
    JOHN T. PEDRICK, Manager, &c. against SHAW.
    ON CEBTIOBABI.
    Defective service of summons, pleadable in abatement. Service must be five lull days before return. Form of return. Adjournment
    Thirteen reasons were assigned for the reversal of the judgment in this case. The first and fifth only, are taken notice of by the judges — and are as follows:
    1st. The summons in this cause, was not served by the constable at least five days before the time of appearance mentioned therein. The said Pedrick, at the said time of appearance, pleaded this matter, and offered to maintain his plea by proof — but the justice refused to hear his proof, and overruled his plea.
    5th. The justice adjourned the trial for more than fifteen days from the return of the summons.
    The defendant filed a plea, stating that the summons was served on him the third day of December, 1804, at half after three o’clock in the afternoon, which made not five [*] full days from the servicie to the return. That this was his plea, and he offered to prove it by two witnesses, which he had with him, naming them. The summons was returnable on the eighth day of December, at three o’clock in the aftei’noon. The defendant therefoi’e, contended, that he liad not had the notice given him by the law, by one half hour. [42] The justice, notwithstanding, tried the cause.
    The cause was adjourned from the eighth to the fifteenth; and from the fifteenth to the twenty-fourth of the same month.
   Kirkpatrick, C. J.

— In this case the defendant below, appeared on the return day of the summons, and pleaded, by way of plea in abatement, that he had not been summoned live days before the day of appearance.

As the act is positive on this matter, it would seem that this plea, if verified, would be good. Yet the justice, without trying the truth of it, or passing any judgment upon it, proceeded to issue a venire, to try the merits of the cause, and to render a judgment. And this is assigned as one l’eason of reversal.

The proceeding was irregular. The plea in abatement should first have been disposed of. Justices cannot contravene the law. They cannot compel parties to answer on shorter notice than the law allows.

For this cause, I think the judgment must be reversed.

Rossell, J. — Concurred.

Pennington, J.

— The return of the constable, in this case, is defective; being in these words, “Served for the above date by copy.” The return of the constable, in case of service by leaving a copy at the place of abode of the defendant, should be—

I served the within summons, on the day of by leaving a copy of the same, at the place of abode of defendant, in the presence of A. B., a white person of the family, above the age of fourteen years; and at the [*] same time informed the said A. B. of the contents of the said summons, the said defendant not being found.

The act of Assembly, as I apprehend, requires all this to be done to make a legal return. The court must be informed of the manner in which the summons was served, and the time of service, that they may judge of the legality of the service. But this defect may be cured by the appearance of the defendant, and making no exception as to the manner or time of service, or making such exception as shows that the summons hath been legally served, which I apprehend to be the case here. I take the rule to be, that the court will not take notice of fractions of days; and that the manner of reckoning the time in this case, is, one day exclusive, and the other day inclusive; that is, the day of service exclusive, and the day of return inclusive. [43] This manner of reckoning will make out the time, and establish the service of the summons.

But I take it, that this judgment must be reversed on another ground. The justice adjourned the trial beyond fifteen days from the return day of the summons; that is, from the 8th day of December, 1804, to the 15th; and from the’15th, to the 24th. The act does not merely prohibit an adjournment for more than fifteen days at a time, but to a time not exceeding fifteen days from the retwrn of the summons; either there ought to be but one adjournment; or if there are several, they ought not altogether to extend beyond fifteen days from the return day — otherwise it would be in the power of the justice to avoid this restriction in the act altogether. For this cause, it is my opinion, that this judgment must be reversed.

Judgment reversed.

Cited is Homer v. Hewlings, 3 Halst. 227; Murat v. Hutchinson, 1 Harr. 46. 
      
       Vide post, *63, *84, *95, *155. 1 Halst. 130. 1 Green, 340. — Ed.
     