ance, the practice in cases of defective service is analogous to that in case of defective service of summons. Mr. Brightly, in his new edition of Troubal and Haly's Practice, $261, says: the mode of service be irregular the proper form of the rule is, 'why the return should not be set aside,' not the service, the service is an act in pais, it is with the record only that we have to do." This language is taken from the opinion of the district court of Philadelphia, in Patton v. Ins. Co. 1 Phila. 396. That case, however, was not predicated on an irregular or defective return, but upon an irregular service which was sought to be shown by parol testimony. An examination of a large number of cases has led us to the conclusion that where the service, as shown by the return, is irregular and defective, the rule may be either to set aside the return or the service. Each of these rules is sanctioned by authority. I am speaking now of cases where the return is irregular. In Weaver v. Springer. 2 M. 42, the rule to set aside the service was made absolute. In Klechner v. Lehigh Co. 6 Wh. 67, the rule was the same, the case went to the Supreme Court, where the judgment was reversed, upon the ground that the return was sufficient, and that "the court erred in setting aside the service by the introduction of extraneous proofs." In the case of Bujac v. Morgan, 3 Y. 258, the rule was to set aside the service. In the case of Winrow v. Raymond, 4 Barr. 501, Rogers, J., discusses the practice and cites the foregoing cases as authorities. He declares the practice on the authority of those cases to have always been to set aside the sheriff's return. It is apparent from other portions of the opinion that he uses the terms return and service interchangeably, for he says, "But the court will not set aside the writ on motion, for this may do great wrong to the plaintiff, who may, in that event be barred by the act of limitations. It remains to inquire into the legality of the service." Upon an examination of the return he declared the service illegal, and set the return aside. In the case of Ferris v. Trine, 2 Luz. Leg. Reg. 172, the rule was to quash an attachment. Judge Dana said, "Defect or irregularity of service, even taken advantage of in time, does not usually avail to quash the writ. The defective service may be stricken off." The reasons for the observance of the distinction between dissolving the attachment and setting aside the service when the return shows it to be defective, do not affect the defendant. For, whether the return or service be set aside, in either case he is relieved from the necessity of appearing, and his property is relieved from the attachment. It can only be bound where the service is in the mode directed by the act. The plaintiff's rights, however, where he has not caused, and is not responsible for, the defect in service, in another direction, might be prejudiced by a mere dissolution of the attachment, for that would leave the return and service to stand, which might prevent him from issuing an alias writ, etc., etc. (See Winrow v. Raymond, 4 Barr. 501.) If, therefore, this were the only question in the case, the defect being apparent on the face of the return, the rule strictly should have been, " to show cause why the return," or " service," or "return and service, shall not be set aside." There would be no difficulty, however, in treating the rule as amended and making the proper order. II. The order to file an affidavit of cause of action was equivalent to a rule to the same effect, and we shall so treat it. The ordinary practice on rules to show cause of action, is for the plaintiff to read his affidavit, and if that is sufficient the attachment will be allowed to stand. Counter affidavits tending to contradict the plaintiff's ought not to be read on the hearing of such a rule, for the reason that it would tend in practice to a trial of the case by the court in advance. Neither, if the affidavit be insufficient, will supplementary affidavits be received. Eldridge v. Robinson, 4 S. & R. 548. It has always been the understanding that upon a rule to show cause of action, if the affidavit be sufficient, the defendant cannot cross-examine the plaintiff 1 Bright. T. & H. 307-and that, we think, is the proper practice. For, if it be permitted in one case it must be in all, and there is hardly any plaintiff so astute that he cannot be confused by a skillful cross-examiner, and inasmuch as he will not be permitted to clear up this confusion by a supplementary affidavit he might unjustly be thrown out of court. The case of Lindsley v. Malone was cited to us as authority, but, upon examination, it will be seen that that was a motion to quash the writ because irregularly issued against a resident, and if author ity at all in this case, it is authority for taking depositions, not only of the plaintiff, but of other witnesses, which is clearly not allowed on rule to show cause of action. Our conclusion is, that the taking of the plaintiff's deposition in this case was irregular. For the reasons given in the consideration of the first point the return and service are set aside. S. J. Strauss, Esq., for rule. Court of Common Pleas of Luzerne County. MONTANYE V. HUSTED et al. Attachment execution-Rule on garnishee-Judgment, opening of. 1. The court may prescribe, by standing order, that a rule on a garnishee to answer interrogatories, may issue as matter of course on filing præcipe therefor in the prothonotary's office. 2. In strict practice the rule should expressly state the time when, and the place where, the answers shall be presented. 