The Northampton County Reporter Volume 1 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1889 edition. Excerpt: ...delivered by Schuyler, P. J.--Instead of filing an affidavit of defence, the defendant has filed what is entitled an "exception," the purpose of which is to call the attention of the court to an alleged defect in the affidavit of claim. In a proper case this is proper practice, although it is in better form to proceed by way of "suggestion," thus: "The defendant suggests that the plaintiff ought not to have judgment for want of an affidavit of defence for the following reasons," naming and numbering them. The "exception" is as follows: "And now, May 2, A. D. 1888, the above named defendant by his attorney files the following exception to the plaintiff's statement of demand in the above case, that is that said statement is not in accordance with the Act of May 25, 1887, known as the procedure act, in that said statement is not signed by either the plaintiff or his attorney." This exception is based upon a mistake of fact. The paper filed by the plaintiff is not a "statement of demand" under the procedure act, but "an affidavit of claim" under our rules of court. The exception is therefore without merit, and if we had no duty to perform outside of the exception, the present rule would have to be made absolute. But we are asked to enter judgment against the defendant, under our rules of court, for want of an affidavit of defence. This we have jurisdiction to do under certain conditions, but not otherwise. One of these conditions is that the plaintiff shall have previously filed an affidavit of claim in a prescribed form. As to the form, the rule of court is very explicit, providing as follows: "The affidavit of claim shall be divided into paragraphs consecutively numbered, ...