Black v. Johns

The opinion of the court was delivered, by Agnew, J. As to time, this judgment was taken regularly. When the summons has been served ten days before the return-day, and no rule of court directs otherwise, the practice is to take judgment for default of appearance after the first four days of the term have elapsed. Judgment therefore can be taken on Friday of the first of the term. This practice has prevailed both before and since the passage of the Act of 13th June 1836, relating to actions. The summons in this case was served on the 28th of October, the return-day being Monday, the 7th day of November. This, according to universal practice, is a service of ten days before the return-day, the return-day being left out of the count. Adding the first four days of the term, making fourteen in all, the time for appearance expired on Thursday, the 10th day of November: judgment was therefore properly entered on the 11th day of November, which was Friday. But the declaration was not filed before the return-day, and the judgment was therefore irregular on the authority of Foreman v. Schricon, 8 W. & S. 43, and Dennison v. Leech, 9 Barr 164. Dennison v. Leech was decided in 1848, after the decision by the District Court of May v. Sharp in 1846, and must therefore govern, especially as it was directly on the point now before us. After two decisions it would be improper now to give a new reading of the Act of 1836. The declaration must therefore be filed before the return-day of the writ to warrant a judgment for the default of an appearance. Judgment reversed and procedendo awarded.