Although the proof of service of the summons on the defendant is not of that conclusive character that it ought to be, yet the conduct of the defendant as disclosed in these affidavits, is such as to justify the court on a motion to set aside the judgment, in requiring satisfactory proof that the affidavit of service was untrue. The defendant after he had knowledge of the erroneous service of the summons on his foreman, and when requested to wait till it could be procured from the foreman, who was then present, so that it could be served on him, not only immediately departed, but endeavored to avoid the service and to conceal himself from the plaintiff’s attorney. I cannot resist the conclusion that throughout,, there has been on the part of the defendant, a constant endeavor to avoid the service of process in this case; and I am not satisfied that it was not served on the defendant.
As the defendant has sworn to merits, and the service of summons is involved in doubt, the defendant is permitted to answer within five days upon serving with his answer a consent to refer the case to a referee. If the parties do not agree *220on such, referee, either party may on two days notice, apply to the court to name such referee. The judgment to remain as ■security, and the costs of the judgment and $10 costs of this motion to abide the event.
If defendant does not • accede to these terms, the motion is denied, with $10 costs.