Majority
p. 524Jordan vs. Jordan.
Headnote
A positive affidavit of indebtedness made on shewing cause of action, cannot be contradicted, but it may be confessed and avoided, e. g. the defendant may shew an insolvent discharge.Order to shew cause of action. The defendant obtained an order to shew cause of action. The plaintiff made affidavit that the defendant was indebted to him in the sum of $700 for money paid. The defendant produced an insolvent discharge exempting his body from imprisonment, and made affidavit that the whole of the plaintiff’s demand, except $30, came within the operation of the discharge. Whereupon the commissioner made an order mitigating the bail to $60. The plaintiff moved to vacate the order.
E. Livingston, for plaintiff.
Jl. Taber, for defendant.
p. 525
By the Court,
In Welch v. Hill, 2 Johns. R. 100, the court say, that it is in the discretion of a judge at chambers to admit or refuse counter affidavits in a case like this, according to circumstances; adding that where the plaintiff swears positively to a debt, it would be improper to receive them. It is undoubtedly true that a positive affidavit of indebtedness cannot be contradicted, but it may be confessed and avoided. That was done in this case. The motion must be denied, but without costs.