Banks v. Walker

Headnote

The affidavit of merits, in a mortgage case, under the 91st rule, need not be made by the defendant himself. It is sufficient if it be made by his solicitor.

This was a mortgage case of the fourth class.

W. N. Sears, for the complainants, claimed that it was entitled to a preference over other causes of the same class, on the ground that there had been no valid affidavit of merits filed, as required by the 91st rule. An affidavit had been filed; but it was not made by the defendant himself, but by his solicitor,

J. R. Whiting, for the defendant, insisted that it was not necessary the affidavit should be made by the defendant; but

that it was sufficient if made by his solicitor, who frequently knew more about the facts than the party himself.