
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1806.
    Perkins v. Burtin.
    Where no appearance has been entered pursuant to the act of February, 1791, the order for judgment cannot be set aside under the rule of court which relates to orders for judgment for default of a plea, unless the • plaintiff should waive the advantage of posting a rule to plead, and thereby acknowledge the defendant to be in court, &c.
    Debt on bond, conditioned to make titles to land. The writ was returnable to April term, 180S. The declaration was filed the 26th August following. Rule to plead was posted the 5th September following. No appearance had been entered with the clerk of the court during the sitting of the court to which the writ was re", turnable. After the rule to plead was posted, the defendant offer, ed to pul iñ a plea, which the clerk refused to file, being instructed by the plaintiffs to refuse to do so, as no appearance had been regu. larly entered. At the succeeding court, at Spartauburgh, plaintiff moved for an order for judgment, which Grimke, J., granted, and gave the plaintiff leave to enter up final judgment by default. The motion in this court was to reverse the order of the District Court, and allow the defendant the benefit of the plea which had been tendered ; and also to compel the plaintiff to execute a writ of en-quiry of damages, &c.
    Cmswem was heard in support of the motion. Gist against it.
   Wilds, J.,

delivered the opinion of all the judges, except Bay, who was absent. Unless an appearance has been regularly enter. ®d by the defendant’s attorney, at the nest court after the process *S retuina'3^e> the plaintiff, upon filing his declaration, may take judgment by default; and the defendant, unless he puls in an appearance at the first court, shall not be entitled to put in his plea, for he cannot be considered as in court, and in a capacity to plead, unless he has entered his appearance- according to the act of Feb. ruary 1791. The rule of court respecting orders for judgment is not inconsistent with this act. The rule relates to orders for judgment, where appearance has been entered, but the defendant has neglected to plead within the rule to plead, upon affidavit of the service of the rule. The plaintiff in this case was not bound to consider the defendant in court, and to have a right to plead ; but this advantage he might waive. He did waive that advantage by posting a rule to plead, which was in effect acknowledging the defend, ant to be in court and entitled to plead. The court are, therefore, of opinion that the judgment should be set aside, and that the defend, ant should be permitted to plead.  