pr. 163. The Indiana statute of 1807, pp. 333, 334, substituted the return of “non est inventus” for the English process of outlawry. By the statute of 1817, p. 25, the return was required to be “no inhabitant of the county.” The statute of 1823, p. 290, makes the return of “non est inventus,” with a suggestion thereof on the record, sufficient.