Faite v. Hart

The same notice of assessment by the Court should be given as is required for assessment by the clerk —though the statute does not in terms require it, 10 Wend, 560.

Before notice can be given of assessment either way, to an attorney who has appeared — § 4426 C. L. — interlocatory judgment must be rendered. C. L. § § 4423, 4437. If fourteen days notice before the term were required, a party could always obtain a delay of a term, by appearing and suffering a default, having no pretence of defence, when he could not do so by pleading. This could not have been the intention of the statute.

Held, that this case is properly noticed. The assessment by the clerk may be made as well out of term as in term, if the case is in condition to be noticed, and the notice may, and should be for the day on which the assessment is intended to be taken. Green's Pr., 304.