Abraham Hilliard, Executor, vs. Benjamin Sawtelle, 12 Cush. 222

By the Court. The practice act of 1851, now repealed by St. 1852, c. 312, proceeded on a system different from that which prevailed before and since. Writs were not returnable to any court, but to the office of the clerk, who had no discretion to enter or refuse to enter them on the docket. The plaintiff must, at his peril, enter his action on the first or second day, and of such entry the defendant must, at his peril, take notice, and take the required measures for a defence ; otherwise, judgment might be rendered against him as of course.

If not entered within the time required by law, it seems to operate as a discontinuance, and no discretion was given to any court to permit a subsequent entry. It appears in the present case, that by mistake, either of the plaintiff’s attorney or of the clerk, and it is immaterial which, for the purpose of this case, this action was not entered as required by the act, and the court of common pleas, at a subsequent term, had no authority to permit the entry in that court.

The appearance for the defendant, for the express purpose of moving the court to dismiss the action, was not a waiver of the exception or an assent to the entry. Exceptions sustained, md the action dismissed.