Straders, but the bill does not say by which one. It is probably intended by this indefinite allegation to charge fraud in such entry on the tax books, but it does not seem that the act would be fraudulent; but, be this as it may, the bill does not show which one of the Straders is chargeable with the act. The said Jarvis suit was decided against Cowger, and Cowger lost the land by decree for its conveyance by Cowger to Jarvis. Cowger died in 1884, and the Jarvis suit went on against his heirs. In 1904 Deborah Jackson, a child and heir of Cowger, and Della Jackson, a daughter of a deceased daughter of Cowger, brought the present chancery suit in Randolph county against the two Straders and the remaining heirs of Cowger to set aside the tax deed made to J. Floyd Strader, stating the said two purchases by the Straders, claiming that L. D. Strader, having been attorney for Cowger and having purchased the land while such, pending the Jarvis suit, could not purchase in his own right the subject-matter of litigation, and that such purchase would inure to Cowger's benefit, and charging that J. Floyd Strader, having become partner with his father, was also attorney for Cowger's heirs during the pendency of the suit, and that his tax purchase also could not stand, but must inure and operate for the benefit of Cowger's heirs, and that both the Straders did but take the land as trustees for Cowger and his heirs. The bills, original and amended, sought to compel J. Floyd Strader to convey the land to Cowger's heirs. Both of the Straders filed answers containing demurrers to the bills, and the court, hearing the case only on demurrer, sustained the demurrers; and, the plaintiffs declining to amend their bills further, the court dismissed them, and Deborah Jackson and Della Jackson appealed.

The real gravamen of the plaintiffs' case is the attorneyship of L. D. Strader. It is clear that his purchase was in effect only a redemption from a tax sale in behalf of his client, Cowger, under the rule that an attorney cannot purchase for himself any outstanding title to the thing in controversy in a suit in which he is engaged as attorney, either before or after the suit is ended, or during the continuance or after the close of the relations of attorney and client, and that such purchase will inure to the benefit of the client, and he may recover the same from the attorney on payment of the outlay by the attorney. Such is the confidence and trust reposed in the attorney, from necessity, so strong the demand of the highest honesty on the part of the attorney holding the secrets of the client, trusted with all the information of the client, with all the facts touching title and other matters connected with the subject of litigation or consultation, that public policy forbids the attorney to buy in for himself the property involved-to buy in and hold for himself adversely to

his client the thing claimed by his client. He cannot speculate or profit thus at the expense of his client. He cannot buy adversely to his client's interest. Baker v. Humphrey, 101 U. S. 494, 25 L. Ed. 1065; 3 Am. & Eng. Ency. L. (2d Ed.) 343; 4 Cyc. 958; Henry v. Raiman (Pa.) 64 Am. Dec. 703; Weeks on Attorneys, 277. Newcomb v. Brooks, 16 W. Va. 32, is a valuable statement of legal principles kindred to this case. Likely the lapse of 13 years would bar relief against L D. Strader's purchase. But it is useless to discuss the subject of his purchase, for the reason that all his right passed by the second tax sale to J. Floyd Strader. So the only question before us is, does the purchase by J. Floyd Strader inure to the benefit of Cowger's heirs under the legal principles just stated?

