The statute of 1821, c. 109, by which the Police Court is established within the city of Boston, provides, in the sixth section, that a court shall be held by one or more of the justices of the Police Court, on two seveial days in each week, and as much oftener as may be necessary, to be called and styled the Justices’ Court for the county of Suffolk; and that all the said justices, shall, from time to time, assemble, to establish all necessary rules for the orderly and uniform conducting of the business of said court, so as to insure a constant, prompt, and punctual performance thereof. The particular days of the week not having been designated by the act, on which these courts should be held, it necessarily became the duty of the justices to appoint the days, and it was properly considered by them as within the authority conferred by the 6th section, to designate two certain days for that purpose, and when designated, these days became the stated terms of the court, as much as if they had been so enacted expressly by the statute.

It appears by the return of the justices of the court, that Wednesday and Saturday of every week have been assigned by diem as the regular term days, and they have provided for continuances from one day or term to the other, as we think they might lawfully do within the spirit of the authority given to them to make rules for the purposes aforesaid. The action then which is the subject of this application, being entered on their clerk’s docket on a Wednesday, might lawfully have been continued to the next term day, and so from term to term as the judge holding the court should think justice required. There having been no appearance entered on the docket, but a default of the defendant, regularly judgment should have been entered, in which case the issuing of an execution would have been a duty of the clerk. But no judgment was entered or prayed for on the term day when the default was entered. Nor does it appear that there was any general order for judgments in case of defaults. The clerk then was not obliged to issue execution, and in the circumstances of this case, as stated in the return, we think he did right in refusing it. *113The case then stood on the docket as an unfinished one, in which there had been a default, but no judgment, until the next term day, when there was a motion by the plaintiff for judgment. We think the court had a right to deny this motion, if it appeared there had been any omission of the clerk, or any mistake of the party, by which the default was occasioned ; and that it was competent to the court then to take off the default and order the cause for trial. This proceeding is much more advantageous to the plaintiff himself, than to have ordered judgment and obliged the defendant to apply to the Court of Common Pleas for a review. We are of opinion, that there having been no judgment, it was within the discretionary power of the court to take off the default, as much as it would liave been to order judgment. The case remaining on the docket unfinished, they had jurisdiction over it to sustain either motion

Mandamus refused. 1