
    William Frean ads. William Cruikshanks.
    Where a party’s domicile is still in the stale, though he he absent from l\ie state,, yet the service of a writ, by leaving a copy at his Usual place of residence,' is good.
    But the court will suffer the defendant, upon shewing the circumstances, to come in and plead, at any time before judgmenijand even after judgment the court will, upon ments shewn, open the case and let the defendant, into his defence, if he had not an opportunity of coming in before.
    When the declaration in trespass, clausum fregit and to try titles, describes the premises too generally, the verdict can not cure it, by a finding with a proper distinction of the ¡ocus in quo. Am! where the jury do give such a verdict, such further description, than that contained in the declaration will be surplusage.
    Where the declaration stated that the defendant“did break and enter the lot and close of the plaintiff, in State street, in Charleston aforesaid,” and the verdictwas “We find for the plaintiff the.within lot of land, situate ha State street, in front on said street 26 feet, in depth from F. to W. 86 feet hounding to the Jf. on lands of A. F. — E on Slate street aforesaid — W. on lands of E. and S. onlands of M. with $400 damages," the court held, that the verdict contained surplusage, as to the metes and bounds, but supported it as a general verdict for the plaintiff.
    The declaration need not describe tire locus in quo so particularly and specifically, that the sheriff may certainly know it to deliver possession of it, it is sufficient that the description is good to a common intent, or described as it'is generally known or understood.
    If the locus m quo be not sufficiently described, the plaintiff may point it out to tlie sheriff and take the possession at his peril.
    The act which authorizes a survey in trespass to try title is not imperative, and was never designed to be used when unnecessary. Either party may resort to it, to prove the identity of their lands, where they have not other sufficient evidence thereof.
    Where judgment goes by default, evidence of the locus in quo is unnecessary.
    This was a motion, at chambers, to set aside the pro-; eeedings in this case on the ground, that the copy writ was left at defendant’s house, at a time when he was out of thé 
      state, at New York. A motion in arrest of judgment, was made at the same time for reasons contained in the following-statement of the court.
    The motion was made before Mr. Justice Bay, whb sent up the following report to the appeal court, “When this motion was first made by Mr. Hunt, I was disposed to grant it, as the words of the act, of 1720, (Public Laws, 109,) are express upon the subject. The 6ih clause of the act declares, that in all civil actions, the original process shall be by writ to attach the body of the defendant, and if he cannot be found a copy may be left at his dwelling house or usual place of residence; and the clause contains a proviso, that no execution or any judgment shall be granted against the body or goods of defendant, until 30 days next after such judgment obtained; and that nothing in the said act contained, touching the making any person a party in court, without arresting or attaching the defendant, shall be construed or extended to any person or persons gone off from this settlement, (meaning state or province) and not being actually resident in the same, at the time when such copy of the writ shall be left at the house of such pcrsoiras aforesaid. Upon the plain construction of this latter clause of the act, the uniform practice of our courts has been to set aside all writs, and proceedings under them, which were left at the dwelling houses or places of abode of defendants at a time when such defendants were out of the state. And an affidavit was produced in this case, stating that defendant was at New York, on the day when the copy of the writ was leffat his dwelling house, in State street, in this city: In consequence of which, I was on the point of making an order for setting aside the proceedings, when further time was requested to procure some further affidavits, which, it was alleged, would throw some further light upon the subject, which was granted. Upon the 2nd day, when this motion was renewed by Mr. Hunt-, Mr. Prioleau urged, shat the object of the act of 1720, was to prevent surprise and to guard against the inconvenience of a man’s having a judgment obtained against him without his having an opportunity of making his defence; and he produced some affidavits to shew, that the defendant had this opportunity afforded him, (notwithstanding the writ was left at his house, at a time when.he was at New YorkJ to make his defence if he pleased; but that he stood by and did not move to set aside the judgment by default against him and plead to the action, but suffered a writ of enquiry to be' executed for damages, and judgment to be entered against him. That it never could have been the intention of the act of 1720, to- permit a man, who had gone out of the state, for a short-time, and returned back, time enough to make his defence to the action alter due notice, to screen himself under the technical- words of the act, of being.out of the settlement when the writ was left at hip house or place, of residence. Such a construction, he contended, was contrary to the spirit and intention of the act,, which was only intended to guard- against surprise; and for that purpose, he relied on the case ofLarle vs. Chappel, tried at Laurens, spring-term, 1822, in which, it appeared, that a copy of.the writ, was left at defendant’s house, while he was in Georgia; Upon a motion to set aside the proceedings,upon an affidavit, stating “that he was out-of the state, when-, the copy was left, to wit, in Georgia;” without saying he was-surprised or .was in.