Van Bergen v. Palmer

18 Johns. 504

Opinion

Per Curiam.

Unless the default of the demandant, on the last day of the term, had been excused, the judgment of nonsuit ought not to be disturbed. It appears, that the demandant’s attorney had died; and, without adhering to the strictness of the ancient practice, we think the facts stated in the affidavits sufficient to excuse the default.

Motion granted.

(a)

Vide Sacket v. Lothrop, 1 Johns. Cases, 249. Booth’s Real Actions, 92. Swift v. Livingston, 1 Johns. Cases, 173. The tenant, in a writ of right, cannot be called before the quarto die post; bht the demandant may be called on the first day of the term, and if he does not appear, his default may be entered; and if he does not appear on the quarto die post, and excuse his default, a- judgment of nonsuit may be entered, (Clobery v. Bishop of Exon, Carth. 173. Co. Lilt. 139, b.)