
    *Stephen Wright ads. Joseph Higginbottom & Co.
    If a plaintiff fail to file his declaration before the Court succeeding the Court to which the writ is returnable, he cannot afterwards file it.without leave of the Court.
    Tried before Mr. Justice Colcock, at Barnwell, November Term, 1815.
    The writ in this case was returnable to April Term, 1814. The declaration was filed without leave of the Court, and without notice to the defendant, on the 24th of March, 1815, which was after the Court next succeeding that to which the writ was returnable. Judgment by default had been obtained, and the cause entered on the Writ of Enquiry Docket. A motion was made on the. part of the defendant to strike the cause off the docket, the declaration having been irregularly filed, which was refused.
    A motion was now made to set aside the judgment, because the declaration was filed' contrary to the Act of 1791, and also contrary to the 42d rule of Court.
   The opinion of the Court was delivered by

Colcock, J.

When the ease came before me below, I was of opinion that the defendant was bound to serve the plaintiff with a rule to declare, and that having failed to do so, the judgment should not be set aside. But upon an examination of the act, (1 Faust, 40,) and the rule of the Court, it is clear that if the plaintiff fail to file his declaration, before the Court succeeding the Court to which the writ is returnable, he cannot after-wards file it without leave of the Court. The 42d rule of Court, made in pursuance of the act, declares, that “ if the plaintiff should not file his declaration before the first day of the second term after the return of the writ, he shall not be permitted to file it afterwards, without obtaining leave to do so ; and he shall give four days’notice to the adverse party of the time and place, when and where, he intends to *move for such leave, unless the motion is made in open Court, in which case one day’s notice will be deemed sufficientby which- it appears that it is incumbent on the plaintiff, if he fail to file his declaration at the time prescribed by the act, to give notice to the defendant, and does away the English rulé of pleading, which requires the defendant to serve the the'plaintiff with a rule to declare.

Patterson, for the motion. Bacon, contra.

I am therefore in favor of the motion.

Grimke, Nott, Cheves, Gantt and Johnson, JJ., concurred.

See 2 Bay. 414; 1 Brev. 203; 2 Sp. 509 ; 3 Rick. 61; 4 Rich.. 467; 10 Ricli. 50. 
      
       7 Stat. 263, <S 6. See Stat. 13 Car. 2 Stat. 2, e. 2, ¡ 3. 2 Stat. 515.
     
      
       Made 67th in 1837.
     