Amsbro v. Byrne's Admr.

Opinion by Judge Peters: This court decided in the case of Miller & Co. v. Watkins, 4 Bush 642, that where the personal representative has commenced the litigation, a claim against the intestate could be pleaded by way of set-off or counter-claim as a defense to the action without the affidavits and demand prescribed in Sec. 473 of the Civil Code, and according to the doctrine of that case it was erroneous to dismiss the appellant’s set-off. But even if the affidavits and demand were necessary to enable appellee to avail himself of the want of them, he should have filed an affidavit and had a rule against .the appellant to show cause why his set-off should .be dismissed after having withdrawn his reply. Thomas v. Thomas’ Executor, 15 B. Mon. 178. The judgment must therefore be reversed, and the cause re192 ma-nded with directions to overrule the motion to dismiss appellant’s set-off, and for further proceedings consistent with this opinion. Belden & Cleaver, for appellant. Russell & Averitt, for appellee.