Bank of Utica v. Root

Headnote

In verifying a plea in bar concluding to the country under the 1st rule of May term, 1840, an allegation that the defendant has “ a full and substantial defence” &c. is not sufficient; the affidavit should be that the defendant has “agood and substantial defence” &c., in the language prescribed by the rule.

Motion to set aside default for want of a plea. The suit was upon a promissory note, a copy of which was served with the declaration, together with a notice that the note was the only cause of action on which the plaintiffs relied. The defendants interposed a plea of non assumpsit, accompanied by an affidavit that they had fully and fairly stated, &c., and that they had “ a full and substantial defence” &c., instead of “ a good and substantial defence” &c. as required by rule 1st of May term, 1840. The plaintiffs’ attorney returned the plea and affidavit, with notice that they would be disregarded by reason of this defect. No other papers having been served by the defendants within the time for pleading, the plaintiffs’ attorney caused the defendants’ default for want of a plea to be entered.