Opinion
Fall Sessions, 1848.
CERTIORARI. Summons dated October 11, 1847, to appear October 16, 1847.
The exception was that the day of appearance was less than five days from the day of the date of the summons.
As to computation of time Mr. Layton cited 3 U. S. Dig. 518; 8 Cowen Rep. 260; 3 Halst. Rep. 303; 1 Pick. Rep. 485. Mr. Cullen cited 2 Harr. Rep, 461; 9 Cranch. Rep. 105; 1 ib. 498; 2 Cowen Rep. By the Court: — The exception is fatal. The act says the "day for the defendant's appearance" shall not be less than five days after the "day of the date" of the summons. The summons is dated October 11th and the day of appearance, viz: the 16th, is less than five days from the 11th exclusive, as it must be counted in the terms of the act. Sec. 3 has already been so construed. Service of a summons "at least four days before the day of appearance" is under that section required to be four clays, exclusive of the clay of service, and of the day of appearance.
Judgment reversed.