
    
      Matthias and James Bruen v. Adams and Merrill.
    
    WOODS moved to set aside an inquest taken early in the last JYew-York sittings, in the absence of ihe defendants’ attorney, on an affidavit stating that the demand was for more than was actually due, and the cause stood so low down in the calendar as No. 116.
    
      T. L. Ogden, contra,
    read a deposition showing, that the attorney for the defendants had acknowledged delay would be desirable, under their then embarrassed circumstances, and that a frivolous demurrer had already been filed and overruled. He contended also, that the affidavit of the defendants was insufficient, in not expressly averring there was a defence.
    Woods, in reply.
    The same thing is in substance done. All inquests at a circuit are at the peril of the party. Roosevelt v. Kemper, ante, 341.
   Thompson, J.

The practice I adopted was, that if the defendant’s counsel said there was a defence, I did not allow it to be taken.

Per Curiam.

The affidavit is defective in not saying there is a defence “ as advised by counsel.” In this case there has been a frivolous demurrer, and that is a very suspicious circumstance. The defend^ ants, therefore, take nothing by their motion.  