Benson v. Davis's Adm'r , 6 H. & J. 272 ( 1824 )

The opinion of the court was delivered by

Martin, J.

If there are any rules of practice In Montgomery county court, that justify the procedure in this case, they ought to have appeared in the record.

In their absence, we cannot conceive upon what principle the judgment of non pros, was entered.

In this case it appears the plaintiff was ruled to file his declaration by the first Monday in March 1821. On this day the March term commenced, and must have been continued or adjourned to the following May, for we find the declaration was filed on the 18th of May, and a rule laid on the defendant to plead, as of March term. The case was continued under the rule to plead to November term, when the court ordered a judgment of nonpros, to be entered against the plaintiff, because be had nor filed bis declaration by the first Monday in March. In this we think they erred.

If a plaintiff is laid under a peremptory rule to file his declaration by a particular day, and he fails to comply with that rule, the court may, upon the prayer of the defendant, order a non pros, to be entered against him. But if the declaration is received, and a rule laid on the defendant to plead to it, it is certainly then too late to complain. The defendant has waived his right to take advantage of tiie laches of the plaintiff, and the court has assented to it.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.