S. L. 1844, p. 11, § 2, provides that “inquests or assessments may be taken in all actions upon contract, unless the defendant, his agent or attorney shall, on or before the first day of the term at which the cause is noticed for trial, file with the clerk an affidavit, setting forth that such defendant has a good and substantial defence on the merits, to the action of the plaintiff, or to some portion of the plaintiff’s claim therein, as he is advised by his counsel and verily believes.”
Held, that the person who makes the affidavit required by this statute, whether the defendant, or his agent or attorney, must swear to a defence upon the merits, from, Ms own Icnoivledge of the facts constituting such defence, and not from information and belief.