Bank of Rochester v. Boulton

5 Wend. 106

• Court: New York Supreme Court
• Decided: November 18, 1830
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The proceedings of the plaintiffs have been regular. Had the inquest been taken previous to entering interlocutory judgment against the defendant who did not appear, it would have been otherwise. It has always been held (he correct practice to give notice of inquiry on assessment after default, though previous to interlocut.ory judgment; 2 Caines, 109. In the case of Cuddeback v. Fanley, 2 Wendell, 624, the inquest was set aside because interlocutory judgment had not been entered against the defendant who had not appeared, previous to the taking of the inquest, and not because such judgment xvas not entered previous to the notice of trial, as is very manifest from I lie report of that case, although in the marginal note iris incorrectly staled otherwise. The motion is therefore denied.