
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1813.
    E. Morrow v. E. Morrow, et al.
    
    Generally, a plea puis darien continuance, without an affidavit of the fact it sets forth, and that such a fact occurred isinee the last continuance, is inadmissible. But the affidavit is to inform the court, and not to give validity to the plea; when, therefore, sucbsá^lea has been filed with leave of the court, it will be presumed that satisfactory proof had been given to the court, or that it was consented'to by tl^ opposite party.
    A plea puis darien continuancevAs not necessarily what is called a dilatory plea; but caiywtbe filed without leave : whereas, no such leave is necessary in a dilatory ple|, which is not a pleaymis darien continuance.
    
    Application for a writ of partition.
    After this case had been some time at issue, the defendant’s counsel moved for leave to withdraw all his pleas, and plead a release, puis darien continuance, which was granted, and the plea filed. The next court, the plaintiff’s counsel moved to strike out that plea as frivolous, because it was not supported by affidavit. The presiding judge granted the motion, and the plaintiff executed a writ of enquiry, for want of a plea.
    A motion is now made to set aside that verdict, and let the defendant plead his release, as before.
    Felder, for the motion. Stark, contra.
    
   Nott, J«.

It is certainly a good, general rule, not to admit a plea ’ ■puis dañen continuance, without an affidavit of the truth of the fact it contains, and that it took place since the last continuance. But the intention of the affidavit is to give' information to the court, and not to give validity to the plea. Whenever, therefore, such a plea has been filed, with leave of the court, I would presume that satisfactory proof had been given to the court, or that it was consented to by the opposite party. I would not permit it to be treated as a nullity, at a subsequent term. A plea, puis dañen continuance, is not necessarily what is technically called a dilatory plea. It is in the nature of a dilatory plea, but there is this difference between them: a pleapwís dañen continuance, cannot be filed without leave of the court; but no such leave is necessary in case of a dilatory plea, which is not a plea puis dañen continuance. An affidavit, therefore, is necessary, or it is a mere nullity. I am of opinion that the motion, in this case, ought to be granted.

Brevard, CoiiCOOK, Smith, and Bax, Js., concurred.  