Majority
p. 255Legg vs. Kinney, &c.
Headnote
Where anaffidavit in opposit;on to a mo,tlon isevidently spun out to increase the direct a deduction to taxation,Motion to open a default. The defendant pleaded non 0 . 0 _ assumpsit and usury, but omitted to procure the signature of counsel; for which cause, the plea was treated as a nul- ’ ’ r Zity by the plaintiff’s attorney, who entered a default as for the want or a plea ; to open which, a motion was now made on affidavits stating the omission to have happened through inadvertence, and swearing to merits. The plaintiff submitted in opposition an affidavit containing upwards of 40 folio, setting forth the declaration, the pleas, notice of set off attached to the pleas, and the affidavits and notice served on him, on which this motion is founded.
The Court set aside the default, on payment of the costs of the default and of this motion ; but directed that not more than three folio should be allowed in the taxation for the affidavit produced in opposition, as it evidently had been spun out for the purpose of increasing the costs.