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1788.

J

UDGMENT being entered by default at the firft term, Miƒƒlin had obtained a rule to fhew caufe why it fhould not be opened , upon the affidavit of a third perfon, that the Defendant was bed-ridden, and that there was a juft and confcionable defence.

Todd afterwards oppofed the action as grounded upon the affidavit of a third perfon.

But by the court:– A third perfon fully acquainted fully acquainted with the circumftances ought certainly to be admitted to make the affidavit of a defence when the party himfelf from extreme ficknefs is incapable of making it ; but when he is prefent, and fubject to no difability, it is regularly incumbent upon him to do it. This, however, is a cafe under very particular circumftances ; and the judgment ought to ftand as a fecurity ; but that the Defendant muft be let into a trial, upon an iffueable plea.