Smith v. Brown

Headnote

An inquest cannot be regularly taken on the first day of a trial term, unless the action is regularly called upon the calendar.

The rules of the Supreme Court, relative to proceedings at circuits, apply to the trial terms of the Superior Court.

The defendant moved to set aside the plaintiff’s judgment as irregular, upon the ground that the inquest upon which it was founded had been taken out vf the order of the cause upon the calendar, on the first day of the trial term, on which day a proper affidavit of merits had been subsequently filed.

The question was, whether the case was governed by the rule of the Supreme Court, which allows inquests to be taken at a circuit in actions out of their order upon the calendar, only upon some day, after the first day of the circuit (rule 12). And-

the judges, consulted by Duer, J., were of opinion that the rule ought to be construed as embracing the case, and that in all cases susceptible of such an application, the rules of the Supreme Court, relative to proceedings at circuits, should be construed to apply equally to the trial terms of this court. .