¶1— This suit was commenced by Sutton against Iiays, one Guernsey,, now deceased, and one Joseph T. Martin. It was an action of trespass for an assault and battery and false imprisonment. At the next term after the writ issued, Hays and Guernsey appeared and pleaded not guilty. The writ being returned “not found” as to Martin, the plaintiff 'moved for a continuance that he might have Martin before the Court. The' motion was overruled. The cause, as to Hays and Guernsey, was tried by a jury. Verdict and judgment for the defendants.
¶2We think the plaintiff was entitled to a.continuance. He had brought a joint suit against three defendants, and the writ as to one of them was returned “not found.” The statute gave him the right, after such return, to proceed against the others; but he was not bound so to proceed. The cause should have been.continued, to give the plaintiff an opportunity to have process served on Martin.
¶3having been concerned as counsel, was absent.
¶4— The judgment is reversed with costs. Cause remanded, &c.