majority"> Dick, J.

The statute regulating the terms of the courts, and the issuing and return of process, prescribes that the clerk shall note on a writ the day when it was issued, and' the Sheriff, the day when he received it; and makes it returnable to the next ensuing term of the court. If a writ was issued within ten days before a Superior Court, then it is made returnable to the second term after process issued:' Bev: Code, ch. 31, sections 39-50.

When a term of a Superior Court was not held, by reason- *327 of a non-attendance of the Judge, then all process returnable to that term was continued in force, and was properly returnable to tbe succeeding term: Bev. Code, cb. 31, sec. 21.

No provision was made by law for tbe return of process when a court was not beld for tbe two successive terms. After tbe writ upon wbicb tbe present defendant took bis judgment by default bad passed tbe second term without being returned, it lost its vitality, and tbe present plaintiff was not bound to attend tbe third term. Tbe judgment, therefore, was irregular, as it was not taken according to tbe course of tbe courts.

Tbe judgment by default was irregular in another respect. Tbe instrument declared on, was not a note for tbe payment of money: Lackey v. Miller, Phil. 26. Tbe judgment by default was, therefore, not final, but interlocutory, and a jury should have assessed tbe value of tbe contract, upon a writ of inquiry, before tbe judgment was made final.

Tbe contract, in express terms, was solvable in Confederate money, or its equivalent, and must be construed as those contracts wbicb are thus solvable by presumption of law. As this note was given for property, tbe value of such property is 'the true value of tbe contract: Garrett v. Smith, at this term.

Tbe remedy of tbe present plaintiff is a motion in tbe cause to set aside tbe judgment by default, for irregularity: Mason v. Miles, 63 N. C. 564.

Tbe present proceedings caimot be regarded as such a motion, as they are constituted in a different courtgfrom that in wbicb tbe judgment was rendered. Tbe plaintiff may be able to find adequate rebef, in tbe manner pointed out in tbe case of Foard v. Alexander, decided at this term.

There was error in tbe ruling of bis Honor, and these proceedings must be dismissed.

Per Curiam. Error.

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