By the Court.

delivering the opinion.

Two objections were made to the petition filed in this case. First, that it did not appear therefrom what were the names of the administrators of Lemuel Cobb and Jesse F. Cleveland.

2d. Because it did not appear on the face of the petition or rule ni si to establish the lost bond, that either of the parlies defendant resided in the County of DeKalb, and, therefore, that Court had no jurisdiction of the persons of the defendants.

[1.] In regard to the first point, we think the names of the legal representatives of the deceased parties should be stated as distinctly in a proceeding of this kind, as in any other suit, and for the same reasons — the more especially when service is to be perfected by publication.

[2.] The second objection is, in our judgment, also well taken. By the 6th section of the Judiciary Act of 1799, the Superior and Inferior Courts, respectively, “ have the “power and authority to establish copies of lost papers, deeds, or other writings, under such rules and precautions as are or may have been customary, and according to Law and Equity.” By the 52d Common Law rule of practice, it is provided, that when any person shall seek to establish lost papers under the 6th section of the *448Judiciary Act of 1799, he shall present a petition to the Superi- or Court, together with a copy in substance of the lost paper, &c. whereupon a rule ni si may be obtained, calling upon the opposite party to show cause, &c. which rule shall be personally served on the party, if to be found in the State, or if not to be found, then published in some public gazette of the State for three months. 2 Kelly, 476.

This application to establish lost papers, according to the provisions of the Judiciary Act of 1799, is, in our judgment, a suit, and the application should be made in the County of the defendant’s residence, or in the County in which one of the defendants reside, when there is more than one. The petition should set forth, upon its face, that the defendant resides in the County in which the application is made, in the same manner as in other suits, so as to give to the Court jurisdiction. The application to the Court to establish lost papers is not any the less a suit, because our Judiciary Act and rules of practice have simplified the mode of proceeding — made it more expeditious and less expensive. What reason is there why a defendant in an application to establish lost papers, should be compelled to go out of the County of his residence to defend such application, any more than a defendant who is sued on a promissory note ? The papers may have been lost by the negligence of the party seeking to establish them — the non-payment of the note is the act of the party who defends it. Besides, the right of the applicant to have his alleged lost paper established, may be traversed by the defendant, and along and expensive Jury trial be had between the parties.

There being no allegation in the petition presented by the plaintiff, seeking to establish the lost bond, that either of the defendants resided in the County of DeKalb, that Court had no jurisdiction of their persons, and for that reason the application should have been dismissed.

Let the judgment of the Court below be reversed.