
    
      The President and Directors of the Bank of the State of South Carolina vs. Antonio Della Torre.
    
    1. As our law now stands, by the return of the writ, is meant, not the appearance term, but the very day when the Sheriff is required to make return to the Clerk of the Court.
    2. If a declaration be not filed, or leave for further time be had, before the expiration of a year and a day, from the day when the Sheriff should make return, the plaintiff is out of court, and cannot afterwards obtain leave.
    3. Where the year and day had expired, without any declaration filed by a plaintiff, or leave obtained for further time to declare, the defendant was permitted to enter up his judgment of non pros, nunc pro tunc, the Clerk having refused to sign the judgment within the year.
    4. It is discretionary with the Court, where a judgment of non pros, is regular, upon proper affidavits, to set it aside upon payment of costs, in order to let in a trial of the merits, but the motion to set aside must come at some time within which the plaintiff could obtain leave for further time, if the judgment had not been entered.
    5. The defendant, within the year, may, of course, enter his judgment of non pros, but the Court, after that time, may grant him leave to do so. Vide Smith vs. Lewis, 1 Nott & McCord, 38.
    6. The judgment of non pros, is a final judgment, and is founded on the statute of Car. 2, subject to subsequent provisions as to the time of declaring. It will always be set aside if irregular, but no previous order of Court seems necessary to its validity.
    
      Before Wardlaw, J. Charleston, Maij Term, 1842,
    
      Report of the presiding Judge.
    
    The service of the writ, in this case, was accepted 15th April, 1841. The writ requires the defendant to appear at the next court, the first Monday of May, to wit, 3d May, 1841, and directs the sheriff to have the writ before the clerk fifteen days before the said court, to wit, 17th April, 1841, the 18th being Sunday.
    Owing to the drafts, which constitute the cause of action against the defendant, as drawer, being beyond the control of the plaintiffs’s attorneys, in pursuit of the accept- or, no declaration in this case has been filed; but about 1st April, 1842, an agent of the plaintiff’s attorneys applied to the defendant’s attorney, informing him of the cause of delay, and inquired whether he would consent then to plead to a declaration, to which the defendant’s attorney replied, that he would decline pleading, inasmuch as the time allowed for filing the declaration had expired. About 1st February, 1842, after the adjournment of the January term, (the next term after the May term aforesaid,) the defendant’s attorney applied to the clerk of the court to sign a judgment of nonpros, for want of a declaration, which the clerk refused to do, because no order of court for such judgment had been obtained. The present term commenced first Monday of May, to wit, 2d May, 1842, and continued six weeks, in the course of which, about the 1st of June, 1842, the plaintiffs moved for leave to file their declaration, as of the present term, and the defendant opposing the plaintiff’s motion, moved for leave to enter judgment of nonpros, nunc pro tunc, as of 1st February, 1842.
    The plaintiff, conceding that, as decided in Wright vs. Higginbottom, 1 N. & McC. 9, if the declaration be not filed before the court succeeding the court to which the writ is returnable, it cannot afterwards be filed without leave of the court; and that, as decided in Kennedy vs. Smith, 2 Bay, 414, 1 Brev. Rep. 203, the case will be out of court, and no order can be made in it, if no step be taken for a year and a day; or if, where the time has not been extended, by leave of the court, the declaration be not filed within a year and a day from the return of the writ; contends, that by the return of the writ is meant the term at which the defendant is required to appear; that the w7hole term is one day ; and that the plaintiff is in time for his motion, if a year and a day have not elapsed between the term for appearance and the time at which the motion is made.
