Waynick brought an action of assumpsit against Dayman and another. The writ was served on Layman, and returned “not found” as to the other defendant. The record states that the plaintiff and Layman appeared by their attorneys. The cause was docketed, and stood for trial on the second clay of the April term, 1841, being- the first term *201after the declaration was filed. It was called on that day, and Layman failing to plead, a rule was taken against him to plead oil the next day on the calling of the cause. On the next day, the parties appeared, and, by agreement, the cause was continued until the sixth day of the term. It was called again on the sixth day, when Layman craved oyer of the writ, which was refused. Judgment against Layman for want of a plea.

The refusal to grant oyer of the writ is the error assigned.

If a defendant has a right to oyer of the writ in any case, it is only with a view to his pleading in abatement, or moving to quash the writ. The time for such plea or motion is limited, by statute, to the day on which the cause is first set for trial. Freeman v. Hukill, 4 Blackf., 9; Rev. Stat., 1838, p. 449. That day, in the case before us, was the second day of the term. The oyer in question, therefore, which was not craved by Layman until the sixth day of the term, could nave been of no use to him had it been granted.

*Per Curiam.—The judgment is affirmed, with six per cent, damages and costs.