delivered the opinion of the Court.
This is a writ of audita querela, in which Marvin complains of a suit, commenced and carried to final judgment and exection, while he was out of the state, and had no knowledge of the suit. Wilkins, in his plea, says that Marvin was not out of the state, &c. at the commencement of the said action, not noticing the other averments in the complaint. To this plea, Marvin has demurred; and contends, that the plea does not meet the important allegations of the complaint. The defendant, on the other hand, contends that the complaint is defective in substance, and that, if the complainant has any remedy, it is by a writ of review, in which the merits of the original action may be tried : whereas, a judgment for complainant, in this action, would set aside the origina1! judgment and execution, and leave the parties out of court.
There seemed, at first, to be some weight in this objection ; because, upon a writ of review, the plaintiff in review, the original defendant, may take advantage of pleas in abatement, as well as pleas to the merits; and such judgment may be rendered as justice requires, upon the whole case. Whereas, if the audita querela succeed, the judgment is set aside, and the parties left out of court, as to any further hearing of the original action. But, upon mature investigation of the statute regulating *110a review of a judgment rendered before a justice, the objection loses its force.
There can be no writ of review, but in cases where it is expressly given by statute: and it is there given, only where it shall i,e ma{je to appear to the justice, that the defendant is out of the state, and he shall continue the cause, and at last, judgment shall be rendered against the defendant, without his being notified of the suit: and no execution issues till the plaintiff has given bonds to respond the damages, in case judgment be altered, upon a writ of review, to be brought within three years, &c.
When this course is pursued, it secures to the original defendant his day in court, and secures him his costs and damages, if the suit is without foundation. And it would be unreasonable to confine him to this remedy, without this correspondent security. And, whenever the original plaintiff would drive the defendant from audita querela to his writ of review, he must take care that the defendant shall have his day in court. This is the true distinction. If it does not appear by the officer’s return, that the defendant has personal notice of the suit, the plaintiff should prove notice, before he takes a default, or else have the cause continued, as directed by the statute: or, he must risk the consequence of its proving to be the case, that the defendant is out of the state, and has no notice of the suit: — in which case the audita querela is the proper remedy. This course of notice has not been pursued by the original plaintiff, Wilkins. The officer’s return shows no personal notice to Marvin. There was no continuance of the action, but a default taken, without proof of notice, and of course, no bonds given to respond damages, in case of a writ of review. If, therefore, Marvin was in fact out of the state, and had no notice of the suit, as he alleges in his complaint, this audita querela is his proper remedy.
This leads to the question, whether this audita querela, thus brought by Marvin, is sufficiently met by the plea of Wilkins ; to which plea Marvin has demurred. The plea has selected and denied a single allegation, only, of the complaint; to wit. that Marvin was out of the state when the action was commenced. Upon this limited traverse, it must be taken to be true, that the defendant, Marvin, had no notice of the suit, till after judgment was rendered, and execution taken out against him upon the same. The fact cannot fail to be important, as a party, without notice of a suit, cannot have his day in court to defend the same. If it were a fact controverted, the officer’s return would not aid the original plaintiff. It is not prima Jade evidence of notice: it is not evidence even of legal service. It is so defective, it would require an actual appearance to cure its defects.
The statute particularly requires the copy to be given to the party, or, in his absence, left at his usual abode, with some person of sufficient discretion; and if no such person be there, such copy must be left at such usual abode, in such situation that the defendant will most probably receive it; and the manner of service must appear in the return.. The return, in the present case, *111is, that the officer left a true copy of said writ lying on a table, with a copy of his return thereon. Nothing is said about the usual abode of the defendant, nor on whose table, at whose house, nor in what state or country, it was so left. Such a service, as here described, is none at all.
Augustus Burt, attorney for the complainant. Benj. Swift, attorney for the defendant.The fact denied in the case seems cautiously selected, so as to evade the merits of the question of notice. The complainant sets forth the time of his starting from Fairfield, and progressing towards and to Troy, in the state of New-York. This plea may be considered as merely putting in issue, the fact of Marvin’s having progressed so far as to have got out of the state when the action was commenced. This would be evasive of the merits; for when he started to go out of the state, and progressed regularly till he arrived at Troy, so that notice of the. suit could not probably overtake him, he was out of the reach of notice, as soon as he started. The fact denied by the plea, therefore, is not material, while all the other facts are left without denial.
But it is contended, that the complainant, if this fact traversed be immaterial, should not have demurred, but moved for judgment for want of a plea. This objection cannot prevail; for, if the complainant might take that course, he is not compellable to do it. A demurrer is always a good answer to an insufficient plea. The judgment of the court is, that the defendant’s plea is insufficient; that the original judgment and execution be set aside and holden for nought, and that the complainant recover his damages, to be assessed, and his cost.