40 Pa. 302 | Pa. | 1861
The opinion of the court was delivered,
If, as it is urged, this writ presented only an appeal to the discretion of the court, it would be fatal to the case of the plaintiff in error that he suffered more than eleven months to elapse after the entry of the judgment in the court below, before he complained that it had been erroneously entered. Rut the case is something more than an appeal to our discretion. A judgment was signed in the court below, for want of an affidavit of defence, avowedly according to rule, and the question now is, whether such a judgment was authorized by any rule of the court. If the plaintiff’s claim was not within the rule, then the defendant was in no default for not having filed an affidavit, and the prothonotary had no authority to sign judgment. So if no' cause of action was set out in the declaration, and a declaration was requisite, there is nothing to sustain a judgment. It becomes necessary, therefore, to examine the rule, in order to know Avhat judgments are authorized by it. It declares that in all actions brought “on bills, notes, or other instruments of writing for the payment of money, and on claims for the loan or advance of money, whether the sums be reduced to Avriting or. not, and for the recovery of book-debts, &c., it shall be lawful for the plaintiff, at any time after the expiration of thirty days from the return day of the writ, to enter judgment by default of course, notwithstanding an appearance by attorney, unless, the defendant shall have previously filed an affidavit of defence, setting forth the nature and character of the same,” &c. It then proceeds to declare that no judgment shall be entered unless the plaintiff shall have filed with a declaration (when one is necessary) a. copy of the instrument, &c., upon which the action has been brought, and an affidavit of the terms of loans. or advances not evidenced by writing, with the date and amount, and also an affidavit of his belief of the correctness of the book-debts claimed, and the balance justly due. The claims Avithin
It may be added, that the declaration is defective, so much so, that no cause of action appears in the count upon which principal reliance is placed. It does not aver that the tidewater money had any value, nor that any demand was made upon the defendant for its return after his suretyship had ceased, nor even that any notice was given to him that the notes in which he had become bail were satisfied. A bailee, who has received property to hold as security for the payment of a debt, is under no obligation to return it until demand made, or at least until he
Judgment reversed, and a procedendo awarded.