OPINION OF THE? COURT BY

This is an action of assumpsit for $138.25 upon an account stated. Due service was made of the summons, which was in the ordinary form. On the day of the issuance of the summons plaintiff filed a motion for attachment against the property of the defendant accompanying it with an affidavit and a bond. The writ of attachment was issued on the same day but was not served. On the return day the defendant moved to dismiss the action on the ground of lack of service of the writ of attachment and of plaintiff’s failure to file a bill of particulars with his declaration. The magistarte “dismissed the case.”

The fact of non-service of the writ of attachment, did not preclude the plaintiff from maintaining his action as in an ordinary case in which no attachment is asked, and if the magistrate was of the opinion that a bill of particulars should be required the proper course was to permit the plaintiff a reasonable time within which to file it. Hnder the circumstances the action should not have been dismissed.

The appeal is sustained 'and the cause remanded, to the district magistrate for further proceedings not inconsistent with this opinion.