William Ridings vs. Andrew F. McMenamin

William Ridings vs. Andrew F. McMenamin. Motion for Judgment notwithstanding Affidavit of Defence—Refused. 1. In an action of assumpsit on a book account, an affidavit of defence alleging payment simply is sufficient. 2. No exception will lie to the decision of the Superior Court refusing motion for judgment notwithstanding such affidavit of defence. (October 2, 1897.) Lore, C. J., and .Grubb and Pbnnbwill, J. J., sitting. Herbert H. Ward for plaintiff. Henry C. Co7irad and Medford H. Cahoo7i for defendant. Superior Court, New Castle County, September Term, 1897. Action of assumpsit, on á book account; the claim being for several months’ board. An affidavit of defence was filed, setting forth the following: “ The defendant verily believes that he has a defence to the whole of the cause of action, the nature and character of which defence is payment. ’ ’ Mr. Ward moved for judgment, notwithstanding the affidavit of defence ; contending that the statute requiring the setting out of the nature and character of the defence means the setting forth of certain facts. That payment was a conclusion of law and not an averment of facts ; while payment was a good defence, it must be set out. There was no averment of payment to anybody or of anything. The affidavit did not show to whom payment was made, or how, when or by whom it was made. [MAJORITY — Tore, C. J:—] Tore, C. J:— It is settled in this court that an affidavit of defence alleging payment simply is sufficient. The rule is that snap judgments are never granted if there is a doubt. The court has recognized the word “ payment ” as being sufficient in affidavits of defence. It has a specific and clear meaning, which is that the claim has been paid. Mr. Ward asked leave to note an exception to the above ruling. The court held that no exception would lie, as it was not a final judgment and no writ of error could be taken.