#### M. B. WILLIAMS v. A. M. ROCKWELL.

If a writ of capias ad respondendum (under the former system) were not returned for two terms, it lost its vitality: 'Dierefore, where such writ was executed returnable to Spring- Term 1865 of Johnston Superior Court, and no such Court sat then, or at Fall Term; Held, that a judgment by default taken in such suit at Spring Term 1867, was irregular.

A judgment by default final, upon a note payable in Confederate money, is irregular.

The proper remedy for the defendant in such case, is by a motion in the cause.

.(Lackey v. Miller, Phil. 26; Masonv. Miles, 63 N. C., 564; Garrettv. Smith, ante 93, and Foard v. Alexander, ante 69, cited and approved.)

Action, before Watts, J., upon a motion to vacate an injunction, at December Special Term 1869 of Wake Court.

The facts were, that a writ had been issued by the defendant against the plaintiff, upon a note for $750, given for the price of a steam engine, payable in Confederate money, and dated March1864. The writ was executed, and was returnable to Spring Term 1865 of Johnston Superior Court. No term of that Court was held in that County, for either the Spring or Fall of that year. A judgment by default final was taken in such suit at Spring Term 1867, for the full amount; and *326having been docketed in Wake, execution was duly issued,. <§;c.

This action was for an injunction, and that the defendant should be required to take the scale value for the note, &c.

His Honor made an order for a preliminary injunction, and afterwards, upon the coming in of the answer, refused to grant an order to vacate it.

The defendant appealed.

Bragg and Cox, for the appellant.

1. The judgment was regular, and cannot be set aside. Cra/wfordY. Banlc of Wilmiington, Phil. 136; Davis v. Shcooer Id. 18; Sharpe v. Rintels, Id. 84.

2. If irregular, the defendant’s relief is by motion in the cause, to the Court that gave the judgment. Parlcer v. Jones, 5 Jon. Eq. 276; Partin v Lutterloh, 3 Id. 341.

Battle & Sons, contra.

One effect of docketing a judgment in another county than that where the suit was tried, is, that the defendant will be without adequate remedy unless he rtay apply for an injunction in the County where is the judgment which is being enforced against his property. See Watts v. Bogle, 4 Ire. 331, and Lunsford v. McPherson, 3 Jon. 174.

Dick, J.

The statute regulating the terms of the courts, and the issuing and return of process, prescribes that the clerk shall note on a writ the day when it was issued, and' the Sheriff, the day when he received it; and makes it returnable to the next ensuing term of the court. If a writ was issued within ten days before a Superior Court, then it is made returnable to the second term after process issued:' Bev: Code, ch. 31, sections 39-50.

When a term of a Superior Court was not held, by reason-*327of a non-attendance of the Judge, then all process returnable to that term was continued in force, and was properly returnable to tbe succeeding term: Bev. Code, cb. 31, sec. 21.

No provision was made by law for tbe return of process when a court was not beld for tbe two successive terms. After tbe writ upon wbicb tbe present defendant took bis judgment by default bad passed tbe second term without being returned, it lost its vitality, and tbe present plaintiff was not bound to attend tbe third term. Tbe judgment, therefore, was irregular, as it was not taken according to tbe course of tbe courts.

Tbe judgment by default was irregular in another respect. Tbe instrument declared on, was not a note for tbe payment of money: Lackey v. Miller, Phil. 26. Tbe judgment by default was, therefore, not final, but interlocutory, and a jury should have assessed tbe value of tbe contract, upon a writ of inquiry, before tbe judgment was made final.

Tbe contract, in express terms, was solvable in Confederate money, or its equivalent, and must be construed as those contracts wbicb are thus solvable by presumption of law. As this note was given for property, tbe value of such property is 'the true value of tbe contract: Garrett v. Smith, at this term.

Tbe remedy of tbe present plaintiff is a motion in tbe cause to set aside tbe judgment by default, for irregularity: Mason v. Miles, 63 N. C. 564.

Tbe present proceedings caimot be regarded as such a motion, as they are constituted in a different courtgfrom that in wbicb tbe judgment was rendered. Tbe plaintiff may be able to find adequate rebef, in tbe manner pointed out in tbe case of Foard v. Alexander, decided at this term.

There was error in tbe ruling of bis Honor, and these proceedings must be dismissed.

Per Curiam. Error.