
    Hane and Berck against John Goodwyn.
    
      Columbia,
    
    1804.
    where there d-nt*1 hasÍCn-right to set ifc aside on motion, ou the call of ihewrifc of inquhydoc-keton thefii'sfc day of ^ the court, with lir berly to pleatE any plea h$ may thin];:, proper.
    A CASE from Richland district. 'Motion to set aside the order of the circuit court of Richland district, in refusing to allow the defendant leave to plead double.
    This was an action on a note of hand, and plaintiffs had Sled their declaration, posted their rule to plead, and obtained a judgment by default, and the case was duly placed upon ihe writ of inquiry docket; on the call of which, in its order, agreeable to the rule of court, the defendant’s attorney, Mr. Starke, moved to have the order of judgment set aside on payment of costs, with liberty to place it on the issue docket, and to plead double, (viz.) non assumpsit, and non assumpsit infra quatuor annos, which was opposed by the plaintiffs’ counsel, on the ground that he did not 
      come prepared to contradict the latter plea, although he was ready to prove the note ; and that if the motion was granted, it would have the effect of putting the cause off till another court, which would be an unreasonable delay, contrary to the rules of court; that it was a surprise on the plaintiffs, who only came prepared to prove the note, and not to take the case out of the statute of limitations, which should have been pleaded in due time, that the plaintiffs might have had an opportunity of proving a subsequent assumption, so as to have taken the case out of the statute.
    See 2 bumf. U East, 390.
    Upon this ground the presiding judge (Bat) refused the motion to plead double, and upon the further ground also, that if this doctrine was once introduced, of permitting defendants to put in pleas in bar instead of pleading issuably, on setting aside judgments by default, agreeably to the rules of court, it would almost in every such case, operate as a postponement of the cause till the next succeeding court, to the great delay of justice, and contrary to the uniform practice of our courts-. The plaintiffs then Went on, and proved their note to the jury, who gave a verdict for the amount, with interest and costs.
    This, therefore, was a motion to set aside this verdict, and to have the cause placed on the issue docket, with leave to plead double, as above mentioned.
   The Judges,

after hearing counsel in this case, admitted that the practice had hitherto been, conformably to the English mode of proceedings, as laid down by the presiding Judge on the circuit. But the alterations made by different k ... , acts of our legislature m this country, required a relaxation of that old practice, as indispensably necessary for the due administration of justice, more especially in the country districts j and unless the indulgence now claimed by the defendant was allowed, great advantages might be taken by the attorneys of each other, in the course of their practice, where those practitioners who resided, near the court-houses, or in the villages where the courts were held, were in the habits of posting their rules to plead on filing their declarations, and taking judgment by default at the end of the time allowed for that purpose, before the practitioners at a distance, or in a neighbouring district, could know any thing about it, or be prepared to make the necessary defences for their clients. It therefore became the duty of the court to promote a liberality of practice at the bar, so as to prevent those advantages from being taken, and to allow an opportunity to every man, of putting in any defence which the law allows him; and this could only be done, by allowing them the opportunity of setting aside those interlocutory judgments, and permitting them to plead issuably, or to file any other plea the party thought proper ; and that the proper time for doing so was on the call of the writ of inquiry docket, on the first day of every court in each circuit.

The verdict was therefore set aside, and the cause ordered to be placed to the issue docket, with leave to defendant to plead double.

All the Judges present.

JV. B. The above decision may be considered as having altered the English practice, which was to allow the defendant liberty of setting aside a judgment by default, upon condition of paying the costs, putting in an issuable plea only, and going to trial instanter, i. e. the same term. But by the above decision, the defendant may have one court to prepare for his defence, with liberty of putting in any plea he may think proper.  