
    Quin against Riley.
    NEW-YORK,
    May, 1808.
    Counter-affidavits may be read as to the sufficiency of an excuse, for not giving notice of a motion for the first day of term.
    COLDEN, for the defendant,
    moved to set aside the inquest taken in this cause, on the usual affidavit of merits. He also read an affidavit, explaining the reason why a notice of the application for the first day of the term, had not been given.
    
      T. A. Emmet, contra,
    offered a counter-affidavit as to the reasons assigned for not making the application earlier.
    
      Colden objected, that by the practice of the court, ne counter affidavits could be received :
    But The Court said, that the rule about counter-affidavits applied only to the question of a defence on the merits, and not as to the sufficiency of the excuse for not giving notice of the application for the first day of the term.
    
      Emmet then read the counter-affidavit.
   Per Curiam.

We think the excuse was sufficient. The defendant must take bis ride.

Rule granted.  