
    Botts v. Pollard.
    November, 1840,
    Richmond.
    Practice — Rule Days — Construction oi Statute Relating to. — Construction of the statute 1 Rev. Code, ch. 128, § 69, which provides that the rules in the clerk’s office “shall beholden on the first monday In every month, and may be continued from day to day, not exceeding- six days.”
    On the 16th of March 1837, George W. Pollard sued out of the circuit court of Henrico a writ of capias ad respondendum against Charles T. Botts, of a plea of debt, returnable to April rules. The declaration was filed at April rules, and was upon a specialty for the payment of money. Whereupon the defendant being arrested and not appearing, it was ordered that judgment be entered for the plaintiff, unless the defendant should appear and plead to issue at the then next rules. At which day, to wit, at the rules held on the first day of May, the defendant still failing to appear, the conditional judgment was confirmed.
    
      At the next term of the court, when the cause was called, the defendant by his counsel moved the court to remand it to the rules, as being improperly placed upon the court docket by the clerk; and as the ground of his motion, he proved that he the said counsel for the defendant had appeared at the rules held in the clerk’s office on the first monday in May, enquired into the state of the cause, and expressed his intention to set aside the common order by pleading' to the declaration at some subsequent day of the rule week; that he was informed by the clerk, that unless he pleaded during that day, he the said clerk could not receive his plea at any subsequent day of the rule week, as it was his intention to close the rules on that day, in order to be prepared for the court, which would commence its session on the monday following; that to this statement of the clerk, he the said counsel replied that he had not time to prepare his pleadings, in this and the other causes in which he was engaged that stood in the same situation, during that day, and left the office; that afterwards, to wit, on the fifth day of the said rule week, the said counsel for the defendant again appeared in the clerk’s office, and tendered a plea of payment, in writing, but the clerk refused to receive it, assigning as his reason for such refusal that he had closed the rules in this cause on the first day of the rule week, entered the common order as confirmed, and set the cause down upon the office judgment docket of the court. The clerk stated to the court, that though it was his usual practice to keep the rules open in his office the whole rule week for some purposes, such as the return of process and reception of declarations, he had usually, as to causes situated as this was, closed them on the first day of the week, if he had an opportunity of doing so, and that he considered his practice in this respect sanctioned by the decisions *of judge Brocken-brough, when sitting in this court, and particularly by the decision referred to in 1 Rob. Prac. 202. It was, however, stated that many members of the bar, whose practice in the court was extensive, did not understand the practice of the clerk as he had stated it. The court, after fully hearing and considering the motion of the defendant’s counsel, overruled the same, and refused to remand the said cause to the rules. Whereupon the counsel for the plaintiff offered to permit the defendant’s counsel to plead then any plea which he could have pleaded at the rules, provided that the cause should not be thereby delayed beyond the term of the court; but this was not assented to by the counsel for the defendant. A bill of exceptions was filed by him to the court’s opinion. And final judgment being then entered for the plaintiff,' the defendant applied for a super-sedeas to the same, which was allowed.
    Brooke for plaintiff in error.
    Daniel for defendant in error.
    
      
      The principal case is cited in Commercial union Assurance Co. v. Everhart, 88 Va. 957, 14 S. E. Rep. 836.
    
    
      
      The term did not commence during the rule week, but on monday the 8th of May. — Note in Original Edition.
    
   TUCKER, P.

I am of opinion that the judgment in this case is erroneous. The question turns upon the true construction of the act, 1 Rev. Code, ch. 128, § 69, p. 506. By that section it is provided that rules shall be holden in the clerk’s office on the first monday of every month, and may be continued from day to day, not exceeding six days.

If the clerk is to be considered as having a discretion as to the time of closing the rules in any cause, I should not hesitate to say that he has exercised his discretion unsoundly, and that the general principles which he has avowed as to the conduct of the rules are altogether inadmissible. He tells us it is his usual practice to keep the rules open the whole week for some purposes, such as receiving declarations and return of process, but that as to causes situated as this was, he usually ^closed the rules on the first day, if he had an opportunity of doing so. Now this seems to me unequal, unjust, and contrary to law. All parties, defendants as well as plaintiffs, are entitled to the same measure of indulgence in the administration of justice ; and if the rules can be kept open for the accommodation of plaintiffs, the same accommodation should be extended to the defendants.

In the case at bar, the rules were peremptorily closed on the first day, though by law, for the convenience of suitors, they are authorized to be kept open for six days. If there is little business in a court, this cannot be necessary ; if there is much it cannot be proper ; for the very object of enlarging the rules is to give time to the suitors and officers to do the business as it ought to be done. So far from hastening to close the rules, so as to exclude defendants from their right to plead, the clerk (if he has a discretion) should so exercise it as to give to the party the last convenient moment for .making his defence. What that time may be, need not be decided. It is enough to say that if the clerk could close the whole rules in a day, there could have been no press of business which could make it unreasonable to keep them open, even to the last hour of the six days. I think, therefore, that the proceedingin this case was altogether irregular and unreasonable, and should have been corrected, even if we admit the discretion claimed for himself by the clerk.

Whether the clerk has any discretion in this matter, further than to reject the pleading where it is offered so late in rules that he has not time to enter it before the last hour of the sixth day, I very much question. That they cannot legally be closed on the first day as to all matters, is obvious from this, that a - writ may be duly executed at any time before the return day has passed ; that is to say, a writ returnable to the rules may be lawfully executed at any time before sunset of the first rule *day. But if the rules are closed on that day, how is the defendant to appear ? He is to appear, indeed, on the return day of the writ. But it was always held by that able officer judge White, that the six days are by a fiction of law but one day, as in the case of the court itself, and that the defendant might therefore appear on any of the rule days of the rules to which the writ is returnable. If so, the rules cannot be closed as to him, and he may appear at any time before the last hour of the sixth day, in convenient time to have the entry made. If he is too late to have the entry made, it is his own fault, and he pays the penalty; for by his negligence he loses the opportunity of appearing. But if the defendant has a right to appear at any of the six days, because the six days together make but one day, why shall he not have the six -days also to comply with the terms of the common order ? That order, indeed, expires on the next rule day ; 1 Rev. Code, ch. 128, § 74. But that rule day is composed of six days, and if he appears before the end of them, in time to have his appearance entered, he complies with the rule, and the order must be set aside. And should it be asked, “Suppose he should appear so late that there is not time to enter it ?” the answer is, he must lie down under the consequence of his own delay. Or if it be asked, “Suppose numbers of defendants should apply at the eleventh hour to appear and plead?” the answer is, the first who comes must be first served, and the rest must suffer for their laches. It seems to me, then, that although the rules in each cause may be closed where the party called upon by the preceding- rule has taken the step required of him, yet they must be kept open until he has done so, or until the last convenient hour for doing so on the sixth day ; and that this is the true meaning of the provision that they may be continued from day to day, not exceeding six days.

*As to the offer of the plaintiff to permit the defendant to plead upon a condition ; that formed no ground of the court’s judgment, for it was subsequent, and moreover the defendant was in nowise bound to accept it, and to surrender his rights under the statute.

In like manner, I deem it unimportant to enquire whether he has sustained any injury by the decision. It would not only be difficult to ascertain this, but it would be improper to deny him what he had by law a right to demand, upon a mere speculation as to the detriment which he has received.

I am, on the whole matter, of opinion to reverse the judgment, and send the cause back to the rules.

Judgment reversed, all the proceedings subsequent to the common order set aside, and cause remanded to the circuit court, to be sent to the rules and further proceeded in.  