¶1THIS was an action of assumpsit, brought in the year 1791. The defendant pleaded non-assumpsit, issue was thereupon joined; and in January, 1792, the defendant obtained a rule for trial or non pros, with notice at bar.
¶2Heatly
¶3now moved that the rule be made absolute. But Morris, for the defendant, urged, that as no declaration had been filed, the cause was not at issue, according to the directions of the act of 1766.
¶4But,
¶6—The declaration must certainly be filed before trial: And, when the plaintiff accepts a plea, it is an engagement that this shall be done; and a waiver by the defendant of any advantage from the omission. If the objection had any weight, it ought to have been made when the rule was obtained at the last Term. As the plaintiff then submitted to the rule, he shall not now elude its operation.
¶7Judgment of non-suit.