Majority
p. 7John M. Mesick agt. Joseph W. Smith et al. December Term, 1845.
Headnote
An affidavit made for a reference must be made by the party, unless a sufficient excuse is given why it is not: where the attorney makes it, a valid excuse for its not being made by the party is always required.Motion by defendants for a reference.
The defendants moved for a reference in this cause, upon an affidavit in the usual form made by defendants’ attorney, without any excuse being given for its not being made by the defendants, or one of them.
P. W. Bishop, defendants' counsel and attorney.
J. H. Reynolds, plaintiff's counsel.
Wilcoxson & Van Schaack, plaintiff's attorneys.
The plaintiff’s counsel insisted that the affidavit should have been made by the party and not the attorney, unless a sufficient excuse was given why the party did not make it.
Sustained the objection, and decided that the affidavit was not sufficient: for that reason it did not come within the rule. Motion denied with costs, without prejudice.