
    *Jas. W. Gadsden, Survivor of C. Gadsden, ads. John Johnson.
    The copy of a writ left at the defendant’s house in Charleston, during the winter or spring months, at wMch time he resided in the country, is not such a service as is required by the Act of Assembly, 1736-7.
    This case was tried before Mr. Justice Grimke, at Charleston, January, 1817.
    James W. Gadsden, the* defendant, left his residence in town, with his family, about the 28th November, 1815, and resided entirely in the country, until about the 29th May, 1816; during which time he never personally received the service of a copy of a writ issued in the above case, or had any knowledge directly or indirectly by a copy left for him, or otherwise of the commencement of this suit. It appeared, from the entry made in the books of the sheriff of Charleston District, that the writ in this case, was lodged on the 25th April, 1816, to May return, 1816, and that Thomas Gadsden alone was personally served, in the above case, and no other service thereof, entered in the said books. And the first notice that J ames W. Gadsden, the defendant, had of the commencement of this suit, was from a friend, Mr. Nelson, in the clerk’s office, who informed him, that an order for judgment thereon had been obtained against him. The defendant never had directly or indirectly received, (except as above stated) any information of the commencement or existence of the above suit. A motion was made to set aside the verdict, as far as it regarded the said James W. Gadsden, which motion was overruled. A motion was now made to reverse the decision of the presiding Judge, in the above case, on the grounds:
    1. That a residence which the party leaves oh the 25th November in one year, and to which he does not return, until the 29th May, in the next year, having, during the intermediate time, another fixed and known place of residence within the district, at which he resides, cannot under the Act of Assembly, be considered the usual and most notorious place of his residence, so as to make a copy writ left there for him, a good service.
    *2. That a sheriff’s return on a writ, is not conclusive, but may be explained or negatived by testimony.
   The opinion of the Court was delivered by

Colcock, J.

This ease was submitted without argument, the facts appearing satisfactorily, by the affidavit of the defendant, James W. Gadsden; and I am of opinion, that if the copy had been left at the place from which he removed in.November, the service would not have been good. The Act of 1736-7, says, the copy shall be left at the usual place of abode. (PI. 145. 1 Brev. Dig. 221, sec. 29.) Some meaning must be allowed to the word usual, and I cannot conceive of a more proper meaning, than that of the abode of the defendant at the time of the service of the writ; whereas in the present case, a defendant has two places of residence. The former Act of 1720,-says, the most usual and notorious place of the residence or habitation of the defendant,” and then, words which more strongly point to the place of residence occupied at the time of the service. But it does not appear satisfactorily, that the defendant in this case, was ever served by a copy left at either place of abode. There is no entry to that effect in the sheriff’s books ; and on reference to the writ itself, the formal return indorsed on the back of it, says, “ I have served the within named defendant,” where there are three defendants within named. So that it is not certain that a copy has been left with this defendant. Upon the whole, I am of opinion, that the verdict ought to be set aside, and that the defendants have all of them leave to enter their appearances and plead to the action.

Norr and Johnson, JJ., concurred.

Cheves, J.,

I concur on the last ground, stated by my brother.

Gantt, J.

I dissent, because I think the return of the sheriff is conclusive, as to the fact of the service of the writ. It *would be of mischievous tendency after judgment recovered, as in this case, to allow the same to be vacated, and the service of the writ set aside, by the affidavit of the party defendant. The sheriff is a sworn officer, and if guilty of a false return, is liable in action on the case for the same, to the party injured I am of opinion, that this is the course of proceeding recognized by law, and that the defendant should have recourse to it for any injury he may have sustained in this case.

See Post. 458, 2 vol. 26, 549; 1 McC. 566; 3 McC. 84; 4 McC. 368; 2 McM. 354. 
      
       7 Stat. 190, § 5.
     
      
       3 Stat. 118, § 1.
     