
    Morrison against Wetherill.
    Ajudgment by default, under the Act soth March, 1724 sect l is good, where LÍbSika and the denot appeared, declaration was not filed fore the return
    cord do not thelummoas was served, the Court, on its being made to appear that it was not served ten davs before the return sefas'ide if judgment by irregularity; execution of a writ of inquiry upon^ and'a long acquiescence, it is not. tobepresummons'was aervedSUlaily
    In Error.
    ERROR to Allegheny county.
    , . A summons, in case, was issued by the defendant in error, 7 7 J " Rgainst the. plaintiff in error, to November Term, 1817, which was returned, “ Served.” On the 11th November, 1817, a declaration was filed, in which the plaintiff declared against the defendant. as the endorser of a promissory note, and on the ^d February, 1818, on motion of the counsel for the plaintiff", judgment was entered for> the plaintiff “ in default of an appearance.” A writ of inquiry was executed on 14th March, 1818, and the plaintiff’s damages' assessed at five thousand four hundred and five dollars ninety-three cents, for which final judgment was entered.
    . The record having been removed to this Court by writ ot . CI4UI)
    
      D. S. Walker and Hopkins, for the plaintiff in error,
    contended, that the judgment could not be supported under any Act of Assembly, or rule of Court. It is not authorised by the Act of 20th March, 1724, sect. 1, Purd. Dig. 22, because on the face of the record it appears that the requisitions of the lawhave not been complied with.; no declaration having been filed five days before the return of the writ. In Fitzsimons v. Salomon, 2 Binn. 436, it was decided, that if 7 * 1 it appear by the record, that the writ was not served ten ^ays before the return day, ajudgment by default under this was erroneous* Nnd in Case v. Hufty, 1 Dall. 154, it was held, that service of the writ, even, on the person of the defendant, must be ten days before the return. The regularity of the service of the writ, which is essential to the validity of a judgment under this Act, should appear upon the record, and such is the positive requisition of the law. Nor can the judgment be sustained under the Act of 21st March, 1806, sect. 5, Purd. Dig. 325. This Act having made a great change in the law, should be strictly construed. To bring himself within its scope, the plaintiff shopld have brought an action of debt, instead of which he has brought case ; he should have filed a statement, instead of which, he has filed a declaration ; the Court should have given judgment for what appeared to be due, instead of which, a writ of inquiry has been executed. The judgment should be given on the third day of, the term succeeding that to which the process issued is returnable ; and cannot be'entered by default at any other time.
    
      Denny, for the defendant in error, answered,
    that the judgment was good, under the Act of 21st March, 1806. The term commenced on the 10th November, and the declaration was filed on the 11th ; which was clearly in time, A declaration is in every respect a statement, and only differs from those authorised by the Act of Assembly, in setting forth more fully and particularly the nature of the plaintiff’s demand. The action is for a debt founded on a note, and is therefore embraced by the language of the law, which does not speak of actions of debt, but of actions for the recovery of debts; and the judgment was entered during the second term, though after the third day of the term. The law has been substantially complied with, and as its object was to expedite justice, the Court will not require more.
   The opinion of the Court was delivered by

Duncan J. —

-The writ, the declaration, and all the proceedings in this case, shew that it was not founded or conducted according to the directions of the Act'of 21st March 1806. The writ is in case, and not in debt. There is a regular declaration filed, and there is an interlocutory judgment, and not one for a definite sum. The damages are assessed by writ of inquiry. It is then to be considered as a proceeding under the Act of 20th March, 1724, regulating the practice on writs of summons and arrest, which provides, that if the defendant on the return day of the writ does not appear, but makes default, and the officer return on oath or affirmation, that on or before the return day of such writ he hath summoned the defendant, mentioning the day he did so, &c. on which return, if the defendant has been so served ten days, and the plaintiff has filed his declaration in the office of tbe Prothonotary within the space of five days before the Court to which such writ is returnable, it shall be lawful for the plaintiff to file a common appearance' for the defendant so making default, and proceed to judgment and execution by nihil dicit. It has not been the practice, under the Act of Assembly, to enter an appearance for the defendant, and take judgment by nihil dicit, but to enter judgment by default. Nor has it been usual to file declarations before the return of the writ, but to.- take j udgment after the declaration is filed and the defendant has made default by not appearing. Here the declaration was filed two days before the return day of the writ. This certainly, under the practice, entitled the plaintiff to his judgment. Where there has been a practice for more than half a century, it would be unjust to return to the strict letter of the law, and say that all has .been error during that period. The only objection of any weight is, that it does not appear that the summons had been served ten days before the return day; but nothing is to be presumed against a judgment. When it was served does not appear on the return ; and it is usual to return the summons generally, “ Served,” without stating the time of service. If the plaintiff in erfor •had not been served ten days before the Court, the Court would set aside the judgment for irregularity ; but after a writ of inquiry executed, and judgment on that, and so long an acquiescence, it cannot be presumed that he had any ground of complaint on that head. It is sufficient here to say, that it does not appear but that the summons was issued ten days before the return day. Had it appeared by the record, that it had not been so served, the judgment would have been erroneous, according to the case of Fitzsimons v. Salomon, 2 Binn. 436. But on this record, there appears no such error. The, judgment is therefore affirmed.

Judgment affirmed.  