Superior Court for Law and Equity, Washington District.
September 1804.
[S. C., infra, 105.]
The trial term of a cause is the one next after that at which the issue is made up. [Acc. Elliot v. Solzkotter, 4 Sn. 581; Turner v. Carter, 1 Head, 520; and see McKinley v.
Beasley, 5 Sn. 170.]
Therefore, where the pleadings were withdrawn upon an agreement to make up another issue before the next term, so that the cause might be tried, yet if replication be not filed until the commencement of the term, the cause is not regularly for trial. [See Lytle v. Hays, infra, 190.]
The issue made in this cause was withdrawn by consent at last term, as being insufficient to determine the merits of the action, and it was agreed between the counsel to make up another issue before this term so that it might be tried. The replication was not filed until after the commencement of the present term; and now,
KENNEDY, for the plaintiff, insisted that the cause should be tried.
Per Curiam.
The issue must be considered as of this term, the replication not having been filed before. The ordinary rule of practice is, that no suit can be tried until the next term after the one in which the issue is made up. This is certainly proper, otherwise one party or the other might be taken by surprise Continued.