I always supposed that no notice of taking the affidavit of a party, is necessary.
The objection to the affidavit, being waived, it was read, stating that the judgment was entered by surprise, the joinder of issue on the demurrer, not being filed in time.
Mr. Green. The affidavit of a party, should not be heard on motion for rule absolute, to open a judgment; but only for a rule to shew a cause. Rules of Supreme Court, 20, affidavit, 1; 3 Halst. 160; 2 Archb. Pr. 11; Coxe R. 400; Allen ads. Den, Hendrickson, 3 Green, 102.
HorNeuoweR, C. J.I never understood the practice in this Court or at Westminster Hall, to be, that where a party’s affidavit may be taken for a preliminary motion, that it must be *351on notice. If sucli be the rule, it ought to be altered. Every day’s practice is otherwise. I cannot distinguish this case from that of Condit and Crane, (ante 349.) There was laches in that case, there is laches here. The defendant is an attorney of this Court, and should have attended to the case. The joinder in demurrer is a merly formal matter and much like a similiter on pleas of general issues. In the case of Livingston and Smith in the Circuit Court of United States, Judge Washington would not permit advantage to be taken on demurring to omissions or misplacing of names, but ordered the plea to be amended.
Fokd, J.Laying aside any conversation out of doors between the parties, I see no necessity or utility of notice of taking an affidavit in such a case as this. The affidavit is good on a rule to shew cause. The plaintiff being in possession of a judgment and execution, can lose nothing by the rule applied for. The affidavit shews that the defendant has merits. Let the judgment be opened to let in a defence; the judgment and execution remaining as surety.
Ryersox, J.I entertain still my opinion expressed in the case of Condit and Crane. I think the old rule was either to give notice of taking affidavit, or serving a copy of it. The English practice, I believe, requires notice.
The Chief Justice observed, that there is no settled rule of practice in such cases.
By the Court.Let the plea be amended during the term, as to the matter demurred to; and the judgment be opened, but standing together with the execution, as security for the plaintiff’s claim.
Mule granted.