The opinion of the court was delivered by
Redeield, J.— There can be very little doubt, I apprehend, that the continuance of the cause before the justice, in this case, was irregular and operated a discontinuance of the suit. The statute expressly requires that the plaintiff in all actions originally returnable before a justice of the peace, shall enter his action, within two hours after the time set for trial. In the case of Phelps v. Birge, 11 Vt. R. 161, this court held that, in order to a compliance with this statute, it was neces*569sary, at the least, that the justice should be at the place of holding his- court, within the- two hours, and have the writ in his possession or power. The same would be necessary, undoubtedly, when, the cause was continued by another justice. That not being done, in the present case, the suit was discontinued.
And when a suit has been discontinued, either by agreement of the parties, or irregularity, and the plaintiff, without the consent of the defendant, proceeds and takes- judgment by default, the proceeding will be set aside, on audita querela. Brown v. Stacy, 9 Vt. R. 118. Phelps v. Birge, ubi supra. Eddy v. Cochran, 1 Ailcens, 359.
Judgment affirmed.