Majority
p. 644Fitzhugh vs. Truax.
Headnote
An affidavit of merits, that the party “ has fully and fairly stated the facts of his case,” &c. is insufficient; it should be that he “has fully and fairly stated the case,” &c. •AffíüaVit of merits. The defendant’s default for not pleading haviiig been entered, he now moved to set it aside for irregularity ; bút failing in that, he asked to be let in on terms, upon an affidavit of merits setting forth that he had “ fully and fairly stated the facts of his case,” &c. and then going on in the usual form.
W. S. Bishop, for the motion.
A. P. Grant, contra.
The affidavit of merits is insufficient. It is, that the defendant has stated the facts of his case ; whereas it should be, that he has stated the case, fee.
Motion denied.[1]
(a) (a) See Rule 61st, ed. of 1837; and also Rule 1st of May T. 1840, ( 22 Wend. 644 .) The affidavit may be, that the party has stated this case, or his case; but not that he has stated his defence, &c. (Brownell v. Marsh, 22 Wend. 636 .) Nor will it do to qualify the phraseology, by adding) “ so far as the facts have come to his knowledge,” or in any other manner, unless a sufficient excuse therefor be ex pressly shown. (Brown v. Tousey, 19 Wend. 616 .)