delivered the opinion of the court, November 5th 1883.
The judgment, having been entered before return day of the summons, was premature and cannot be sustained. Rule 11, under which it was taken, provides that “in all cases where an affidavit of defence is required by these rules, it shalL state whether the defence is to the whole or to only a part of the plaintiff’s claim, and if only to a part, it shall state to what part, and in such case the plaintiff may proceed to trial for his whole claim, or at his option take judgment for the part not denied, or admitted by defendant, which shall be final for the purposes of lien and execution, but shall not be a bar to the recovery of the rest of his claim, provided, he shall state in his prmcipe for said judgment tliat he declines to accept the same in full satisfaction of his claim, and elects to proceed for the balance,” etc. The rule is silent as to when the judgment may. bo taken, whether before or after the return day, and we naturally turn to kindred affidavit of defence rules and inquire whether they provide when judgments in default of an affidavit of defence may be taken. We accordingly find Rule 9 provides that the plaintiff, having filed an affidavit of claim, etc. as thereby required, shall be entitled to judgment “ at any time after return day and ten days’ service of the writ, unless the defendant, or some one for him, shall file an affidavit of defence,” etc. These rules are in pari materia, parts of a general system of practice-and must be construed together. When so construed, Rule 9 answers the inquiry suggested by the silence of Rule 11, and virtually says, judgments for the amount admitted to be due, or not denied by defendant, may be taken “at any time after the return day and ten days’ service of the writ,” and not before.
Aside from this, it would be unreasonable to bold otherwise. The defendant is allowed at least ten days after service of summons, and until return day, inclusive, to appear and make defence. If he voluntarily appears before the timo and files an affidavit of defence, he is not thereby precluded from amending or supplementing the same within the time allowed him by law and rules of court. The right of plaintiff to judgment by default, under either of the rules referred to, must depend on the state of the record at the expiration of the time within which defendant is required to appear and present his defence. He may, if he choses, appear and file an affidavit *381on tlie day lie is served with the summons, but ho does not thereby waive his right to the full time allowed for appearing and perfecting his defence. The entry of judgment before return day was an unwarranted interference with the rights of the plaintiffs in error and hence it must be set aside.
Judgment reversed and set aside and procedendo awarded.