delivered the opinion of the Court:

This suit was commenced on the 2d day of July, 1852, but no declaration was filed until March 26th, 1859. The statute provides : “if no declaration shall be filed ten days before the second term of the court, the defendant shall be entitled to a judgment as in case of a nonsuit.” Scates’ Comp. 253. Unless the defendant had, in some manner, waived the right secured to him by this provision of the statute, he was entitled to the judgment so provided.

Undoubtedly, the right is one which may be waived, but we think a party should, at least, have an opportunity to be heard before he is to be considered as having waived that right.

Eleven days after the declaration was filed, and on the first day of the next term thereafter, a judgment was rendered against the defendant by default, without taking any rule requiring him to plead, and without any notice to him. The record shows no waiver of the defendant’s right to have the suit dismissed. We think it was an error in disregarding the condition of the record as it then stood, in entering a judgment by default without a rule and service of it requiring the defendant to plead.

He was not, under the circumstances, in default, and he should have been placed in that situation before a judgment was rendered against him by reason of it. Ordinarily, a party who, without any rule, fails to plead according to the practice of the court, is in default; but a party who is not required to plead, cannot justly be said to be in default for not so doing.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.