Majority
p. 67James Howe vs. Isaac L. Hasbrouck.
Headnote
An affidavit of merits filed at the circuit held defective, because it stated that the defendant had a good defence, etc., “ to the plaintiff's declaration filed in this suit."Motion by defendant to set aside inquest for irregularity.—The inquest was taken out of its order on the calendar. Defendant showed that an affidavit of merits was filed, and that the cause could not have been reached in its regular order on the calendar. Plaintiff produced a copy of the affidavit of merits, and insisted that it was defective. That part of the affidavit to which objection was made, reads as follows: “- duly sworn, saith that he has fully and fairly stated his case and defence in said suit to A B of-, his counsel, and is advised by his said counsel and verily believes that he has a good, valid and sufficient defence upon the merits in the above entitled cause to the plaintiff’s de
p. 68
claration filed in this suit, and further saith not.” The defendant swears to merits on this motion.
A. Taber, Defts Counsel. Romeyn & Westbrook, Lefts Attys.
H. C. Whelfley, Plffs Counsel. H. C. Whelpley, Plffs Atty.
The affidavit of merits filed at the circuit was held bad. Defendant let in on terms.
Decisión.—Motion granted on payment of costs of circuit and subsequent proceedings and costs of opposing this motion, and cause referred.