
    B. McBride vs. D. H. Ellis. B. McBride and Wife vs. The Same.
    It is the duty of the clerk to enter causes on the issue-docket in the order in which the issues are made up — the first issue made up should be the first entered.
    Where the issues are made up at the same time, the directions of the plaintiff’s attorney, as to the order in which the cases should be docketed, should be regarded by the clerk; and in default of all directions the discretion of the clerk must, in such cases, determine the order.
    BEFORE WARDLAW, J„ AT BEAUFORT, FALL TERM, 1854.
    The report of bis Honor, the presiding Judge, is as follows:
    “Under a rule on the Clerk sued out .by the defendant’s attorney, the question was presented, which of these cases should be first docketed on the issue docket.
    “By the return to the rule and statements made at the bar, it appeared that the declarations were filed, and rules to plead posted in both cases at the same time; that when he filed the declarations, the plaintiff’s attorney requested the Clerk to docket the last named case first, and the Clerk made on the papers,a memorandum to that effect; that the Clerk in conformity with what had been the usage of his office, promised to comply with this request: that the defendant’s attorney pleaded the general issue in the first named case, but at that time declined to plead in the other, saying to the Clerk that he desired the first named to be first docketed; that the plaintiff’s attorney added the similiter in the first named, and proper entries of the pleadings were made by the Clerk in his rules BOOK; but when the purpose of the defendant’s attorney was understood, the plaintiff’s attorney, (under what he conceived to be his right) withdrew the record from the Clerk and forbade him to docket the case; that afterwards the issue was made up in the last named case, before tbe rule to plead expired ; and that the Clerk had docketed neither case.
    “I held that the plaintiff’s attorney'had no right to the possession of a declaration after it was filed, until there was either an order for interlocutory judgment or an issue joined; and that he could not by^withdrawing the record prevent the .docketing of a ease prepared for the docket; that it was the duty of the Clerk to docket cases in the order of the times at which they were made ready for docketing, and that the request of the plaintiff’s attorney and promise of the Clerk, could not affect the rights of the defendant.
    “ So I directed that the two cases should be docketed in the order in which they are named above.”
    The plaintiff appealed on the grounds:
    3. Because his Honor erred in controlling the discretion of the Clerk as to the order of entering the issues on the docket.
    2. Because whatever instructions his Honor may have rightfully given for the guidance of the Clerk in regard to future cases, his Honor erred in "overruling the promise of the Clerk to the plaintiff’s attorney, made in accordance wit&the usage of his office, in the hitherto unsettled state of the practice.
    3. .Because his Honor erred in denying the right of the plaintiff’s attorney to withhold his cause from the docket after issue joined, until the sitting of the Court.
    4. Because the ruling of his Honor operated a surprise on the plaintiff, and is in other respects contrary to law.
    Molding, for appellant.
    Martin, contra.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

Tbe plaintiff’s attorney, when be filed tbe declarations in these two cases, no doubt expected they would proceed pari passu, and under that expectation gave to the clerk bis directions about docketing. If the issues in the two cases bad been joined at tbe same time, the directions of the plaintiff’s attorney ought to have been regarded by the clerk, and in default of all directions, the discretion of the clerk would have determined the order of cotemporaneous issues on the docket. When the defendant’s attorney departing from the course which was expected, pleaded in the first named case, and declined to plead then in the other, the plaintiff’s attorney might probably have still attained his wish concerning the order of the cases on the docket by delaying the entry of the similiter in the first named case. But the similiter having been entered, the issue in the first named case was made up, the plaintiff’s attorney was then (and not before) entitled to the possession of the papei\ record, (66th Rule of Court) and the parties were bound to come to trial at the next term, without notice of trial. (24th Rule.) The clerk was consequently bound to docket the case, (Rules 17, 20), and even without possession of the record might well have done so from his Book of Rules. (11 Stat. 71, § 8 and 3.) The subsequent joinder of issue in the other case in no way affected the rights of parties in the first named case, and the questions of precedence between these two cases is the same as it would be between two other eases in which all the parties are different. The clerk is bound to prepare the docket before the meeting of the Court on the first day of the term. (17th Rule.) No earlier time is prescribed to him, but it does not follow that he can regulate the order of cases at his pleasure. The trial of causes must be in the order of the docket (Rule 18th); that order then is of material importance, and in the absence of other rules, equality amongst suitors and encouragement of diligence suggest the order of time as the most natural, just and expedient rule for settling the order of precedence on the docket.

The English practice of withdrawing a record is inapplicable to our rules and has reference to a time subsequent to the entry or docketing of the cause. (Arch. Pr. 168.)

This Court is then of opinion that there was no error- in the ruling of the Circuit Judge, and the motion is dismissed,

O’Neall, Withers, Whitner, G-lover and Munro, JJ., concurred.

Motion dismissed.  