
    Brient and Stanfield vs. Waterfield & Walker.
    1. PRACTICE and PLEADING. Judgment by default. Act of 1835, ch. 5, $ 5. Whore a summons in debt was returnable to a term of the Court, which by reason of the absense of the Judge was not held, but at which time the plaintiff filed his declaration, to which defendant failed to plead, it is held that on the first day of the next succeeding regular term, the plaintiff is entitled to his judgment by default.
    2 Same. Bills and notes. Costs of protest. Act of 1820, ch. 25, § 4. In an action of debt by the payee against the maker of a note, where the jury, in their verdict, allowed fees of protest, and there is no bill of exceptions, showing that such allowance was unlawful; the Court ■ of Errors will presume in favor of its regularity, and will not reverse on that account.
    3. Cases Cited. Byrd et al. vs. Bank of Tennessee, 2 Swan, 43 ; Morrow vs. Malone et al., MSS., Knoxville, September Term, 1858.
    FROM MORGAN.
    This is an action of debt by the payees, against the makers of a promissory note, from the Circuit Court of Morgan county. The writ was returnable to the July Term, 1857, at which time the plaintiffs filed their declaration; but the Judge failing to attend for that term, and the clerk adjourned it according to law, to the next regular term, November, 1857. On the first day of the latter term, the defendants having failed to plead, judgment, by default, was rendered against them. They moved to set aside this judgment, and for liberty to plead, which Judge Turley disallowed, and they appealed in error. It appears that the jury, in their verdict, allowed protest fees, to wbicb, however, no objection appears on record.
    Scott and MyNA-tt, fpr the plaintiffs in error.
    MayNAED, for the defendants in error.
   Weight, J.,

delivered the opinion of the Court.

There is no error in this judgment. The plaintiffs are entitled to final judgment on the first day of the November Term, 1857, the. defendants having filed no plea. The declaration had been duly filed at the July Term previous. The case of Morrow vs. Malone et al., at the present term, and Byrd et als. vs. Bank of Tennessee, 2 Swan, 43, are authority in this case.

The act of 1835, ch. 5, § 5, (C. & N. Rev., 210,) does not change the previous law and practice upon this subject.

It is next objected, that the judgment is erroneous, because charges of protest are embraced in it; and that this being a suit between the makers and payees of the note, no protest was necessary, or could legally be made, and that, therefore, the notary’s fees and charges of protest could not be recovered. It is not required here, that we should decide whether, as between the maker and payee, a protest is proper. Undoubtedly-the note might have been legally protested to charge an endorser. Act- of 1820, ch. 25, § 4, (C. & N. Rev., 503.) There is no bill of exceptions filed, .and for anything that appears in this record, the note may have been- endorsed, and the protest proper to charge the endorsers; and in that state of the case,, if the plaintiffs took up the note, they must have paid the notary’s fees, and would be entitled to recover them of the defendant. This we are authorized to presume in favor of the judgment of. the Circuit Court. The judgment may le right. It was incumbent upon the defendants to set forth a state, of facts, showing it is. wrong. This is not done.

Judgment affirmed.  