    The case seems not to be affected by any reason that may exist for the plaintiffs’s delay, or by any thing that has passed between the attorneys. It presents, simply, a question as to the power of the court, to be resolved by an inquiry as to the period from which the computation of the year and a day shall commence ; and I shall make the inquiry carefully, for I find that the question arises, frequently, divides the bar, and is thought not to be settled.
    Passing by the maxim, Jictio cedit veritati, which, when the day is material, might overrule the fiction of the term’s being one day, I shall endeavor, by an examination of the English practice, and of our own enactments, to ascertain whether there is foundation for the plaintiff’s assumption, which would give to plaintiffs in different districts, different times of indulgence, according to the different lengths of terms.
    All writs in England were formerly returnable in term time. 1 Sellon’s Pr. 90; Str. 399. But ever since essoigns ceased to be cast, the first general return day of each term has been but nominally within term time, as the court does not sit until quarto die post, i Sel. Pr. 3; 1 Archb. Pr, 35; Cro. Car. 102. And although “the very day of return, is the day in law, and to that day the judgment hath relation,” (1 Inst. 135 ; 1 Impey’s Pr. 53,) yet, so little was the essoign day, or first general return day, regarded as part of the term, that an appearance entered after the essoign day, and before the day of full term, may be entered as of the preceding term. 6 East, 314.
    By the uniformity of the process Act, 2 Win. 4, c. 39, and other late statutes, and rules of court, great changes have been made in the practice of the courts at Westminster, according to which the term expressly commences after the essoign day, and in mesne process (except distringas, and proceedings to outlawry,) there is no express return day, but it is tested the day on which issued, requires the defendant. to appear in eight days of the service, is in force for four calendar months, and must be returned immediately after the service; and the plaintiff cannot declare until the ninth day after the service. 3 Chitty’s Pr. 150', 192, 90.
    The statute 13 Car 2, sect. 2, c. 2, (made of force in this State, 2 Stat. at Large, 41fp,) enacts, that upon appearance entered in the term to which a writ is returnable, unless the plaintiff shall put in his bill, or declaration, before the end of the term next following after appearance, a non-suit, for want of a declaration, may be entered against the plaintiff. See 1 Tidd’s Pr. 412; 7 T. R. 26.
    The English practice, under this statute, prior to the late changes, is thus laid down by Sellon: By the general rule of law, a plaintiff must declare within twelve months after the return of the writ, or he will be out of court. But by the rules of the courts, if he do not deliver his declaration within two terms, defendant may sign judgment non pros. If, however, no such judgment be signed, plaintiff may still deliver his declaration at any time within the year. 2 T. R. 112; 5 T. R. 36.
    In B. R. the plaintiff has only to the end of the second term to declare in, whether called upon by rule, or not. But in C. B. he has still the essoign day of the third term, if not called upon by rule. 1 Sellon’s Piac. 241.
    If the plaintiff was not ready to declare before the end of the next term after the return, he, at that next term, obtained a rule for further time, until the first day of the following term; and afterwards could obtain rules for further time from the beginning to the end of a term, and from the end of one term to the beginning of the next, as often as necessary, if not stopped by a peremptory rule to declare, before the end of the term, which the defendant could obtain. 1 Sell. Pr. 258.
    
