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Lane and Laing agt. Morse and Studley.

been made before F. L Durand, commissioner of deeds. There was no venue to the affidavit, and nothing upon its face to show where it was taken, nor of what place or county Durand was a commissioner. The defendants' attorneys served their answer without its being verified which the plaintiffs' attorney refused to receive, and proceeded to enter up judgment as though no answer had been served. The motion was to set aside the judgment for irregularity, upon the ground that the complaint was not verified in such a manner as to entitle the plaintiffs to a verified


T. HASTINGS, for Defendants.
0. M. CRANDALL, for Plaintiffs.

JOHNSON, Justice.—The venue is an essential part of every affidavit. It is prima facie evidence of the place where it was taken (Belden vs. Devoe, 12 Wend. 225, note; 3 Hill, 461). An affidavit should show upon its face that it was made before some officer competent to take affidavits, and within some place where he was authorized by law to administer an oath. This, at least, would seem to be necessary to show a legal verification.

For aught that appears, this affidavit was made in Canada, or in some other state, where the oath administered was extra judicial and void. No presumption arises that an affidavit has been made at any particular place within the state; nor, indeed, that it was made within the limits of the state, where no place is mentioned. The affidavit did not, therefore, contain enough to show that the plaintiff in verifying his complaint, had been legally sworn, and consequently the defendants were at liberty to put in their answer without a verification. It is not a case where the defendants were bound to return the complaint, if they regarded the verification as defective, as supposed by the plaintiffs' counsel.

The judgment and execution must, therefore be set aside, with costs of the motion.


Willis agt. Underhill.


Willis agt. UNDERHILL.

Held, that a husband is a competent witness to prove a marriage (where the

wife sues alone for her separate property). That a feme covert can take a gift or assignment of a debt, as well as of other

personal property, and hold the same “to her sole and separate use, &c. in

like manner and with the like effect as if she were unmarried." That in an action concerning her separate property, she is not bound to join

her husband but may sue alone, That she must, however, have a next friend, although she sues alone. That the objection may be taken at any stage of the suit, but the court may, in

its discretion, allow an appointment of a next friend nunc pro tunc. That an admission of a fact alleged in an answer by failure to reply, author.

izes the court to disregard a report of referee or the verdict of a jury found

to the contrary of such allegation; but a reply may be allowed nune pro tune. Where a demand is transferred merely for the purpose of making the assignor

a witness to prove it, the defendant should be allowed to become a witness on the opposite side.

New York Special Term, January 1851. Action for balance of account for work and labor alleged to have been done for de fendant by one Rumming, and by him assigned to plaintiff. Defence, first, that no debt was ever due; secondly, if due, that it had been paid; and, thirdly, that at all events, it did not belong to the plaintiff. It was alleged, also, that plaintiff was a married woman, suing without her husband, and without a duly appointed next friend to be responsible for costs in the event of failure.

The referee had made a general report in favor of plaintiff, which defendant moved to set aside, and to dismiss the complaint with costs.

D. W. Clarke, for Plaintiff.
J. J. RADCLIFFE, for Defendant.

ROOSEVELT, Justice-held that a husband was a competent witness to prove a marriage.

2d. That the marriage in this case was abundantly proved, even without his testimony.

Willis agt. Underhill.



3d. That the plaintiff, although married, was competent to take a gift or assignment of a debt, as well as of any other“ personal property," and to hold the same “to her sole and separate use, &c., in like manner, and with the like effect as if she were unmarried.” This is the express language of the statute of 1849.

4th. That as “the action concerned her separate property," she was not bound to join her husband, but by the express terms of the Code (§ 114), was authorized at her option, to “ alone."

5th. That (under the late decisions), although she may sue alone, that is, without her husband, she can not sue without a next friend dubitatur.

6th. That the objection may be taken at any stage of the suit; but the court at any stage of the suit may, in its discretion, and upon terms, allow an appointment to be made nunc pro tunc.

