delivered the opinion of the court.

The only assignment of error which we deem it necessary to notice, is that the judgment is rendered against all the defendants when there was no service of process or discontinuance as to one of the defendants below.

The suit was brought by Evans against Duggan, Terrell, Hughes & Scott on their promissory note to Evans. The process was not served on Terrell, and there was no discontinuance as to him. Duggan, Hughes & Scott plead the general issue, on which issue was joined, and trial had before a jury, and judgment rendered against the defendants generally.

This case comes within the principles laid down in the case of Davis v. Ternan & Co. 3 How. 805.

Process not having been served on Terrell one of the defendants, the cause could not legally be tried as to the other defendants without discontinuing as to Terrell.

The judgment must be reversed, and cause remanded for further proceedings in the court below.