      The year was computed from the return day of the writ, and not from the time of the defendant’s appearance, and now that no return day is specified, the computation is from the day of service, at which day the officer is bound to make return. 3 Chit. Pr. 445.
    In quare impedit the writ was returnable January 8, 1834 ; and defendants appeared 11th January, 1834. Plaintiff declared 10th January, 1835. The court set aside the declaration as too late. 1 Bing. N. C. 545; 27 Eng. C. L. Rep. 489.
    
      And it seems that the year is computed so as to include the return day, and that after the year, the case is out of court as to both parties, defendant as well as plaintiff. The defendant was held to bail on a bill of Middlesex, returnable 6th November, 1818. He surrendered 7th November, and afterwards, on 11th November, justified bail. There being no further proceedings on the part of the plaintiff, the defendant signed judgment of nonpros, on 6th November, 1819. Judgment set aside, because entered after the case was out of court. Per Cur. The rule is, that if the plaintiff does not declare within a year after the return day of the writ, he is out of the court. The safest course is to reckon the twelve, months from the return day. The time given to put in and perfect bail, is merely matter of indulgence. Cooper vs. Neas, 3 Barn. & Ald. 271 ; 5 Eng. C. L. Rep. 280. See the dissenting opinion of Judge Cheves, Boney ads. Moses, 1 N. McC. 40.
    So that if a writ, returnable on a general return day, should have been made returnable on the first return day, or essoign day of a term, the year would have been computed from the essoign day, not from the retorna bremurn day, nor from the quorto die post, or other later day, to which, by indulgence, the time of defendant’s appearance was extended, “for the very day of return, is the day in law.”
    Without judgment of non pros, or other formal entry, the court takes notice of the termination of a suit by lapse of time, so that in an action for malicious arrest, proof that no declaration was filed, or delivered, within a year after the return of the writ, is sufficient to shew a determination of that suit. Pierce vs Street, 3 Barn. & Ald. 297; 23 Eng. C. L. Rep. 102.
    The practice in this State, as to the time of declaring, is conformable to the former practice of the King’s Bench, which has been referred to, subject to some alterations, which have been introduced by our Acts of Assembly, and rules of court.
    An Act for the better regulating of courts of justice, passed 1719-20, has been lost, (3 Stat. at Large, 99.) In 1721, precinct courts were established, for which was provided a process containing the declaration; but the general court, at Charleston, still retained exclusive jurisdiction of all civil causes, wherein the matter in difference exceeded £100, sterling. 7 Statat Large, 167.
    In 1737, four terms in each year were appointed for the Court of Common Pleas, to be holden at Charleston, and all writs and processes wTere made returnable on fixed days, which were five weeks previous to the terms respectively, on which days the justices were required to meet and sit, “to receive the returns of writs and processes, issuing from the said court,” and no declaration was to be filed, until the day the writ should be made returnable. 7 Statat Large, 139.
    In 1768, (7 Stat at Large, 197,) Nisi Prius Courts were established in various districts, the writs returnable to the Court of Common Pleas, in Charleston, and the proceedings there conducted until issue joined. In 1789, (7 Stat. at Large, 251,) in changing a term of the Common Pleas-in Charleston, from the second Tuesday in January to the fourth Tuesday in February, it is provided that “the return day of the said court shall be on the first Tussday in January, instead of the second Tuesday in December;” and the same year, in the Act giving coin píete, original, and-final jurisdiction to the circuit courts, it is provided that writs from the said circuit courts, “sháll be made returnable to the next court, after the date of the said process, and shall be returnable by the respective sheriffs into the clerk’s office of the said court, four days previous to the meeting of the same; and all pleadings thereupon shall be made up at said court, and be ready for trial at the next circuit court after.” 7 Stat. at Large, 254.
    In 1791, (7 Stat at Large, 263,) it is enacted that “all' writs or mesne process and executions that shall be issued by or from the court of common pleas, in and for the district of Charleston, shall be made returnable to the court thereof, on the first Tuesday in January, the fourth Tuesday in March, and the third Tuesday in August; and all writs and executions that shall be issued by or from the courts in other districts, shall be made returnable to the clerk, thirty days next before the sitting of the court to which they are made returnable; and the sheriffs shall1 make certain return thereof, on the respective days hereby directed, to the said clerks, whose duty it shall be to deliver them to the plaintiff’s attorneys in the several suits so commenced and prosecuted; and the plaintiff shall, on the return of such writs, proceed to file his declaration during the sitting of the court next after the writ is returnable, or at any time after until the next succeeding court, and shall take judgment by default against the defendant in said suit, unless an appearance has been regularly entered by the defendant’s attorney, with the clerk of the court, during the sitting of said court,” <fec.
    In 1799, (7 Stat. at Large, 293,) it is directed that all judicial process shall be tested, <fec. “and be made returnable to the clerk of the court, to which it shall be returnable, fifteen days next before the sitting of such court.”
    In 1825, (7 Stat at Large, 330,) it is enacted, that all writs and processes shall be “tested on any day previous to the day on which they are made returnable,” in the name of the clerk, <fcc.
    The 67th rule of this court provides, “that if the plaintiff should not file his declaration before the first day of the second term, after the return of the writ, he shall not be permitted to file it afterwards, without obtaining leave to do so, after notice of his motion,” &c. See 1 N. & McC. 8, Wright vs. Higginbottom.
    
