Sed per Curiam, unanimously, the plaintiff’s attorney has mistaken the authority of the case of Dillon and MLCue entirely.
In that case it was determined, that if the defendant wanted the benefit of the plaintiff’s oath, (if he had no other testimony to support his defence,) he might call upon the plaintiff to answer on oath, in nature of a cross-bill in equity, to any necessary point, upon a regular notice in writing for that purpose, and stating the points he meant to examine him upon; but it was never contemplated by that decision, that a plaintiff had a right to call-upon a defendant in the first instance, to acknowledge or deny a debt or demand against him ; it would be contrary to every rule of the common law; and it is a well known maxim, that equitable principles are not to be resorted to, where a party has his plain remedy at common law.
Let the rule for setting aside the nonsuit be discharged, and the decision of the presiding judge stand confirmed. All the Judges present.