delivered the opinion of the court.

Gwin filed his bill in the superior court of chancery. He charged therein, that Harris recovered a judgment against him, as the indorser of a promissory note, at the November term, 1838, of the Hinds county circuit court; that the original writ in this action was returned by the officer, served as to him, in this wise: — “Served, by leaving a copy at William M. Gwin’s-*566dwelling-house, with James C. Moseley, the defendant not being at home — 4th May, 1838; ” that the plea of the general issue to the action was filed in his behalf by Hutchinson and Kemp, attorneys at law, without his authorization in any manner; that he was not informed of the pendency of the action, and that due legal notice of protest was not given to him, as indorser of the promissory note.

It was proved, by Hutchinson, that it was his confident impression that the plea for all the defendants was filed either by Kemp or himself, but at the request of the principal in the promissory note. The testimony of Kemp was not introduced.

The service of the process was probably insufficient, according to the requisitions of the statute; but this was cured and supplied by the appearance by plea. There was no attempt to show that the appearance was procured by fraud; but the testimony proves that it was made under the authority of one of the defendants, for all. The case is not fully made out by the complainant, as to the appearance. No attempt seems to have been tried to procure the evidence of Kemp.

The bill does not set up any facts that, if proved, would constitute for the complainant a good defence at law,' and the record shows that there was a trial upon the merits, and a judgment thereon.

The bill does not set up that the attorneys are not responsible in damages.

The decree reversed, injunction dissolved, and bill dismissed.