
    Ann Kennedy against O’Brien Smith.
    
      Charleston District
    
    
      1802.
    
    Plaintiff may file a declaration at any time within a year and a day after the return of the of that time be- comes discon- tinued ; altho’ by the rules of court, if the plaintiff does not file his de- claration ¡tar- mg the second term, the de- fendant may sign judgment 'quitur against hlm‘ leave to go on in the court below and file his
    court. See the case of Stevens v. Thayer,
    
    MOTION to reverse a decision in the circuit court.
    Mr. Simons stated, that in March, 1793, the writ in this case had been issued, served and duly returned, but for various reasons, the plaintiff was not prepared to file her declaration till May term, 1802 ; and that he had given the defendant’s attorney one term’s notice, agreeably to the rule of court; and therefore had moved the circuit court of Charleston district, the beginning of the last term, for leave to file his declaration. But the presiding Judge (Johnson) ruled that the writ had abated, as no proceedings had been carried on within a year and a day after the return; and ^ J ' out of court, there was no ground for subsequent pro- . . , , . . , 1 ms was a motion to reverse that decision, and writ but not afterwards, as ' the writ at the expiration
    decla- , Mr. Simons, in support of his
    motion, contended, that áfter a suit is once well brought, it can never go out of court without some judgment of the court, either by non pros, nonsuit, verdict or otherwise. That if a second writ had been issued, and the defendant had pleaded the first writ in abatement, he would thereby have destroyed the se- cond writ. 1 Bacon?s Abr. 22. That it is laid down in 1 Cromp. 212. that where four terms elapse, defendant must have a term’s notice, which had been given in this case conformable to the tenth rule of
    
      ante. Mr. MiCredie,
    contra, said there had been a very uncom- mon delay in this case ; not only a year and a day, but seven years had elapsed between the issuing the writ and the motion for leave to file the declaration, without any con- tinuance, motion or other proceeding whatever, to keep the action in court. That it is a well known rule at common law, that if the plaintiff does not proceed to file his-6 tion within a year and a day after the return of the writ, it abates and the party is then out of court, and the defendant goes without day. Even a solemn judgment entered up on record, is supposed to be satisfied if there are no proceedings within a year and a day; and the plaintiff is obliged to begin de novo by writ of scire facias; which in many respects may be considered as a new suit, as the defendant may plead to it. But in the present instance, there has been a chasm of seven years, without taking any step to fill it up, which to all intents and purposes, operates as a discontinuance ; for it is laid down in 3 Blacks tone’s Commentaries, p. 296. that when a plaintiff leaves a chasm in the proceedings of his cause, “ as by not continuing of it regularly from “ day to day, or from time to time, as he ought to do, the “ suit is discontinued, and the defendant is no longer bound- “ to attend to it; but the plaintiff must begin again by suing tc out a new original.” In 1 Finer, 63. it is laid down, that every discontinuance abates an original. So in 3 Blackstone's Commentaries, 316. plaintiff becomes nonsuited if he omit to file his declaration, or continue, and defendant goes without day.
   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.  