Curia, per
O’Neall, J.In the case ex parte A. W. Thomson, 2 Bail. 116, it was held that the neglect of a *352party to docket a cause for more than a year and a day after the proceedings were made up, was a discontinuance. The application of the rule of that case to the one under consideration would be inevitable, if the failure to docket the cause arose from the neglect of the plaintiffs or their attorneys. It appears that, on the 19th of June, 1829, an order was made that the cause be docketed. This order, it is said, was obtained without notice to the defendants or their counsel: if this be so, the subsequent act of the defendants, in filing a discount, on the 4th of November, 1829, was a waiver of all previous objections to the regularity of the continuances of the cause, and admitted it to be rightly in court. Under the order of June, 1829, it became the duty of the clerk to docket the cause; his failure to do so cannot be visited on the plaintiffs. They had the right to regard the case as docketed, from the time the order was made. The order to docket necessarily concludes the defendants from urging that any other act was to be done in the cause before it was ready for trial. There was, therefore, no necessity for the plaintiffs to present the papers to the clerk to procure the case to be docketed.— This was, of course, after the order.
The motion to reverse the decision of the Judge below is dismissed.
Johnson, J. concurred.