| Pa. | Oct 28, 1867
The opinion of the court was delivered, October 28th 1867, by
The ,scire facias in this case was founded upon a municipal claim for the cost of paving and 20 per cent, advance filed against the property of the defendant under the 6th article of the 2d section of the General Borough Law of 3d April 1851. The provision is penal in its nature in the exaction of the 20 per cent, as an advance upon the cost for the.omission of the property-owner to pave himself in front of his property. The claim is clearly not that of a mechanic for work done or materials fux-nished to the building under the Mechanics’ Lien Law of 1836, or any of its supplements extending the act to matters done outside of the building, such as curbing. It does not therefore fall within the rule of the Court of Common Pleas of Crawford county, which requires the filing of an affidavit of defence in all cases of sci. fa. upon mechanics’ claims. It is true the law dix-ects the recovery of this municipal claim under the provisions of the act relative to mechanics’ claims; but there is nothing in that law which provides for a compulsoi’y affidavit of defence. If the defendant was bound to file such an affidavit to save himself from judgment, it was because the court had required it to be done under its general power to establish rules of practice. But the only rule of the Common Pleas of Crawford county is confined to the claims of mechanics and material-men, and does not extend to municipal claims.
Now, though the affidavit rule has been found convenient in px-actice, and is therefore to be commended, yet it is in derogation of the right of trial by jury, and cannot therefore be extended by construction beyond its terms. The practice in Philadelphia, or in other places where the District Court law is extended, furnishes no guide. It is founded upon an Act of Assembly, which, by the Act of 12th March 1812, is extended to “ other claims under any other act extending the provisions of the said last-
Judgment reversed, and a procedendo awarded.