Wall v. Dovey

The opinion of the court was delivered, by Sharswood, J. — Under the Act of March 25th 1835, Pamph. L. 88, in,all actions instituted in the court below for the recovery of book debts, to entitle the plaintiff to a judgment for want of an affidavit of defence, it is required that he should file in the office of the prothonotary, within-two weeks after the return of the original process, a copy of the book entries on which action has been brought. It was held in that court, soon after the passage of the act, that the words “hook entries” mean the entries in the original book of the plaintiff, which, under the ordinary rules would be competent to go to a jury as evidence in support of the plaintiff’s claim : Hamill v. O’Donnell, 2 Miles 101. In that case judgment had been entered, hut on a rule to show cause why it should not be set aside, as it appeared on examination that the copy filed was a copy of ledger entries, the rule was made absolute. This is the only safe principle on which the act can be administered. It confers a special power to enter a compulsory judgment against a defendant, and is in derogation of his right to a trial by jury. The legislature did not say, because it did not mean, that on filing any claim for a hook debt the plaintiff should be entitled to judgment, but it must be a copy of “ book entries,” and the implication is a necessary one, that they must be such book entries as, when duly proved, will entitle the plaintiff to recover. The plaintiff is not required to support his claim by oath or affirmation, why then should the defendant be put to his affidavit of defence, unless the copy filed shows a primá facie case? The same rule applies to “bills, bonds, notes or other instruments of writing for the payment of money.” They must fasten on their face, if genuine, a liability on the defendant, before he can be required to deny the genuineness or set up what may be matter of defence. In this case the book entries contain no charge against the defendant. They could not be given in evidence even with ancillary parol proof that they were intended to charge him. The plaintiff or clerk who made the entries could not supply the defect by his oath. These principles are so plain and well settled that they need no citation to sustain them, but I may refer to Hough v. Doyle, 4 Rawle 291, and Rogers v. Old, 5 S. & R. 404. Judgment reversed, and procedendo awarded.