Little v. Bigelow

Headnote

An affidavit for a reference should be made by the party, or a sufficient excuse shown why it is not. ( 2 Howard, 1 , 161.)

Motion by plaintiff for a reference.

The affidavit for a motion was made by S. G. Haven, Esq. the law-partner of plaintiff’s attorney, who stated that he was counsel for the plaintiff in the cause; that Millard Fillmore, Esq., the attorney for the plaintiff, was then absent from the county of Erie, where the venue in the cause was laid, and would not probably be back for some time to come; that the plaintiff resided in the town of Collins, at a remote part of the county of Erie, and could not, without inconvenience and loss of time,-come to the city of Buffalo to have his affidavit drawn and sworn to. The affidavit then went on and stated the cause of action, and the particular claims on the part of the plaintiff, and also the particulars of the defendant’s defence which would arise under his bill of particulars; and concluded by stating that the trial of the cause would involve the examination of a long account by both parties, &c.