
    APRIL 11, 1801.
    William Orear v. Robert Porter.
    
      Upon writ of error to reverse a judgment, of the Lexington District Court.
    
    A rule on tbe defendant to plead, made at the time of tbe filing the declaration, is contrary to tbe statute which gives the plaintiff a right to such rule one month after the filing of his declaration; and the error is not cured by the statute of jeofails.
   A rule to plead was given in this cause at the filing of the declaration, contrary to the act of assembly, which expressly provides that one month after the plaintiff hath filed his declaration he may give a rule to plead. And it seems to this court that this error is not cured by the act of jeofails, inasmuch as by the error the defendant was deprived of the time allowed by the act to make his defense. Therefore, it is considered by the court that the judgment aforesaid be reversed and set aside, and that the cause be remanded to the court from whence it came. And as the declaration is informal, in not stating that the defendant had not paid the penalty of the obligation on which the suit was founded, proceedings to recommence by amending the declaration ; and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.  