Bird and others vs. Moore and others, 3 Hill & Den. 447

By the Court, Bronson, J. An affidavit by the attorney’s clerk, without assigning any reason why the attorney did not himself make the affidavit, has been held insufficient. (Jackson v. Woodworth, 3 Caines, 136 ; Chase v. Edwards, 2 Wend. 283.) But an affidavit by the defendant has been held good. (Ames v. Merriman, 9 Wend. 498.) It probably appeared in that case that the cause was noticed for trial and that the defendant attended the circuit without his attorney, and so was better able than the attorney to prove what took place at the circuit.

Where the cause is not noticed for trial, the affidavit should always be made by the attorney, or a reason should be assigned why it is made by another. But where the cause is placed upon the calendar for .trial, the affidavit may be made by the counsel who attended on behalf of the defendant. The fact of its being on the calendar is sufficient presumptive evidence that the cause is at issue, that it has been noticed for trial, and that the venue is in the county where the plaintiff proposed to try.

As to every thing else essential to the motion, the counsel must generally be as well prepared as the attorney, and many times better prepared than he, to make the necessary affidavit. Motion granted.