That depends upon whether, when Strader purchased, in December, 1897, he was attorney for Cowger's heirs, or had been. L. D. Strader's purchase of Talbott and Scott was in 1891 or 1892. The original bill states that J. Floyd Strader became a law partner with his father in 1896. The amended bill says that he was partner in 1897 before the second tax sale. The bills are inexact, indefinite, and inconsistent in several respects. We must say that J. Floyd Strader was not a partner when L. D. Strader purchased from Talbott and Scott. That is clear. To charge J. Floyd Strader with a trusteeship, we must be able to collect from the bills that he was a partner with his father while the Jarvis suit was pending, and that as such partner he was attorney as to that particular suit. The bills must show that such was the case. Now the decree of the circuit court finally deciding the case in favor of Jarvis was May 14, 1896. And this court had so decided the case before that; the exact date of this court's decision not being shown by the bills, though it is stated in the circuit court decree, exhibited with the bill in this case, that the case had before that been decided by this court. The report of the case in 41 W. Va. 268, 23 S. E. 522, shows a final decree, operating as res judicata, and ending the case, November 23, 1895; but we cannot look at that report. However, the bills in this case show that our decision was some time before May 14, 1896, the date of the final decree in the circuit court ending the case. The bills do not say at what date, whether before or after the decrees losing the land to Cowger, J. Floyd Strader became a partner. One of the bills says that he became partner in 1896; but whether before or after May 14, 1896, it does not appear. The bill should show the date of this important fact. They should show that, when Strader purchased, he was such attorney. They should show that he was attorney before a final decree in the Jarvis suit. They should show that he was attorney as to the matter of that suit. They do not so show. In the amended bill we are told

that J. Floyd Strader was partner in 1897, and attorney for the Cowgers; but the suit had ended in 1896, at latest. The orignal bill says he was partner in 1896. The two statements are inconsistent. Which is the correct statement? If he became partner in 1897, that was after the end of the suit. How could he become attorney when the suit had ended? It is clear that J. Floyd Strader was not partner when his father purchased in 1891 or 1892, and that his father became attorney in these suits long before the son became his partner.

Now, can we assume, without allegation. that the son became attorney as to this old undertaking of his father? If we assume, we should rather assume that he was partner only as to future business. One of the bills does say that he was attorney for the Cowgers in 1897, but also says that the suit of Jarvis had ended in 1896, thus defeating that allegation of attorneyship at the date of the tax sale. I note two passages in the amended bill, stating that L. D. Strader continued to act as counsel for Cowger until the termination of the suit, thus importing, rather, that he was the sole attorney. So the bills do not show that J. Floyd Strader was attorney, as to the particular matter of this suit, at any time during the pendency of the suit. The bill says he was attorney when J. Floyd Strader purchased at the tax sale, but defeats the allegation by showing that the suit had ended 19 months before. and we are authorized to say long before, the tax purchase. J. Floyd Strader was a stranger to the Cowgers at the time of his tax purchase. It is not shown that he was Cowger's attorney pending that Jarvis suit, or that any obligation rested upon him as such attorney.

Therefore we affirm the decree of the circuit court.

(61 W. Va. 166)

WALLS v. WILLIAM H. ZUFALL & CO.⭑ (Supreme Court of Appeals of West Virginia. Dec. 18, 1906.)

1. PLEADING TIME OF FILING PLEAS.

In an action of such character as requires an inquiry of damages, a plea may be filed at the first term after office judgment, or at any later term before the inquiry of damages is executed.

2. JUDGMENT-AFFIDAVIT TO SET ASIDE OFFICE JUDGMENT.

Though an affidavit filed with a plea by the defendant under section 46, c. 125, Code 1899 [Code 1906, § 3866]. does not literally comply with the language of that section, yet, if it substantially answer its demand, the affidavit is sufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 30, Judgment, § 312.]

(Syllabus by the Court.)

Error from Circuit Court, Randolph County.

Action by J. H. Walls against William H. Zufall & Co. Judgment for plaintiff. Defendants bring error. Reversed.

*See note at end of case.

Jas. T. Dailey and Wm. G. Conley, for plaintiffs in error. Monroe & Brady, for defendant in error.

BRANNON, J. J. H. Walls filed in the circuit court of Preston county a declaration in assumpsit, containing only the common money counts, against William H. Zufall & Co., and filed an open account for a bill of particulars. At the rules, when the declaration was filed, the defendant appeared and demurred to the declaration. No conditional judgment or order for inquiry of damages was entered at rules. At the next two terms the case was continued. At the third term of the court the defendant offered the plea of non assumpsit and two other pleas. The court rejected the pleas as too late, and refused to consider the demurrer, and ordered the rules changed, and in such change failed to enter an order for an inquiry of damages, but ordered the conditional judgment to be entered as at the second rule day, and then proceeded to render final judgment of recovery against the defendants.

