Tbe opinion of tbe Court was" delivered by

From tbe second day of October, 1855, when the defendant’s demurrer was filed, until tbe eleventh day of October, 1856, when tbe motion to docket was made, no step seems to bave been taken in this case. At tbe making of tbe motion, a joinder in demurrer was exhibited: but that may bave been written on tbe day first mentioned, or may not bave been written until tbe day last mentioned: it was 'not filed, and was unknown to tbe Clerk.

When tbe defendant filed bis demurrer, be might, by taking out a rule to plead; bave required tbe plaintiff to join issue within-ten days; and upon tbe plaintiff’s default after tbe expiration of tbe ten days, might bave obtained an order for judgment, which could bave been set .aside upon tbe usual terms on tbe call of tbe inquiry docket at tbe next term, March, 1856. But no rule to reply having been taken out, or, if it was taken out, no order for judgment having been obtained, tbe ten days bave no influence upon tbe case. In tbe actual state of facts which, by tbe neglect of strict practice on both sides, has occurred, the case has become discontinued by tbe lapse of more than a year, (or as we generally say, a year and a day,) without any stop. With this we suppose tbe defendant is content; and to it tbe plaintiff must submit. It is tbe result which must be attained, if tbe demurrer was *51filed without any rale to plead, or before the expiration of such rale: and no difference in the result is perceived to arise if, as has been now suggested at the bar, the case was on the inquiry docket, at October Term, 1855, and was then transferred by the defendant on the usual terms. Under the leave to transfer, the defendant was bound to plead an issuable plea, instanter — he did so. The plaintiff might have instantly replied and presented the issue for docketing: he did nothing for more than a year, and at the making of this motion was out of Court.

The motion is dismissed.

Motion refused.