Stanley G. Flag & Co. v. Taylor

Headnote

Affidavit of Defence—Pleading.

An affidavit of defence must disclose the nature and character of the defence sufficiently to show to the court, that, admitting the facts alleged in it to be true, it constitutes a legal defence to the action.

An affidavit of defence giving as the nature of the defence “ that the plaintiffs failed to perform their contract with the said defendant in the matter of the goods for the payment of which the said suit is brought” is not sufficient and judgment will be rendered for plaintiff notwithstanding the same.

Summons case. Motion in the Superior Court of Kent County, for judgment for plaintiffs on affidavit filed, notwithstanding a counter affidavit. Judgment granted.

Chapter 106, Rev. Code, § 4, provides:

“ In all actions in the Superior Court, upon bills, notes, bonds, or other instruments of writing for the payment of money, or for the recovery of book accounts, on foreign judgments, and in all actions of scire facias on recognizances in the Orphans’ Court and Court of Chancery, judgments or mortgages, judgment by default shall be entered upon motion by the plaintiff or his attorney on the last day of the regular term to which the original process is return

able, notwithstanding appearance by the defendant, unless the defendant, or if there be more than one, one or more of them, shall have previously filed in the cause an affidavit stating that he or they verily believes or believe there is a legal defence to the whole or part of such cause of action, and setting forth the nature and character of the same; if the defense be to a part only of the cause of action, the defendant, or if there be more than one, any one or more of them shall, in such affidavit, specify the sum which he or they admits or admit to be due, and judgment shall be entered for the plaintiff at his election for the sum acknowledged to be due:. Provided, That no judgment shall be entered by virtue of this section, unless the plaintiff, or if there be more than one, some one or more of the plaintiffs shall, on or before the first day of the term to which the original process is returnable, file in the office of the prothonotary a copy of the instrument of writing, book entries, or claims or in case of a scire facias, a certified abstract or transcript of the judgment, or mortgage, or recognizance, and in case of a suit on a foreign judgment a copy of said judgment, certified to under the Act of Congress passed May 26, 1790, with an affidavit stating the sum demanded, and that he or they#verily believe that the same is justly and truly due. *****

The plaintiff filed" a copy of promissory note (the cause of action), and affidavit, fulfilling the requirements of the statute. The defendant filed the following counter affidavit:

State of Delaware, Kent County, ss.

Be it remembered, That, on this 28th day of April, A. D., 1888, before me, Henry G. Budd, a justice of the peace, personally came Samuel Taylor, one of the defendants in the above stated suit, who having been duly sworn according to law doth depose and say, that he is one of the defendants in the above stated suit, that he verily believes that there is a legal defense to the whole of the cause of action in the above stated suit, the nature and character whereof is as follows: that the plaintiffs failed to perform their contract

with the said defendant in the matter of the goods for the payment of which the said suit is brought.

Samuel Taylor.

Sworn and 'subscribed before me this 28th day of April, A. D., 1888.

Henry G. Budd,

Justice of the Peace.