We do not see why the court refused to act on the demurrer filed at the first rule day. It is not necessary for me to say that a demurrer is a legitimate defense in an action, recognized through centuries, and certainly usable to-day. Its office is to say that the declaration does not state facts calling for judgment under the law. But the court's refusal to act on the demurrer must be treated as if it had been overruled. Hogg's Pleadings and Forms, § 179, citing Hood v. Maxwell, 1 W. Va. 219, and B. & O. Co. v. Morehead, 5 W. Va. 293. And those authorities and Coyle v. B. & O. Co., 11 W. Va. 94, show that, if the declaration is good, the ignoring of the demurrer does not make error. Such is the case here.

We do not discuss the right of the court at the third term to change the rules.

We next come to the question whether the court erred in refusing to allow the pleas. The court regarded them as coming too late. How so? The action was assumpsit upon an open account-an action of that nature calling an inquiry of damages under Code 1899, c. 125, § 45 (Ann. Code 1906, § 3865), demanding such inquiry of damages except in an action to recover a debt due upon bond or other writing for the payment of money, or against the drawer or indorser of a bill of exchange or negotiable note, or in an action of debt or scire facias upon a judgment or recognizance -and therefore it was not too late to file a plea; for, as held by Philip Carey Co. v. Watson, 58 W. Va. 189, 52 S. E. 515, under section 47 [Code 1906, § 3867], in an action of assumpsit, where an order of inquiry of damages is required, the office judgment at rules does not become final on the last day of the next term, so as to bar a defense thereafter, but the defendant may plead to issue at any time before the order of entry of damages is executed. The same principle was repeated in

Federation Co. v. Cameron Co., 52 S. E. 518, 58 W. Va. 477. These cases repel all idea that these pleas could be rejected as coming too late, the reason given by the court in the record. The rejection of these pleas for that reason cannot be sustained on such cases as Marstiller v. Ward, 52 W. Va. 74, 43 S. E. 178. They refer to cases where no writ of inquiry is required. That case expressly states that in all actions on contract or for tort calling for a writ of inquiry there may be a plea after the first term. Counsel for plaintiff concede that, if in this action an inquiry of damages is necessary, it was error to correct the rules by directing a conditional judgment, and failing to make an order for inquiry of damages, but contend that as the affidavit under section 46 was filed by the plaintiff with his declaration, and it proved the cause of action and a certain amount due, no such inquiry of damages was necessary, and ask, "Why necessary?" I answer that such inquiry is required by the statute in such a case. No matter that the affidavit fixes the amount. The defendant may contest it. It has to be ascertained by a jury what the amount is.

The defendant tendered three pleas-one non assumpsit, and two others. The court Improperly rejected the general issue. The other pleas were properly rejected, treating them as pleas. What kind of pleas are they? They are very informal. They are affidavits. One of them says that "for answer to the plaintiff's declaration [affiant] deposes and says that he denies each and every allegation therein contained, and says that there is no money or any other thing of value due from the said defendant, W. H. Zufall & Co., to the said J. H. Walls." The other so-called plea is: W. D. Arthur, one of the defendants in the above-styled cause, for answer to said plaintiff's declaration, deposes and says that he denies each and every allegation therein contained, and denies that there is any money or other thing of value due and owing on account, contract or otherwise from the defendant, W. H. Zufall & Co., to the said plaintiff, J. H. Walls." They are not good as pleas. They have no title of the case. They do have the heading of county of Preston, in the circuit court thereof; but in what case filed does not appear. They have no conclusion or tender of issue. Another reason justifying their refusal is that they are a general traverse of the declaration, and amount to the general issue, and their matter is provable under that issue.

