
    Jones, et al. v. Merrill, administrator, &c.
    1. Where a non-suit was claimed in the Clerk’s office in vacation, for want of a declaration, ami afterwards, without noticing the proceeding in the clerk’s office, a declaration was filed, and a judgment by default, rendered agai dant, it tv«3 held not to be erroneous.
    Writ of error to Ihc County Court of Covington.
    Ellis, for the plaintiff.
    Bolling, for the defendant.
   COLLIER, C. J.

— The only cause assigned for e____... . case is, that a judgment of non-suit, was claimed in the clerk’s office, in vacation, previous to the tiling of the declaration, and without noticing this, the declaration was afterwards filed, and a judgment by default, rendered against the plaintiff in error.

The court, by receiving the declaration, and rendering a judgment by default, disregarded, and virtually set aside, the claim in the clerk’s office, of a non-suit. The claim of a non suit need not have been formally set aside, as it was wholly inoperative, till confirmed by the court. In no view in which the point can be considered, is there error in the record; and the judgment .is consequently affirmed.  