-dangcr of suffering--injury by his not knowing of the service,:the court refused to set it aside, as the party might reside on the borders of the'state and only-' have gone,into his' fields or any small distance out of- the state, in order to-avoid service of legal-process. (1 M’Cordy 566.j Upon the' authority of this case, therefore, which I had never, seep before or heard of, I -changed the determination I had. come to, founded on-the-former, decisions of the court,|and refused the -motion, for the sake of -uniformity in' our decisions,, although • only- three judges concurred-in th& opinion quoted.
    There -was still a further ground taken in the case, in arrest of judgment; viz: that the premises were -not sufficiently described in the declaration, so as to enable the sheriff to -give possession of the premises by metes and bounds; and that the jury, in their verdict, took upon themselves to supply this defect by inserting metes and bounds therein. The description in the writ was, “that the said Wrn. Frean did' break and enter the lot and close of the said William' Cruik-shanks, in State street, in Charleston aforesaid.” The de~-scription in the verdict is in the following words:. “We find, for the plaintiff the within lot'óf land situate'in. Si ate street, in front on said street twenty-six feet, two inches, and ini depth from east to- west eighty-six feet, bounding to the north on land, now or late of Ann Ferguso-n, eastwardly on State street aforesaid, westwardly on' land partly of John Cart and partly of Ann Ferguson, and southwardly :onTand of the estate of J. Mathews, with ‡400 damages.” Upon this point, I was of opinion that although the-old law was very strict and particular in describing the nature, extent'and quantity of lanHs, messages and tenements.demanded in real actions, yet in the modern action of ejectment, (haw of Ejectment, 5,) many things have been added: and improved- by art and acquired new appellations that are perfectly well understood now by the law, that were not found, iii the law bookstand as men began to contract .by-mew-names which • were not known in the old lhw, so it was -.but reasonable-to suffer the remedy to follow the nature of such contracts; which shows that the description is now more conformable to the general understanding of men, at the present-day, than 'formerly. In this action, however, the .law- does not require ■that the thing demanded be so porticularly specified-that the sheriff may certainly know of what to give possession,, if the- plaintiff should recover. It is sufficient that the description is good to a common intent, or described in a manner in which it is-generally known and understood. The old. rule, (Cottingham vs_. King, 1 Burr. 627,j about the sheriffs being.necessarily to be informed so exactly on the record “what heis to deliver possession of” is now out of use; and the practice Is otherwise; for the sheriff now delivers possession according 
      to the directions of the plaintiff, who therein acts at his peril and he is only to take what he has a title to, (2 Bacon 4Iff. 1 Burr. 628-9-30.) This doctrine is confirmed by Lord Mansfield and all the Judges of the King’s Bench. An ejectment will lie for an orchard; because it is a word of certain signification, it being well enough understood.' (4r Bacon 419. So- an ejectment will lie for a stable, because it is a word of determinate signification. (4 Bacon 419.j So im ejectment of an house is good, for the import and certain signification of the word .dorms or house, is well enough understood in the law. (2 Bacon 420. Palm. 337. Hutchinson vs. Puller, 3 Lev. 97.J With respect to the verdict and the finding of the jury supplying the defect in the declaration, as alleged, I observed that it is laid down in the books, that a verdict, not only cures such defects as may be called artificial defects, and come within the statute of Jeofails, but also natural defects, or the omissions of the parties in their allegations, which must be presumed to have-been given in evidence to the jury, otherwise they could not have found a verdict for the party. By which is meant all matters of form, and not matters of substance; which must be determined in every case according to the nature of it. For these reasons, I refused the motion in arrest of judgment.”'
    An appeal was taken upon the grounds.
    That the writ was served during the defendant’s absence from the state, so that he had no opportunity of appearing, as appeared by affidavit.
    Also on arrest of judgment, on the ground, that the declaration set out no specific lot or premises.- An order for judgment was made and afterwards, a jury who in such cases can only assess damages, undertook to supply thé record, by finding for the plaintiff, premises not defined. Also, because there was no rule of survey to.ascertain the metes and bounds; and because the writ of execution, founded upon an unauthorized judgment was irregular.
    
