Opinion
October 1808.
By the practice of the Court, under 1794, 1, 26, if the plaintiff desire to take judgment by default, for want of a plea, he must do it on the seventh day of the term; and, if he permit that day to pass, it is a waiver until the rules at the close of the term, and he can then only take judgment when the cause is called by the clerk in the order in which it stands on the docket; otherwise it may be set aside for irregularity at any time while the rules are being held, without an affidavit of merits. [See 2 Sw. 43; 5 Sn. 537, 642.]
BARRY, for the plaintiff, after calling the defendant, had a judgment by default entered; soon after WILLIAMS offered a plea, the acceptance of which was opposed, and it was insisted, that, without an affidavit of merits, the writ of inquiry could not be set aside. Upon inquiring, it appeared that the judgment by default was taken before the suit was called by the clerk in the order in which it stood on the docket.
On the 13th day of the term the causes were called for the purpose of taking the rules.
In this case it is necessary to state what has been the practice. By the Act of 1794, c. 1, § 26, the plaintiff is required to file his declaration within the first three days of the term, — the defendant is required to plead within the next three days; if the defendant pleads specially, three days are allowed the plaintiff to reply, or demur, c., after the time allowed for filing his declaration, c. By the practice of the Court, which has become the law of the land, the rules are taken at the close of the term, ordinarily, on the last day, when it is usual for the parties to waive the time allowed for pleading, if not expired, and make up their issues by consent, so as to be ready for trial at the succeeding term. If the plaintiff desires to take judgment by default, for want of a plea, he must do it on the seventh day of the term, usually in the morning, for the Court will not permit trials to be interrupted by motions. In case the plaintiff permits the seventh day to pass without taking judgment by default, it is a virtual waiver until the rules are held, when he may again call for the defendant, and if he does not appear and plead judgment by default passes. But even at the rules this judgment must be regularly taken, that is, when the cause is called by the clerk in the order in which it stands on the docket, otherwise it may be set aside for irregularity at any time while the rules are holding, without an affidavit of merits. The judgment was accordingly set aside, and the plea received.
NOTE. — The provisions of the Act of 1794 are brought into the Code, 4238-4241, with the slight modification that two, instead of three, days are allowed for subsequent pleading after the declaration. — ED.