But, though not good as pleas, they will answer as affidavits attending the general issue, if any affidavit in such a case as this, where there was no office judgment or writ of inquiry, is required-a matter which we do not decide. The statute requires the defendant to make affidavit "that there is not, as he verily believes, any sum due from him to the plaintiff upon the demand or demands stated in the plaintiff's declaration." These

affidavits are not literally in conformity to the statute, but substantially answer the demand of the affidavit prescribed by the statute. Why they were not drawn in its language, under the rule that, where an indictment or other pleading or affidavit is required by statute, the statute should be followed, we cannot say. We do not think affidavits in such case require the same strictness as pleas. They have no beginning or conclusion. They should have the title of the case, as an earmark to identify them with the case; but we collect that, as it was a proceeding in the circuit court of Preston county, and the names of the defendant and plaintiff are given, and as they are certified as part of the record of this particular case, they were filed in this case.

Therefore we reverse the judgment, and allow the plea of non assumpsit to be filed, and allow the other two so-called pleas specified in bills of exception Nos. 2 and 3 to be filed as affidavits, and remand the cause to the circuit court.

NOTE.

Sufficiency of Affidavit and Defense Therein on Application to Set Aside Default Judgment.

[a] (U. S. 1803) On motion to set aside an office judgment on an injunction bond, the court will not suffer defendant to plead that the obligee was dead at the time of the execution of the bond.-Porter v. Marsteller, Fed. Cas. No. 11,287 [1 Cranch, C. C. 129].

[aa] (Ala. 1875) A default judgment will not be reopened to let in a formal or technical defense not affecting the merits.-Waddill v. Weaver, 53 Ala. 58.

[b] (Ala. 1893) Under Code, § 2835, providing that "no judgment can be arrested, annulled, or set aside, for any matter not previously objected to, if the complaint contains a substantial cause of action," a default judgment on a note will not be set aside merely because defendant was under coverture when she made the note.-Marion v. Regenstein, 98 Ala. 475, 13 South. 384.

[bb] (Cal. 1862) In an application to set aside a judgment by default, the defendant's af-` fidavit, stating that the case had been fully and fairly represented to counsel, who thereupon advised him that he had a good, full, and perfect defense on the merits. was held sufficient.Woodward v. Backus, 20 Cal. 137.

[c] (Cal. 1863) The statement that the defense appears on the face of the complaint shows it to be of a technical character merely, and therefore insufficient to justify setting aside a default.-People v. Rains, 23 Cal. 127.

[cc] (Cal. 1866) An affidavit on motion to set aside a judgment on default, which states as the grounds of the motion that on account of the complicated condition of the defendant's title, and the fact that the complaint was verified, more time was required to prepare the answer than in ordinary cases, and that during a part of the time allowed for answering the defendant's counsel was compelled to be absent from town, and that the latter, from an examination of his client's title, so far as he has made such examination, verily believes it to be better than the plaintiff's, is insufficient, in that it does not show excuse and merits.Bailey v. Taaffe, 29 Cal. 422.

[d] (Cal. 1886) The fact that affidavits used on the hearing of a motion to set aside a default for failure to answer an amended crosscomplaint contained matters of doubtful pro

priety upon such a motion will not warrant the reversal of the action of the court below in setting aside the default, if the affidavits contained a sufficient showing of a meritorious defense to the cross-complaint, and such objectionable matter might be treated as surplusage. -Hitchcock v. McElrath, 69 Cal. 634, 11 Pac. 487.

[dd] (Cal. 1892) An affidavit to set aside a judgment by default is not sufficient where it shows that defendants served notice of appearance on plaintiff's attorneys, but does not show that they agreed to extend defendants' time to answer, or that defendants supposed their time had been extended.-Jenkins v. Gamewell Fire Alarm Tel. Co., 31 Pac. 570.

[e] (Cal. 1893) The affidavit of plaintiff or an order for publication in unlawful detainer stated that, when the action was brought, defendant disappeared; that plaintiff made inquiries of various persons who would be likely to know his whereabouts, but was unable to find him; that eight new summonses had been issued, and four competent persons had been employed to obtain service; that since the suit defendant has not been in his accustomed resorts, but has left an agent collecting the rents of the premises in dispute from subtenants occupying the same. Held, that a default will not be set aside on the affidavit of defendant simply that he did not conceal himself to avoid service, and the affidavit of such agent that plaintiff at no time personally inquired of him as to defendant's whereabouts.-Bradford v. McAvoy, 99 Cal. 324, 33 Pac. 1091.

