Cutler v. Biggs — 2 Hill & Den. 409

Majority

p. 409

Cutler vs. Biggs.

Headnote

An affidavit of merits made and used for one purpose in a cause, cannot be used for another; e. g. an affidavit to change the venue will not he received as the foundation of a motion to set aside a default for want of a plea.

And where an affidavit of merits was served with the defendant’s plea, pursuant to rule 1st of May term, 1840; held, not sufficient to prevent the taking of an inquest in the cause at the circuit out of its order on the calendar.

C. Humphrey, for the defendant,

moved to set aside an inquest taken at the circuit out of its order on the calendar. It appeared that the cause was regularly noticed for an inquest, and that no affidavit of merits was interposed in season. But a regular affidavit of merits had been served with the plea, pursuant to the statute and the rule of this court. ( 22 Wend. 644 , note.) The usual affidavit to prevent an inquest had been sent to the counsel for the defendant by mail; but did not reach his hands till after the jury were empanneled for the inquest.

Humphrey submitted that the affidavit served with the plea was sufficient; and likened it to the case of an affidavit served for one circuit, which had been held sufficient for any subsequent circuit at which the cause might be no

p. 410

ticed. (Van Rensselaer v. Hamilton, 4 Cowen, 539, 540, Prescott v. Roberts, 6 id. 45.)

P. Cagger, contra.

By the Court,

The analogy was so striking between this and the cases mentioned" by Mr. Humphrey, that I reserved the point, in order to confer with the judges. Our recollection is, that affidavits of merits made in the course of the cause for one purpose, have uniformly been rejected when proposed to be used for another. For instance, an affidavit of merits, made with a view to change the venue, would not be received as the foundation of a motion to set aside a default for want of a plea. Many other like instances might be mentioned. To grant this motion would, therefore, be to work such an extensive and inconvenient innovation in practice as we do not feel warranted in allowing. I would grant the motion on terms, if an affidavit of' merits had now been made; but I find none among the papers handed up. Although two affidavits of merits have heretofore been made in this cause for other purposes, I can regard neither as sufficient, because neither was made with an immediate view to this motion.

The motion must be denied with costs; but, under the circumstances, without prejudice to the right of renewing it.

Ordered accordingly.