
    Nathaniel Terry against Josiah Capen.
    Feb. 1807
    TERRY, before the court, called upon Edwards, counsel for the defendant, to say, whether he had a de-fence in this case.
    Under the rule for the defendant’s counsel to say whether he has a defence. it is sufficient for the counsel to say, that his client has instructed him Í to defend, and he expects the case will be tried, unless previously settled.
    
      
      Edwards said the defendant had instructed him to make a defence.
    
      Terry insisted that the answer was insufficient; that the rule required him to say whether he believed his client had a defence, and moved that the defendant might be called.
    Brainerd, J. said he would ask Edwards whether he expected the case would be tried ? '
    
      Edwards answered, yes; unless certain propositions for a settlement should be acceded to.
   The Court

refused to call the defendant, Swift, Per. J. remarking, that he never liked the rule, ani would not extend it beyond its strict application, ,  