Kennedy v. Smith , 2 S.C.L. 414 ( 1802 )

By the Judges unanimously. Let the rule for reversing the decision of the circuit court be discharged, and the adjudication stand confirmed.

For by the general rules of law, and the practice of the courts both in Great Britain and in this country, a plaintiff is bound to declare within a year-and a day after the return of the writ j but by a rule of our court, if he does not declare within the second term, the defendant may obtain a rule to compel him, or sign judgment of non pros ; though if* the defendant does not choose to take advantage of the plaintiff’s neglect, the plaintiff may still file his declaration within,twelve months. There is, however, no authority or case in the books, which will warrant him in filing it after the year and the day. The case cited from Crompton, was a cause at issue, and the plaintiff had not proceeded to trial. There it is laid down, that a term’s notice was necessary ; but still it was given within the year. All the cases quote® from 3 Black. Com. are strong in point, and prove that leaving a chasm in the proceedings, without regular continuances from time to time, will amount to discontinuance. But the lapse of seven years, is so great a laches on the part of the plaintiff in this action, that nothing on her part can cure it.-

Present, Giumke, Te.ezevant and Bkevaed. Waties and Bay afterwards accorded with the other Judges in this adjudication.