
    John D. Dutcher agt. Charles Wilgus.
    On. a motion, for reference, the affidavit must show clearly that all the issues are joined in the cause, as well those in law, as in fact, where the pleadings show the necessity of such issues.
    
      June Term, 1846.
    Motion by plaintiff for reference.
    It was objected by defendant’s counsel, that the plaintiff’s . affidavit was insufficient, for the reason that it did not state sufficiently that issue was joined. The affidavit of plaintiff read as follows: “ being duly sworn, says, that he is the plaintiff in the above entitled cause; that the declaration in said cause is in assumpsit upon a promissory note given by the defendant to the plaintiff, and upon an account for work and labor performed by the plaintiff for the defendant, and for goods, wares and merchandise sold by the plaintiff to the defendant. That the venue in said cause is laid in the county of Albany, that the pleas in said cause, are: 1st. The general issue, 2d. Set-off, 3d and 4th. Certificate and discharge as a bankrupt; to which the plaintiff replied a new promise made by the defendant to the plaintiff to pay the demand for which this suit is brought, subsequent to such discharge and certificate, and to which the defendant put in a general rejoinder traversing the replication; that an issue of fact was joined in said cause on the 16th day of May instant, and this deponent further says that the trial of this cause will require the examination of a long account on the part of this deponent.”
    """J. H. Collier, plaintiff’s counsel.
    
    H. L. Palmer, plaintiff’s attorney.
    
    E. W. PeckhAM, defendant's counsel.
    
    O. S. & H. A. Brigham, defendant's attorneys.
    
   Jewett, Justice.

Denied the motion with costs, on the ground that it did not appear sufficiently, from the affidavit, that issue was joined in law, which was requisite, as well as in fact.  