
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1814.
    Margaret Savage v. William B. Mitchell.
    It is a defendant’s duty to enter an appearance at the first term, even if the judge does not attend.
   Smith, J.

At November term, 1813, a motion was made to vacate an order for judgment, and for leave to plead issuably. The writ had issued on the 4th of April, 1812, returnable to the second Tuesday after the fourth Monday in October then next ensuing. The defendant had never entered his appearance, and alleged that as there had been no court held at the first appointed term, and but one day the term following, he was still at liberty to vacate the order. The presiding judge ruled otherwise, and this motion is to reverse that decision. If any doubt has arisen with the defendant, with respect to the propriety of entering his appearance at the first term after the return day, because there was no court held; yet that must have been obviated at the April term, 1813, when Judge Nott held the court, notwithstanding he held it but one day ; and, as that one day would complete the sitting of the court within the most strained construction of the act of 19th February, 1791, and could not have left a possible doubt, not having entered his appearance, he forfeited his right to vacate the order for judgment, and has no ground to set aside the decision of the judge on the circuit.

Nott, J.

The act of 1791, 1 Faust. 40, authorizes a defendant to plead to plaintiff’s declaration, only upon condition of his having entered an appearance with the clerk during the sitting of the court, to which the writ was returnable. The defendant in this case had omitted to enter an appearance for two courts after the writ was returned; and, at the third court, the presiding judge refused to set aside the order for judgment which the plaintiff had obtained, and would not permit the defendant to plead. A motion is now made to reverse that decision, and to let the defendant in to make his defence. The grounds on which this motion is founded, are : 1. That at the court to which the writ is returnable, no judge attended to hold the court; but the act above mentioned authorizes the clerk, when no judge attends, to open and adjourn the court, and that formality was observed in this case ; the defendant then had an opportunity to enter his appearance. But, 2. He did not enter his appearance at the second court; His excuse for that omission is, that the court sat only one day; but one day was suf. ficient to enter all the appearances, and if the party did not choose to avail himself of it, he must abide by the consequences. I am of opinion, this motion ought to be discharged.

Colcock, and Gbisike, Js., concurred.  