#### Walter Quartier, Plaintiff in Error, v. The University of St. Mary of the Lakes.

error to lake.

It is not error to proceed to render judgment at the same term at which a declaration has been amended, if the defendant does not ask a continuance of the cause for that reason.

This was an action of assumpsit, commenced by attachment.

There was a judgment by default upon the proceedings, as stated in the opinion of the court.

Wiggins, Meeoh and Coventry, and J. Y. Scammon, for Plaintiff in Error.

C. Beckwith and Waller and Caulfield, for Defendant in Error.

Caton, J.

Although numerous errors are assigned upon this record, all of which have been carefully considered by the court, we do not deem any of sufficient importance, except that which questions the propriety of the course pursued by the court in not continuing the cause, on account of the amendment of the declaration. At the term at which the judgment was rendered the defendant filed a demurrer to the plaintiff’s declaration, which was sustained, and leave given to the plaintiff to amend. After the amendment was made, the defendant, *301instead, of asking for a continuance, asked for time to plead till eleven o’clock the next day, which was granted. After that time had expired, the plaintiff asked for a default, for the want of a plea; but the court then allowed the defendant to file the general issue, which he did. This plea, by the leave of the court, he subsequently withdrew. He was afterward called, but declined further to answer, and a judgment by default was entered against him. He subsequently moved to set aside this default; and, also, in arrest of judgment, founded on affidavits, which we do not think it necessary to examine particularly.

Had the defendant wished a continuance on account of the amendment of the declaration, he should have asked it; but, instead of that, he himself proposed to proceed at that term by asking till the next day to plead, and by pleading to the action. He never asked for a continuance for any cause, but withdrew his plea and refused farther to answer. The court made no decision, nor was it called upon to make one about a continuance. It is certainly now too late to complain that the court did not, of its own motion, and even against the acquiescence of the defendant himself, continue the cause. We find no error in the whole record, and the judgment must be affirmed.

Judgment affirmed.