McGaffigan vs. Jenkins

Same Term. Before the same Justice. McGaffigan vs. Jenkins. After a default has been regularly taken against a defendant, the same will not be opened, upon a mere general affidavit of merits. The party must disclose the nature of his defence; so that the court may judge whether it is meritorious. This was an action against the late sheriff of Kings county for not returning a fi. fa. An inquest was regularly taken at the last circuit in that county, and was set aside by an order of the late supreme court; dated June 8th, 1847, on the defendant’s paying the costs of the inquest, and the subsequent costs; but without costs of the motion, to either party. At the time of granting this order, the defendant’s counsel was present, and was aware of it, and yet omitted to serve it, until July 7th ; and no offer was made by him to pay the costs. Judgment having been entered, on the 2d of July, . ■ N. F. Waring, for the defendant, moved, on a general affidavit of merits, to have the benefit of the order made on the 8th of June. S. F. Clarkson, for the plaintiff. [MAJORITY — Edmonds, J.] Edmonds, J. The plaintiff was regular in perfecting his judgment, and in disregarding the rule of the 8th .of June. He had good reason, under the circumstances, to believe that the defendant did not intend to use it. On the merits, however, the defendant might be let in, if the court were satisfied that he had any. The suit is against him as sheriff, for neglect of duty in not returning an execution. He merely swears generally to merits, without specifying what they are. And as I doubt, under the circumstances, whether he has any meritorious defence, I cannot let him in ; unless he discloses what that defence is, so that I may judge whether it is such an one as he ought to be allowed to set up. Motion denied with costs; but without prejudice to the defendant’s right to renew it, on papers disclosing the nature of his defence.