Wing v. Ketcham , 3 How. Pr. 385 ( 1848 )

Barculo, Justice.

The facts contained in the opposing affidavits go to the foundation of the action; but are not proper to be considered on this motion. The court, in this stage of the cause, must be governed by the pleadings. If they show a cause of- action which survives, the representative must be permitted to continue the action. The merits of the action cannot be tried upon affidavits. The motion is, therefore, granted, with leave to Defendant to amend his answer by setting up the same facts.