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Starkweather v. Carswell

1 Wend. 77 Court N.Y. Sup. Ct. English

Delivered by Sutherland, J.

Contents

Majority

p. 77
Starkweather ads. Carswell.

Headnote

When a cause regular*1 order °n *e <=alendar, the defendanthas aright n^affidavh'of merits is filed.
Motion to set aside inquest taken at the circuit. The plaintiff objected to counsel appearing for the defendant, on the ground that the affidavit of merits was defective, it being ° . ° made by the defendant’s attorney, who swore to merits, as m-formed, by his client. The circuit judge held the affidavit to be insufficient and would not permit the counsel for the defendant to appear in the cause, though it was called in its regular order on the calendar.
H. E. Davies, for defendant.
D. Tillinghast, for plaintiff.

By the Court,

The inquest having been taken when the cause was called in its regular order on the calendar, the counsel for the defendant had a right to appear and defend, though no affidavit of merits whatever had been filed. The inquest is set aside, the costs to abide the event.