Citation Numbers: 3 Hill & Den. 447
Judges: Bronson
Filed Date: 7/15/1842
Status: Precedential
Modified Date: 1/12/2023
An affidavit by the attorney’s clerk, without assigning any reason why the attorney did not himself make the affidavit, has been held insufficient. (Jackson v. Woodworth, 3 Caines, 136 ; Chase v. Edwards, 2 Wend. 283.) But an affidavit by the defendant has been held good. (Ames v. Merriman, 9 Wend. 498.) It probably appeared in that case that the cause was noticed for trial and that the defendant attended the circuit without his attorney, and so was better able than the attorney to prove what took place at the circuit. Where the cause is not noticed for trial, the affidavit should always be made by the attorney, or a reason should be
Motion granted.