
    J. C. & J. CROSBY v. LASSITER.
    1. When the record recites that “ the defendant failed to file his plea within the time prescribed by law,” a memorandum of pleas found in the record, will be presumed not to have been filed within the time prescribed by law, and therefore properly disregarded.
    ERROR to the County Court of Conecuh.
    Assumpsit on a promissory note by defendant against plaintiffs in error.
    The declaration is in the usual form, and an entry on the record of pleas in the following words:
    “ In this case defendants come and plead in short, by consent, non assumpsit, payment and set off.
    Attest, . Wm. S. Btjrd, DePts Alto.-”
    ' The judgment is rendered thus: “Application in this case for continuance on the part of the defendant. On the showing it did not appear that ordinary diligence had been used, and application overruled. This day came plaintiff, by his attorney, service of writ being proved and the defendant having failed to file his plea within the time prescribed by law, hut wholly makes default, it is therefore considered,” &c.
    
      From this judgment this writ is prosecuted, and the defendants now assign for error—
    1. The rendition of judgment, without disposing of the pleas.
    2. The declaration shows no cause of action.
    BolliNG, for the plaintiffs in error,
    cited 8th Porter, 469; 1 Ala. Rep. 515; 2 ib. 337.
   ORMOND, J.

We are unable to perceive that this case differs from the cases cited, in which we have affirmed the judgment of the Court below, notwithstanding it appeared that pleas had been filed.

The record shows that the defendants were in Court and applied for a continuance of the cause, which the Court refused because no diligence had been employed in preparing for the trial. The record also shews that the pleas were not filed within the time prescribed by law. The act of February 2d, 1839, requires the defendant to plead to the merits within the first week of the appearance term, or on failure thereof to forfeit the right of making defence thereafter.

The memorandum of pleas by their name, which appears in the record, seems to have been disregarded by the plaintiff, and from the statement in the record it appears they were not entitled to notice, because not filed within the time required by law. They were therefore properly disregarded by the Court.

We perceive no objection to the declaration, and the judgment of the Court is therefore affirmed.  