#### John C. Gore, Plaintiff in Error, v. Chauncey Smith, Defendant in Error.

ERROR TO FRANKLIN.

It is erroneous to take a judgment by default, where the declaration has not been filed ten days before court, unless by consent.

Eddy, for plaintiff in error.

McRoberts, for defendant in error.

Opinion of the Court by

Justice Lockwood.

This is an action of debt on a penal bond. The declaration was filed the first of October, 1827, and a default for not appearing was entered the fourth of the same month. This was clearly irregular. By the eleventh section of the practice act,* “ the court, for want of appearance, may give judgment by default on calling the cause, except where the process has not been served, or declaration filed ten days before the term of the court.” The record states, that “ on the fourth day of October, 1827, came the parties by their attorneys, and the said defendant being three times solemnly called, made default, and came not.” This entry contradicts itself, and is probably a mistake of the clerk. It does not appear from the record, that the defendant waived his right to have the declaration filed ten days before the term, and without doing so the court had no power to enter his default, and thereby preclude him from making his defense. For this error, the judgment must be reversed with costs, and remanded to the Franldin circuit court for further proceedings. (1)

Judgment reversed,.

*

Rev. Code of 1827, p. 313.

(1)

A party is entitled to a continuance if a plaintiff does not file an account ten days before the term commences, if he has common counts in his declaration. Hawthorn v. Cooper et al., 22 Ill., 225. Collins v. Tuttle, 24 Ill., 623.

If the plaintiff desires to avoid a continuance, he can stipulate against using the common counts, (except as to the claim declared on specially when applicable,) or enter a nolle prosequi as to them. Ibid. The People v. Pearson, 1 Scam., 458.