I am clearly of opinion that the order of the- 28th September, granted on the defendant’s motion, was irregular. The writ of attachment, although returnable on that day, was not filed until the next day, the 29th.
There was nothing before the court on the 28th, to justify the order then entered, and it has been since properly vacated. The principal question is, whether the order of the 29th September, obtained on motion of the plaintiff, was regular. The Revised Statutes provide that if the defendant, against whom *496an attachment shall have been issued and returned served, do not appear on the return day thereof, the court may either award another attachment, or may order the bond taken on the arrest to be prosecuted, or both. (2 R. S. 539, § 27.)
Before the statute, the practice was to give a sheriff a day in term for his appearance subsequent to the return day of the attachment, and that a rule to prosecute the bond, would not be made until the quarto die post, the return day of the attachment. And it was held in an anonymous case, (3 Wend. R. 423,) that the statute did not require a departure from that practice.
The practice, where a bond was given on the service of the attachment, was to call the person attached on the return day of the attachment, and if he did not appear, to call him on the next non-enumerated day in term, which would always be at least the quarto die post, the return day of the attachment, and if he then failed to appear, the court would order the bond prosecuted if requested. The reason why nothing could be done after the first and before the fourth day, was, that - there was no non-enumerated day until Thursday, which was the 4th day of the term. What the practice was in the late supreme court, during the period they had semi-monthly and afterwards monthly special terms, I am not advised. Under the present system, where the attachment is returnable at a special term, and the whole term is made up of non-enumerated days, and is liable not to continue four days, it would be quite inconvenient to continue the former quarto die post idea. The former practice required the defendant to appear on the second non-enumerated day in term. We do no more than that now, by requiring him to appear on the 2d day in a special term. A question has arisen, whether there should be two calls upon the person attached, or rather that he should be called as well on the first as the second day. I think, however, that is not necessary to the regularity of the proceedings. He may be called on the first day, and if the defendant appears, well and good, and interrogatories may be at once filed and served. But it is not, in my opinion, necessary that he be *497called the first day, as an appearance the second day is in time for him, and it should also be in time for the plaintiff, or party prosecuting the attachment.
If these views are correct, it follows that the plaintiff is regular in his proceedings. The defendant has sworn to merit?, and desires to be let in to purge the contempt for which the attachment was issued.
I shall therefore direct an order to be entered, allowing the defendant to appear upon the attachment at the next special term, to be held in the county of Monroe, after the service of this order and answer, interrogatories to be filed touching the said contempt, upon payment to the plaintiff’s attorney of ten dollars costs of the said order of 29th.September, and ten dollars costs of opposing this motion, together with the plaintiff’s costs of the action on the bond, in case he shall elect to discontinue the same.