BURCH v. SCOTT.

term, 1824; because, their decree by default, according to the
established practice, was liable to be corrected or revoked dur-
ing the term at which it was signed. The July term, 1825, com-
menced on the 12th of that month, and was not finally closed
until the 17th of August following. Consequently, the decree
was not final and absolute until that day. After which it could
only be opened or affected by an original bill, or a bill of review.
The bill to set aside this decree was not filed until the 15th day
of November, 1825; and Scott, one of the plaintiffs here, was
not charged, on the record of the original case, with a default,
which might have been fixed upon him by a decree, until the
18th day of July, 1824, making a space of about fifteen months of
apparent negligence, which is to be accounted for, justified, or
excused. To find which, we must examine the bill and answer
in this case.

That the defendant, Scott, in the month of July, 1824, and
before he could have been finally fixed with a decree by default,
had made an answer, which was ready to be put on file; that he
had charged his solicitor with the care of it, who had attempted
to forward it to the register, to be put on file; are facts proved and
not denied. It also appears, that under a firm belief that his
answer had reached its destination, and was on file, his solicitor
proposed to the solicitor of the plaintiff, to agree upon some day
when the cause should be argued by them. The defendant in this
ease, Thomas Burch, in his answer, states, that thereupon his
counsel wrote for a copy of Scott's answer, and was informed that
it had not been filed; which information was shortly afterwards
communicated to Scott's counsel; which after a considerable inter-
val was again mentioned to him. And it is expressly charged,
that Scott himself knew the fact before the decree was signed.
That Scott's solicitor was very negligent is most manifest. But it
does not clearly appear, that Scott, himself, is chargeable with
negligence to a greater extent than about four or five months; for
it is not said by Burch, in his answer, how long it was before the
date of the decree, that Scott was informed his answer had not
been filed: but it would seem, that the counsel for the plaintiffs in
that case, to be assured of the fact whether Scott's answer was
filed or not, inquired for it, and searched the papers so late as
about the first of July, 1825.(q)

(q) Robson v. Cranwell, 1 Dick. 61.