By the Court,
The affidavit was clearly sufficient within the statute. Statutes of 1838, ch. 243, § 1, p. 232. It may not have been so in respect to the former suit, but was as to the tender and admission. It is no answer that a tender was not pleaded. The omission may have been for the very reason that the testimony of the magistrate was gone.
Again: the justice had no right to interpose his private knowledge or recollection as an answer to the affidavit. Doing'so would enable a justice to defeat the application, and at the same time to put the point beyond the reach of review, even on the facts which he may assume to know or to have forgotten. Here it is true he states them, but not under his oath as a witness. That .the defendant has a right to require.
Again: his specification was not satisfactory. He had no right to as
Judgment affirmed.