Edenton,

May Term, 1789.

#### ANDERSON’s ADMININISTRATORS versus ANDERSON.

IN this case, the defendant in the county court did not plead the first term: no judgment was taken. The second term the defendant, by his attorney in fact, moved to dismiss the cause for want of a declaration; Whilst the court was considering the case, the attorney for the plaintiff entered judgment by default; the court ordered a nonsuit, and the plaintiff appeared; and this term cause was shown against striking out the default and after much argument:

Williams, J.

said he would consider the words in the act of assembly,* “ shall dismiss,” as if they had said “ may dismiss”—and they were not obliged to dismiss it, and if the plaintiff was ready with his declaration they would not dismiss the cause, at the second term.

Spencer, J. concurred.

Ashe, J.

said he thought the defendant might take the same advantage the second term that he could do the first. That he thought it hard the defendant should be a sufferer by the direction of the court, to be obliged to enter a nonsuit instead of dismissing the cause, and they all agreed that the default should be struck off, and the nonsuit likewise; and the cause sent down in that condition to the county Court.

All the Judges present.

*

1786, 14, 5, 585.