MERITS, AFFIDAVIT OF. Under the practice in some jurisdictions, an affidavit of merits is required to be filed by defend ant in order to prevent the signing of judg ment by default; Young v. Browning, 71 Ill. 44; Clark v. Dotter, 54 Pa. 215. The affi davit is usually required only in certain ac tions in contract, but statutes and rules of court differ in their wording as to the cases in which the affidavit is necessary ; Hazie Tp. v. Markle, 175 Pa. 405, 34 Atl. 734; My ers v. Shoneman, 90 Ill. 80. See the statutes and rules of court in the several states.
The affidavit precedes or accompanies the plea, and cannot be substituted for it ; and it is the plea, and not the affidavit which an swers plaintiff's pleading; Scammon v. Mc Key, 21 Ill. 554 ; it is, in fact, no part of the pleadings ; Muir v. Ins. Co., 203 Pa. 338, 53 Atl. 158. It may be directed against the le gal sufficiency of plaintiff:s statement, and in such case it is deemed in the nature of a demurier; Byrne v. Hayden, 124 Pa. 170, 16 Atl. 750.
Judgment for of an affidavit of de fense will not be sustained where plaintiff's statement of his cause of action is insuffi cient, or where he has waived the want of an affidavit; McKeone Soap Mfg. Co. v. Press
Co., 115 Pa. 310, 8 Atl. 781. The affidavit should regularly be made by defendant; Marshall v. Witte, 1 Phila. (Pa.) 117; a third person fully acquainted with the cir cumstances may make it, when the defend ant himself is unable to do so by reason of sickness or absence; Burkhart v. Parker, 6 W. & S. (Pa.) 480. The time when the affi davit must be filed is usually determined by statute or rule. In general, the affidavit should disclose the "nature and character of the defense"; Melvin & Son v. Conner, 5 Pennew. (Del.) 476, 62 Atl. 264. The party making the affidavit must swear to the facts stated therein from his own knowledge, and not from information; or information and belief ; Cake v. Stidfole, 1 Walk. (Pa.) 95 ; Brown v. Cowee, 2 Dougl. (Mich.) 432. See AFFIDAVIT OF DEFENCE.