delivered the opinion of the court.

This writ of error is brought to recover a judgment rendered against M’Coun, upon a summons issued from the clerk’s office of Fayette, for M’Coun to answer and say ■whether he was indebted to Daniel Gibbs, an insolvent debtor, $340.

The summons having been executed, and M’Coun fail* ⅛ *° appear, after a continuance of one term, judgment was rendered against him by default, for the amount sped-fied in the summons.

The proceedings having been had under the act of this country concerning executions, (1 Littell, 549,) the clerk, no doubt, correctly issued the summons against M’Coun, w*t'30ut l^,,e'n requiring him to answer the complaint of anJ particular creditor.

And as the act no where requires a declaration to be file[^ j|ie C0Urt most clearly, upon the failure of M’Coun to aPP®ar and answer, correctly entered judgment against him for the amount contained in the summons. 1

And although, as the act directs, judgment was entered favor of the sheriff, yet as the sheriff is nowise person* ally interested in the claim against M’Coun, the gummo# was properly directed to, and served by him.

The judgment must be affirmed with cost.