    In the case of Kennedy vs. Smith, 2 Bay, 414, 1 Brev. Rep. 203, decided when different rules of court from the present obtained, and without reference to the Act of 1791, it is laid down, (in words very much like those employed by the court, in T. R. 112, and copied by Sellon,) that, “by the general rules of law, and the practice of the courts both in Great Britain and this country, a plaintiff is bound to declare ivithin a year and a day after the return of the writ; but by a rule of our court, if he does not declare within the second term, the defendant may obtain a rule to compel him, or sign judgment of non pros, though if the defendant does not choose to take advantage of the plaintiffs neglect, the plaintiff may still file his declaration within twelve months.”
    In the case of Stephens vs. Thayer, 2 Bay, 272, it was decided that, in a case by attachment, although the declaration was not filed within two months from the return of the writ, as required by the attachment Act of 1744, (3 Stat. at Large, 618,) yet, as it was filed before the expiration of a year from the return day of the writ, the judgment was regular. The writ was there issued 6th July, 1796, and the declaration filed 31st July, 1798, and although the report does not mention the time at which the writ was returnable, it will be seen, by reference to the Act of 1791, above cited, (7 Stat. at Large, 260,) that the writ was returnable third Tuesday in August, 1796, and required the defendant to appear the fourth Monday in September, afterwards ; subject, of course, to the longer indulgence extended to a defendant in attachment for appearance.
    A like decision was made in the case of McBride vs. Floyd, 2 Bail, 209, where in the report it is said, “the declaration was filed in November, 1830, being the last day of the year after the return,” and the opinion of the court says, “the declaration was not filed within two months, although it was filed in less than a year and a day from the return of the writ. The court has the power, at any time within a year and a day from the return of the writ in attachment, to permit the declaration to be filed.”
    It will be observed, that the attachment Act of 1744 speaks in various places of the return of the writ. A notice is to be indorsed upon the copy writ served on the garnishee, requiring him to appear “at the return thereof.” The garnishee is required to appear “at the return of the writ, or, at farthest, during the sitting of the court of common pleas, next after the return of said writ;” and the plaintiff is required to file his declaration “within two months after the return of the said writ.” By reference to the Act of 1734, before cited, (7 Stat. at Large, 189,) which then regulated the sitting of the court of common pleas, it will be seen, that by the return of the writ, is plainly meant the kind of essoign day there provided, when five weeks before the term, the Judges met to receive the return of writs, for which has been since substituted the return to the clerk.
    
