Bv the Court,
Judge Mason.A motion is made to strike this case from the docket, because it has not been brought up by either of the methods directed by law. The defendants in error have however, appeared, and it is now too late to raise the objection. A joinder in error in this court, has in this respect, the same effect as the filing of a plea in the District Court. It waives all irregularity in the mode by which the defendants in error have been brought into court. Motion overruled.
*359Per Curiam,
Mason, Chief Justice.The service of (he summons in this case'was clearly defective, and there was no appearance to cure that defect. The return is dated October 14, 1840. We cannot find that at that date there was any other than a personal service provided for. On the 31st of December following, a law was passed authorizing a service by copy where the defendant cannot be found, but the return in this case was wholly irregular under that law.
In the first place the certificate of a person, not a sworn officer, is not a sufficient return, secondly, it does not appear to have been left at the place of residence of the defendant, but merely with Benjamin Brooks, and thirdly, the contents of the writ do not appear to have been stated to said Brooks. In the absence of any statute on the subject, service must be personal. Where the statute provides a substitute, the terms and conditions of that substitute must be complied with.
Again there was an irregularity in empannelling a jury to assess damages without a default (or its equivalent) being first taken. For either of these errors we think the judgment below should be set aside, and the ease remanded for further proceedings; which is accordingly done.