Flint v. Morehouse — 2 How. Pr. 4

Majority

p. 4

John M. Flint administrator, &c. agt. Richard H. Morehouse.

Headnote

It is not necessary to .state the residence of counsel in an affidavit for a motion for leave to reply double; it is only necessary to show by affidavit, that the matters sought to be replied we trae. The 63d rule only applies where the advice of counsel is necessary'. .

December Term, 1845.

Motion for leave to reply double to defendant’s special pleas.

The declaration contained the common counts for work and labor, board, lodging, tuition, &c. Pleas, several issues, statute of limitations (non-assumpsit, infra sex annos) and infancy. Plaintiff moved for leave to reply to the plea of the statute of' limitations, defendant’s absence from the state; that plaintiff took out the first letters of administration on the estate of the intestate within one year before suit brought, and a new promise. And to the plea of infancy, necessaries and a new prom-0 ise. Defendant’s counsel objected that the affidavit on which the motion was made, was insufficient under the 63d rule, not showing the residence of counsel who gave the advice, &c. Plaintiff’s counsel replied, that the rule only applied where advice of counsel was necessary ; that in this case it was only necessary to show by affidavit, that the matters sought to be replied were true, the court would judge of the necessity, &c. Defendant’s counsel on the merits, read affidavits that the matters sought to be replied were not true.

p. 5

B. Goodman, plaintiff's counsel.

Woodbuff & Goodman, plaintiff’s attorneys.

J. A. Spences, defendants counsel.

J. S. Bathbone, defendants attorney.

Overruled the defendant’s objection to the insufficiency of plaintiff’s affidavit. And as to the replication of a new promise *after defendant became of

full age; the judge said it could not be necessary or proper, as the intestate was shown to have died long before the defendant was of the age of twenty-one years; he however granted the motion, so far as to allow the plaintiff to reply double, only to the plea of the statute of limitations.