Opinion of the Court.

In this case the summons was returned, served on Wood only, without taking notice of either Smith or Lee. Lucius Elmer, esq. one of the attorn ies of this court, at the return of the summons, appeared for Smith and Wood, but not for Lee, and objected against the justice proceeding in the cause, because Lee had not been summoned also.' The justice, notwithstanding, proceeded, and a verdict was found and a judgement rendered against all the defendants for 75 dollars, and Lee now comes in to be relieved.

This entering of judgment against an absent defendant, who has not been summoned, and who, for aught that appears, is within the reach of process, has always been hoi don to be error. The question has been looked into again this term, in the case of Ford and others against Munson, and may be considered as finally settled.

Let the judgment be reversed.