
    Fatheree et al. v. Long.
    
      A return of the officer of “ executed by leaving a copy at defendant’s house,” is not a service authorized by law.
    IN ERROR from the circuit court of the county of Jasper.
    Action of assumpsit by the defendant in error against the plaintiffs in error. The error relied on was the insufficiency of the sheriff’s return on the writ, which was as follows5: “ executed on the within named John D. Fatheree, on the 1st of April, and on John D. McRea, on the 15th. On Fatheree by delivering him a copy of the within writ, and on McRea by leaving a copy at the house of the said McRea.
    Mayes, for plaintiff in error.
    The only question for consideration is this, is the return as to McRea sufficient to warrant a judgment by default ? It is contended that it is not.
    By statute: “ all writs of scire facias and capias ad respon dendum, where no bail is required, may hereafter be served in the following manner: where the defendant cannot be found, it shall be deemed a sufficient service of such writ for the sheriff or other officer to whom the same is directed to leave a copy thereof with the wife of the defendant, or some free white person above the age of sixteen years, then and there being one of the family of the defendant, and found at his usual place of abode, or to leave a copy thereof at some public place at the dwelling house or other known place of residence of the defendant, he being from home, and no such free white person being found there willing to receive the same.” Digest by Hutchinson & Howard, 583.
    That the foregoing section does not authorize such service as that on McRea, is obvious, and that the judgment by default should be reversed for insufficient service, is decided in Smith v. Cohea, 3 Howard, 39.
    
      Howard, for defendant in error.
    The return, of “ executed.” in this case should be treated as the full return of ¡the officer 'to the command of the precept. The explanation-of the officer of the means, employed to effect that return is surplussage. In New York, a return of “ I have taken the defendant, who remains under my custody, so sick that I cannot have his body before the justice,” wa? held a return of cepi corpus simply, and the addition “ so sick,” was said. to be sur-plussage. Byrne «..Morris, 2 Cow. 472. In the case at the bar, the return of “ executed” on the defendants, McRea, &c. constituted in itself a .complete legal return,, and the subsequent explanation of the officer in.a-distinct sentence, must be treated as. sur-plussage, unless it clearly contradicts the preceding return, and shows that it was necessarily illegal. . It is not necessary that the addition of the officer'should show that all the -legal steps of service were had. The presumption will be in favor of its legality, unless the explanations show all the means used, and it appears that they were clearly illegal, and are so explicit and certain as to prevent any presumption being entertained' in favor of the legality of the acts of tire officer. The officer declares that he executed the .process, and then states that he left a copy of the writ at the defendant’s house. Will not the court presume that, the copy was left under such a state-of facts as that contemplated by the, statute ? It certainly does not appear to the contrary, and such a, presumption .could be indulged consistently with the previous part of the officer’s return'. When there is any ro.om left for presumption it should be in favor of the acts of the officer. Indeed that is the. rule, and it is founded in reason and convenience. 2 Pirt. Dig. 396. ■ 2 Litt. Rep. 396.
    The safer rule is the presumption in favor of the officer’s return, where it can be indulged. It should appear affirmatively from the-facts stated that the return was illegal, in order to destroy this presumption. Nothing should be inferred-against the return. A writ left at the defendant’s house under the circumstances pointed out in the statute, would be a legal service, and in this case in order to declare the service insufficient, the court must presume that these facts did not exist. It is clear that they might or might not exist;, the officer has not said they did not exist; the presumption, therefore, should be that they did exist, as the contrary does not appear. It is true, that where all the means of service are so clearly stated that nothing can be left to intendment, and it appears that the service was illegal, then the court will judge of the sufficiency of the return, and pronounce upon it; that is not this case.
    It is always sufficient if the return of the officer answer the command of the writ, and the same strictness as in pleading is not required. I Cow. 10-14, note. And in pleading the repugnant matter will be stricken out, if it can be done without changing the general sense and effect. Stephen, 420. Leaving a copy at defendant’s house has been held sufficient notice. 3 J. R. 440. Leaving a copy with defendant’s negro has been held a good service. 1 N. & McCord, 458.
    This is a different case from the case of Smith v. Cohea. There a copy of the writ was left at the defendant’s boardinghouse. In New York where leaving a copy at defendant’s house is decided to be good notice, it has been held that leaving a copy at his lodgings is insufficient. Leaving a copy at defendant’s house upon a certain state of facts, is declared by the statute to be a good service, but the statute does not recognize as legal service a copy left’ at his boarding-house. It may be doubted whether the court will construe this statute with the same strictness, since their decision in the case of Jones v. The Commercial Bank of Columbus; in which it is held that a defendant may come into chancery and show a want of actual notice as a ground for a new trial, provided he has a meritorious defence.
    It certainly cannot be contended with reason, that if the officer states any of the means of service, he must state all, or the service will be bad. If it is clear that he has stated all the means, and they do not come up to the requisitions of the law, the service will be insufficient; but if from what he has stated, it appears that other means might have been used, and other facts might have existed, sufficient to constitute the return a legal service, the presumption should be that the officer has done his duty.
   Per Curiam.

An objection is made to the judgment by default in this case, on account of the insufficiency of the service of the process, which is in these words: “Executed on the within named John D. Fatheree, April 1st, and JohnMcRea, April 15th, on Fatheree by delivering a copy of the within writ, to said, Fatheree, and on McRea by leaving a copy of the within at the house of said McRea.” The statute points out the mode of service which must be adhered to, or it will be insufficient. Personal service is dispensed with, if the party cannot be found,.and-service may then be made by leaving a copy with the wife of defendant, or some free white person above'the age of sixteen years, being one' of the family of defendant, and found at his usual place of abode; or if there be no such white person at the house, then by leaving a copy at some public place at the dwelling or fen own place of residence of the defendant. If the defendant be not personally served, then no such service is sufficient, unless it be exactly such service as the law has made good. If by the return it appears that the defendant was not personally served, then of course nothing short of an entire fulfilment of-one of the other modes will be sufficient. Hence, in the case of Smith v. Cohea, 3 How. 35, this court held the return “executed, by leaving .a copy at his boarding house,” insufficient. - If the return be merely, that the process has been executed, it will be sufficient, because the court will suppose that it has been executed according to law. But if a special return-be made, the court will judge of its legality, and if it is not in strict conformity with the statute, it will be deemed insufficient. To' leave -process at the house of defendant is not < such a service as is authorized by law, unless it be left with a member of the family, being .a free white person over sixteen, and this should appear by the return, ' •

Judgment reversed.  