Fidelity Mutual Fire Insurance Company v. Simmons
| Decision Date | 23 December 1898 |
| Citation | 17 Del. 474,42 A. 367 |
| Parties | FIDELITY MUTUAL FIRE INSURANCE COMPANY, a corporation of the State of Pennsylvania, v. SAMUEL G. SIMMONS, CHARLES SIMMONS and JESSE G. SIMMONS, trading as S. G. SIMMONS & BROS |
| Court | Delaware Superior Court |
Superior Court, New Castle County, November Term, 1898.
ACTION OF ASSUMPSIT (No. 168 to May Term, 1898).
Mr Byrne asked leave to file the following affidavit, on which to base a motion for a rule for security for costs under Section 8, Revised Code, 791-2. Omitting the formal parts the affidavit alleged, "That the said defendants have a legal and just defence to the whole of the plaintiff's demand therein, the nature and character of which defence is this,--That the said defendants did not undertake or promise in manner and form as the said plaintiff hath thereof complained against them in the declaration filed in the above stated case; nor did any of the said defendants so undertake or promise: That the said defendants, either jointly or severally, or in any way, do not owe the said plaintiff the said several sums mentioned in the said declaration and set forth in the bill of particulars attached thereto, nor any portion of the same, nor any sum of money or damages of whatsoever kind.
"That the plaintiff in the above stated case is a non-resident of the State of Delaware."
Mr Cooper objected to the sufficiency of the affidavit under the statute, contending that it was simply the plea of non-assumpsit drawn out and did not set out the nature and character of the defence but was simply a bald denial of the promise. Flagg vs. Taylor, 8 Houst., 167.
Mr Byrne:--The motion is made under Section 8, Revised Code of Delaware, pages 791 and 792, providing that where the plaintiff is a non-resident the defendant upon motion and affidavit filed that he has a legal and just defence to the whole of the plaintiff's demand therein, and stating the nature and character of such defence, the sufficiency whereof shall be determined by the court, may have a rule for security for costs by a certain day, or that non suit be entered.
Rev. Code, Sec. 8, page 791; Ridings vs. McMenamin, 1 Pennewill, 15; Phlegar vs. Ivins, 5 Harr., 118; Stoeckle vs. Gray, 1 Pennewill, 117.
The earlier case of Flagg vs. Taylor, 8 Houst., at 167, (1888) is not in conflict with these cases because there an affidavit of defence undertook to state matters making a defence in the nature of recoupment, but did not state it with the precision required by our rules of court or by the rules of pleading, wherefore the court properly ruled against the affidavit.
Tredway vs. Kennedy, 153 Pa. St., 438; Billington vs. Gautier Steel Co. (Supreme...
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