
    Nathan Hanks v. Richard Ingram.
    It is too late after the return term to except to a writ for irregularity, by motion to set aside the proceedings.
    If the defendant neglect to appear at the proper time, in order to obtain an advantage of the plaintiff, as by moving to set aside the writ at the second term, when the action would be barred by the statute of limitations; and he fail in that object, he will not afterwards be allowed to appear and plead.
    The Court of Appeals will not consider a motion, which ought to have been made on the circuit, but which was not made there. Its jurisdiction is appellate, not original.
    Before Mr. Justice Gantt, at Darlington, Spring Term, 1831.
    This was a motion to set aside the proceedings, for irregularity in the writ. The plaintiff’s surname had been omitted in the original capias; but after service it was interlined, and the writ, with a new copy, lodged again iti the sheriff’s office, and duly served on the defendant, previous to return-day. The writ was returned at the previous term, at which time the defendant neither appeared, nor excepted to the writ: and when this application was made, the action, which was trespass for assault and battery, would have been barred by the statute of limitations, if the proceedings were set aside.
    The presiding Judge refused the motion. It was renewed by defendant in the Court of Appeals : and if the application failed, then he moved for leave to set aside the interlocutory judgment, and to appear and plead to the action.
    Wilkins, and Ervin, for the motion.
    Blanding, contra.
   O’Neall, J.

delivered the opinion of the Court:

In this case we are satisfied with the decision below. The exception to the writ, if available at any time, came too late after the term to which it was returnable. The motion for leave to enter an appearance and plead, does not appear to have been made on the circuit, and cannot therefore be noticed by this Court. Our jurisdiction is appellate, and not original. If however, the motion were properly before us, it could not be granted. The omission to make it in season was voluntary ; It was the party’s own choice not to enter an appearance. He hazarded every thing to obtain the benefit of the statute of limitations, by setting aside the plaintiff’s writ at the second term. His proposed advantage has failed; and he cannot now complain of being visited with the usual consequences of defeat. The motion is refused.  