Majority
p. 369Comstock vs. Merritt and others.
Headnote
Where a declaration containing the money counts was served, to which was subjoined the copy of a note, with a mere notice that it would be given in evidence, • and the defendants demanded a bill of particulars, which the plaintiff delivered, therein stating that the note was the only cause of action relied on; held, that a plea subsequently served might be disregarded, unless verified by affidavit. 'Verifying plea. The declaration, which was served on the 13th of January last, contained the money counts, to which was subjoined the copy of a promissory note with a notice that it would be given in evidence on the trial, but it was not stated that the note was the only cause of action on which the plaintiff relied. (See 1st rule of May Term, 1840, 22 Wendell, 644, note.) On the 25th January the defendants served an order for a bill of particulars, which was delivered on the 2d bf February, and stated that the note was the only cause of action. On the 11th of February the defendants served a plea, which the plaintiff disregarded and proceeded to judgment, on the ground that the plea should have been accompanied by an affidavit of merits.
P. Cagger, for the defendants, moved to set aside the default, and insisted that the plaintiff was irregular.
M. T. Reynolds, contra.
This case falls within the first rule of May term, 1840. A copy of the note was served with the declaration, and it appeared by the bill of particulars which was delivered before .pleading, (see Chrysler v. James and others, ante, p. 214,) that the note was the only cause bf action on which the plaintiff- relied. The
p. 370
plaintiff was regular in disregarding the plea for the want of an affidavit of merits, dut the defendants are entitled to relief on ■ another ground.
Ordered accordingly.