SLEEPER against DOUGHERTY; POTTS against SMITH; POTTS against CRABB, 2 Whart. 177

The opinion of the court, in the three cases, was delivered by Rogers, J. It is enacted by the act of the 28th of March, 1835, that it shall be lawful for the plaintiff, at a time therein designated, on motion, to order a judgment by default; unless the defendant shall have previously filed an affidavit, stating therein, the nature and character of his defence. This act devises a speedy remedy for recovery of debts, in which there is no defence; and it is intended as a substitute for the act of the 20th of March, 1810, entitled

an act regulating arbitrations; of which so much as provides for the compulsory reference of civil suits, or actions, so far as relates to the District Court for the City and County of Philadelphia, is repealed. In the construction of this act, several questions have arisen, which have been the subject of investigation at this ferm; but the single question in each of the above cases, is, whether any person, other than the defendant himself, can lawfully make the affidavit required.

The defendants have complied with the letter of the act; having previously to the time designated, filed an affidavit, in which they havn stated thp nature and character of their defence, in such plain, specific, and positive terms, as would doubtless have been deemed a sufficient compliance with the act, if made by the defendant himself.

As defendants are usually cognizable of the facts on which the defence is founded, the affidavit, as a matter of choice and discretion, is for the most part, made, as well as filed, by the party to the suit; but as this may not always be the case, and circumstances may render a contrary course convenient, or even necessary, the legislature would seem, in the language they have used, to have carefully avoided to make this an absolute prerequisite to the entering of the judgment, to which the plaintiff is otherwise entitled. In Bryan v. M'Culloh, (1 Penn.

Rep. 421,) (in opposition "to a uniform practice which marked the sentiments of the bar, at least as to its convenience,) it was decided, that the oath on which the writ of error is grounded, must be made by the party; but this decision was made in the words of the act, which peremptorily required the affidavit to be made by the party appealing or purchasing the writ of error. If the act had been open to construction as' here, the point most probably, would have been ruled otherwise.

With a full knowledge of the construction put upon that act, and its practical inconvenience, (for their attention was drawn to it, in a subsequent remedial law,) the legislature have studiously avoided a peremptory direction; and in general terms, have enacted that the judgment may be rendered by default, notwithstanding the appearance of an attorney, unless the defendant shall have filed the affi? davit of defence therein prescribed. The terms of the act, are most guarded.

It directs that the defendant shall file, not that he shall make, as well as file, the affidavit; a requisition with-which the defendants have fully complied. * As it was the duty, so doubtless it was the intention of the legislature, to save the trial by jury, in all cases where the defendant had a valid defence, either in whole or in parfi to the plaintiff’s demand; and I know' of no mode, in which such defence could more certainly or satisfactorily appear, than by the oath of a disinterested person; nor can I conceive one, of which the plaintiff can have less reason to complain.

It was said, that it was the intention of the framers of the act, to probe the conscience of the defendant; and if this ;be so, this object may be effected, as well when the affidavit, although made by another, is filed by the procur-ement, and at the suggestion of the defendant, as when it is made and filed hy him.

If we impute the corrupt intention to the defendant, of delaying the plaintiff’s judgment, by means of a false affidavit, lie would have perhaps as little, if not less difficulty in swearing falsely himself, as in suborning another for that purpose; for the guilt in foro conscientiae, would be. the same; and the attempt to procure delay by such means, would-be attended with greater risk of detection. It has been held-in Pieters v. Luytjies, (1 Bos. & Pul. 3,) that an affidavit to hold to. bail, made by a third person, need not state a connection between the deponent and the plaintiff.

In answer to this objection, the Court say that it is sufficient that the deponent swears positively to the debt. In one of the cases, the deponent swears to a defence- to the whole demand, and in the others, to a defence in part; and in each of the cases, if it was required, there would be no difficulty in showing a connection between the deponent, and the respective defendants.

As in most cases, which are the subject of investigation in courts of justice, an affidavit made by a disinterested person, is more free from objection than one made by the party in interest, it would require something more positive than any thing contained in this act, to induce me to believe, that the legislature intended to prevent it, by the substituting in all cases, of inferior evidence of the truth of the facts disclosed.

Whether the oath of a person totally unconnected with the suit, and particularly when the court had reason to believe the deponent’had impertinently interfered with the regular course of justice, would avail, it is unnecessary to decide, as such a case is not likely to arise.

But when the affidavit discloses a defence made in good faith, although not by the party on record, or in interest, it is sufficient: as for example, where the party is sick or absent, and his clerk, or any person who has knowledge of the transaction, swears to facts, which according to the judgment of the court, furnish a good and valid defence. In Sleeper v. Dougherty, two affidavits were filed, one by the defendant, and another by Norton, who was the plaintiff in attachment, and in truth, the party in interest.

Sleeper the defendant, was but a stakeholder; he was only interested to pay the debt which he justly owed, to the person entitled to receive it. The defence went to the whole of the plaintiff’s claim. In this case, we are of the opinion, that the judgment of the District Court be reversed, and that the record be remitted for further proceedings. In Potts v. Smith, and Potts v. Crabb, the Court granted a rule to show cause, why judgment should not be entered, notwithstanding the affidavit of defence; and why judgment subject thereto, should not be entered for the amount, in the affidavits of defence.

The Court made the first rule absolute, and discharged the second. In this we are of opinion that there was error;-but as the plaintiff is willing to take judgment for the amount admitted to be due, we order that the judgment of the District Court be reversed, and that in each of the cases, judgment be entered for the plaintiffs on the second rule, the amount to be ascertained by the prothonotary. Judgment reversed.