
    Cannon against Titus.
    In order to prevent an inquest by default, the rits'1 by1 the'destate,"as She"is a<1.VIse<i by counsel, and a copy of it should be sewed on the plaintiff’s attortrial. 1
    J. RUSSEL, for the defendant,
    moved to set aside the inquest taken by default at the last sittings m NewTork. In the notice for trial, the plaintiff’s attorney filed an affidavit with the clerk of the sittings, that the defendant “ had a good substantial defence to make in ° _ the cause, on the merits.”
    
      J. Rad cliff, contra,
    objected, that a copy of the affidavit of merits had not been served on the plaintiff’s attorney, nor any notice given to him of its being filed, previous to the taking of the inquest; and that the affidavit of merits was insufficient, as it did not state that the defendant was “ advised by counsel,” which is rc= quisite in an affidavit of merits. (3 Caines, 97.)
   Per Curiam.

The affidavit of merits is defective, in not stating that the defendant was advised by counsel; and by the rule of this court, of the 21st November, 1808, a copy of the affidavit of merits, filed with the clerk of the sittings, must be served on the opposite party.

Motion denied.  