Swift v. Livingston

2 Johns. Cas. 112

• Court: New York Supreme Court
• Decided: October 15, 1800
• Status: Published

Opinion

Per Curiam.

In the case of Clobery v. The Bishop of Exon, (Carthew, 173,) it was decided, 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 primo die placiti, and in case of non-appearance his default may be entered, which, if he does not appear and excuse, on the quarto die post, he is liable to a nonsuit. (Co. Litt. 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 Henry IY. after verdict, if the court gave a day to be advised, at that day *plaintiff was demandable, and, therefore, might have been nonsuited, if he did not then appear; but that is remedied by our statute. After an award to answer, however, or a demurrer in law joined, the plaintiff for not appearing shall still be nonsuit, for he is not helped by the statute.

Judgment of nonsuit.(

b)

(b) See n. (a) to Haines v. Budd, supra, vol. 1, p. 335.