Majority
p. 11Charles W. Potts, trading as W. F. Potts, Son & Co., vs. David H. Wells. (June 4, 1900.) Judges Grubb, Pennewill and Boyce sitting. Superior Court, New Castle County, May Term, 1900. Action of Assumpsit on a book account (No. 183, May Term, 1900).
Headnote
Assumpsit—Affidavit of defense—Practice—Statute.Judgment ordered notwithstanding an affidavit of defense, where such affidavit stated that the defendant had a just and legal defense to the plaintiffs cause of action, without stating that the defense was either to the whole or a part of the cause of action.
William S. Prickett for plaintiff.
Samuel S. Adams, Jr., for defendant.
An affidavit of defense was filed stating that the defendant had a just and legal defense to the plaintiff’s cause of action, etc. Prickett for the plaintiff moved for judgment notwithstanding the
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affidavit of defense, on the ground that the statute provides that the affidavit must state whether the defense. is to the whole or a part of the cause of action, that the affidavit filed did not contain such a statement and was therefore insufficient.
The statute says expressly that the defendant in his affidavit must state that there is a legal defense to the whole or a part of the cause of action setting forth the nature- of that ■defense. This affidavit does not admit any part to be due, but simply says there is a defense to the cause of action. We must" therefore order judgment notwithstanding the affidavit of defense.