Smith v. Carroll

12 L.R.A. 301, 21 A. 343, 17 R.I. 125, 1891 R.I. LEXIS 2

Opinions

This is an action of assumpsit entered in this court at the October Term, A.D. 1888. By plea puis darrein continuance, filed May 20, A.D. 1890, the defendants pleaded in abatement that since continuance they have been served as garnishees in an action brought against the plaintiff by one William H. Clapp, wherein the writ was returnable at the ensuing June Term of the Court of Common Pleas. The plaintiff moves the dismissal of the plea because it is without affidavit to the truth of the facts set forth in it.

The English practice was formerly to have the plea verified by affidavit. The affidavit, however, was not indispensable, but the justices in their discretion could receive the plea without it "if they perceived any verity therein." Hawkins v. Moor, Cro. Jac. 261; McGowan v. Hoy, 4 J.J. Mar. 223. The affidavit was intended to give information to the court, not validity to the plea. Morrow v. Morrow, 2 Constit. S. Car. 109, 3 Brev. 394; and that the plea may be good without the affidavit,Jackson v. Peer, 4 Cow. 418. In Bancker v. Ash, 9 Johns. Rep. 250, it is said that the affidavit was required to prevent the abuse of interposing the plea for delay, and was only required at the circuit, as the circuit judge had no authority to try it, but that even the circuit judge might receive the plea without oath if there were probable cause to believe it true. We think, therefore, that while we might require an affidavit, if the truth of the plea were questioned, which it is not, the motion to dismiss should be denied.

The question as to the sufficiency of the plea, as to which there is some contrariety of decision, will be more properly raised by demurrer. Paris v. Salkeld, 2 Wilson, 137, 138.

Motion dismissed.

The plaintiff then demurred to the plea.