[ee] (Idaho, 1905) Where an affidavit to set aside a default judgment did not set forth the substance of defendant's defense so that the court could judge whether it was frivolous or meritorious, it was error to set the judgment aside.-D. Holzman & Co. v. Henneberry, 11 Idaho, 428, 83 Pac. 497.

[f] (Idaho, 1905) Affidavits on motion to set aside a default judgment under Rev. St. 1887, § 4229, must show that the default occurred through mistake, surprise, or excusable neglect, and that defendant has a meritorious defense.D. Holzman & Co. v. Henneberry, 11 Idaho, 428, 83 Pac. 497.

[ff] (Idaho, 1906) Affidavits on motion to set aside a default judgment under Rev. St. 1887, § 4229, must show that the default occurred through mistake, inadvertence, surprise, or excusable neglect.-Western Loan & Savings Co. v. Smith, 85 Pac. 1084.

[g] (Idaho, 1906) On a motion by plaintiff to set aside a default judgment recovered against it on a cross-complaint, where the only affidavit filed was that of the president of the plaintiff corporation as to the course pursued by his counsel and the reason for their failure to file the necessary answer to such cross-complaint, but there was no showing why affidavits of the attorneys for plaintiff were not filed in support of the motion, they being the parties who could most intelligently have enlightened any court as to any reasonable excuse for their mistake or neglect, a refusal to set aside the default was not an abuse of discretion.-Western Loan & Savings Co. v. Smith, 85 Pac. 1084.

[gg] (Ill. 1874) A judgment by default will not be set aside on affidavit that defendant was sick and confined to his house from the time of service until after the default; it not appearing what the nature of his sickness was, or that it prevented him from communicating with his attorney and preparing his defense.Edwards v. McKay, 73 Ill. 570.

[h] (Ind. 1860) In a proceeding to set aside a judgment by default, it is not enough for defendant to allege "that he was unable to attend and make defense to the action," without showing the nature of the inability which prevented his attendance.-Frost v. Dodge, 15 Ind. 139.

[hh] (Ind. 1861) Defendant's affidavit on motion to set aside a default judgment stated that before the first day of the term he had employed counsel to take charge of the case, but did not state that the attorney was advised of the nature of the defense sought to be set up, or put in possession of the necessary facts concerning it; neither did it appear why the attorney neglected the defense. Held, that the action of the court below, overruling the motion, would not be interfered with.-Hazelrigg v. Wainwright, 17 Ind. 215.

[i] (Ind. 1862) If the affidavit in an application to set aside a default show a prima facie defense to a part of the cause of action, it is sufficient in showing merits.-Frazier v. Williams, 18 Ind. 416.

[ii] (Ind. 1878) It is a good and meritorious defense, in support of an application to set aside a default judgment inadvertently permitted to be rendered against a defendant, that he was never a member of a certain firm against which the judgment was rendered on a note executed by the firm.-Bristor v. Galvin, 62 Ind. 352.

[j] (Ind. 1884) Set-off is not such a "meritorious defense," within Rev. St. 1881, § 396, as will justify setting aside a default.-Wills v. Browning, 96 Ind. 149.

[jj] (Iowa, 1883) Under Code 1873, § 2871, providing that, when defaults are set aside, there must be pleading forthwith and affidavit of merits filed, a motion, properly verified, to set aside a default in an action of replevin, that states that the defense to the plaintiff's action "is that the property belongs to the husband of plaintiff, and not the plaintiff, and her claim thereto is fraudulent,' is a sufficient showing of a meritorious defense.-Willett v. Millman, 61 Iowa, 123, 15 N. W. 866.

