Cole v. Smalley ( 1854 )

Potts, J.

The motion to strike out the plea in this case is founded upon the act of 1852, (Pamp. L. 218,) which provides that in case the plaintiff annexes a schedule to his declaration, &c., the plea to the same shall have an affidavit annexed that the amount claimed, or some part thereof particularly specified in such affidavit, is not due and owing. The declaration here has annexed to it the schedule and affidavit required by the act, and the plea is followed simply by an affidavit that it is true in substance and fact, is not. intended for the purpose of delay, and that defendant believes he has a just and legal defence to said action upon the merits.

But this is a plea in abatement to the writ, and not to the declaration. The words of the act are that the defendant, at the time of filing his plea to any declaration to which such schedule and affidavit are annexed, shall file therewith an affidavit such as the act describes. This plea is not within the words of the act, and therefore the special affidavit required in pleas to the declaration is not necessary.

The motion to strike out is denied.