
    Ebenezer Cobb against Samuel Decker, jun.
    ON CERTTORARI.
    Service of summons by leaving a e°py with defendant, 
    
    
      
      
        Vigers vs. Mooney, Pen. *909. Despreaux vs. Barber, Pen. *1041. Penny vs. Harrison, 2 Gr. 24. Ballinger vs. Sharon, 2 Gr. 144. Polhemus vs. Perkins, 3 Gr. 435.
      
    
   OPINION of the Court.

Southard J.

The return of the constable of the service of the summons is in these words:' “ July 19,1817, served by copy left with the wife of defendant. Isaac Tuttle, constable.” The words of the act of the legislature, directing the service, {Bloom. 50) where it is not on the defendant himself, are, “ by leaving a copy thereof at his house or place of abode, in presence of some white person of the family, of the age of fourteen years, who shall be informed of the contents thereof.” The service in this instance, is therefore faulty, in two respects. 1. It does not appear, that the copy was left, “ at the house or place of abode” of the defendant. And 2. It does not appear, that the wife, to whom it was given, was “ informed of the contents thereof.” The service is therefore illegal and insufficient.

This error is not cured by the subsequent appearance of the defendant. When he appeared, he took exceptions to this service. The court ought to have listened to him, and dismissed the suit. If his appearance under such circumstances cures the *error; we place defendants in this predicament: when they have a summons illegally served, they must run the hazard of relying on their own opinion of its illegality, and the chance of protecting themselves by it, in getting a reversal, or they must appear, and thus cure the error. If this be correct, a summons may be served one hour before its return, and if the defendant appears to protest against the service, he is without remedy. Such a course of decision, would deprive a party of every benefit from the law which prescribes a limited period, for the service of the writ. For this cause, in the opinion of the whole court,

Judgment must be reversed.  