The opinion of the court was delivered by
Garrison, J.The rule directing the sheriff to return the writ of summons and requiring the defendant to plead or demur to the writ so returned must be set aside, more than a term of court having intervened between the teste thereof and the making of such rule, although the writ had been duly served before the return day named therein.
At common law process for appearance must be returned at the same or the next term. Parsons v. Lloyd, 3 Wils. (Png. Com. Pleas) 341; Shirly v. Wright, 2 Ld. Raym. 775; Bunn v. King, 2 Johns. (N. Y.) 190; Van Ness v. Harrison, 2 Penn. *632; 19 Encycl. Pl. & Pr. 600; Am. & Eng. Encycl. L., tit. "Service of Process.”
This practice has not been changed by statute in this state. The remedy given by our statute is the amercement of the derelict officer. Practice Act, 1903, p. 548, § 50.
There is a practice peculiar, I believe, to this state by which sheriffs change the return day in order to make a valid service of the writ. Kloepping ads. Stellmacher, 7 Vroom 176; McCracken v. Richardson, 17 Id. 50; County v. Borax Company, 39 Id. 273.
This practice, which Mr. Justice Depue said in 1873 was then of long standing, has no bearing upon the present case. It applies to cases in which service was not made before the *298return day named in the writ, and has no application, either in reason or in practice, to cases where service was had before the return day. A defendant who has been thus regularly served has common-law rights with respect to the orderly progress of the action by the return of the writ. If such orderly course be not pursued, the action may be treated by him as abandoned.
In the present case a second summons was actually issued and served during the interval between the service of the first summons and the allowance of the rule under review. This circumstance, however, is not of essential significance since the defendant, after the lapse of an entire term, was entitled to have the first process treated as a nullity. The rule under review is set aside, with costs.