
    Elizabeth Williams vs. Joseph A. Montgomery.
    Under the act of 1840, ch. 74, regulating the practice of the circuit court, power is not conferred upon that court to order the plaintiff to be nonsuited, because he has not joined in an issue presented by the defendant at the first term; and if such a nonsuit be entered by order of the court, it will be error.
    It seems, that under the act referred to, the circuit courts have power to direct a rule upon the parties, to make up the pleadings at the first term, so that they can be passed upon by the court; but not to nonsuit the party before having issued the rule.
    In error from the circuit court of Amite county; Hon. Yan Tromp Crawford, judge.
    Elizabeth Williams, in March, 1844, sued Joseph A. Montgomery, at the May term of the circuit court of Amite county. The declaration contains several counts. The defendant filed a demurrer to the first count, with special grounds, and non assumpsit to the others. The plaintiff did not join in the demurrer. At the same term, the following order of nonsuit was entered in the cause; “And now, at this day, to wit, the 17th day of May, A. D. 1844, at a circuit court held at Liberty, in and for the county of Amite, on the second Monday in May, in the year of our Lord, 1844, before the judge of the state aforesaid, came the said defendant by his attorney aforesaid, and on his motion, the said Elizabeth Williams being solemnly called and demanded in open court, did not come to prosecute her said action, and it appearing to the court that the said plaintiff hath neglected to prosecute her said action against the said defendant, therefore, on motion of the said defendant by his attorney aforesaid, and according to the force and effect of the statute in such case made and provided, it is considered that the said Elizabeth Williams take nothing by her action aforesaid, but that she and her pledges to prosecute be in mercy, &c., and that the defendant go hence without day; and it is further ordered and adjudged of by the court, that the said defendant and the officers of our said circuit court do recover against the said plaintiff the sum of $11.75 for their fees, which have accrued in the prosecution of this suit, and that they have execution thereon;” from which judgment this writ of error is prosecuted.
    
      Sanders and Price, for plaintiff in error.
    1. The case of Kain et al. v. May et al. 5 S. & M. 368, is conclusive, that the plaintiff had the term to plead in, and the cause did not stand for hearing or any final disposition at that term.
    2. The pleading, in fact, was complete. The court could decide the demurrer without a joinder, and the general issue required no joinder.
    
      Smiley and Lowry, for defendant in error.
   Mr. Justice Thacher

delivered the opinion of the court.

At the return term of a writ issued at the institution of an action of assumpsit, the defendant in the circuit court filed a demurrer to the first count of the declaration, and the general issue as to the other counts. There was no joinder filed to the demurrer, and, at the same term, the court directed a nonsuit to be entered up against the plaintiif for want of prosecution of the suit.

The act of 1840, ch. 74, regulating the practice of the circuit courts,” while it confers rights upon litigants, is directory upon the court as to its action at the return term. It directs, that all pleadings or defences which do not require the action of a jury to decide them, must be disposed of by the court at that term; and, for this purpose, it would be not improper in the court to issue a rule upon the parties to make up such pleadings, so that they could be passed upon by the court, but the act is not so imperative in that particular, as to warrant the court in ordering a nonsuit against a party failing to make up the pleadings in the first instance.

The judgment must be reversed, and the cause remanded for further proceedings.  