Majority
p. 225*Thomas against Douglass. The defendant had obtained a judge’s order, enlarging the time to plead, until the second day of the last term; on which day the default for not pleading was entered. A rule for changing the venue was also obtained on the second day.
Headnote
Where a judge’s order was obtained to enlarge the time for pleading until the second day of the term, the defendant had until the next day to plead, and a default entered on the second day was irregular.After a rule to change the venue, the plaintiff entered a default for want of a plea, without altering the declaration filed, or filing a new declaration and delivering a copy ; and it was held irregular.
Graham,
for the defendant, moved to set aside the default and judgment entered in this cause, on the ground of irregularity.
Woodworth, contra.
The defendant had time to plead until the second day of the term, and the order must be construed as including that day; so that the default could no be entered on that day.([1] ) Again, the venue was changed, and notice thereof given before the time for pleading had expired. It
a a (a) 1 Grah. Prac. 2d ed. 619 ; Donne v. Marsh, 7 Taunt. 587; 1 Moore, 320.
p. 226
was then incumbent on the plaintiff to alter the declaration on file, and the copy delivered accordingly, or file and deliver a new declaration. This not having been done, the judgment is, on this ground also, irregular, and must be set aside.([2] )
Rule granted.
b b (b) Sec Grah. Prac. 2d ed. 787, 788.