      
      Hunt, for the motion.
    A copy writ left at defendants bouse, wliije he is absent from the state is bad sei vice. (Pub. Laivs 109.) Where party is out of the state the suit must be by attachment. The true principle relating to service of writs is decided in 1 JVott&. Ml Cord, 90. In Lark vs. Chappell, (1 Cord 566,) only the particular case is decided;but so far ás principles are involved, it is in favor of setting aside this service.
    On the second ground, ho said, the jury on a writ of enquiry can only assess damages. In all actions of trespass for lands, a survey is required by law. (Pub. Laws 119.J The pleadings do not set out the metes and bounds, which they are required to do by the 83d rule of court.
    
      Prioleau, contra
    —Contended that the defendant was hot surprised; and referred to the notice given by his attorney. Lark vs. Chappell, decides that .the defendant must be surprised. Appearance of defendant by attorney cures all antecedent defects. (3 Crancli 490.)
    As to the second ground; he said, in trespass for town lots, the metes and bounds need not be set out. (Cro. Eliz. 465 ) After verdict, this description will be held sufficiently certain. (1 Burr 628.) Ejectment does not require great certainty. (5 Burr. 2.672. 1 Salk. 264. 2 Wm. Black. Rep. 706. 2 Strange 695. 1 Lord Raymond 191. 1 T.Rep. 704. 1 Bac. 160. 5 Bacon, 368. 2 Bac. 419,, 420. The law merely authorizes the court to order a rule of. survey, and is not imperative.
    
      Hunt, in reply.
    The defence), in which the defendants counsel is instructed, Was given by defendants wife, in whom the-property- really is. The defendant hás.no interest in the case)-which is the substantial defence. He referred to.the affidavits. Did-not. deny the authorities that ejectment lies for-a house, orchard, &c. The objection is, that the verdict describes the premises, -when the-declaration does not.
   Johnson, J.

