Eyre v. Yohe

The opinion of the court was delivered, by Thompson, C. J. We cannot agree in opinion with the learned judge below, that the affidavit of defence in this case was insuffi [479] cient to prevent judgment against the defendant for the amount of the plaintiff’s claim. It positively avers that the note in suit is still the property of the payee, James Gordon, and that the names of the plaintiffs are only used to avoid a. defence to it to the extent of the usance, or premium paid, for forbearance beyond the legal rate of six per cent, per'annum, which, according to the affidavit of defence, amounted to $815 for four renewals of a note originally for $1888.75. Whether partly paid, or partly paid and partly included in the new note, it was a defence to the note, pro tanto, in the hands of the original payee. That it was so in fact when suit was brought the affidavit explicitly avers, and this is to be taken as true by the court, for all the purposes of the . Affidavit of Defence Law: Act of 28th May 1858, Purd. 561. It was not necessary, in a positive affidavit like this, to allege that the defendant expects to be able to prove the defence alleged in the affidavit, and especially now, when the affiant himself will be a competent witness on the trial. For these reasons the judgment must be reversed. Judgment is reversed, and a procedendo is awarded.