Swift v. Livingston , 2 Johns. Cas. 112 ( 1800 )

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