Belden v. Devoe

12 Wend. 223

Opinion

By the Court,

Savage, Ch. .1.

The delay of the plaintiff in making this motion is no answer to the application. The defendant having interposed pleas that are false, has no right to complain of any expense to which he has been subjected in consequence of the omission of the plaintiff to make this motion at an early day. The objections to the authentication of the affidavit cannot be supported ; the statute has been substantially complied with.

Footnotes

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* As to the decision in Brown v. Bissell, it is an authority for a case similar to it, but cannot be admitted as establishing the general principle that the common affidavit of merits is sufficient to resist a motion to strike out sham pleas: such a doctrine was not intended to be intimated by the court in that case, and indeed would be against the whole current of authority. That case was peculiar. The affidavit there, as appears from the report of the case, did not expressly aver the falsity of the plea of payment, as it ought to have done, 2 Barn. & Ald. 777, but only alleged that the defendant had admitted the existence of the debt at the time of and subsequent to the assignment of the bond to the assignee the real plaintiff in the cause, and that the as-signee was apprehensive that a fraudulent release would be produced, executed by the plaintiff on the record subsequent to the assignment, although bearing date as of a day previous to the assignment; and upon that affidavit the motion was made. To such an affidavit, alleging that the defendant had admitted the debt, it was said that the affidavit of merits was an answer, and that too in a case where the motion was coupled with another, which was thought to afford the plaintiff a more proper remedy. In that case also, it is presumed, the affidavit of merits was made in answer to the affidavit upon which the motion was founded ; here the defendant resorts to an affidavit made long since, and for another and different purpose. That case, therefore, is no authority for a case like the present, which must depend upon the general practice of the court, which will be found in Graham’s Pr. 214, 15. The motion is granted.

In the last preceding case of M’Kinstry and another v. Thurston, a similar objection was taken to the authentication of an affidavit taken in Pennsylvania, viz. that the judge before whom it was taken did not, in his certificate, specify the place where the affidavit was taken. The affidavit was headed “ State of Pennsylvania, Luzerne County, ss.” In answer to the objection, it was said by counsel that it was well known that a judge of a common pleas court in this state was authorized to take an affidavit only in the county where he resided; but proof of that fact never was required, as the venue of the affidavit was prima facie evidence of the place where it was taken. The objection was overruled.