| Pa. | May 20, 1852
The opinion of the Court was delivered, by
This action was instituted to recover a bill for medical attendance, of which the evidence was the plaintiff’s booh of original entries. The judgment was entered by the Court under the Act of 3d August, 1851, requiring an affidavit of defence. No affidavit had been made within the time prescribed by the rule of Court, nor none was tendered afterwards. The defendant’s counsel objected to the judgment below, and seehs to reverse it here, because (as he says) the writ was not legally served, and because the suit is not brought on a booh account.
Both these assignments of error are themselves erroneous. The service was a good one; for the sheriff read the writ to the defendant and gave him a copy besides. It is not pretended that the action was, in point of fact, brought on anything except a booh account; but it is asserted that the cause of action does not appear in the writ, and that the declaration does not aver that the promise there set forth was to be established by a booh. Neither was necessary. The Act requires that a copy of the booh entries shall be filed by the plaintiff; and this is full notice to the defendant of the nature of the demand. It is objected, also, that the copy of the booh
This proceeding was all regular. If the defendant was taken by surprise, as he alleges, his remedy was, not to come here with a technical argument, but to go before the Common Pleas with an application to open the judgment. If a proper and full affidavit had been made any time before judgment, he would have had his trial; for a judgment cannot be taken for want of an affidavit when there is one. If he had even suffered the judgment to be entered for any excusable reason, and before a trial was lost, had explained on his oath the cause of his apparent laches, and sworn to a good defence, the judgment would have been opened on equitable terms, like any other judgment by default.
The law of 1851 is a good one; and while it ought to be liberally construed, so as not be a snare for the feet of an honest but unwary defendant, it should be firmly executed, to prevent the infinite mischiefs which result from allowing men to set up false defences, ad libitum. It is all in vain to say that it abridges the right of trial by jury; and equally useless to complain of being compelled to abandon a defence so unfounded that it cannot be sworn to. No man should be permitted to set up a defence which he knows to be dishonest, or which he does not know to be just or legal; and I know of no better test than his oath, by which his belief can be ascertained.
A part of the plaintiff’s claim was more than six years old. To that part, it was only necessary for the defendant to have said, in his affidavit, that his defence was on the statute. But not having done so, we must presume that he was conscious of having made some acknowledgment which would revive it.
Judgment affirmed.