By the Court.
Lumpkin J.delivering the opinion.
The writ in this case, was regularly sued out and returned. This was the commencement of the suit, and gave the Court jurisdiction. The Sheriff returned, that one of the defendants was not to be found, although in point of fact, he lived in the county, which fact was offered to be proved; and was, I believe, a member of the Legislature from that county, at the time. Time was asked for and allowed to serve him, which was done, in the county. The case was delayed, but did not abate. Both defendants came in and filed meritorious pleas. And yet after all this, the action was dismissed. This case does not fall within any of the provisions of the 8th section of the Judiciary Act of 1799, prescribing certain things to be done, and declaring the whole proceeding void, provided they are not complied with. A hard case of this sort has occurred during the present Term. One may well doubt the propriety of the construction originally put upon that Act. But it is too late to correct it, except by legislation, which has been partially done.
Under the 11th section of the Judiciary Act of 1799, giving the right to sue co-obligors and joint protnissors in the same action, though living in different counties, it often happens that the non-resident defendant cannot be served in time. And leave is always granted to perfect service. Why *266should not the converse of the proposition be true; that is, where the resident defendant is not served ?
The fact that the parties have pleaded to the action helps the case. And the Act of 1818, if rightfully interpreted, would save the case, as it would have done scores of cases Sieretofore.
Judgment reversed.