Thompson v. Clark

The opinion of the court was delivered, October 28th, 1867, by A&new, J. It is not necessary that an affidavit of defence should he drawn1 with so much nicety that no critical skill can suggest an objection; but if it sets forth substantially a good defence it should be supported. It is impossible not to see that Thompson does aver in this affidavit, that the draft never was, and was not then, the property of Claris;, the payee, but of a certain Gray to whom it was given for work done, which he has fully paid for, leaving nothing then unpaid to him. The fact, therefore, that the draft was drawn payable to Clark would amount to nothing, if it was for the benefit of Gray and Clark had no interest in it. As the legal holder he might sue and collect it for the use of Gray, but if the draft always was and still is the property of Gray, and it is proved (as the affidavit avers), that the defendant has overpaid him for his work by advances of money from time to time, and nothing is now due to him from the defendant, this is a good defence to the recovery of Clark, sufficient to put him upon proof of an interest of his own in the paper. It is true Thompson swears according to his belief, but he also adds — “ all of which he believes he can prove” — and this brings the case within the test of sufficiency stated in Black v. Halstead, 3 Wright 64. Judgment reversed, and a, procedendo awarded.