8 Watts 367 | Pa. | 1839
The opinion of the Court was delivered by
The first error assigned, is that the court below erred in entering judgment against the defendants there, the plaintiffs in error here, for want of an affidavit of defence. Because, as the counsel alleges, the rule of the court authorising a judgment to be entered against the defendants for want of such affidavit, being filed within a certain period, does not apply to an action brought to recover a penalty against bail, such as James Nisbet, one of the plaintiffs in error, is in this case, for the non-performance of a collateral act by the principals; of which the bail, of his own knowledge, may know nothing, and therefore must be unable to make an affidavit, either as to the performance or the non-performance of the condition of the recognizance. We have not been furnished with a copy of the rule of the court below, relating to this exception, so as to enable us to judge whether this case falls within the words of it or not; but as the negative has not been shown, we are bound to presume that it does, as the court below have so decided, and must be supposed to be acquainted at least with the meaning of their own rule on the subject. The only question then, to be determined, is, was it competent for the court below to make such a rule in reference to a case like the present? The recognizance here is not conditioned for the performance of a collateral act, the non-performance of which might occasion a loss to the plaintiff, an exact estimate of which it might be difficult, if hot impossible, for the defendant to ascertain, and therefore render it somewhat peri
There is nothing in the second error, which is, that the court erred in rendering judgment for want of an affidavit of defence after the second term. There is certainly no pretence for saying that the plaintiffs in error could have been injured by the plaintiff’s below, not having taken judgment against them at as early a day as he might have done according to the rule of court. Instead of producing an injury to them, it can only be regarded as an indulgence or favour, of which they have'no ground to complain. It was allowing them time beyond the rule to file an affidavit of defence, if they had any; and had they filed an affidavit of defence, at any time before the judgment was moved for, it would have been sufficient to have prevented a judgment from being entered against them for want of it, or because it had not been filed within the time .allowed for that purpose by the rule.
Neither can we perceive any error in the third matter assigned for error; which is, that the court rendered a judgment against all the defendants below, when only one of them had appeared to the action. The original process, however, was a summons, and served upon all the defendants, and because two of them did not choose to appear and make an affidavit of defence, it could not make it less proper to enter a judgment against them and the third defendant, than if they had appeared, but made no affidavit of defence. There is no reason for holding that a defendant should have it in his power to evade the operation of the rule by his not appearing in the action after being duly served with a summons adrespondendum.
The plaintiffs in error allege in the assignment of the fourth error, that the recognizance is laid in the declaration to have been entered into before the court of common pleas, and appearing therefrom to have relation to a matter which belonged, as it is said, exclusively
The last error consists of a mere formal objection to the declaration; and ought not, therefore, to prevail after a judgment rendered against the plaintiffs in error, who were the defendants below, for ■want of an affidavit of a defence on their part. If the defect complained of were one of substance, it might be fatal.
Judgment affirmed.