
    McGarry vs. Hart.
    An affidavit swearing to the advice of counsel in the form required by the 61st rule of the court, may he invalidated by showing that the person who gave the advice is an attorney merely, and not a counsellor.
    The defendant’s default for not pleading having been regularly entered, he now moved to set it aside on terms; and the only question in the case was whether he had sufficiently sworn to merits. His affidavit was in conformity to the 61st rule of January term, 1837, and named one S. W. J. as his counsel. On the part of the plaintiff it was shown that S. W. J. was not a counsellor of this court, but only an attorney.
    & P. Nash, for the defendant,
    cited and commented on Beall v. Bey, (7 Wend. 513.)
    
      JR. L. Joice, for the plaintiff.
   By the Court,

Beardsley, J.

The advice of an attorney is not the advice of counsel within the rule, and the motion must be denied. But the attorney may have been misled by what was said in Beall v. Dey, (7 Wend. 513,) and the denial should therefore be without prejudice to the right to renew the motion.

Ordered accordingly. 
      
       The 61st rule of January term, 1837, corresponds in phraseology with the 63d rule of May term, 1845.
     