MAYOR, &c., OF WILMINGTON vs. JOHN HEDGES and JOHN McCLUNG

MAYOR, &c., OF WILMINGTON vs. JOHN HEDGES and JOHN McCLUNG. The rule for aEdavit of defence, under Code, 2305, applies to the case of an indorser of a promissory note. The action was against the defendants, as indorsers of Joseph S. Hedges, on a promissory note drawn by him, in favor of defendants, and endorsed by them to plaintiffs, a copy of which was filed, and affidavit made under section 4, Code, 377. Mr. L. Wales, for plaintiff, moved for judgment by default at the return of the process, for want of an affidavit of defence. Mr. Gordon objected that this was not an action on the note, but to charge the defendants on their guaranty of endorsement, which was the cause of action as to them; and that, therefore, the case did not come within the provisions of the Code, authorizing summary judgments. Wales, for plaintiff. Cordon, for defendant. [MAJORITY — The Court] The Court thought otherwise, and ordered the judgment as moved ; but Mr. Cordon then objected that the affidavit was made by the treasurer of the city corporation, and there was no provision in the law that this officer should swear in this respect for the corporation. The court assented to this; but said they would correct it by the general rules, which they were about to establish under authority of law. Judgment refused for want of an affidavit.