Roosevelt v. Dale

2 Cow. 581

Opinion

Curia.

The objection to the affidavits for the motion, is not well taken. The title, “ Harriet Fulton, (now Harriet Dale,” &c.,) is substantially true. It is correct unless the addition of “ now Harriet Dale? vitiates it. This purports to be, and is in fact, mere matter of description, and it may, with the other title of a cause which does not exist, be rejected as surplusage.

But the affidavit to prevent the inquest, was defective for two reasons. One is, that it contains no sufficient excuse for being made by the attorney, and not by Dale, or his wife. The affidavit of merits by an attorney, even to prevent an inquest, is not properly receivable, unless a reasoiiable excuse is furnished for omitting the defendant’s affidavit.

(a)

But this affidavit was not properly entitled. The authorities, cited by the counsel for the plaintiff, fully and clearly establish that where a feme sole marries pending the suit, this does not affect the form of the proceedings. No notice is taken of it, but the suit goes on as if no marriage had taken place.

The inquest is regular, therefore, and the only question is whether the subsequent affidavit is regular, so as to warrant setting aside this inquest on terms. In relation to this it is objected that Dale is not competent to make the affidavit, because he is not a party. And the promises are undoubtedly true. He is not technically a party, and, therefore, is not treated as a party upon the record. But in other re» pectSj an¿ eminently so far as interest is concerned, he is a party with his wife. Whatever affects her, affects him equally. On recovering judgment against her he may be made an actual party by a scire facias, and in this manner, be subjected to execution. Being substantially a party, we think he is to be received to make an affidavit of merits, consistently with the rule which requires this to be done by the party. Let the inquest be set aside, on payment of costs.

Rule accordingly.

Vid. Philips v. Blagge, 3 John. Rep 141. Geib v Icard, 11 John. 82.