delivered the opinion of the Court;

This was indebitatus assumpsit, in the Superior Court of Cook County, by John A. Griffith and others, as partners, plaintiffs, and against Christian Kassing, defendant, on the common counts. Accompanying the declaration filed in the cause was a paper purporting to be an affidavit, as required by the statute.

The defendant put in a plea to the merits, accompanied by a motion to strike from the files plaintiffs’ affidavit. There was no affidavit of merits filed with the plea.

The plea of defendant was striken from the files for want of the statutory affidavit of merits.

Appellant insists, inasmuch as he filed with his plea a motion also, no affidavit was necessary, and cites a part of section 87 of the Practice Act, to the effect that no affidavit of merits need be filed with a demurrer, plea in abatement, or motion. Eev. Stat. 1874, p. 779.

Where no plea to the merits is filed an affidavit is unnecessary, but when such a plea is put in, then the first part of this section of the statute controls.

The objection made to the plaintiffs’ affidavit, filed with their declaration, is, that it was taken before a commissioner of this State, residing in Cincinnati, in the State of Ohio. There is no force in this objection. Section 4 of chapter 26, title, “ Commissioners of Deeds,” etc., fully authorizes such commissioner to administer any oath which may be lawfully required in this State, to any person willing to take it. To prevent fraud, each commissioner, by section 7, is to file with the secretary of state, an impression of his seal and copy of his signature. His authentication in this case fully complies with the statute. In other respects the affidavit conforms to the Practice Act.

As to the objection that appellant was deprived of a trial by jury, the answer is there was nothing for a jury to try — there was no issue of fact made up. Defendant had no plea to the action—it was stricken from the files, and he was practically and technically in default, and the damages were properly assessed by the court, under the statute. We see no error in the record and affirm the judgment.

Judgment affirmed.