James et al. v. Young

*James et al. v. Young. Affidavit. An affidavit, to open a judgment, may be made by a third person, when the defendant is disabled by sickness. Judgment being entered by default, at the first term, Mifflin had obtained a rule to show cause why it should not be opened, upon the affidavit of a third person, that the defendant was bed-ridden, and that there was a just and conscionable defence. Todd afterwards opposed the motion, as grounded upon the affidavit of a third person. But— [MAJORITY — By the .Court.] By the .Court. A third person, fully acquainted with the circumstances, ought certainly to be admitted to make the affidavit of a defence, when the party himself, from extreme sickness, is incapable of making it ; but when he is present, and subject to no disability, it is regularly incumbent upon him to do it. This, however, is a case under very particular circumstances ; and the judgment was entered at the first term. We think, therefore, the judgment ought to stand as a security ; but that the defendant must be let into a trial, upon an issuable plea. As to the making of affidavits of defence, under the statute, by another than the defendant, see Bright. Dig. 1964.