
    DYOTT v. PENNOCK.
    June 23, 1838.
    
      Rule to show muse ivhy the writ should not he quashed.
    
    The issuing of a summons on a return day, and made returnable the same day, is irregular under the act of 13th June, 1838, and the writ will, on motion, be quashed.
    THIS was a summons issued on the 7th day of May, 1838, which was the first Monday of May, and a monthly return day in this court. It was made returnable the same day. The defendant obtained a rule to show cause why the writ should not be quashed.
    
      Phillips, for plaintiff.
    
      Meredith, for defendant.
    The counsel referred to the sections of the act of 13th June, 1836, relating to the commencement of actions, (Stroud’s Purd. tit. diction,) which are as follows, viz.:
    “ Sect. XXX.—Every writ used for the commencement of an action shall bear date on the day of the issuing thereof, and shall be made returnable on the first day of the term next succeeding the time at which it shall be issued.
    “ Sect. XXXI.—Provided, That in the case of a writ of summons if there shall not be ten days between the issuing thereof, and the first day of the term as aforesaid, the writ may be made returnable on the next day preceding the last day of such term, or upon the first day of the second term next after the issuing of the writ.
    “ Sect. XXXII.—In the courts for the city and county of Philadelphia, and county of Allegheny, all writs issued for the commencement of actions, may be made returnable on the first day of the next term as aforesaid, or on the first Monday of any intermediate month, at the election of the party suing out the writ.
    “ Sect. XXXIII.—If the defendant in any writ of summons, as aforesaid, shall not appear at the return day thereof, and the officer to whom such writ was directed, shall make return that it was served upon the defendant ten days before the return day aforesaid, it shall be lawful for the plaintiff having filed his declaration, to take judgment thereon for default of appearance, according to the rules established by the court to regulate the practice in this respect.
    “ Sect. XXXIV.—In case such writ shall not be served ten days before the return day thereof, if the defendant therein shall not appear in ten days after the day of service, it shall be lawful for the plaintiff having filed his declaration, to take judgment thereon at any subsequent day in term time, for default of appearance according to the rales established by the court to regulate the practice in this respect.”
   Pee Curiam.—

The act intends that a writ of summons shall be made returnable on a return day, whether monthly or otherwise, which shall succeed or occur after the time at which it shall be issued. This condition is not satisfied in this case. See 2 Browne 245.

Rule absolute.  