
    Snell against Loucks.
    ALBANY,
    Jan. 1814.
    Whereasumsonaiiyserved, fenda!!tdidnot appear on its the justice e^the'íause whici^ciay the defendant tendered °a mandedajuryj itwas held that the plea was properiyoverjustite,bas too *at® ,after 5 default; and that he could tied to give ^tígation "of damages,
    IN ERROR, on certiorari, from a justice’s court. Loucks brought an action against knell before the justice, lhe summons was returned personally served, on the 28th of October, 1812, and the defendant did not appear. The plaintiff declared for goods sold and delivered, &c. The defendant was called and his default entered; and the justice then adjourned to the 30th of October, at which day the defendant appeared by attorney, and tendered a plea of the general issue, and requested a venire in the cause. The justice overruled the plea, and refused the venire, on the ground of its being too late after the defendant had been called and defaulted; but permitted the . defendant to give evidence in mitigation 01 the damages. The justice, after hearing the evidence, gave judgment for the plaintiff for 25 dollars.
   Pcr Curiam.

As the summons was personally served, and the defendant did not appear on its return, the justice was then, or within six days thereafter, to proceed and hear the proofs and allegations of the parties. He appointed two days thereafter, for that purpose, when he rejected the plea of the defendant, and his motion for a venire, as coming too late. The decision was correct; .for otherwise the defendant would be taking advantage of his own delay, without cause for it. It would be delaying the plaintiff oppressively. The defendant was only entitled to the indulgence granted him by the justice. The judgment must be affirmed.

Judgment affirmed.  