
    Henry Elliot vs. Mier Solzkotter.
    Practice. Trial term. Whore, at the instance of the plaintiff, time was given him until the second term to file his declaration, at which time the pleadings were made up, it is held that as to the defendant said second term was the return term, and there could not he a trial without his consent.
    EROM KNOX.
    This is an action of debt from the Circuit Court of Knox county. At the June Term, 1857, before Judge SwAN, there was a verdict and a judgment thereon for the plaintiff. The defendant appealed in error.
    Humes, for the plaintiff in error.
    Ramsey, for the defendant in error.
   McKiNNEY, J.,

delivered the opinion of the Court.

This case presents a mere question of practice. The action is in debt. At the return term of the process, on the ,|Jaintiff’s application, time was allowed him until the next succeeding term of the Court to file his declaration. At the next term the pleadings were made up and the case put at issue; and being reached at the same term, the plaintiff insisted on a trial. To this the defendant objected, but the Court ruled that the case was regularly for trial at that term; and a trial was had, and judgment for the plaintiff.

We think the Court erred. It is conceded that if the pleadings had been made up at the return term, no trial could have been had without consent of the defendant until the next succeeding term. By the act of the plaintiff, and as a matter of favor to him, the making up of the pleadings was postponed a term. This should not be allowed to prejudice the defendant, who, by our practice, is entitled to the delay of a term, to prepare for trial. The effect of the order, simply giving the plaintiff time till the next term to declare, was to make the next term, so far as the defendant’s rights were concerned, the return term. And of this the plaintiff had no right to complain, as it was purely the result of his own act.

Judgment reversed.  