-I regret that I cannot entirely concur in the conclusions to which the court have come in this case. The 2d section of the act of the 28th of March 1835 is in derogation of the common law. It introduces a new practice, which may be followed by serious consequences. I think the act should be strictly construed, so far as it is an innovation, and liberally construed so far as. its provisioni can *122be made to coincide with the former practice of the court; that is to say, strictly in respect of the instrument upon which the action is brought; strictly as it respects the process by which it is brought; and liberally as it respects the affidavit of defence.
The words “judgment by default,” I understand in the sense ascribed to them in our books of practice. There may be a judgment for default of appearance, and a judgment for some default after appearance. In actions commenced by summons, if the writ has been duly served, according to the act of the 20th of March 1724 — 5, and the defendant fails to appear, the plaintiff may file a common appearance for the defendant, and take judgment by nihil dicit, which, in contemplation of law, is a judgment for a default after appearance ; or, without filing a common appearance, he may, according to the settled practice, take judgment for default of appearance, which is the first and real default of the defendant. But if the defendant appears in person or by attorney, the plaintiff cannot, of course, take judgment, by default, unless the defendant should, after his appearance, fail to comply with some rule of practice or some rule of court, specially taken against him. At this point the M section of the act of the 28th of March 1835 applies, which allows the plaintiff, under certain restrictions, notwithstanding the defendant’s appearance by an attorney, to enter a judgment by default, unless the defendant shall file an affidavit of defence, setting forth the nature and character of the same. This provision imposes a new duty upon the defendant, similar to that imposed by the first rule of this court, and is, in truth, supplementary to the act of the 20th of March 1724 — 5. It is incumbent on the party to procure the service of his process, and file his declaration according to that act. If the defendant does not appear, he should take judgment under that act. if tbe defendant should appear, and the cause of action is within the act of the 28th of March 1835, sect, 2, then he must comply with the requisition of this section by filing an affidavit of his defence, otherwise the plaintiff may perhaps treat his appearance as a nullity, and enter judgment for default of appearance, or he may allow the appearance to stand, and fake judgment upon motion, but without rule, by nihil dicit.
In actions commenced by capias, there can be no judgment for default of appearance. The plaintiff therefore is bound to effect the appearance of the defendant as his first step. This must be either by taking the defendant into custody, or by his putting in bail.
*123In this case the defendant was not in custody., nor had he put in bail, nor had the four weeks allowed to him for putting in bail elapsed. The judgment then was premature. It is a judgment for a default before appearance, against a defendant, who could not be in default until after appearance, and who by the rules of court had not become liable to an action upon the bail bond to the sheriff for not putting in special bail.
For this reason I conceive that the plaintiff ought to have waited till the expiration of four weeks from the return day of the writ. If, at that time, the defendant had not put in bail to the action, the plaintiff might have taken a rule on the sheriff to bring in the body, and, upon compliance with the rule, he might have taken a judgment, unless the defendant had previously filed an affidavit of de-fence.
If the plaintiff should resort to the bail bond, it would be a suspension of bis right to proceed under this act, until the defendant should stay the proceedings upon the bail bond, and appear to the action. Upon appearance, the plaintiff might insist upon an affidavit of de-fence or a judgment.
But it is said the plaintiff may waive special bail and proceed under this act. The answer does not meet the difficulty. We want an appearance. The objection would be the same in eases where no bail is required. It is only in case of a summons, served according to the act of the 20th of March 1724 — 5, that the plaintiff can file a common appearance for the defendant. If the process be capias, bail must be put in, or the defendant must authorize an appearance to be entered for him according to the rule of court.
Besides, by demanding bail, the plaintiff shows an intention to proceed according to the ordinary course of practice. The defendant, upon finding judgment taken against him after his arrest, within the time allowed him to put in bail, might well say he was surprised ; and this is an answer to the argument derived from the cases decided upon the act of 1810, regulating arbitrations. The plaintiff may waive bail under that act, and enter his rule of reference without surprise upon the defendant; for he must serve a notice upon him of his intention to refer the cause to arbitrators, and after they are appointed, be must serve also another notice of the time and place of meeting. But in this case the plaintiff may, at the day he is allowed to take judgment, waive or not waive bail. If he finds an affidavit of defence, he will not waive bail; if he finds none, then lie *124is ready to waive bail for the benefit of an execution. Such was the waiver in this case. The judgment was entered July 25th, and a fieri facias was actually levied on the second day afterwards. How can this be said to be for the benefit of the defendant 1 Yet that was the argument, for the practice of waiving bail, under the act regulating arbitrations.
The stat ute 4 and 5 William and Mary, ch. 21, has been cited as applicable to this case. The object of this statute is mistaken. It is in force in this commonwealth, only for the purpose of allowing the service of a declaration upon a defendant who has been taken and committed within the county, and of course, it merely exonerates the plaintiff from having him brought into court by a writ of habeas corpus, in order to declare against him or rule him to plead. If this statute be not necessary for this purpose, it is not in force ; for testatum writs of capias ad respondendum have never been allowed in this state.
These are briefly my views ; and the act, so construed, would furnish a motive for the commencement of actions by summons, except, in cases where there is really a necessity for the arrest and detention of the person. It favours the liberty of the citizen ; and it seems to me safe to embody the spirit of this section of the act in the ordinary forms of practice, so far as it can be done, inasmuch as we shall then not only have the light of the common law to guide us in its further construction, bat also we shall avoid unnecessary interference with the rules of practice, which have hitherto been considered of some importance, and the incongruities which must otherwise exist in the proceedings of this particular court. Still, I should not like to say, against the opinion of the court, that this judgment is absolutely irregular, or even erroneous. It is possible that the court in the last resort may be of the opinion that the legislature intended by this act to establish a proceeding quite contradictory to the. act of 1724 — 5, and to the settled practices of the courts of this commonwealth in respect to both forms and substance. If so, judgments taken in this manner must stand, however harsh the practice may be upon defendants ; yet I cannot but think that practice the, best and the safest which is most congruous with the general course of the practice of the courts of the commonwealth.
Rule discharged.