
    Sarah Smith vs. Eleazar Parker and others.
    
      Practice.
    
    Plaintiff moved, at the second term after the return of his writ, for further time to file his declaration. Motion refused under the authority of the Bank vs. Torre, 2 Sp. 501, more than a year and a day having elapsed since the return day of the writ; the Court, consisting of two Judges, O’Neall, C. J., and Johnstone, J., thinking that decision erroneous, hut declining to overrule it, "because the Court was not full.
    BEFORE "WITHERS, J., AT UNION, FALL TERM, 1861.
    The report of bis Honor, tbe presiding Judge, is as follows :
    
      “ More than a year and a day had expired from tbe return day of tbe writ in tbis case, when tbe motion for leave to file a declaration was made in beb.alf of plaintiff. But less than a year and a day bave expired from tbe return terna of tbe writ, when tbe appearance was entered on behalf of defendant ; and no Court was held in tbe spring of tbe present year. I thought that tbe plaintiff was still connected with tbe jurisdiction, and that while she bad not tbe right, as of course, to file her declaration, I yet bad tbe power to grant leave so to do. I doubt whether tbe case of tbe Bank vs, Torre, 2 Sp. 501, be in conflict with tbis decision. At any rate it was made before any examination of that case was bad, though I bave since looked into it. How far tbe Court can exercise its discretion, within a year and a day of some step taken by the defendant in a cause, granting leave to a plaintiff to file a declaration, seems not to have been adjudged in that case; nor do I understand tbe facts constituting that case as necessarily presenting them — certainly not, unless tbe whole of both terms of tbe Court connected with that case be regarded as two days, and treated as the termini, a quo and ad quern.
    
    
      The defendants appealed, and now moved this Court to reverse the order granting leave to plaintiff for further time to file her declaration—
    Because, more than a year and a day having elapsed since the return of the writ, plaintiff was out of Court, and thó Court had no power to grant the motion.
    
      Dawkins, Qadberry, for appellants.
    
      Bobo, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The point, in this case, was decided by the Bank vs. Della Torre, 2 Sp. 501.

The point there decided did not then meet with my concurrence, as will be seen by my dissent, at 512. That expressed my own opinion then and now, and I am happy to have the concurrence now of my brother Johnstone in the same view.

We, however, think while we should be ready to overrule that decision, in a full Court, that it is better now to be governed by it.

The motion is therefore granted.

Johnstone, J., concurred.

Motion granted.  