Durant v. Cook

Headnote

Defendant’s motion to set aside an inquest on terms, denied, where his affidavit of merits filed at the circuit was defective, and a copy of the same used on the motion.

Motion by defendants to set aside inquest and subsequent proceedings.— Inquest taken regularly at the last October circuit Albany, by Plaintiff. Defendants’ attorney wrote to plaintiff’s attorney after the cause had been noticed, to consent to have the cause set down for same day in the second week of the circuit, or to have it go over the circuit, as it stood low down on the calendar. Plaintiff’s attorney declined, but thought there might be criminal business sufficient to last one week at least, and advised defendants’ attorney to have some one at the fore part of the circuit to prevent a default. Defendants’ attorneys’ clerk attended the first day of the circuit, and filed an affidavit of merits. On the third day of the circuit, inquest was taken by default. Defendants’ counsel used on this motion a copy of the affidavit of merits filed to prevent an inquest, the substance of which is as follows, “ that they have a good and substantial defence, upon the merits in the above entitled cause, to the promissory note on which this action is brought, thereof as they are advised by their said counsel,” &c.