3 Cai. Cas. 97
Decided May 15, 1805
New York Supreme Court · decided 1805-05-15
WOODS moved to set aside, an inquest taken early in the last New-York sittings, in the absence of the defendants’ attorney, on an affidavit stating, that, the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116. read a deposition shewing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled.
Decided 1805-05-15
¶1The practice, I adopted was, that if the defendant’s counsel said there was a defence, I did not allow it to be taken.
¶2Per curiam.
¶3The affidavit is defective, in not saying there is a defence “ as advised by counsel.” In this case there has been a frivolous demurrer, and that is a very suspicious circumstance. ^ie defendants, therefore, take nothing by their motion.