
    Robert Morrow vs. W. H. Malone et al.
    
    Practice ato Pleading. Filing declaration. Acts of 1794, eh. 1, §26, and 1809, ch. 49, § 3. The plaintiff is required to file Ms declaration within the first three days of the term to which the writ is returnable, or his suit may be dismissed on motion. The fact that the Judge of the Oourt did not attend at the return term, and there was no Court, will not excuse the plaintiff, as the declaration may have been filed with the clerk.
    PROM CAMPBELL.
    The plaintiff caused a writ of summons in trover to be issued against the defendants, returnable to the January Term, 1858, of the Circuit Court of Campbell. It seems that at the proper time for the January Term, the Judge was absent, and no Court was held, consequently the plaintiff’s attorney did not attend, and no declaration was filed. At the May Term following, the defendants moved to dismiss the suit, for the want of a declaration, which was resisted by the plaintiff, who asked leaye to file his declaration them, supported by the afiidavit of his attorney, disclosing the reason as above stated, for ■ his failure to file the declaration at the proper time. Judge Turley dismissed the suit, and the plaintiff appealed in error.
    McFarland, for the plaintiff.
    
      John Baxter, for the defendants.
   WRISHT, J.,

delivered the opinion of the Court.

There is no error in this record. It was the- duty of the plaintiff to file his declaration within the three first days of the January Term of the Court. Act 1794, ch. 1, § 26. This he could have done in the clerk’s office, though the Circuit Judge did not attend, and there was no Court at that term. Acts of 1794, ch. 1, § 26, and 1809, ch. 49, § 8. C. and Ñ. Rev., 205 and 539. But he failed to do this; and did -not even attempt to file his declaration until the three first-days of the next term had expired, when the. Court, on the application of defendants, dismissed the- suit. After this he came forward with his declaration; hut the reasons given for not filing, his- declaration at an earlier day are altogether insufficient..

Affirm the judgment..  