delivered the opinion of the Court:
We are of the opinion that it was error to enter the judgment on said motion. The case is determinable primarily by the pleadings, not by the affidavits. The plaintiff’s declaration is on a note, and the affidavit, so far as it supports the declaration, is ample, but the special plea, also supported by affidavit, tends to show a ground of defense to the cause of action as stated. The plaintiff’s affidavit undertakes to allege a decree in equity relating to the indebtedness claimed as conclusive of the matter set up in defense. Whether that decree is sufficiently stated so as to show a former adjudication of the matters alleged in the defensive plea will not be considered. However this may be, the fact is not in support of any allegation in the declaration. It goes merely to anticipate and defeat the defense thereafter pleaded. The 73d rule contemplates no such extended application. It is a simple, direct means of obtaining speedy judgment in actions arising ex contractu, where the affidavit of the plaintiff completely supports the case made in the declaration, and complies strictly with all other conditions of the rule. However, if the defendant’s affidavit is within the scope .of the defensive pleas, and by any fair construction constitutes a defense to the action as stated in the declaration, judgment must *291be denied and the ease tried in the ordinary course. The plaint’J cannot convert his affidavit into a pleading, and, by anticipating a defense, require the defendant to negative or defend against such new matter of claim. To permit this would be a conversion of the affidavits into pleadings, which is clearly not within the contemplation of the rule. Strauss v. Hensey, 7 App. D. C. 289, 294, 36 L. R. A. 92.
In that case the scope and purpose of the 73d rule was thus stated by Chief Justice Alvey: “The court cannot question or traverse the truth of the facts stated in the defendant’s affidavit. Those facts the court is bound, for the purposes of securing to tHe defendant the right of trial, to assume as true, and that, too, without reference to what the plaintiff may have stated in his affidavit. If the facts stated by the defendant, by any reasonable or fair construction, will constitute a defense to the action or claim of the plaintiff, within the scope of the pleas pleaded, it is the absolute constitutional right of the defendant to have that defense regularly tried and determined in due course of judicial investigation. No rule, however beneficial it may be, * * * as means of preventing the use of sham or feigned defenses, or desirable for the expedition of business, can deprive the defendant of this right.”
The language quoted applies to and governs the conditions presented in the case at bar. Judgment must, therefore, be reversed with costs, and the case remanded for trial in due course of procedure. Reversed.