Page:Federal Reporter, 1st Series, Volume 5.djvu/447

 EICARD t>. INHABITANTS OF TP. OF NEW PEOVIDENCE. 43S �By section 110 of the same act, if any party shall not file hig pleading in the cause within the time required by law, and shall file the same àfter the expiration of such time, he shall give the adverse party notice in writing of the time of filing such pleading, and the adverse party shall not be required to plead in reply thereto until ruled so to do. �It is admitted that the declaration was not filed within the time required by law, but within the time in which the defend- ant consented that it might be filed. What was the legal operation of such consent? It estopped the defendant from taking advantage of the laches of the plaintif in regard te the time of filing the declaration, but it had no other effect. It cannot properly be construed, as the counsel for the plain- tiff insists, into a waiver of any right which resulted to the defendant by extending the time, and the last clause' of sec- tion 110, supra, absolved the defendant frotn the duty of putting in any plea, when the declaration is not filed within the time required by law, until ruled so to do by the plaintiflF. �As no rule was taken, the judginent is irregular. �This view renders it unnecessary to consider the other ground of irregularity taken by the defendant, under section 113 of the Practice Act, viz., that the plaintif ought to have moved for his judgment at the opening of the next term of the court after the default, and that, having failed so to do, he was not authorized to enter a judgment, during the con- tinuancç.of the term, without an order of the court. �The 3u|.^ent is set aside. The plaintif bas leave to enter a rule that the defendant plead within 20 days after service of the rule, or that judgment be entered for waut of a plex. ����