3. While courts are extremely liberal in opening judgments by default against garnishees, still, where there has been gross neglect, there should be evidence sufficient to satisfy the court that upon the trial no recovery ought to be had against the garnishee, or that the debt attached is not presently demandable. 4. The fact that the debt attached is not presently demandable will not prevent judgment against the garnishee, but the judgment should be moulded to conform to to the terms of payment. 5. In a proper case the court may control the execution, even after judgment, so as to prevent enforcement of the debt attached until it is demandable. Rule to show cause why judgment against the garnishees shall not be opened and they be allowed to answer the interrogatories. The opinion of the court was delivered June 8, 1885, by RICE, P. J.-The rule on the garnishee to answer interrogatories in attachment execution proceedings is of right, not of discretion, hence the motion for the same need not be made in open court, but the court may prescribe, by standing order, that on filing the præcipe for the rule in the prothonotary's office, it shall issue as of course. Dougherty v. Thayer, 28 Sm. 172. In strict practice the rule should expressly state the place where the answers are to be presented, but where the rule shows on its face that it issued from the office of the prothonotary, and commands the garnishee to appear and answer on or before a certain day, we are of opinion that it contains sufficient notice of the time and place when and where the answers are to be presented, to sustain a judgment against the garnishee by default. The record shows that the garnishee was duly served with the scire facias, also with a copy of the interrogatories and rule. He did not appear nor answer, and consequently judgment was entered by default. Two months afterwards he made the present application to open the judgment, alleging as excuse for his default that he was ignorant of the nature of the process and of his duty in the premises, and also that he was advised by his neighbors, in whom he had confidence, that his rights could not be prejudiced, and that it was unnecessary for him to appear. We deem it our duty to say that the allegations contained in the ex parte affidavit upon which this rule was obtained are, in the main, refuted by the great weight of the testimony. The proof is overwhelming that he was repeatedly advised and warned that it was his duty, and necessary to his own protection, to appear. Notwithstanding the exceptionally ample notice which he had, he deliberately and perversely chose to take the chances of disobeying the command of the process which had been duly served upon him. Now, while it is true that the courts are extremely liberal in opening judgments by default, especially against garnishees, still where the neglect is so gross as in this case, a judgment will not be opened or modified without the most satisfiactory proof upon the merits. The evidence should be so clear as to satisfy the court that upon the trial no recovery ought to be had against the garnishee, or that the debt attached is not presently demandable. What are the equities which the garnishee sets up? The debt attached is secured by a mortgage given by him and his wife to Jonathan Husted, one of the defendants. The amount of the mortgage was originally one thousand three hundred dollars, and two hundred dollars have been paid upon it. It is alleged that the mortgage has been assigned. The only proof of an assignment is the parol testimony of Mr. Husted that he assigned it to his wife in June, 1884, for the consideration of twenty dollars. The assignment has not been recorded, and according to the testimony of the garnishee, he had no notice of it until long after the judgment had been taken against him. According to the testimony of Mr. Husted, the assignment was made on a date shortly after the date of the judgment upon which this attachment issued, and it does not appear that he was then, or is now, the owner of other property sufficient to satisfy his debts. It is true the garnishee says that at an earlier date than the present judgment he received notice that the mortgage had been assigned to one Hartman; but this can amount to nothing, for the reason that the evidence shows that no such assignment was made. It is sufficient to say, without discussion of the evidence further, that, upon the facts presented, the garnishee has no reasonable ground for fear of a double recovery. The second reason urged by the garnishee in support of the rule is, that the debt attached is not presently demandable. It is a fact that the mortgage is payable in annual installments of one hundred dollars each, and that no installment will be due until April 1, 1886. This fact would not prevent judgment against the garnishee, but if it had been made known before judgment was entered, the judgment would have been so moulded as to conform to the terms of payment contained in the obligation by which the debt attached is secured. We are of opinion also that the control which the court, in the exercise of its equity powers, has over its execution process, is such that it is not too late, even now, to make such order as will prevent the enforcement of payment of the debt attached until it is demandable. (See Irwin v. Lumberman's Bank, 2 W. & S. 210; Irwin v. Shoemaker, 8 W. & S. 75; Kase v. Kase, 10 C. 128; Farmers' etc. Bank v. Little, 8 W. & S. 219; Woodward v. Carson, 5 Nor. 176; Thomas v. Hendricks, 2 Kulp, 152). It is ordered that the rule be discharged, upon condition, however, that the plaintiff, within ten days from this date, files in the prothonotary's office a stipulation that executions shall not be issued on the above judgment against the garnishees, except for the amounts of, and at or after the dates when, the several installments of the mortgage from the garnishees to Jonathan |