SIMMONS v. WEST, 1 Miles 165

The opinion of the Court was delivered by Pettit, President The right of the plaintiff to a judgment attaches when he makes his motion, if there be no affidavit of defence filed stating the nature and character of the same. Where an affidavit has been filed which is palpably defective, the court disregard it, and allow the judgment at once. Where tire court have the slightest doubt as to its insufficiency, they grant a rule, the object of which is to give the defendant an opportunity of being heard in regard to that affidavit.

It would, however, be incompatible with the spirit of this rule to leave open to the defendant the power to cure any defect at his own mere pleasure. Without the permission of the court he cannot, after the plaintiff’s motion, file a supplemental affidavit. Such leave will be given when proper reasons are presented, upon the same principle which enables the court, in a proper case, to let the party into a defence, where the judgment lias been actually entered, A sound construction of the act of assembly will justify this course of practice.

A different construction would either prevent the court from granting rules, or would lead to constant experiments with defective affidavits. In the case of M’Clurg v. Bowers, 9 Serg. & Rawle 24, where a question as to an exoneretur on a bail piece was raised in due time, ami the court below field it under advisement till the quarto die post had gone by, the supreme court rejected the idea that the delay could possibly have affected the rights of either party, and declared that every thing had remained in statu quo. Rule absolute.