
    A. W. Thompson vs. D. Goudelock.
    To .plaintiff’s declaration, defendant filed a demurrer, on 2d October, 1855. On 11th October, 1856, plaintiff moved, that the case be put on the issue docket. A joinder in demurrer, without date, and which never had been filed, was exhibited: — Held, that plaintiff’s motion was too late, a year and a day having elapsed, since any step was taken in the cause. i
    
    BEFORE WITHERS, J., AT UNION, FALL TERM, 1856.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ At tbe close of tbe term of tbe Court, on Saturday, tbe issue docket having been some hours before closed, Mr. Thompson moved to put tbe case above stated on tbe issue docket. It bad not been on that docket at March last, nor was it on at this term. A demurrer, for defendant, bad been filed, October 2d, 1855, (I believe such to be tbe date,) a joinder was on tbe record, but without date, and it bad found no entry in tbe Clerk’s Record Book of pleadings, because (said tbe Clerk) be bad never seen it.
    “Mr. Groudelock and bis Counsel objected to tbe motion, stating that tbe cause of action was a claim by tbe plaintiff, as executor, for extra compensation, brought against Groudelock, as Commissioner, that this claim bad been of long standing, bad proved embarrassing to tbe disposition of tbe estate, and to him as Commissioner, tbe same having been ordered in Equity to be distributed, and that be bad proceeded to make distribution, and supposed this case ended, in consequence of its long dormant condition. Declining to interfere, I refused tbe motion. Tbe case was made by statements at tbe bar, which I have above restated as well as I can.”
    
      Tbe plaintiff appealed, and now moved this Couxt for leave to bave bis case put upon tbe issue' docket.
    Because by law and by tbe practice of tbe Courts, tbe case should bave gone upon tbe issue docket, a year and a day not having elapsed since the pleadings were made up.
    
      Thomson, for appellant.
    Herndon, contra.
   Tbe opinion of tbe Court was" delivered by

Wardlaw, J.

From tbe second day of October, 1855, when the defendant’s demurrer was filed, until tbe eleventh day of October, 1856, when tbe motion to docket was made, no step seems to bave been taken in this case. At tbe making of tbe motion, a joinder in demurrer was exhibited: but that may bave been written on tbe day first mentioned, or may not bave been written until tbe day last mentioned: it was 'not filed, and was unknown to tbe Clerk.

When tbe defendant filed bis demurrer, be might, by taking out a rule to plead; bave required tbe plaintiff to join issue within-ten days; and upon tbe plaintiff’s default after tbe expiration of tbe ten days, might bave obtained an order for judgment, which could bave been set .aside upon tbe usual terms on tbe call of tbe inquiry docket at tbe next term, March, 1856. But no rule to reply having been taken out, or, if it was taken out, no order for judgment having been obtained, tbe ten days bave no influence upon tbe case. In tbe actual state of facts which, by tbe neglect of strict practice on both sides, has occurred, the case has become discontinued by tbe lapse of more than a year, (or as we generally say, a year and a day,) without any stop. With this we suppose tbe defendant is content; and to it tbe plaintiff must submit. It is tbe result which must be attained, if tbe demurrer was filed without any rale to plead, or before the expiration of such rale: and no difference in the result is perceived to arise if, as has been now suggested at the bar, the case was on the inquiry docket, at October Term, 1855, and was then transferred by the defendant on the usual terms. Under the leave to transfer, the defendant was bound to plead an issuable plea, instanter — he did so. The plaintiff might have instantly replied and presented the issue for docketing: he did nothing for more than a year, and at the making of this motion was out of Court.

The motion is dismissed.

• O’Neall, Withees, Whilneb, Gloyek and MuNeo, JJ., concurred.

Motion refused.  