¶1The act has been construed differently. It is in amendment of the common law practice on writs of partition. That practice remains, except so far as it has been altered by acts of assembly. The second section provides, that upon application by a defendant, against whom judgment by default shall have been given, and cause shown within one year after finding judgment, the court may suspend or set aside their judgment, and admit the party to appear and plead, and the cause shall proceed in due course of law, that is, upon the plea, according to the course of the action at common law. Here the defendant has appeared, and insists upon his right to proceed in that way. There is quite as much reason that he should be allowed this course before default, as after default. The plaintiff insists upon a literal construction of the act. But even in that view, *52the words of the act are satisfied when the court proceeds to examine the title upon a declaration and plea filed, and an issue in fact or in law taken. The plaintiff’s construction might deprive the defendant of a trial by jury.
¶2Motion dismissed.