Page 525
By the Court,
Savage, Ch. J.
In Welch v. Hill, 2 Johns. R. 100, the court say, that it is in the discretion of a judge at chambers to admit or refuse counter affidavits in a case like this, according to circumstances; adding that where the plaintiff swears positively to a debt, it would be improper to receive them. It is undoubtedly true that a positive affidavit of indebtedness cannot be contradicted, but it may be confessed and avoided. That was done in this case. The motion must be denied, but without costs.