[jjj] (Iowa, 1888) An affidavit of merits required by Code 1873, § 2871, on an application to open a judgment by default, which shows that the amount for which judgment was rendered is largely in excess of that to which plaintiff is entitled, discloses a good defense to the action.-Joerns v. La Nicca, 75 Iowa, 705, 38 N. W. 129.

[k] (Iowa, 1889) Where, on application to set aside the default, the affidavit made by their attorney contains no allegations of merits other than are contained in the petition, except as to a single matter covered by a counterclaim which was not denied or met, save by a general averment of a perfect defense thereto, the relief sought is properly denied.-Williams v. Wescott, 77 Iowa, 332, 42 N. W. 314, 14 Am. St. Rep. 287.

[kk] (Iowa, 1889) In a suit by attorneys for $250 fees alleged to be due on a retainer and for services rendered, an affidavit of merits shows a good defense which alleges that defendant consulted plaintiffs for only half an hour, never retained or employed them, and tendered them $15 as payment for the consultation.-Ellis v. Butler, 78 Iowa, 632, 43 N. W. 459.

[kkk] (Kan. 1881) A motion to set aside a judgment entered upon a default, supported by an affidavit made and sworn to by the defendant's attorney, it not being shown why the affidavit is not made by the defendant himself, nor what is the nature of the defense, nor that the attorney is acquainted with the facts, held properly overruled.-Baker v. Knickerbocker, 25 Kan. 288.

[1] (Ky. 1892) A judgment by default against a husband and wife, foreclosing a mortgage on a homestead in which both had joined, will not be set aside at a subsequent term of court on the petition of the wife, which only questions the validity of the mortgage.-Davis v. Jenkins, 93 Ky. 353, 20 S. W. 283, 40 Am. St. Rep. 197. [11] (La. 1851) Under Code Prac. art. 314, providing that if defendant, on the very day when a definitive judgment was to have been

rendered against him, appears and files his answer, the first judgment shall be set aside, the defendant should be allowed to file an answer pleading a general denial, even after a motion for judgment by default, if it produces no delay in the trial of the case.-Moran v. Tanner, 6 La. Ann. 119.

[1] (La. 1857) A judgment of default in an action on a draft will not be set aside on the ground that plaintiff failed to give a credit which was due thereon. Defendant, having knowledge of such credit, should have pleaded the same before judgment.-McRae v. Purvis, 12 La. Ann. 85.

[m] (Md. 1875) In a suit on a promissory note executed by A. and B., and indorsed by C., the parties were all returned summoned, and judgment by default was entered against them at the next succeeding term of court, and subsequently extended. During the term at which the judgment was rendered, C. filed a motion to strike out the judgment against him on the ground that he was never summoned, and had no knowledge of the suit until after judgment. This motion was supported by his own affidavit that no summons was served upon him and that he had a good defense to the action, and also by affidavit of the deputy sheriff that he had served summons on A. and B. but did not serve it on C.; and that the return "Sd." in pencil mark opposite the name of C. was made by mistake. Held, that under the circumstances judgment against C. should be stricken out. -German v. Slade, 42 Md. 510.

[mm] (Minn. 1889) In an action on a guardian's bond, it appeared that, when the ward came of age, the guardian was summoned to render his final account and failed to do so; that this action was commenced November 30, 1886, by leaving a summons at the guardian's usual place of abode, and no answer being served, on the report of a referee, judgment was entered July 21, 1887. Application to open judgment was made July 9, 1888, and defendant's affidavit alleged that he had no knowledge of the action till long after judgment was entered. The affidavits showed that the guardian had been informed of the action in November, 1886, and that he had admitted receiving the summons, and that the clerk of court furnished him a copy of the complaint. No explanation of these facts was offered by defendant, nor did he show that the judgment was incorrect. The answer prepared was unverified, and admitted the amount received as guardian, and alleged a larger amount paid out than was allowed by the referee, but failed to show by affidavit the amount of such extra payments. Held, that an order opening the judgment was improperly granted.-Weymouth v. Gregg, 40 Minn. 45, 41 N. W. 243.

