Majority
p. 82Geib against Icard. ALBANY, Jan. 1814. objected that the affidavit of merits was premature. Until the declaration was filed the defendant could not be presumed to know the grounds of the action, and could not, therefore, be legally advised as to a defence.
Headnote
An affidavit of part of the ken^^orethe return of the him, or the ficiaraUonf is" not sufficient to prevent an inquest being fauUatthesittings-WOODWARD, for the defendant, moved to set aside the in? quest taken in this cause, at the sittings, in the city of Neiv-York. rea^ an affidavit stating that previous to the sittings, a copy of an affidavit of merits, and notice of its being filed with the clerk of the sittings, were duly served on the plaintiff’s attorney, w^° had noticed the cause for trial as an inquest. (See Rule of November term, 1808.) J
It appeared that the capias ad respondendum in the case was issued the 4th January, and returnable the 16th January, 1813, and that the declaration was filed the 23d February, and special bail put in the 22 d March, 1813.
The affidavit of merits made by the defendant was taken the 13th January, 1813, three days before the return of the writ; and the defendant’s attorney stated that the defendant being about to leave the state for the West Indies, and being fully apprised of his defence, in the suit commenced against him, made the affidavit of merits to be used, as occasion might require, and that the defendant had not yet returned to the state.
Johnson, contra,
The affidavit of a defence on the merits cannot be made before the plaintiff has declared; and the reason assigned in this case for making it is insufficient, as, in the absence of the defendant, it may be made by his attorney or counsel. (Phillips v. Blagge, 3 Johns. Rep. 141 .) It appears also that the defendant’s attorney was apprised, by the plaintiff’s attorney, that he considered the affidavit as insufficient on this account. The motion is denied-.
Motion denied.