Swift ads. Sacket; Livingston ads. The same

Swift ads. Sacket. Livingston ads. The same. Writ of Right. EMOTT for the tenant moved on the first day of Term, that the demandants be called, and 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 nonfuited. To shew that this was the correct practice, he cited, 7 Viner Abr. 436 and 437. D. 9. 10, Scott appeared for demandants, and without attempting to shew any sussicient 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 Radclist, 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. [MAJORITY — Per Curiam.] Per Curiam. It is settled in Carthew 173, Clobery vs. 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 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 non-suit. Co. Litt. 139, b. At common law, on every continuance or clay given at or before, judgment, the plaintiff or demandant might have been nonfuited, and before the Stat. of 2 Henry 4. 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, plaintiff for not appearing shall still be nonsuit, for he is not helped by the Statute. As to the misentry of the name, it is to be confidered as the clerk’s misprision and may be amended. Judgment of nonsuit.