Ex parte Johnson
7 Cow. 424
N.Y. Sup. Ct.
1827
Check Treatment
Curia.

We think the C. P. were right. The plaint was *425m- the nature of an original, which commands a summons; and, not being executed by notice to the party, -is no reason why the process should wholly fail. The second authority to summon the defendant was in nature of an alias. At any rate, calling it so in the rule, or elsewhere, will not vitiate it. The statute is merely directory to the sheriff. No doubt, it is his duty to summon the party, if he can. But if he fails to do "his duty, this is no reason why the plaintiff should lose his suit. The motion must be denied.

Motion denied.