
    Richmond vs. Cowles.
    Where a defective affidavit of merits was interposed to prevent the taking of an inquest at the circuit, and the plaintiff, after allowing the cause to be passed on its regular call upon the calendar, subsequently moved it as an inquest, whereupon a jury was empanneled and evidence given, but on motion of the defendant’s counsel the jury were discharged by the judge on the ground that he had no right to disregard the affidavit, and no opportunity was afterwards had to move the trial of the cause in its order; held, that a motion for judgment as in case of nonsuit would not be granted.
    An affidavit of merits, that the defendant “ has fully and fairly stated his defence,” &c., is defective, and may be treated as a nullity at the circuit.
    Motion for judgment as in case of nonsuit, for not proceeding to trial at the last Onondaga circuit. The cause was noticed as an inquest, and the defendant filed and served an affidavit of merits alleging that he had “ fully and fairly stated his defence,” &c. The plaintiff, supposing the affidavit to be defective, allowed the cause to be passed on its regular call upon the calendar, in the confidence that he could take an inquest on some subsequent day. Accordingly, on the morning of a subsequent day, and after junior issues had been tried, he moved the cause as an inquest, upon which a jury was empanneled, two witnesses sworn for the plaintiff, and several of the promissory notes proved by them read to the jury. The defendant’s counsel then objected that the circuit judge had no right to disregard the affidavit of merits by reason of the defect; and insisted that he ought to discharge the jury, which he did, though the plaintiff’s counsel objected. The plaintiff had no opportunity afterwards to move the trial in its regular order.
    
      Parker df Morgan, for the defendant.
    
      B. D. Noxon, for the plaintiff.
   By the Court,

Cowen, J.

I am of opinion that this motion must be denied. The cause was brought on to trial by the plaintiff according to the course and practice of the court; and the only reason why it was not actually tried was, the refusal of the judge to allow the trial to proceed. The affidavit of merits was clearly defective; (Fitzhugh v. Truax, 1 Hill's R. 644, and note (a);) and was properly regarded by the plaintiff as a nullity. The defect left him a right to move the cause as an inquest; and after being led by the omission of the defendant to a loss of his preference on the calendar, the plaintiff ought not to be nonsuited because he could not again reach the cause. He did his utmost to try it according to his notice. The judge might have allowed him to do so; but thought it inexpedient. Suppose he had been thus prevented on attempting to try the cause upon the first call. In legal effect the plaintiff was ready and willing to try according to the course of the circuit; but was prevented by a power which he could not control. Such a proceeding is far from presenting a case for dismissing the cause or requiring a stipulation.

The motion must be denied with costs.

Rule accordingly.  