McGaffigan v. Jenkins

1 Barb. 31

Opinion

Edmonds, J.

The plaintiff was regular in perfecting his judgment, and in disregarding the rule of the 8th .of June. He had good reason, under the circumstances, to believe that the defendant did not intend to use it. On the merits, however, the defendant might be let in, if the court were satisfied that he had any. The suit is against him as sheriff, for neglect of duty in not returning an execution. He merely swears generally to merits, without specifying what they are. And as I doubt, under the circumstances, whether he has any meritorious defence, I cannot let him in ; unless he discloses what that defence is, so that I may judge whether it is such an one as he ought to be allowed to set up.

Motion denied with costs; but without prejudice to the defendant’s right to renew it, on papers disclosing the nature of his defence.