majority">Mr. Justice Paxson

delivered the opinion of the court

The defendant did not appear upon the return day. On the day following the plaintiff filed his declaration, and at the *179same time signed judgment against the defendant by default for want of an appearance.

This was error. To entitle the plaintiff to a judgment by default under the Act of 1836, he must file his declaration before the return, day. Dennison v. Leech, 9 Barr 164; Foreman v. Schricon, 8 W. & S. 43 ; Black v. Johns, 18 P. F. S. 83. In. the case last cited it was held the defendant is not bound to appear until a declaration has been filed, and when none had been filed at the appointed time he had reason to think he would not be required to appear.

It is said, however, the judgment can be sustained under the rule of court. We do not think so. It is true the rule does provide that the plaintiff may have judgment by default “ without reference to the quarto die post, and irrespective of the fact as to whether the declaration be filed at the return day or not.” This rule is in contravention of the Act of 1836. Buies of court are intended to facilitate the dispatch of business, but they cannot repeal an Act of Assembly. It is expressly declared by the 21 st section of the Act of 16th June 1836, P. L., 787, “ That such rules shall not be inconsistent with the constitution and laws of this commonwealth.” And see Boas v. Nagle, 3 S. & R. 250. While the Act authorizes the' taking of judgments by default “ according to the rule? established by the court to regulate the practice in this respect,” it does not empower the court to dispense with the filing of a declaration before the return day. On the contrary, it makes such filing a prerequisite to the signing of judgment.

The judgment is reversed and a procedendo awarded.

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