
    [671] Smith vs. Rogers.
    
      Where a plaintiff moves for judgment on a frivolous demurrer, he may accompany the notice of such motion, with a provisional notice of assessment or inquiry.
    Frivolous demurrer and assessment of damages. The plaintiff gave notice that he would apply at the last May term for judgment, on the ground of the frivolousness of the demurrer, and at the same time served a separate notice of assessment of damages by the clerk, for the eighth day of May. Previous to the eighth day of May, the court adjudged the demurrer to be frivolous ; and on the day specified for the assessment, the damages were assessed. A motion was made to set aside the assessment, on the ground that notice of assessment could not regularly be given until after judgment on the demurrer.
   By the Court,

Nelson, Ch. J.

It would have been better had the notice of assessment been provisional; but it was well enough. The defendant must have known it was intended as provisional. Motion denied.  