¶1delivered the opinion of the Court.
¶2The facts set forth in these affidavits' of the defendant, exhibit a prima facie defence by way of defalcation from the plaintiff’s claim. If they are true, the piano belonged to the defendant and continued his property up to the time when the plaintiff sent it to auction along with the plaintiff’s furniture, bought by Bell and in Bell’s possession. For although the defendant’s leaving it in the possession of another might justify a judgment creditor of Bell in alleging, that the defendant thereby permitted Bell to obtain a fictitious credit, yet as between these parties the ownership of the defendant continued unimpaired, and the plaintiff had no right to sell it; but his doing so after notice, might be treated by the defendant as a sale of it for his. *277account, which would make the plaintiff liable to him in an action for money had and received. It was therefore a proper subject of defalcation under our act of 1705.
¶3But it is said, that the affidavit does not swear that the piano was sold before suit brought. This is true. But, to construe these affidavits with such critical nicety, and to require them to negative ■ expressly every possible point that might be objected to, would go near to destroy them altogether, and deprive a defendant of the opportunity of a trial where he had a good defence. It is sufficient, if they state a defence with ordinary certainty—certainty to a common intent. If they substantially assert a defence, that is all that has been required. And here the defendant swears he has _ a set-off; which could not be legally, if the cause of action arose after suit brought.
¶4Judgment reversed ; and record remitted for further proceedings.