    
      I conclude, that as our law now stands, by the return of the writ is meant,, not the appearance term, but the very day when the sheriff is required to make return to the clerk of the court; or, to make exact a looseness of phraseology sometimes employed — by the return, is sometimes meant the return of the due service — and the return day, is the day when the manner of the service should be returned. If a declaration be not filed, or leave for further time be had, before the expiration of a year and a day, from the day when the sheriff should make return, the plaintiff is out of court, and cannot afterwards obtain leave.
    The plaintiff’s motion is, therefore, refused; and an additional reason for the refusal arises from the consideration of the defendant’s motion.
    If the clerk was wrong, in refusing to sign the judgment of nonpros, the defendant must be put into the same condition as if what was his right had been granted; the judgment of non pros, nunc pro tunc, must be entered, and the case would then stand, of a plaintiff, after the expiration of a year from the return of the writ, applying for leave to file his declaration, to which is opposed a judgment of nonpros, signed within the year, as well as the lapse of time. If in this view of the case, the plaintiff’s motion should assume the form of a motion to set aside the judgment of nonpros, it will be seen, that even where the judgment of nonpros, is regular, it is discretionary with the court, upon proper affidavits, to set it aside, upon payment of costs, in order to let in a trial of the merits, (2 Arch. Pr. 296; 3 Chitty’s Pr. 450;) but the motion to set aside, must come at some time within which the plaintiff could obtain leave for further time, if the judgment had not been entered. It cannot be conceived, that by the non pros, the plaintiff is put into a better condition than he would otherwise be.
    Was an order of court necessary to signing the judgment of non pros 'l Before the late rules, which require demand of a declaration in all of the courts of Westminster, 3 Chit. Prac. 447, a difference of practice existed between the King’s Bench and the Common Pleas. A rule to declare, before non pros, was necessary in C. B. but not in K. B. 2 Sel. Pr. 45; 1 Tidd, 413. The case of Smith vs. Lewis, 1 N. & McC. 38, whilst it recognizes the right of the defendant, within the year, to enter, of course, his judgment of non pros, held that after the year, the court might grant him leave to do so; and the case of Wright vs. Higginbottom, 1 N. & McC. 8, held that the Act of 1791, before cited, “does away the English rule, which required the defendant to serve the plaintiff with a rule to declare.”
    The judgment of non pros, for want of a declaration, is a final judgment, (1 Tidd. 412,) and is founded on the Stat. of Car. 2, before cited, subject to subsequent provisions as-to the time of declaring. It will always be set aside if irregular, but no previous order of court seems necessary to its validity.
    It is, therefore, ordered that the defendant have his motion.
    The plaintiffs appealed from the foregoing decision of his Honor, and moved that the same may be reversed, and that the order granting leave to the defendant to enter judgment of non pros, nunc pro tunc, be reversed ; and that either leave be granted to the plaintiffs to file their declaration nunc pro tunc, or that the cause be remitted to the circuit court, with instructions to grant such leave, upon satisfactory cause being shewn for not filing the declaration previous to their application for leave. And in support of this, motion, the plaintiffs relied upon the following grounds:
    1. That a cause is not. out of court until the plaintiff has-forborne to take any step therein for a year and a day; that the plaintiff cannot file his declaration until the sitting of the court to which the writ is returnable, and, in practice, he is not permitted to do so, nor will the clerk grant a rule to plead, until the expiration of the term; and, consequently, the computation of the year and a day cannot commence before the commencement of the term to which the writ is returnable; that the whole of a term is, in law, but one day; and, therefore, the cause is still in court during the whole of every subsequent term, any part of which is within a year and a day of the term to which the writ was returnable.
    2. That as long as a cause is in court, the plaintiff may move for leave to file his declaration, or other pleading, or the defendant his plea, or other pleading, or either party may make any other motion, upon sufficient cause, although the regular time for doing so has elapsed; and that in the present case, for the reasons above stated, the cause was still in court, when the plaintiffs’s application for leave to file their declaration was made. Wherefore, the plaintiffs had a right to make, and the court full authority to grant, such application, upon satisfactory cause being shewn for the previous delay; nor could the defendant forestal such application by entering judgment of non pros, without a rule to shew cause, or notice of any sort to the plaintiffs.
    3. That according to what has been heretofore understood in Charleston, at least, to be the settled practice, a plaintiff may, upon cause shewn, file his declaration at any time within a year and a day of the term to which the writ was returnable, and if the year and a day expires in term time, then, at any time during that term; and that the defendant cannot enter judgment of non pros, without a rule to shew cause'first served on the plaintiff or bis attorney. That this practice is reasonable in itself, and conforms to our rules of court, and to the principles of the English practice, so far as they are applicable to the organization of our courts, and the system of transacting business in them; nor is it at all affected by the obiter dictum, in N. & McC. 9, in relation to the rules to declare.
    4. That although it was within the discretion of the presiding Judge to grant, or refuse, the application of the plaintiffs, for leave to file their declaration, as he might deem the cause shewn sufficient, or insufficient; yet, as he has carefully abstained from expressing any opinion upon the sufficiency of the cause shewn, and has placed his decision expressly, and exclusively, on the ground that the cause was then out of court, it is respectfully submitted, that if his judgment is not sustained on that point, the cause' should be remanded to the circuit court, with instructions to grant the application of the plaintiffs, if satisfactory cause be shewn for the previous delay.
    
      Bailey & Brewster, for the motion. Torre, contra.
   Curia, per

Wardlaw, J.

This court concurs in the opinion of the circuit court.

The motion is, therefore, dismissed.

Richardson, Evans, Butler and Frost, JJ. concurred.

O’Neall, J.

dissenting. In this case I dissent from the judgment, on the ground that the return day of the writ is the day fixed by it for the appearance of the party defendants in court, and called in the notice endorsed on the writ, the return thereof. The return day being the first day of the term, according to our Acts, it follows that the whole term being regarded, in law, as one day, is to be regarded as the return day, and the computation of twelve months is to be begun from the expiration of the term to which the writ was returnable, and does not expire until the end of the second term succeeding the return; and hence it is said a year and a day must expire after the return. It simply means a day beyond the second term, and that occurring, the party is out of court.  