Majority
p. 97Matthias and James Bruen against Adams and Merrill.
Headnote
If delay appear to be the object of a defendant, of which the having filed a frivolous demurrer is a cause of suspicion, the court will not set aside an inquest taken, though the defendant swear the action is for more than is due; he ought to state “ that “ he has a de. “ fence as ad “ vised by his “ counsel."WOODS moved to set aside, an inquest taken early in the last New-York sittings, in the absence of the defendants’ attorney, on an affidavit stating, that, the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116.
T. L. Ogden contra,
read a deposition shewing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled. He contended also that the affidavit of the defendants was insufficient, in not expressly averring there was a defence.
Woods in reply.
The same thing is in substance done. All inquests at a circuit are at the peril of the party. Roosevelt v. Kemper, 2 N. Y. T. R. 30.
The practice, I adopted was, that if the defendant’s counsel said there was a defence, I did not allow it to be taken.
p. 98
NEW-YORK,
May, 1805.
Per curiam.
The affidavit is defective, in not saying there is a defence “ as advised by counsel.” In this case there has been a frivolous demurrer, and that is a very suspicious circumstance. ^ie defendants, therefore, take nothing by their motion.