The Mayor and Council of Wilmington, for the use of Kiliam Rupp, v. James Kearns and Joseph Pyle

The Mayor and Council of Wilmington, for the use of Kiliam Rupp, v. James Kearns and Joseph Pyle. Judgment by default for want of appearance, and an inquisition held thereon set aside after the lapse of two terms, for want of a sufficient return to the summons by which the suit was commenced. But leave granted to amend the return on payment of costs and allowing the defendants to enter their appearance forthwith. This was a motion to set aside a judgment and an inquisition thereon, because it did not appear by the return of the sheriff that the defendants had been duly summoned, as the time and manner of the service of the writ were not stated in the return. The suit was instituted to May Term, 1856, by a writ of summons in debt, to which the sheriff made return of summoned merely, on which the plaintiffs filed their narr to that term, and obtained judgment by default for want of appearance of the defendants, and after-wards sued out a writ of inquiry during vacation to ascertain the amount. Gordon, for the defendants, now moved to set aside the judgment and inquisition on the grounds above stated, and cited Rev. Code, 368. Patterson, for the plaintiffs, objected, that after the lapse of two terms the motion to set aside the judgment was too late, and that it should have been made at or before the next term after it was rendered, and that the application should not be sustained without an affidavit of the defendants, denying notice of the suit and alleging a just and legal defence to the action. [MAJORITY — The Court,] The Court, however, was of opinion, that the provisions of the statute in regard to affidavits of defence had relation only to cases in which the return of the sheriff to the summons was in conformity with the provisions of the act in regard to the service of the writ, which required the officer to state whether it was served personally on the defendants or by a copy left at their usual place of abode, in the presence of some white adult person, six days before the return thereof. Rev. Code, 368. And without such a return, no judgment by default for want of an appearance of the defendants could properly be entered. Judgment and inquisition set aside. The counsel for the plaintiff then asked for leave to the sheriff to amend his return, which the Court granted, on condition that the defendants should be allowed to enter their appearance on the amended return at this term, and on payment of costs.