
    Wingert and another against Connell for the use of M‘Call.
    In Error.
    
      Monday, May 25.
    
    IN this suit the plaintiff filed a statement agreeably to the 5th section of the act of 21st March, 1806,
      
       in the mon Pleas of Dauphin county. The next Term of the Court commenced on the 29th August, 1814, and continued two weeks. On the 30th August, the plaintiff entered judgment by default; which the Court refused to open, on the application of the defendant’s counsel. Several other proceedings took place, which were the subjects of exceptions here, but which it is not material to mention, as the opinion of the Court is confined to that which arose out of the entering of the judgment by default, prior to the time when, by the act of assembly, the plaintiff was entitled to such a judgment. The time given to the defendant to appear, is the third day of the next succeeding Term to which the process issued is returnable, When the Term is for one week, and the second Monday of the Term, when it is to continue two weeks.
    T1w Court by ^underíhe* 5th section of March, 1806, by the. act for ^t^appearance-
    
      Elder, for the plaintiffs in error.
    
      A. Hopkins and Ellmaker, contra.
    
      
      
         4 Sm, L. 328.
    
   By The Court.

The judgment was professedly taken under the act of assembly, yet it was contrary to the act of assembly, because it was entered previous to the time allow-1 ed by the act for the defendant to appear. At the time of entering the judgment, there was no default in the defendant. We are of opinion, that the .judgment should be reversed.

Judgment reversed*  