
    [Philadelphia,
    Dec. 19, 1822.]
    SHAFFER against BROBST.
    IN ERROR.
    When it appears By the record, that after the return of summons a rule was enter edto declare, and after declaring, the plaintiff entered a rule to plead, and signed judgment for want of a plea, the judgment is regular.
    The court will not presume a rule to have been entered by the prothonotary of his own mere motion.
    If such were the case, the remedy is by application to the court below, and not by writ of error. !
    Error to the Court of Common Pleas of Lehigh county.
    Case, by Christian Brobst, the plaintiff below, against William Shaffer, the defendant below, in which a summons issued to January term., 1820, and the sheriff returned “summoned.” It appeared by the record, that on the 6th September, 1820, a rule was entered to declare by the 1st day of next term, or non pros. On the 21st of the same month, a declaration was filed, containing a a single count for money had and received, and on the 6th December, 1820, a rule was entered to plead in six weeks, or judgment. January 22d, 1821, judgment was entered according to the rule. A fieri facias was issued returnable to January term, 1821, which was returned nulla bona, and a testatum fi. fa. was then issued to Northampton county, returnable to April term, 1821, on which a levy was made on personal property. On the 30th April, 1821, H. Ross appeared for the defendant, and a motion was made, founded on an affidavit of defence, and that the defendant had no know-lege of the suit, to open the judgment and let the defendant into a defence, which the court below rejected.
    
      Scotl, for the plaintiff in error,
    contended, that the judgment was erroneous, because it was entered without the defendant’s appear- - anee. The defendant never appeared till fifteen months after suit brought, and after his goods had been levied on. It is true, there is a rule to declare entered, but the record does not show by whom: it may have been done by the prothonotary, without authority. The rule to plead is, therefore, irregular, and will not warrant this judgment. The judgment is equally irregular, if considered as a judgment by default for want of appearance. The act of assembly of the 30th March, 1734 — 5, regulating the practice on writs of summons and arrest, sect. 1. Purd. Dig. 23, provides for enteringjudgmentby default after filing acommon appearance, where the officer certifies to the court upon oath or affirmation, that on or before the return of such writ, he had summoned the defendant, mentioning the day he did so; andrequires, thatthe summons shall have been served ten days before the return day, and that the declaration shall have been filed five days before the return day. None of these requisites appear on this record. The return is generally, “ summoned,” without any specific oath as to the day, and the declaration was filed long after the return day. In Fitzsimmons v. Solomons, 2 Binn. 436. the judgment below was reversed in the court, because it appeared from the prmcipe, that only five days intervened between the issuing and return of the summons.
    
      Binney, for the defendant in error,
    argued, that sufficient appeared on the record to support the judgment. As to the practice in proceedings by summons, the act of 1724 — 5, has received a construction from long usage, that where the record shows that the party was summoned, the court will presume, to support the judgment, that this summons was. served in propertime, unless the contrary appears by the record. It has not been customary for the sheriff to make a special oath in each case. But independently of this, the record sufficiently shows an appearance. A rule to declare was taken: this must have been taken by the defendant in person, or by attorney: for he has a right to appear in person. The plaintiff having declared, a rule was taken to plead, and it must be presumed it was made known to the defendant or his attorney.
   Pek cuhiam.

The error assigned in this case, is, that a rule to plead was laid on the defendant, and judgment entered against him by default, before he had appeared. Had the case been'so, it would have been error. But it appears by the record, that, the plaintiff had been laid under a rule to declare, previous to his taking a rule to plead against the defendant. Now this rule to declare, must have been obtained by the defendant or his attorney; for we cannot hearken to the suggestion, of its being laid by the court of its own mere motion. If the prothonotary had entered this rule by mistake, the remedy would have been by motion to, the court below, who would have ordered it to be struck out. As the record stands, it appears to us, that the rule to plead was regularly entered, and therefore the judgment should be affirmed.

Judgment affirmed.  