3 Binn. 417 | Pa. | 1811
This is a writ of error to the court of Common Pleas of the county of Philadelphia, and it appears that judgment was entered under a rule of that court, because the defendant did not, before the third term from the commencement of the action, make an affidavit, that “ to the ic best of his knowledge and belief, there was a just cause of “ defence in the said action.” It is contended on behalf of the plaintiff in error, that the court of Common Pleas had no power to make this rule, because it is not within the general power which every court of record possesses, to make, rules for the regulation of the practice, and because it is contrary to the constitution of the commonwealth, by which it is provided, that the trial by jury shall be as heretofore.
As to the objection on the ground of the constitution, it does not appear to me to be well founded. The rule makes no alteration in the trial by jury, but only provides that previous to the trial, the defendant shall swear or affirm, that to the best of his knowledge and belief, he has a just cause of defence. There has been a rule of long standing, that a dilatory plea, shall not be put in without oath. This rule is not complained of; and yet, as far as the constitution is concerned, it is as much a violation of the trial by jury, as the other; for the defendant has as much right to insist on the trial of a dilatory plea, without oath, as a plea to the merits. The constitution makes no difference between them, nor docs it make any mention either of one or the other.
The second and more difficult point, is whether this rule falls within the general power of the court to make such regulations as shall facilitate the transaction and despatch of business. Much has been said concerning the policy and effects of the rule. I have no doubt but it was intended to do good, and has done good, by expediting judgments in cases where there was no ground for dispute. Nor have I any doubt, but that in some cases it has produced perjury.
A delay of the plaintiff’s suit is given by the common law to a certain extent. This, with an eye to an accommodation with the adverse party, by giving time to make terms or satisfy. This is called an imparlance, or opportunity of speaking with him. An appearance being made, declaration filed, and an imparlance prayed and allowed, a plea can be demandable at the next term; which plea, unless dilatory, as to the jurisdiction of the court from the place where, or the thing which, or in disability of the person of the plaintiff, or in abatement for misnomer &c., need not be on oath, which is not enjoined or imposed, or caEed for, unless to matters of fact short of the merits; and
As to what has passed therefore under these regulations, there must be silence; more especially as it must be understood, that the power of the court to make such rules is considered as questionable only, not as clearly unfounded. But if common right is against the rule, may it not be advisable for the bar, under a due regard to the weakness or wickedness of human nature, to consider the expediency of withdrawing that agreement which would seem to have given rise to the rule. Notwithstanding a precedent of such continuance, may not a revision of the rule by the courts themselves be considered as still open? Certain it is that the makirfg an affidavit of defence, is embarrassing to a tender, and insnaring to a hardy conscience. For though it is to a belief of a defence that a defendant swears, yet in many cases it may be difficult to know what to believe; and he will always be disposed to deceive himself into a belief for the sake of procuring a delay. This is a leading into temptation.
The appeal to the conscience in this way took its rise in the inadequacy of the judiciary establishment to reach the trial of a cause, by the common rules, in a reasonable time; and was a substitute to a certain extent, for what the legislature ought to have done, by the constitution of the courts, rendering it possible to reach the trial of causes in a reasonable time; and it might be advisable to leave it to this natural and proper remedy. The multiplication of oaths is an argument against laws that require them, and so it ought to be against rules in the administration of the laws. The frequency of oaths detracts from their solemnity. They become a matter of course. Customhouse oaths are proverbial. Undei the Circuit Court law, and the rules introduced to supply the hardship of delaying a judgment, there was a great deal of this affidavit making; and it was a good reason amongst others why that court should be abolished.
Judgment affirmed.