Swift v. Sacket — 1 Cole. & Cai. Cas. 124

Majority

p. 124

Swift ads. Sacket. Livingston ads. The same.

Headnote

EMOTT, for the tenant, moved on the first day of term, that the demandants be called, or that for non-appearance their defaults be entered.

And now, it being the quarto die post, he again moved that the demandant be called to appear and excuse his default, or that he be nonsuited. To show that this was the correct practice, he cited 7 Vin. Abr. 436, 437, D. 9, 10.

Scott appeared for the demandants,

and without attempting to show any sufficient excuse, read an affidavit that Thompson was the attorney of record for the tenant; whereas it appeared from the clerk’s minutes that the motion had been made on the first day by Emott, in behalf of Radclijf, who, he contended, was a stranger to the suit, and could take no rule in it.

Emott said in reply,

that the motion was really made in the name of Thompson, but that the mistake was in the entry made by the clerk on the minutes, and must be considered as his misprision, and so could not injure the party.

It is settled in Carthew, 173. Clobery v. The Bishop of Exon, that the tenant, in a writ of right, is only demandable on the quarto die post ¡ but that the demandant is liable to be called on the

p. 125

primo die placiti, and, for non-appearance, that his default may be entered, which, if he does not appear and excuse on the quarto die post, subjects him to a nonsuit. Co. Lit. 139 b. At common law, on every continuance or day given at or before judgment, the plaintiff or demandant might have been nonsuited, and before the stat. of 2 Henry IV. after verdict, if the court gave a day to be advised, at that day the plaintiff was demandable, and therefore might have been nonsuited, if he did not then appear ; but that is remedied by our statute. After award to answer, however, or demurrer in law joined, the plaintiff, for not appearing, shall still be nonsuited, for he is not helped by the statute. As to the mis-entry of the name, it is to be considered as the clerk’s misprision and may be amended.

Judgment of nonsuit.