
    Columbia, April Term, 1813.
    E. Morrow vs. E. Morrow, et al.
    Felder, for ¿he Motion.
    Stark, Contra.
    
    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 dariein 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.
   N°tt> J-

It is certainly a good, general rule* not to admit a plea puis dariein 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 dariein continuance, is not necessarily what is technically called a dilatory plea. It is in the natui'e of a dilatory plea, but there is this difference between them : a plea puis dariein 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 dariein 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.

Justices Brevard, Colcock, Smith and Bav concurred.  