delivered the opinion of the court.

At the return term of a writ issued at the institution of an action of assumpsit, the defendant in the circuit court filed a demurrer to the first count of the declaration, and the general issue as to the other counts. There was no joinder filed to the demurrer, and, at the same term, the court directed a nonsuit to be entered up against the plaintiif for want of prosecution of the suit.

The act of 1840, ch. 74, regulating “ the practice of the circuit courts,” while it confers rights upon litigants, is directory upon the court as to its action at the return term. It directs, that all pleadings or defences which do not require the action of a jury to decide them, must be disposed of by the court at that term; and, for this purpose, it would be not improper in the court to issue a rule upon the parties to make up such pleadings, so that they could be passed upon by the court, but the act is not so imperative in that particular, as to warrant the court in ordering a nonsuit against a party failing to make up the pleadings in the first instance.

The judgment must be reversed, and the cause remanded for further proceedings.