YOUNGS, for the defendant in error, objected to the hearing of the cause at this term, the citation not having been served thirty days before the first day of the term. The service was on the 12th of January, and the first day of the term was the 6th of February.
E. J. Lee, contra, contended, that it was to be inferred from the case of Lloyd v. Alexander, ante, vol. 1. p. 365. that if the defendant appears within the thirty days, the court will hear the case; or they will hear the case, after the expiration of the thirty days, even if the party does not appear.
Youngs. The 22d section of the judiciary act, vol. 1. p. 62. requires that the defendant in error should have thirty days' notice by the service of the citation.
The citation is to appear on the first day of the term, consequently thirty days' notice must be by service of the citation thirty days before the first day of the court.
THE COURT refused to take up the case without consent, although thirty days had then (March 9, when the cause was called for hearing) elapsed since the service of the citation; and observed, that the case of Lloyd v. Alexander only decided that the court will not take up the case until thirty days have expired since the service of the citation; but it did not decide that the court would then take it up without consent.