Jones v. Russell

3 How. Pr. 324, 1848 N.Y. Misc. LEXIS 104

Opinion

Parker, Justice.

I understand the code-has not changed the practice as to taking inquests at the circuits. The 31st rule of this court, adopted in July, 1847, has not been abrogated by any subsequent legislation. On the contrary, it is declared by § 389 of the code, that where “ the present rules and practice of the courts” are consistent with that act, they shall continue in force, subject to the power over the same of the respective courts.

It is no good reason for dispensing with an affidavit of merits at the circuit, that there was an affidavit verifying the answer. That affidavit only serves the purpose of completing the answer as a pleading.

The affidavit annexed to the answer proves no merits in the defence. It is made on belief only, and may be sworn to by the party, his agent or attorney. Under the late practice, the affidavit verifying a plea was much more substantial and satisfactory in form, but it was held that it did not dispense with an affidavit of merits at the circuit. (Cutler v. Briggs, 2 Hill, 409.) A Defendant may swear to the truth of his answer without believing he has a defence on the merits.

The Plaintiff is, therefore, at liberty to take an inquest.