7th. That the objection arising out of the omission of the plaintiff to reply to the defendant's allegation of payment, made in his answer, is an admission of such allegation also in every stage of the suit, and is sufficient ground for disregarding either the report of a referee or the verdict of a jury to the contrary. But this omission too may in like manner be supplied nunc pro tunc.

Sth. But as one party has had the benefit of the testimony of the original creditor, who probably, as the evidence very strongly indicates, made the transfer merely for the purpose of becoming a witness, it is just and equitable that the other party, according to the recent amendment of the Code ($ 399), should have the like privilege.

The court, therefore, must give judgment for the defendant, notwithstanding the report of the referee, unless the plaintiff procures the appointment of a next friend, and puts in a reply to the plea of payment, nunc pro tunc, and consents that the case be referred back to the referee to take the testimony of the defendant as a witness, and make a further report upon a review of the whole issue.


Gelston agt. Marshall,




Where a petition by the defendant asks a discovery from the plaintiff of certain

deeds and other instruments in writing, to enable the defendant to answer the complaint; and no fact is stated showing how the discovery is necessary, except that he expects to be able to prove that the note, &c. (sued upon), were paid, Held, that such an application does not come within the provisions of $ 388 of the Code. It must be governed by the Revised Statutes (2 R. S. 199, 922), and the former chancery practice, which prescribes the requisites

of such a petition. Also held, that the defendant must show how, or why, it is necessary to bave

the discovery in order to prepare his answer. In other words, he must set forth the necessary facts in his petition.

This is a petition by the defendant to compel a discovery from the plaintiff of certain deeds and other instruments in writing, to enable the defendant to answer the complaint. The petition states that the suit is brought on certain notes and acceptances given by the defendant for the accommodation of one Wadsworth of Baltimore; and that it is necessary for the petitioner to have a discovery of the deeds and other instruments specified in his petition relating to the dealings and transactions between the plaintiff and said Wadsworth, to enable him to answer. No fact is stated in the petition showing how the discovery is necessary for the answer; and no reason is given in the original petition for the application, except the advice of counsel. By the amendment to the petition, the defendant states that with the aid of the discovery he expects to be able to prove that the note and acceptances were paid by the transfer of the property mentioned and described in the papers whereof a discovery is sought.

Ralph LOCKWOOD, for the Petitioner.

Mason, Justice.—The 388th section of the Code, to which the counsel referred on the argument, does not appear to cover this case. That section authorizes an order for an inspection and

Gelston agt. Marshall.

copy, or permission to take a copy of books, papers and documents containing evidence relating to the merits of the action, or the defence therein. The present application is not for documents to be used as evidence, but to enable the defendant to put in his answer. It comes, therefore, under the provisions of the Revised Statutes, and the rules of the Supreme Court, which are also the rules of this court. The statute declares (2 R. S. 199, 922), that the court shall be governed in compelling discovery by the principles and practice of the Court of Chancery; and the 9th rule of court, which prescribes the requisites of the petition, provides that it shall state the facts and circumstances on which the discovery is claimed; and the established rule under this provision is, that the party applying for such discovery shall show how, or why it is necessary to have the discovery asked, in order to prepare the answer (Stanton vs. the Delaware Mutual Ins. Co., 2 Sandf. S. C. R. 662). No such necessity is shown.

The defendant does, indeed, state in his amendment to the petition that with the aid of the discovery he will be able to prove that the note and acceptances have been paid, but that does not show that the discovery is necessary to enable him to prepare his answer.

He is not required, and it would be improper to set forth the evidence in his answer. The province of the answer is to state facts, and not the evidence of facts; and it appears from the petition itself, that the defendant has sufficient information to enable him to state the facts in his answer with the requisite fullness and particularity to lay a foundation for the introduction of the evidence, which he alleges the papers now sought to be discovered contain.

The motion must be denied with ten dollars costs.

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