
    Leah de St. Croix, Widow, &c. against J. Sands. Same against Jackson.
    
      “habet, 'The ten" antmust appear and plead,on the quarto die post, m the term m which the sumonons is return-his drfaulTmay be entered. The plea of non-sum-mans must be verified by afliuavit before it can be receivin onthe Quarto die post,- or it Will be too late at the next term' In an action of /i/iviiflr
    THESE were actions to-recover dower. P. W. Radcliff, f°r the demandant, on the return of the Grand Cape, moved thatrthé tenants should be called to save their defaults, that . . , , , , , , . , , final judgment should be entered up against them, and writs ,sf seizin and inquiry be awarded, u J
    
    • D. B. Ogden, for the tenants, thereupon moved, that the defaults entered at the last term, should be set aside; so that the tenants might now come in and plead. These be- . . , . , , , , , mg cross motions, the court said they would hear that of the tenants first,
    It appeared that the writs of dower unde nihil habet, were reiurnable on the second Tuesday of February last, at which time the tenants neglected to appear, and a default was en- . . - „ terecl, and the Grand Cape issued. Malcolm had given notice to the demandant’s attorney, of being concerned for the tenants ; but had neglected to enter their appearance at February term.
    
      Colden,
    
    on the same side. By the 'English practice, in the prosecution of writs of right, ■ the tenant may come in, at the return of the Grand Cape, and save his default, by cast™§ his essoigns, and bn making his excuse, his appearanee may be entered.
      Essoigns by our law are abolished. It would be an extremely rigorous practice to exclude the party from appearing, after a simple default, when in ordinary suits, defaults are every day set aside upon affidavits.
    
      Riggs, in reply.
    The affidavits read on the part of the tenants are insufficient. The notice given to the demand-ant’s attorney, was merely that they had retained an attorney ; still they were bound to appear on the quarto die post, in February term. The object of the writ of Grand, Cape, is to give the tenant an opportunity of offering some legal excuse for not appearing. These legal excuses, are fixed and specific; they are enumerated in Booth,§ suchas want of summons, imprisonment, inundation, tempest, &c. Common excuses are not sufficient. In this case, no legal excuse whatever is shewn. It is merely a neglect which would not avail in a common suit; and in this action the tenants are entitled to no particular favour.
    
      Colden then offered pleas of non summons.
    
    
      P. W. Radclijf
    
    objected to receiving the pleas of non summons, as the parties had been summoned on the original writ, and their default entered.
    Kent, C. J. Cannot the tenant plead non summons?
    
    
      P. W. Radclijf.
    
    He can wage his law, for; though abolished in all other cases, it is expressly saved by the statute, in that of non summons in-real actions. But wager of law, must be in person, and a plea of non summons, like a plea in abatement, must be verified by affidavit.
    
      Colden.
    
    The tenant in waging his law, upon non summons, must have eleven persons with him to swear they believe what the tenant swears to be true, and we want a day given to us for that purpose.
    
      Riggs.
    
    The tenant must appear and make his oath on the quarto■ die post; and then a day may be given him to bring his compurgators, This being a dilatory plea, it must, according to the statute, be verified by affidavit, when offered to the court, and before it can be received.
    
      
      
        Booth on Real Actions, p. 21, 24.
    
    
      
       Real actions, 24.
    
    
      
       Laws of N. Y. vol p. 357.
      
    
    
      
      
        Booth 24.
    
    
      
      
        Booth 26.
    
   Per Curiam.

The tenant has shewn nothing to the court, to excuse his default. The plea cannot be received unless verified by affidavit, and this should have been done on the quarto die post. The demandant must have the effect of her motion.

Judgment for the demandant.  