Cook v. Tuttle

2 Wend. 289

• Court: New York Supreme Court
• Decided: May 15, 1829
• Status: Published

Opinion

By the court, Marcy, J.

The defendant having endorsed his appearance on the copias, although bailable process, was regularly in court, and the plaintiff had a right to take a default against him. The endorsement of de bene esse on the declaration did not destroy that right; nor was the plaintiff irregular in suing out a writ of inquiry, and making it returnable after the second week of term. The process prohibited by the statute from being sued out or made returnable after the second week of term, is process against the person or property of a party, not a writ of this kind, which is but a warrant to the sheriff to assess the damages, and is no more process within the meaning of the statute, than a rule for assessment of damages by the clerk. The proceedings, therefore, are not irregular; but as the defendant claims to have a defence, he is permitted to plead on payment of costs, the judgment to stand as security, it appearing that if it be set aside the plaintiff will be in danger of losing his debt.