Hart v. McGarry — 1 How. Pr. 74

Majority

p. 74

Henry Hart vs. Daniel McGarry.

Headnote

The advice of an attorney is not the advice of counsel on an affidavit of merits within the meaning of the rule.

Motion to set aside default for not pleading and all subsequent proceedings, including the execution issued on the judgment with, costs, fyc.— The papers show that the proceedings are regular, and the only question is, whether the defendant can be let in on terms. The action is trespass ; the defendant’s pecuniary circumstances are questionable, &c. The defendant in his affidavit states, “ that he has fully and fairly stated the case in the above entitled cause to Samuel W. Jackson, Esq. his counsel in said cause, of Gilboa, in said county of Schoharie, and that this deponent has a good and substantial defence upon the merits thereof as he is advised by his said counsel,” &c. It is shown by an opposing affidavit that Jackson is not a counsellor of this court, although he is an attorney.

S. P. Nash, Defts Counsel. S. W. Jackson, Defts Atty.

R. L. Joice, Plffs Counsel. D. K. Olney, Plffs Atty.

The advice of an attorney is not the advice of counsel within the rule, and the motion must be denied. But the attorney may have been misled by what was said in 7 Wend., 513 , and the denial is without prejudice to the right to renew* the motion.

Rule accordingly.