Merits

AFFIDAVIT OF. Under the practice in some jurisdictions, an affidavit of merits is required to be filed by defendant in order to prevent the signing of judgment by default; Young v. Browning, 71 111. 44; Clark v. Dotter, 64 Pa. 215. The affidavit is usually required only in certain actions in contract, but statutes and rules of court differ in their wording as to the cases in which the affidavit is necessary; Ilazle Tp. V. Markle, 175 Pa. 406, 34 Atl. 734; Myers V. Shoneman, 90 111. 80. See the statutes and rules of court in the several states. The affidavit precedes or accompanies the plea, and cannot be substituted for it; and it is the plea and not the affidavit which answers plaintiff’s pleading; Scammon v. Mc- Key, 21 111. 554; it is, in fact, no part of the pleadings; Muir v. Ins. Co., 203 Pa. 338, 63 Atl. 158. It may be directed against the legal sufficiency of plaintiff’s statement, and in such case it is deemed in the nature of a demurrer; Byrne v. Hayden, 124 Pa. i70, 16 Atl. 750. Judgment for want of an affidavit of defense will not be sustained where plaintiff’s statement of his cause of action is insufficient, or where he has waived the want of an affidavit; Mc Keone Soap Mfg. Co. v. Press Co., 115 Pa. 310, 8 Atl. 781. The affidavit should regularly be made by defendant; Marshall v. Witte, 1 Phila. (Pa.) 117; a third person fully acquainted with the circumstances may make it, when the defendant himself is unable to do so by reason of sickness or absence; Burkhart v. Parker, 6 W. & S. (Pa.) 480. The time when the affidavit must be filed is usually determined by statute or rule. In general, the affidavit should disclose the “nature and character of the defense”; Melvin & Son v. Conner, 5 Pennew. (Del.) 476, 62 Atl. 264. The party making the affidavit must swear to the facts stated therein from his own knowledge, and not from information; or information and belief; Cake v. Stidfole, 1 Walk. (Pa.) 95; Brown v. Cowee, 2 Dougl. (Mich.) 432. See Affidavit of Defence.