
    CHRISTIAN WOLF v. WATSON STILLMAN CO.
    Argued November 3, 1909 —
    Decided February 21, 1910.
    Where the plaintiff fails to file a declaration within a year after the return of the summons, an application for additional time comes too late, although the defendant may not have obtained judgment of non pros.
    
    On motion for leave to file declaration out of time.
    Before Justices Swayze, Trenchard and Parker.
    Por the motion, William R. Wilson.
    
    
      Opposed Joseph D. Bedle.
    
   The opinion of the court was delivered by

Swayze, J.

The summons in this case was issued January 4th, 1907, returnable January 16th, 1907. Nothing further was done until December 29th, 1908, nearly two years after the return of the summons, when an order was made by a justice of this court, giving the plaintiff ten days in which to file a declaration. This order was subsequently vacated by the justice who allowed it, and permission given to the plaintiff to make the present application. We think that the application comes too late. The rule of the King’s Bench was that the plaintiff must declare against the defendant within twelve months after the return of the writ, though, by the rules of the court, if he did not deliver his declaration within two terms, the defendant might sign a judgment of non pros. -If, however, the defendant failed to take advantage of the plaintiff’s neglect, by signing a judgment of non pros., the plaintiff might deliver his declaration at any time within a year next after the return of the writ. 1 Tidd Pr 421.

Our statute requires that advantage should be taken of the failure to file a pleading before or at the term next after such failure (Pamph. L. 1903, p. 566, § 100), but this does not alter the rule which requires a declaration to be filed within a year. As we said in Bowden v. Gillespie Co., 46 Vroom 296, “a defendant who has been thus regularly served has common law rights with respect to the orderly progress of the action by the return of the writ. If such orderly course be not pursued the action may be treated by him as abandoned.” The same reasoning is applicable to the right to have a declaration filed as to that to have the writ returned.

The motion is denied, with costs.  