Calder v. Lansing — 1 Hill & Den. 212

Majority

p. 212

Calder vs. Lansing.

Headnote

In verifying a plea under the 1st rule of May term, 1840, it is not sufficient to. swear to a defence on the merits generally. The affidavit must point to the particular demand on which the action is brought.

But where the declaration was on an award pursuant to a parol submission; held, that the case was not within the act of 1840, and therefore the plea need not be verified by affidavit.

If the action is founded either wholly or in part on a parol agreement, the defendant may plead without an affidavit of merits.

It seems, that'had the submission been in writing, the cáse might have been brought within the statute and rule mentioned. . •

Verifying pleas. .The declaration stated a parol submission to arbitration, and a written award to pay a sum of money and the costs of a suit to be taxed. The plaintiff served a copy of the award, and taxed bill of-costs, with the declaration; with notice that these were the "only demands to be given in evidence. The defendant served a

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plea of the general issue, with an affidavit of merits, concluding as follows: “ that he has a good and substantial defence on the merits in this cause, as he is advised by his said counsel, and verily believes.” The plaintiff’s attorney disregarded the plea, and entered the defendant’s default, on the ground that the affidavit of merits was not sufficient.

G. M. Davis, for the defendant, moved to set aside the-default, for irregularity.

A. F. Wheeler, for the plaintiff.

If this case comes within the first rule of May term, 1840, (22 Wendell, 644,) the affidavit accompanying the plea was insufficient. It was not enough to swear to a defence on the merits generally. Such affidavits have sometimes been put in merely because the declaration contained counts which were not adapted to the particular, dealings between the parties, or'claimed damages beyond the amount really due. When the plaintiff brings his case within the rule in question, the affidavit of merits must'point to the particular demand on which the action is brought.

But no affidavit was necessary in this case. The statute speaks of “ actions upon contract upon any written instrument or record.” (Statutes of 1840, p. 333, § if.) And the rule made in pursuance of this enactment, provides for “ actions upon any written instrument or record” where it appears “that the written1 instrument or record is the only cause of action on which the plaintiff relies.” The award in this case, though a “ written instrument,” is neither a contract nor a record. And besides, a parol submission to arbitration lies at the foundation of the action. The award is nothing without an agreement to abide by it. If the submission had been in writing, the plaintiff might have brought his case within the statute and rule in ques

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tion; but where the action is founded, either wholly or in part, • on a parol agreement, the defendant may plead without an affidavit pf merits.

Motion granted.