
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Ellis v. Falconer.
    •Tlio proper form of a summons in dower is a rule or order of court, and not a writ, and it need not have a seal, or a regular teste and return : but .if the form of a judicial process be given to it, it is not, therefor®, void ; yet in such case it must be made returnable as other writs are, or it will be quashed.
    A writ of summons in dower had issued, returnable to the court of common pleas for Darlington district, at Darlington court house, on the first day of the next court after the date ; and on motion in the district court, was quashed, by Johnson, J., because it was not returnable fifteen days before the sitting of the court, according to the act of 1799, which directs that all judicial process shall be returnable fifteen days before court. And this was a motion to set aside the order of the district court.
    2 Faust, 334.
    The counsel for the plaintiff argued, that the aet respecting dower, A. A. 17.86, P. L. 408, directs that a summons shall issue-addressed to the heir at law, &c., requiring his appearance at the next court to be held in the district, where the lands lie, that shall he held ten days after the service of such summons, S$c. .• so that a service of the summons, ten days before court, under this act, is good, and the party summoned, is bound to appear, if summoned ten days before the sitting of the court. But if the summons must be returned fifteen days before court, it cannot be served within fifteen days of the next sitting of the court; and, therefore, to require this, would be inconsistent with the act of 1786. Moreover, the act of 1786, directs that the service of the summons shall be proved in open court, on the day on which it is returnable; which shews that it cannot be returned in the manner the act of 1799 requires,'fifteen days before the sitting of the court. It was further urged, that the writ of summons in dower, is different from all other writs. It is not a compulsory process, but á notice only, pr a rule to shew cause ; and is not within the meaning of the act of 1799. The counsel cited 1 Tmpoy’s Pract. 136, to shew what is meant by judicial process. Judicial process in the act of 1799, means compulsory process, with some exceptions from necessity; for writs of subpoena, though compulsory, cannot bo considered n« within the act.
    The counsel for the defendant contended, that the act of 1799 Was iP0S^ve’ a^ judicial process must be returnable fifteep days before court, and that a writ of summons is a judicial process, and must be returnable accordingly. The return of the writ does not interfere with the directions of the act of 1786, or work any difficulty or inconvenience ; it -only requires that the process should be served five days sooner than formerly.
    ' iFaust 'ars’ ’
   The judges delivered their opinions, severally :

Bkevaiid, J.

I am of opinion that the order made in the district court should be set aside. The act of 1786 makes it lawful to serve a summons in dower ten days before court: but if we say, that the writ must be returnable to the clerk fifteen days before court, we deprive the party of the benefit of having it served ten days before. The writ cannot be served after it is returnable, so as to S°°d for the next court; although by an act of assembly of this State, it will be good for the next succeeding court. But the principal ground of my opinion is this. The act of 1799, requiring all judicial process to be returnable fifteen days before court, can. not be construed to mean every sort of judicial process, as the words seem to import. The meaning of the act is, that judicial process, in general, shall be so returnable; for there are many exceptions that must, from necessity, be made, as writs of subpoena, writs of attachment for contempt, writs of mandamus, &c.

1 have no doubt but that this is a judicial process, within the meaning of the act, but not as to thispoint. I think a summary process is a judicial process, within the meaning of the act, although it has been usual to give such process, not a judicial form, but the form of an order. The ancient distinction was between judicial and original process: original process issued out of chancery ; judicial process was founded on some original process. But in this country no such distinction exists, and all process, if sued out of the courts of common pleas, must be deemed judicial process. The judicial process intended by the act, I take to be, all writs of mesne process and execution, and writs of scire facias. I do not think writs of summons in dower, or partition, were intended, any more .than writs of subpoena, and gome others.

t This construction may be given to the act, notwithstanding the words, “ all judicial process,” because it is a necessary construction. The act of 1720, P. L. 109, requires that all original process, issuing out of the court of common pleas, shall be by writ to attach the body; vet writs of summons in dower are never .so directed ; nor writs in debt, assumpsit, &c., against executors, or administrators. They are summoned, not attached, This deviaiion from the act was founded on necessary construction; as without such construction, a principle of the common law would be infringed. So here, withoutthe ¿onstructibri I give tó the Act of 1799, the act of 1786 must be infringed. Or shall we say the latter act is altered by the former. The summons must be by writ,'since the supplementary judicial act of 1799, which authorises the clerk to issue summonses in dower in common form, speaks of such sum.monses under the denomination of writs.

Simons, for plaintiff. Branding, for defendant.

Trezevant, J.,

thought the form of the process was mistaken. The proper form' of a summons would- be that of an' order, or rule, and-not that of a writ requiring a return, and a seal; and-it ought not to be directed to the sheriff -but to the party summoned. But in this' case, the-party having-chosen to give it the form oí a judicial process, it must be regarded as such, and ought to have been made returnable, as the act of 1799 directs.

Johnson, J.,

gave no opinion, having presided in the district court, and decided the motion there.

Bay,'-J.,

said the summons ought to have been in the form of a rule, which was the old form used’ in this State, when he was at the bar. Concurred with Trezevant, J.

Waties, J.

agreed that the old form ought to have been used ; and' that this writ was quashable for that cause. As to.the difficulty stated,of the return being before the lime when the process may be served by the act of 1786 ; if such a question were necessary to be decided, I should be of opinion, that the act requiring the process to be returnahle fifteen days before court, so far altered the former law, which-makes it lawful to serve the process ten days before court, as to make it necessary to serve the process-fifteen days, at leasts before"' court, instead of ten.

Gkimke, J,, ahseint, sick.

•So the plaintiff took nothing by his motion.  