
    Day, Downes & Eastburn vs. I. & S. W. Wilcox.
    It is not sufficient cause to set aside a judgment by default after a tern» has elapsed, and after the second day of the second court, that the inquiry docket had not been called during the term elapsed; for if the defendant wished to set aside the judgment at the first court, lit should have performed the necessary conditions.
    
      There is no authority for the court’s staying ptocccchugs until the plaintiff put in security for costs after -jineiit by default. The county court act to tliat efi'oet is not of force.
    All reason ceases for ordering- the plaintiff to g-ive security for costs ter judg-ment agiviistthe doicndiuit. 
    
    Tried before Mr. Justice Gantt.
    
    IN this ease, there was a judgment be default on the 21st September, 1322, cither for want oi an appearance or plea. It was placed on the writ of enquiry ciockei, r.nd remained on that docket during October Term. In January Term, the presiding judge set aside the order ter judgment, and ordered the plaintiff’s attorney to file his warrant of attorney, and security for costs to be given, or the proceedings to be stayed.
    A motion was now made to set aside the order, on the grounds :
    1st. That the court erred in setting aside a judgmentby -default after a term had elapsed, and after the second day of the second term.
    2nd. That the court erred in ordering the plaintiff’s attorney to file his warrant after judgment by deiauit against the defendant, and staying proceedings until such warrant should be filed.
    3d. That the court erred in staying proceedings until the plaintiffput in security for costs after judgment by default against the defendant.
    4th. That the court erred in granting terms to the defendant after judgment by default, other than such as are prescribed by the rules of court, and such as stopped the plaintiff from going to trial on the merits of his case.
    
      
      
         Vide ante, 436. Furnan vs. Harman.
      
    
   Mr. Justice Nott

delivered the opinion of the court:

The act of 1791, (2 Brevard, 11 y,) which regulates the proceedings of the court in this respect, provides, that the plaintiff may take judgment by default against the defendant, “unless an appearance has been regularly entereá by the defendant’s attorney with the clerk, of the court during ihc sitting of the said court.” The same act also, further provides, “ that the defendant, if he puts in an appearance as aforesaid, shall and may put in his plea in writing with the clerk of the said court within one month' after the declaration is filed, or judgment may be taken by default.” There is nothing in this act which authorizes a defendant to plead to an action, unless lie has entered an appearance, during the sitting of the court” to which the writ is returnable. Nor even when an appearance has been entered, unless the plea be put in within one month after the declaration is filed. Our courts however have by a liberal construction oí the act, permitted a defendant to plead where the entering an appearance has been omitted by inadvertence or mistake, &c. So it has been allowed to a defenrlent when a judgment by default has been taken against him, to vacate the order for judgment, provided he come in by the second day of the court, after which the declaration is filed, and plead issuably to the declaration, and go to trial insta nter. The rule, I believe, has, in practice, been so far relaxed as to permit the order for judgment to be set aside at any time during the sitting of the court, but never after the whole term has passed over. I do not say that the court may not permit it, even after a term, but it must be for some good cause shown. — ■ Now no cause has been shown in this case, except that the writ of enquiry docket w>as not called at the October term. But calling the docket could not affect the question. It was a privilege allowed the defendant upon certain conditions, and not having performed the condition, nor shown any good cause why he did not, he lost the privilege itself.

2nd. It is unnecessary to make any remarks on the second ground, as the power of attorney was actually filed.

3d. The order for security for costs ought not to have been made. There is no law in this state requiring security for costs to be given in such case. There is a clause' in the old county court act to that effect, but the practice of this court has not been adopted in consequence of that act. On the contrary, it jirevailed long before that act was passed, and that clause was introduced, in all probability, for the purpose of authorizing the County Courts to adopt the same practice, and was always considered as having relation to those courts only, and to have been repealed with the abolition of that part of the judiciary.— The object in requiring security for costs to be given, is to indemnify the defendant in case the plaintiff should fail in his action. But the reason ceases when the plaintiff has obtained judgment by default; for as long as that remains, the plaintiff will be entitled to costs.

Pepoon, for the motion.

JDunkin fy Campbell, contra.

The motion is therefore granted.

Justices Richardson and Huger, concurred.  