In the first place,- the defendant moves to set aside the servicé of the' writ, on the ground, that when '¿•he copy was left at his house he was out of the-state at New-York. The fact, that the defendant was out of the state at. the time, is not denied, and the evidence shows that his domicile was in the city of Charleston. His family resided there, and it is impossible to distinguish the case from that of Lark vs. Chappell, (1 M'Cord 566.) Laurens, the district in which the defendant in that case lived, is not a frontier district, and the case there put, of one living on or near the boundary-line of the state, is only used as illustrative; and for any thing that appears his visit to Georgia, might have required as much time as the present defendants to New-York. But independent of this authority, it appears to the court that the act of 1720, contemplated and intended to provide for the precise state of things existing in this case. The inconvenience incident to the necessity of a personal service, and the probable delay resulting to the plaintiff, suggested, no doubt, the provisions of the act. But, in its operation, it is not only calculated to give facilities to the plaintiff, but operates as a great convenience to the defendant; as it super-cedes the necessity of proceeding by attachment, which is always inconvenient and often injurious and oppressive to the defendant. The cases in which the aet authorizes the service of the writ, by leaving a copy at the dwelling house or most n'otorious residence or habitation of the defendant, are, where he absconds or absents himself so that he cannot be found, , without any limitation or specification as to lime or place. Now his absconding or absenting himself are the circumstances which authorize this mode of service; and, if warranted in a case where the defendant secretes himself about his @wn house or plantation and where it might be possible te find him, surely the reason would operate still more powerfully where he was out of the state and beyond the reach of the process. The case of Gadsden vs. Johnson, 1 Nott and M'Cord, 89, has been relied on in support of the motion, as containing the principle on which this case must be decided; but they are not analogous, nor does that case in any manner interfere with the case of Lark vs. Chappell. There the defendant had abandoned his town residence when the copy was left there, and his country residence, to which he removed, had in the language of the act, become his dwelling house, and his most notorious place of residénce and habitation; and the true criterion is, whether the defendant' had or' had not abandoned the domicile at.which the copy was left. If he had, but one hour befoye, the service would have been bad; and if he had not, it would have, been good, wheresoever he might have been at the time. Arguments, db inconvem-«nii,.have been drawn from the circumstance that the defendant might, by this,mode of service,, be deprived of the right to defend the action; but it may be answered, that a prudent man ought not, and probably never would, leave his residence for any length of time, without leaving an agent instructed jin his unsettled affairs, and who would apprise him of any matters which might require his attention. But the'se evils are in a great degree imaginery; for by the practice of the court, the defendant would on showing the circumstances be allowed to. come in and plead at any time before judgment; and even after judgment, thecouf.t would, on merits shown, open the case and let the defendant into his defence if he had not an opportunity of coming in before.

On the motion in arrest of judgment the court concur generally with the presiding judge, for the reasons expressed by him. It is impossible, from the nature of things, that the record can so describe the locus in quo that a stranger would be able to identify it, with the-same certainty that he would the face of a friend. Certainty, to a common intent, is, therefore, all that can be practically required. • The objection, that the verdict contains another or further description than that contained in the record cannot avail the defendant; although the court concur with the counsel, that so far as it goes to describe the premises it is unavailing. By the default of the defendant, the plaintiff’s title in the premises, described in the record, was admitted; and the only question over which the jury had any power was the quantum of damages. Bui snp*> posing that the question of title was properly submitted to them, they could not travel out of the record to determine the title to a different locus- in quo. If that described in the verdict be the same mentioned in the record, it is well;, no injury has been done to the defendant; if it is not, it is irrelevant and surplusage, and will not impugn the verdict, so far as it appears to be the matters submitted to the jury~ It must stand, therefore, as a general verdict for the plaintiff.

The. ground taken that the plaintiff had not procured a survey of the premises, under a rule of court, cannot be sustained. The act which authorizes a survey to be made is not imperative, and certainly never was designed to be used when it was unnecessary. Either party may resort to it, when, for the want of other evidence of identity, it becomes neces-ary; but when they think proper to put their rights upon other evidence, it would be a strange construction to compel them to provide more than was necessary; for many cases occur particularly in tow ns and villages, where the identity can be otherwise as certainly and satisfactorily established. In this case there is another reason which would operate. The judgment by default was conclusive, as well to the locus in qua, as to the plaintiffs title. He was not therefore under the necessity of producing any evidence on the point; and to have required him to procure evidence, which there was no necessity to use, would be unreasonable:

Motion dismissed.

Hunt, for the motion.

Prioleau, contra. 
      
      .) ill the evidence that is necessary in such a case, where the plaintiff merely goes for his title and not for damages, is to take care that he prove damages enough to carry costs. So ruled by Judge Notf, sitting for Judge Huger, at nisiprius, in Lee vs. Sawyer, at Lexington, Nov. 1825.
     