
    WHITE against LIPPINCOTT, Adm’r of WHITE.
    OIT CEETIOBABI.
    Adjournment over fifteen days without consent, error. Consent not inferred from appearance
   Kirkpatrick, C. J.

— The summons is returnable the 12th of April, 1806. The parties appeared on the return day. The defendant requested an adjournment, and it was granted to him till the 26th of the same month. On the day of adjournment, the parties appeared, but the witness did not appear, and thereupon the justice adjourned, without the request or agreement of the defendant, until the 10th of May, then next. This is more than fifteen days from the return of the summons; and therefore, contrary to law. That the defendant appeared on this last day of adjournment does not seem to me to be material, unless it can be construed into an agreement, that the adjournment should be [f] till that day. But I think this would be going too far, especially as he examined no witnesses, made no defense, took no part in the trial. Conscious that the proceeding was erroneous, he may have attended merely from curiosity, without intending to give any assent, [194] or in any way to bind himself by his presence. The law, according to my understanding of it, is positive, and I think cannot be dispensed with, unless by express agreement of the parties.

C. Loyd, for plaintiff.

Rossell and Pennington, Justices. — Concurred.

Judgment reversed.  