
    Barnes, Bateman and Rudderow vs. James M. Bell.
    
      Practice — Right to appear and Plead at Second Term.
    
    At the return term of the writ, the defendant moved to set aside the service, which motion the Circuit Judge granted; but, on appeal, his decision was reversed. At the nest term, defendant moved for leave to appear and plead, and his motion was refused. On appeal, held, that defendant was not in default, and that he had the right,, under the circumstances, to appear and plead at the second term.
    BEFORE WITHERS, J., AT WILLIAMSBURG, FALL TERM, 1851.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ This case is on tbe enquiry docket: at tbe return term of tbe writ, tbe defendant moved to set it aside; motion was granted by tbe presiding Judge, and bis judgment reversed by tbe Court of Appeals. At tbis term tbe defendant moves to appear and transfer; interrogatories were served for tbe plaintiffs on tbe defendant, and in propria persona; cross-interrogatories were banded to tbe plaintiffs’ attorneys, and .went witb tbe commission, tbe plaintiffs’ counsel giving notice to tbe attorney wbo put them in, that bis appearance was resisted and would be. Afterwards interrogatories were filed for defendant, and plaintiffs’ attornies put in cross-interrogatories, and considering (as they say,) that tbeir previous notice of resistance to tbe motion was understood, they did not then renew it. Under these circumstances tbe motion to appear and transfer tbe case, is refused.”
    Tbe defendant appealed and now moved tbis Court to reverse tbe decision of tbe presiding Judge, and for leave to appear and transfer the case on tbe grounds:
    
      1. That tbe service of tbe writ being set aside in tbe Court below, there was no case in that Court to wbicb tbe defendant was required to appear.
    2. That it would-be improper for tbe defendant, having set aside tbe service of the writ, in tbe Court below, to have appeared to tbe said writ in that Court.
    3. That tbe time at wbicb tbe defendant was called on to appear, was tbe third Monday after tbe fourth Monday in March, and tbe notice required him to appear at a day when tbe Court was not in session.
    4. Because tbe motion was at least addressed to tbe discretion of tbe Court, and should, under tbe circumstances, have been granted.
    
      Dargan, for appellant,
    submitted that tbe service of tbe writ having' been set aside by tbe order of tbe Court, to wbicb it was returnable, the appellant was not bound to -enter an appearance; and tbe Court of Appeals having reversed tbe order'of tbe Circuit Judge, be should have been allowed to appear at tbe next term of tbe Court, and to plead to the declaration ex débito justitice; at all events, tbe motion was addressed to tbe sound discretion of tbe Court, and under tbe circumstances should have been granted. Tbe appellant is not concluded by tbe Act of 1791, inasmuch as be appeared at tbe return of tbe writ, and the Court, by setting aside tbe service of tbe writ, judicially declared that there was no writ which be could appear to. Tbe motion, in all essential particulars, is brought within the rule (established and recog-nised in sundry decisions of our own Courts, on tbe construction of tbe Act of Assembly, 1791,) by wbicb a defendant is allowed to enter an appearance at tbe second term of tbe Court, where by mistake or misfortune, or tbe negligence of his attorney, be has been prevented from doing so at the first term after the return of the process. In support of these positions, the following authorities were cited, and commented on: 7 Stat., Act of Assembly, 1791, Sec. 6, p. 263 ; Davis y s. Miller, Harp. 898; Frean vs. Gruihshanlcs, 3 McC. 84 and 91; Williamson vs. Gummings, 2 McC. 250; Fvans ads. Parr, 1 McC. 283; Sanies vs. Ingraham, 2 Bail. 440.
    No counsel appeared for the plaintiffs.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, we think the motion for leave to appear and plead, ought to have been granted. It is true, applications of this kind are addressed to the discretion of the Court, but it will be seen, in all the cases, that when the defendant has been guilty of no neglect, and has not intended to take an advantage, he has been allowed to appear and plead. Such is the case where an attorney has been employed and failed to appear, or where the act of Cod has prevented the appearance; or whei'e the defendant was served by copy left at his residence, and he was absent from the State, and his absence extended beyond the term. In such a case as that last mentioned, the service was ruled to be good, but the defendant was let in to appear, and Judge Johnson, delivering the opinion said, “ by the practice of the Court, the defendant would, on showing the circumstances, be allowed to come in and plead at any time before judgment, and even after judgment, the Court would, on merits shown, open the case and let the defendant into his defence, if he had not an opportunity of coming in before.” Frean ads. Cruikshanks, 3 McC. 84.

Hanks vs. Ingram, 2 Bail. 440, is an illustration of the principle, that a defendant is not allowed to take an advantage of his own wrong. For there the defendant withheld bis motion to set aside tbe writ until tbe second term, when tbe statute would bave protected bim if be bad succeeded in quashing tbe writ; baying, however, failed in obtaining tbe advantage which be sought, be was not allowed to appear.

In this case, at tbe return term of tbe writ, tbe defendant moved to set aside tbe service. Tbe judge sustained bis motion, but on appeal to this Court, bis decision was reversed. Under such circumstances, I think tbe defendant was guilty of no default. He was in Court by attorney, moving to set .aside tbe writ at tbe return term. If tbe judge bad refused bis motion, be might and ought to bave appeared, but tbe judge bolding tbe service ill, be could not appear. When that decision was reversed, be must be considered as having all tbe rights, which be would bave bad, if that bad been tbe decision below.

Tbe motion is granted.

Wardlaw, Glover and Munro, JJ., concurred.

Withers, J. I acquiesce upon tbe special circumstances of this case.

Motion granted.  