
    [*] VIGERS against MOONEY and WOOLLEY.
    OH CERTIORARI.
    Affidavit allowed on certiorari, to prove the summons was served on a person not living with the defendant.
    The defendant below, Vigers, did not appear before the justice, whereupon a judgment was rendered against him by default.
    It was now contended by Van Arsdale, for the plaintiff in certiorari, that the summons was not duly served; that Vigers had no notice of the institution of the suit against him until execution was issued. The return of the constable, as to the service of the summons, was as follows:— “ Summons served by leaving a copy with defendant’s wife, informing her of its contents.”
    
      Mr. Van Arsdale
    
    offered to read affidavits taken under a rule of court, to prove that the person whom the constable supposed, or pretended was the .wife of the defendant below, was not his wife; and that although she had lived with him under circumstances disreputable to her, yet that at the time of the service of the summons, she did not even live in the house [662] of the defendant, but in another family; and that the defendant resided at that time in New York, although he had a house in Essex.
    
      Ghetwood
    
    opposed the reading of these .affidavits, on the ground that it was contradicting the record of the justice, by affidavits. That the return of the constable was entered according to law, on the justice’s docket, and thereby became part of the record, and could not be contradicted or added to by affidavits, according to former decisions made by this court.
   By the Court. — Let

the affidavits be read; they are not read to contradict the record. The service of a summons by leaving a copy with the defendant’s wife is not a good service, unless the wife is at the [f] time of the service, at the residence of the defendant. It is to repel an inference which may possibly be drawn from the return, and as the summons was served on the wife of the defendant, it may be presumed that it was at his place of residence; to take away this presumption, it is proper to read the affidavits.

The affidavits being read, fully proved the facts as stated by Mr. Van Arsdale. On which the court

Reversed the judgment.  