#### Ralph Lockwood *versus*James Flanagan.

Where the attorney for the plaintiffs, through inadvertence, neglects to file a replication to the defendant’s plea of payment, and takes an inquest against him before the pleadings are formally closed; the court will, under proper circumstances, permit a replication to be filed after the inquest, *nunc pro tunc.*

But where the defendant’s attorney was aware of the fact, that the replication was not filed, and lay by for the purpose of availing himself of the defect, and then, upon the plaintiff’s application for leave to file his replication, *nunc pro tuna*the defendant himself *swore to a defence upon the merits,*the court refused to allow the replication to be thus filed, but compelled the defendant to pay all the costs’ of the inquest and the motion, as a condition upon which the plaintiff’s application was refused.

*Mr. E. Burr,*in behalf of the plaintiff in this cause,

moved for leave to file a replication to a plea of payment, *nunc pro tunc.*It appeared, that the defendant had suffered a default, and had allowed an inquest to be taken, but the cause had never been put at issue upon the plea of payment. Mr. Burr read an affidavit of the plaintiff’s attorney, setting forth, that his neglect to file the replication had proceeded from inadvertence merely.

*Mr. E. Barnes,*for the defendant,

read a counter-affidavit of the defendant’s attorney, stating that he was aware, during the progress of the cause, that no replication had been filed to the plea of payment, and that he had never considered the cause as at issue upon that plea. That he had, anterior to the trial, applied to the plaintiff’s attorney for some favor which had been denied, and that, thereupon, he had intentionally neglected to take any part at the trial, believing that the plaintiff’s proceedings, if he ventured to take an inquest, would be erroneous. Mr. Barnes also read an affidavit, made by the defendant himself, stating that he had a good defence upon the merits.

*Mr. Burr*contended,

that the plea of payment, under our practice, was a mere matter of form, as the defendant had a right to set up every defence under the general issue, which *546could be made under the plea of payment, and he therefore insisted that the court, having the power to grant his motion, would" not deny it under the peculiar circumstances of this case.

*Mr. Barnes, contra,*contended that,

as the defendant had sworn to merits in his defence, the court would hot deprive him of the privilege of trying his rights. - If the attorney had been guilty of neglect, still his client’s rights were not to be sacrificed. Here, in the strictness of practice, the plaintiff was irregular, and he could not therefore ask a favor of the court, which- would prejudice the defendant.

*Per Curiam.*

To a certain extent, the rights of a party may be concluded by the acts of his attorney, and he cannot always shelter himself under the defence here set up. If the plaintiff in this case, had proceeded in such.a manner as to take the defendant by surprise,; and. his attorney, supposing that no inquest would be taken Until the replication was filed, had, from, this cause, neglected to interpose his defence; then, as the defendant has sworn to a good defence upon the merits, the court would, as a matter of course, deny this application, and set aside the inquest. But here the defendant’s attorney admits that he was not surprised; on the contrary, he avers, that he lay by for the purpose of *taking*advantage of the inadvertence .on the part of the plaintiff’s attorney, relative to the replication. As the plea, under our practice, In a case like the present, is a mere matter of form, the court would allow the replication to *be*filed *nunc pro tunc, were*it not that the defendant , has sworn to merits. The court will not deprive him of his rights, for.the misconduct of his attorney; but as the' attorney is his agent in the cause, the court will connect them together to a certain extent. The power of the court over the whole matter is undoubted, and if they deny the application, it may be' upon such terms as they- see fit to impose. The application, under the circumstances of the case, must be denied, but the court direct that the defendant shall pay all the costs of the inquest, and of this motion, as the terms upon *547which the application is denied ; otherwise the plaintiff’s attorney has leave to file his replication *nunc pro tunc,*and thus perfect his judgment.