Opinion
Fall Sessions, 1863.
CERTIORARI to a judgment rendered by default on a writ of scire facias issued upon a judgment.
The return to the writ was "served by copy left at the house of the defendant in the presence of his wife." The error assigned was that the return was insufficient. Because the statute, Rev. Code, chap. 99, sec. 3, prescribes the exact words in which such a return should be made in such a case, when it cannot be served actually, or personally upon the defendant. Instead of being as it was, it should have been at the defendant's "usual place of abode" c., in the literal terms of the statute; for non constat, that the house of the defendant in such case, was his usual place of abode at that particular time, notwithstanding his wife was there and then occupying it.
The Court considered the error fatal, and the judgment was reversed.