
    Fitzsimons administrator of H. Salomon against E. Salomon.
    1810. Philadelphia, Saturday, March 31.
    XN ERROR.
    If a judgment Sox want of an appearance is entered against an’’administrator, and it appears by the prcecipe that there were’not ten days bemon? ancfretm'n day,thejudgnewts!* en°"
    
      ladelphia county, upon which the general errors were rTT'HJS was a writ of' error to the Common Pleas of Phi- , “ assigned. Plea, in nullo est erratum.
    
    The action was instituted by summons, against Thomas Fitzsimons and Rachel Heilbron administrators of Haym Salomon, upon a promissory note drawn by the intestate’s a8'cn 1 ¶ and indorsed to Ezekiel Salomon, the plaintiff below,
    The summons was issued to March term 1807, and returned by the sheriff “ copy left at the dwelling house of “ Thomas Fitzsimons, and nil habet as to Rachel Heilbronf ^llt mentioning the day of service. March term 1807 commenced on the second of March; and on the 20th, ^ plaintiff’s attorney filed his declaration, and signed judgment for want of an appearance,
    The praecipe writ is apart of the record, and be°^nt up wltif the process and pleadings, upon a writ of error.
    The plaintiff may proceed against an executor by capias appearance-'but if he elects to ^tnonTtheif tn”" order to entitle ment^vS/dS" ment by nil dicit, he must pursue the act of 20th March 1724-5, as if the suit were against a freeholder.
    The record not setting forth the date of the service, nor the time when the summons issued, the plaintiff in error, after issue, alleged diminution of the record, and prayed a certiorari to bring up the prcecipe, which was granted, and ^ Prmc fe was returned, dated the 24th of February 1807.
    Several exceptions were taken to the judgment. 1. ^at a summons was not the proper process against executors or administrators. 2. That there were not ten days l>et;ween the issuing of the summons and the return. 3. That the time of service was not mentioned in the return. 4. That the declaration was not filed five days before the return. S. That the judgment was not entered on the return day. 6. That a common appearance was not entered before the judgment. 7. That judgment was entered for want of appearance, instead of by nil dicit.
    
    Phillips, Meredith, and Ingersoll for the plaintiff in error.
    The material exceptions are the 1st, 2d, and 6th. The regular process against executors is a capias to compel a common appearance. The act of the 20th March 1724-5,1 St. Laws 224, which devises the writ of summons, is confined to freeholders only,’and the plaintiff pannot proceed under that act, against any but freeholders. But if executors, either by practice or a liberal construction, come within the act, then its directions must be strictly pursued. The act is express, that the day of the service must be mentioned by the sheriff, that the writ must be served ten days before the return, that the declaration must be filed five days before the return, and that, these things being complied with, if the defendant makes default, the plaintiff may enter a common appearance for him, and proceed to judgment by nildicit. There is no such thing known to this act as a judgment for want of an appearance. Setting aside then other objections, the want of ten days between the service and the return day is a fundamental error. The plaintiff below is bound to bring his case within some act, for otherwise he stands at common law, by which there cannot be a judgment against the defendant until he has been in court. The statute 8' and 9 W. 3. c. 25, was made to remedy this defect by imposing a penalty upon the defendant for not appearing; and it was at last cured by the 12 Geo. 1. c. 29, in the same year with our act, authorizing the plaintiff to enter an appearance for the defendant. The plaintiff has but three modes of proceeding by summons, either under the act of 1724, or at common law, or under the act of 21st March 1806, which authorises judgment only at the second term; 7 St. Laws 562; but he has pursued neither.
    
      Browne and Rawle for the defendant in error,
    contended, that the want of a proper interval between the summons and return, did not appear on the record, because the prcecipe was not a part of the record. It is a direction by the attorney to the prothonotary, which maybe altogether dispensed with, and supplied by a verbal order; it therefore takes the place of a verbal order, and cannot be set up to contradict the record. It has been brought up too, after in nullo est erratum, when regularly no diminution can be alleged, although the court may award a certiorari to'inform their conscience. Noy 83. But this they will do only to amend the record, but not to reverse the judgment. Cas. Temp. Hardw. 118. Granting however, that the prcecipe, is a part of the record, the objection to the want of ten days’ service, goes merely to the regularity of process, to the propriety of the service, which cannot be assigned for error, even after judgment by default. 5 Com, Dig. 717. Pleader 3 B. 16. And as to the other exceptions, they are either contrary to the record, or they are matter of which the defendant might have taken advantage below. Bút the fact is, the proceeding in this case was not under the act of 1724. It was under an established practice of issuing a summons against executors, and of taking judgment for want of an appearance after four days’ service.
    In reply it was said, that the praecipe had repeatedly been treated as a part of the record, to ascertain the commencement of the suit, to amend by &c.; and that the objection to the certiorari after issue was now too late, as it had already been returned. But that it was not law, that the court would not issue a certiorari ad informandam, for the purpose of reversing a judgment, the authorities cited in 2 Bac. Abr. 469, Error E, being expressly to the contrary. The authority upon which Comyns relied, to prove that a defect in the service of a summons could not be assigned for error after judgment by default, did not support him. Doderidge held the other opinion, and the case went off upon a division of the court. Salkeld v. Howard 
      
