delivered the opinion of the court.

This case comes into this court by writ of error to the circuit court of Claiborne county.

The plaintiffs in error hold that a judgment by default was taken against them irregularly, because their plea was well and duly filed to the action. The defendant in error insists that no plea in behalf of said plaintiffs existed of record at the date of said judgment, and that the judgment by default tvas therefore rightly taken.

Whatever circumstances or facts,, bearing upon the case, may exist without the record, this court cannot inquire. The face of the record alone presents the features of the case to us.

It appears that the suit was instituted at the May term, A. D. 1842, of the circuit court for Claiborne county, by James J. Hoyt, the defendant in error, against the said plaintiffs in error, Tomlinson & Collins, and one Pierson. The judgment by default, sought to be reversed, was taken at the same term.

The record, after setting forth the declaration, capias ad respondendum, «See., proceeds to declare that “the defendants, Tomlinson & Collins, filed their plea in these words,” and then follows what is designed to be their joint plea in propriis personis of non assumpsit. The matter of this plea, however defenceless to criticism its language may be, is yet a sufficient answer to the plaintiffs’ cause of action, and required some disposition to be made of it. Appearing in the record, and in its proper and appropriate place in the record, although the plea does not itself state the style of the suit, it must necessarily be taken as a plea in this action; and, for the same reasons, although the precise period of its being filed does not appear in the statement of the plea, the presumption is equally irresistible that it was duly filed in point of time. Whether the plea be or not a false entry of the record, is not our inquiry now; or, being filed, had it been bad or irregular, from causes not now shown of record, such defects should have been cared for in a way to have met the eye of this court. In the case of Irving et al. v. Montgomery, 3 How. R. 191, the principle, as bearing upon this latter point, was already decided and settled in this State.

*519It is further contended that, because the record subsequently sets forth that the defendants below, Tomlinson & Collins, “ although warned to come into court and plead, answer or demur to this action, made default,” and judgment was taken against them therefor, it is evidence of the absence ,of a plea to this action by those parties. This position is entirely irreconcilable with the record. The plea is the act of those defendants, and appears of record, but the judgment, based upon the supposed want of that plea, is the act of the court, and is the ground of complaint of error. We must believe that the court below overlooked the plea rather than that the record is false embracing that plea.

There remains another point,- not made by counsel, which claims notice.

The service of the writ upon the defendant,-^Collins, is not sufficient to warrant the judgment below by default. The return is “ executed on Wiley Y. Collins, by leaving a copy at his residence, on a table in the porch, he not being found at home, May 4th, 1842.” The law requires personal notice when the defendant can be found. And if the defendant cannot be found, service of the writ will be sufficient by leaving ££ 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 by leaving a copy thereof at some public place at his dwelling house or other place of residence of such defendant, he being from home and no such free white person being found there willing to receive the same. Yide, How. & Hutch. 583, § 27. The return in this case is insufficient and bad, however good the service might have been. The return of “copy left at some public place at defendant’s dwelling house,” unless accompanied by a statement of the unwillingness of such free white person as above described to receive it, if any such person were then and there present, is incomplete and insufficient, as a service, and without obedience to those statutory requisitions, would be illegal. Elaborate reasons for this opinion are rendered un*520necessary by a former decision of this court in the case of Smith v. Cohea, 3 How. R. 35.

As the judgment below in this case is joint against the plaintiffs in error, a reversal for the last mentioned cause of error as to one, must include both these parties.

For the reasons examined in this opinion, judgment below must be reversed, and the cause remanded.