[mmm] (Minn. 1889) A motion to set aside a default judgment is properly granted where the defendant makes affidavit in the most positive terms that he has never been served with summons personally or otherwise, and the return of an officer that he had personally served defendant is not supplemented by an affidavit of the officer setting forth some of the circumstances of the service.-Gray v. Hays, 41 Minn. 12, 42 N. W. 594.

[n] (Minn. 1906) On motion to set aside a default judgment against defendant in an action to determine adverse claims made by his grantee, an affidavit by the latter stating in general terms that his grantor had no actual notice of the judgment is hearsay, and insufficient to show want of notice by the defendant.-Kipp v. Clinger, 97 Minn. 135, 106 N. W. 108.

[nn] (Miss. 1877) An express company's motion to set aside a default judgment and a verdict against it on a writ of inquiry for $900 should be granted, upon terms to be fixed by the court, on affidavits averring that the notice left with the company's agent had miscarried,

[nnn] (Mo. 1841) An affidavit to support a motion to set aside a judgment by default must not only show merits, but due diligence also.Green v. Goodloe, 7 Mo. 25.

[o] (Mo. 1876) The affidavit of the defendant on a motion to set aside a default on a note alleged that the clerk had failed to docket the case, and that therefore the defendant's attorney could not find the papers, so as to prepare an answer, and further alleged that "defendant has a meritorious defense to plaintiff's action"; the alleged defense not being set out. It was not shown that the attorney had ever searched for the papers, or had called on the clerk or sheriff for them, or that they were necessary to the defense, but it appeared that a copy of the petition had been duly served on the defendant, from which an answer might have been prepared. The defense relied on was shown to be merely that plaintiffs had acquired the note after maturity, and that it contained usurious interest. Held, that the affidavit and motion were without merit.-Biebinger v. Taylor, 64 Mo. 63.

[00] (Mo.) The defense to an action on a note was the statute of limitations, which the reply sought to avoid. Plaintiff had two subpœnas served on defendant, who did not appear at the trial. either in person or by attorney Thereupon the court struck out his answer, and rendered judgment. Fifty-six days after, at the same term, defendant filed an affidavit to set aside the judgment, on the ground that business prevented his attendance, without stating the business and its nature, but alleging his defense was good in law and fact. The affidavit of his attorney, also filed, stated that he was attending to his duty in the Legislature, and had at a prior term agreed to continue the cause, and had not notified defendant that he would be absent. The court sustained the motion, and set aside the judgment. Held error, because of the negligence and delay, and because no merit was shown, the statute of limitations being a technical, and not a meritorious, defense.-(1890) Carr v. Dawes, 46 Mo. App. 351.

[000] (Mont. 1906) A default will not be vacated merely to permit the defendant to file a demurrer to the complaint, but the application must be accompanied by an affidavit of merits. -Bowen v. Webb, 85 Pac. 739.

[p] (Neb. 1886) The affidavit that the party seeking to open the judgment "had no actual notice of the pendency of the suit in time to appear in court and make his defense" ordinarily should be made by the party himself. But if, from the particular circumstances of the case, an attorney has personal knowledge of the want of such notice, and makes an affidavit accordingly, it will be sufficient to sustain the order, where there are no counter affidavits.-Reed v. Thompson, 19 Neb. 397, 27 N. W. 391.

[pp] (N. H. 1868) A default will ordinarily be struck off, upon terms, to enable a defendant to plead a discharge in bankruptcy obtained subsequently to the default.-New Hampshire Savings Bank v. Webster, 48 N. H. 21.

[ppp] (N. J. 1871) Judgment by default will not be set aside, to enable defendant to set up usury, where defendant's right to file an answer after the expiration of the time fixed therefor rests in the discretion of the court.Vanderveer's Adm'r V. Holcomb, 22 N. J. Eq. (7 C. E. Green) 555.

[al (N. Y. 1808) The affidavit must state that an inquest was taken by default.-Fink v. Bryden, 3 Johns. 245.

[qq] (N. Y. 1842) An affidavit used in a mo