      . As to the practice referred to, if it existed, it had not the sanction either of the legislature or the court.
    
      
      
         Cro. Jao. 547.
      
    
   Tilghman C. J.

The plaintiff in error in this case, has assigned a number of errors. I shall confine my opinion to one, viz. that there were only five days between the issuing and return of the summons. It does not appear, on the face of the summons, at what time it issued, nor does the return of the sheriff shew, on what day it was served. In order to ascertain the matter, the plaintiff in error alleged diminution; and a certiorari having issued from this court, the praecipe has been brought up, by which it is evident, that there were but five days between the issuing and return of the summons. But it is objected by the defendant in error, that we can take no notice of the prcecipe, it being no part of the record. If the day of issuing the summons is a material fact, and there ' is evidence of this fact among the papers filed of record, in the office of the prothonotary of the Court of Common Pleas, it would be extraordinary if this court were debarred from looking at these papers. I considerthepraecipe as part of there-cord. It is the foundation of all the proceedings,beingthe order of the plaintiff’s attorney for issuing the first process.. That it is part of the record, is manifest, from this, that the court may order an amendment of the summons, according to the prcecipe. Some confusion concerning writs of error, has arisen from the different practice in the courts of England and those of this country. In England the writ of error is directed to the Chief Justice alone, and consequently the return is made in the first instance by him only. His clerk has not the custody of the different writs, which have been issued in the course of the cause; and therefore he returns only the plea-roll, consisting of the pleadings, tlje verdict, and the judgment. The plaintiff in error, if he intends to assign error in any matter not appearing in the body of the record .returned by the Chief Justice, is obliged to allege diminution in the particular part, in which the error lies, whereupon a certiorari issues to the officer who has the custody of that part, and on his sending it up, it becomes part of the record in the superior court. Our practice is different. The Chief Justice of this court, or the president of the Court of Common Pleas has not the keeping of any part of the record. The whole is in the custody of the prothonotary of each court. Writs of error, therefore, are not directed to the Chief Justice, or the president, but to the whole court. Consequently there can be no objection to returning the whole record, including the prxcipe and every part of the process, at once. This will prevent the delay, arising from the necessity of issuing a writ of certiorari when diminution is alleged, and I hope that in future, this mode of making the return will be adopted.

The next consideration is, whether the want of ten days between the issuing and return of the summons, is error. It is presumed, that the practice of issuing a summons against executors and administrators, has arisen from a very liberal construction of the act of 20th March 1724-5. This act does not expressly extend to executors, but in its terms is confined. to freeholders, who, except in certain cases, are exempted ' from arrests, and are to be proceeded against by summons. In case of nonappearance after summons, provided it has been served on the defendant ten days before the court, the plaintiff is authorised to file a common appearance for the defendant, and proceed to judgment by nil dicit. It was decided by the late Chief justice Shippen, when president of the Court of Common Pleas, in the case of Mary Penrose v. Jonathan Penrose &c. executors of Joseph Penrose, (June 1786) that the plaintiff may still proceed by capias against an executor. But granting, for sake of the argument, that he may proceed by summons at his election, he must take this process subject to the provisions in the act above mentioned; he shall-not be entitled to a judgment by default, unless the summons has been served ten days before the return day. No reason can be assigned for distinguishing the case of an executor from that of a freeholder. It has been said indeed, that a practice has prevailed of taking judgment by default, against executors, after service of the summons four days before the court. But that practice has been by no means general. The court has never sanctioned it by any decision; and to a practice sub silentio, without any law to support it, we ought not to pay much regard. I am of opinion that the judgment is erroneous, and should be reversed.

Yeates J. and Brackenridge J. of the same opinion.

Judgment reversed.  