Two questions are discussed, which have been already determined adversely to the views of the appellees.
1. The judgment was rendered by default, on a day prior to that set by the clerk. That was not erroneous. On the second and each succeeding day of the term, all the causes for trial may be called for issues, and the pleadings completed at an early day. 2 it. S. p. 42. If the defendant fail to plead under the order of the Court, judgment may be entered as by default, and that too, as here, before the day on which the case is docketed by the clerk for trial. But the defendant is not to be pressed'into trial before the day on which it is set by the clerk; for until that day the defendant is not bound to have his witnesses in attendance ready for trial. Blair v. Davis, at the present term (1).
2. It is objected that process was not in time. The service was on the 31st of August. The Court commenced September 10th. This was a good ten days’ notice. The day of the service is to be excluded, and Monday, the first day of the Court included. Womack v. McAhren and wife, at the present term (2).
Per Curiam.The judgment is affirmed, with 3 per cent, damages and costs.
J. S Reid and J. F. Gardner, for the appellant. J. Yaryan, for the appellees.Ante, 236.
Ante, 6. Vide note for cases.