Frazer v. Taylor — 2 How. Pr. 77

Majority

p. 77

John S. Frazer agt. John W. Taylor and Loyal S. Pond.

Headnote

Several matters, sought to be replied to a plea, must be sworn to be true; stating that, to the best of his knowledge, information and belief, they are true, is not sufficient.

February Term, 1846.

Motion by plaintiff for leave to reply, several matters.

This was an ^action of assumpsit commenced by declaration, 22d September, 1845, to recover from the defendants, who were copartners in trade, a large sum of money. The defendants pleaded, 1st, the general issue; 2nd, the statute of limitations; 3d, a discharge under the late bankrupt law of the United States. The plaintiff stated that, to the best of his knowledge, information and belief, the 1st and 3d pleas of defendants were untrue; and, as to the 2d plea, he intended to reply a subsequent promise within six years from the commencement of the suit.

Plaintiff then stated it was necessary, as he was advised by his counsel and believed, that he should be allowed to reply to the 3d plea; 1st, that the plaintiff’s debt or claim was created while the defendants were acting in a fiduciary capacity, and was not provable under the act; 2d, a new promise pending the proceedings in bankruptcy; 3d, that the discharge was void for fraud and wilful concealment of the property of the defendants. And the plaintiff further deposed in his affidavit, that the several matters desired to be replied to the said 3d plea, as above mentioned, were true according to the best of his knowledge, information and belief. The defendants produced a copy of the original objections interposed by the. plaintiff to prevent their discharge under the bankrupt law, and also a copy or the voluntary withdrawal of those objections previous to their discharge, and made affidavit that their 3d plea was true in substance and matter of fact. Defendants’ counsel insisted that the plaintiff had not sufficiently verified the matters sought to be replied; he had not sworn thev were true, nor that he was informed and believed they

p. 78

were true; but had sworn that, to the best of his knowledge, in- ' formation and belief they were true.

M. T. Reynolds, plaintiff’s counsel.

Dill, Davidson & Egan, plaintiff’s attorneys. hT. Hill, Jr., defendants’ counsel.

Brady & Maurice, defendants’ attorneys.

Denied the motion with costs, on the ground that the matters sought to be replied by plaintiff were not sufficiently verified.