Nott v. Hill — 6 Paige Ch. 9

Majority

p. 9

Nott vs. Hill and others.

Headnote

If is improper to detail the proceedings at length in an affidavit of regularity. The affidavit should merely state that the bill had been taken as confessed upon a personal service of the subpoena, or on a voluntary appearance of the defendant) or upon a proceeding against him as an absentee, as the case may be, and that all the proceedings to take the bill as confessed are regular; except in special cases, where the solicitor wishes to submit the question of regularity to the court.

This was a bill to foreclose a mortgage, and the complainant’s solicitor had set out, in his affidavit of regularity, all the proceedings at length, to take the bill as confessed.

1836. January 26.

J. N. Cushman, for the complainant.

It is improper, in an affidavit of regularity, to set out all the proceedings at length ; and no allowance for such an affidavit should be made on taxation, beyond two folios. The affidavit should simply state that the bill had been taken as confessed upon a personal service of the subpoena on all the defendants, or upon a personal service upon some and a voluntary appearance of others, or upon a proceeding against some of the defendants as absentees and a personal service of the subpoena upon others, as the case may be, and that the proceedings to take the bill as confessed have all been regular. Nothing further than this should be stated in the affidavit, unless in a special case, where the solicitor is in doubt as to the regularity of the proceeding, and wishes to submit the question to the decision of the court; in which case, the special circumstances upon which the doubt arises should be stat-

p. 10

ed, and the general clause as to regularity should be varied so as to state that the proceedings were regular in all other respects, and that all the proceedings were regular, if the court should be of opinion that the special circumstances stated did not render them irregular in that respect,