
    Wilkes against Hotchkiss, late Sheriff of Delaware.
    When the defen dan t, on a motion to set sets forth in his wwT^constiof^iídefence, can huf'e6 of the merits,'it is sufficient, without saying he is adjised by coun
    SHERWOOD, for the defendant,
    moved to set aside # the judgment obtained by default, in this case, which was an action for an escape. The affidavit of the defendant stated, that the writ, issued in the cause, was served upon him a short time before the last May term, ^7 a deputy of the sheriff, residing at Delhi. The writ contained no ac etiam clause, and the defendant did not know the ground of the plaintiff s action; but he wrote ^ jjjs attorney at Delhi, to appear for him, and take charge of the suit; and supposed that his letter was received ; but he heard nothing further of the suit, until he was served with a ca. sa.; that he understood the suit to be for the escape of one A. D. on mesne process ; and that he had a good and substantial defence on the merits.
    Henry, contra,
    objected, that the defendant in swearing to a defence on the merits, did not state that he was advised by ' counsel, as to such defence.
   Per Curiam.

In the ordinary affidavit of merits, it is requisite that the party should state, as to his being advised by counsel; but here the whole merits are disclosed by the affidavit, and the court, on the face of it, can judge whether the defendant has a defence on the merits or not. We grant the motion on payment of costs, and with liberty to the plaintiff to change the venue to any county he may think proper.

Rule granted.  