Colt v. Gregory — 3 Cow. 22

Majority

p. 22

Colt against Gregory.

Headnote

cecdings * atomey, for irregularity, be-were as against •acommon person, the attor* ney need not fidaviuhat be was a practisins attorney, &e, On moving to set aside nro-

But it is euough that he swear he was hr attorney, which throws other'partyto shew that he .tised ° within tire year.

E. Griffin,

moved to set aside the judgment against the defendant, and all subsequent proceedings] and he read an affidavit of the defendant, stating, that “ at the time of issuing the capias ad respondendum in this cause, and for a long time before, and ever since, he has been and still is anattorney an¿ counsellor of this Court.” The affidavit then set forth that a capias had been served on the defendant, but without serving any other papers, either on him or his agent; that the plaintiff’s attorney had treated him as a - , , , . - . common person, and proceeded tojudgment.

Ostrum,

objected that the affidavit did not state that he 0 . was & practising attorney at the time of the suit brought,

This was not necessary. He swears that he was an attorney and counsellor, and this is sufficient, prima facie, to show that he had practised within the year. If otherwise, it lay with the plaintiff to shew it.

Motion granted.