Brownell v. Marsh — 22 Wend. 636

Majority

p. 636

Brownell vs. Marsh.

Sept. 1840.

Headnote

An affidavit of merits in which the defendant deposes that he has fully and fairly stated this case, or his case to counsel, is a sufficient compliance with the 61st rule of this court; an affidavit that he has stated his defence is-not enough.

On motion to change the venue in this cause, and on motions in several other suits where an affidavit of merits was necessary, it was objected that the affidavit did not conform to the 61st rule, .which requires the party to swear “ that he has fully and fairly stated the case to his counsel.” The affidavits were, that the defendant, had stated his case, this case and his defence to counsel,

By the Court,

An affidavit that the party has fully and fairly stated this case, or his case, to counsel,

p. 637

fairly implies that he has stated the whole casé, and is a sufficient compliance, in that particular, with the 61st rule. But an affidavit that he has stated his defence to counsel, only implies that he has stated one side of the case,4 and is therefore insufficient.

Orders accordingly.