Majority
p. 643Garrett vs. Teller.
Headnote
A plaintiff cannot disregard a plea, and treat it as a nullity, for the want of being accompanied with an affidavit of merits, unless it appear by the declaration or the plaintiff’s bill of particulars that the written instrument or record declared upon is the only cause of action upon which the plaintiff relies.A notice attached to a declaration on the common counts, that the suit is brought against the defendant as a party to two promissory notes, of which copies are given, is not such a specification of the only cause of action on which a recovery is claimed, as will authorize a plaintiff to treat a plea as a nullity, which is not verified by affidavit.
p. 644moved to set aside the default and subsequent proceedings. The action was commenced in July last. Declaration in assumpsit on the common counts, to which was annexed a notice that “ this suit is brought against you as a party to two promissory notes, of which the following-are copies”—then followed- copies of the notes. The defendant’s attorney tendered a plea of the general issue in due time, but the plaintiff’s attorney refused to receive it because it was not accompanied by an affidavit of merits, pursuant to the first rule of May term, 1840.[1] He entered default, and proceeded to judgment.
C. D. Witt, for the defendant,
J. Edwards, for the plaintiff.
p. 645
By the Court,
The rule referred to by the plaintiff is expressly limited to cases “ where it shall appear by the declaration, or the plaintiff’s bill of particulars, that the written instrument or record is the only cause of action ón which the plaintiff relies.” There can be no hardship in .requiring, as we intend to do, a strict compliance with the rule. The notice did- not amount to a- bill of particulars, and the plaintiff had no right to disregard the plea.
Motion granted.[1]
* See Reynolds v. Woods, ante p. 642.