An execution in favour of the defendants was levied on certain goods. The plaintiffs, on the 28th of June, 1839, filed before a justice of the peace a claim to the goods. The justice fixed the 3d of July following as the day of trial of the right of property; and notice was accordingly given to the defendants. On the day so fixed for the trial, judgment was rendered against the defendants by default.
The defendants appealed, and, on their motion, the Circuit Court dismissed the suit.
In these cases, the statute requires the justice to fix the day of trial within five days after the claim is filed. R. Stat. 1838, p. 491. In reckoning the'time, the day on which the claim was filed must be counted. Ryman v. Clark, 4 Blackf. 329. The day for the trial was not, therefore, within the prescribed time, and the suit was correctly dismissed.
The judgment is affirmed with costs.