Perkins v. Burtin, 2 Brev. 97

Wilds, J., delivered the opinion of all the judges, except Bay, who was absent. Unless an appearance has been regularly enter. ®d by the defendant’s attorney, at the nest court after the process *S retuina'3^e> the plaintiff, upon filing his declaration, may take judgment by default; and the defendant, unless he puls in an appearance at the first court, shall not be entitled to put in his plea, for he cannot be considered as in court, and in a capacity to plead, unless he has entered his appearance- according to the act of Feb. ruary 1791.

The rule of court respecting orders for judgment is not inconsistent with this act. The rule relates to orders for judgment, where appearance has been entered, but the defendant has neglected to plead within the rule to plead, upon affidavit of the service of the rule. The plaintiff in this case was not bound to consider the defendant in court, and to have a right to plead ; but this advantage he might waive. He did waive that advantage by posting a rule to plead, which was in effect acknowledging the defend, ant to be in court and entitled to plead.

The court are, therefore, of opinion that the judgment should be set aside, and that the defend, ant should be permitted to plead.