Barr & Son v. Duncan

Mr. Justice Williams delivered the opinion of the court, November 19th 1874. This case does not come within the rule of the District Court (Reg. 65, sect. 2) authorizing the entry of a judgment by default, at any time after the return-day and ten days service of the writ, unless the defendant should have previously filed an affidavit of defence stating therein, specifically and at length, the nature and character of the same. By its very terms the rule applies only to actions on bills, notes, bonds or other instruments of writing for the payment of money, book accounts and contracts for the loan or advance of money; to actions of scire facias on mortgages and liens of mechanics and- material-men, under the Act of March 17th 1836, and its supplements, and to actions of debt or scire facias on recognisances, judgments or other records. The action in this case was brought to recover the value of a gold watch, chain and locket alleged to have been stolen from the room occupied by the plaintiff as a guest in the Central Hotel, in the city of Pittsburg, of which the defendants below were the proprietors. The affidavit of claim sets out the circumstances under which the articles were stolen, and avers that they were worth one hundred and forty-one dollars. It is clear that the cause of action is not embraced in any of the specifications in the rule. The action was not instituted on any instrument of writing for the payment of money, or on a book account or contract for the loan or advance of money; nor was it an action of scire facias of any description, or of debt on a recognisance, judgment or other record. It is im material whether the action is assumpsit or case. The plaintiff’s right to a judgment by default, for want of a sufficient affidavit of defence, does not depend on the form of the action, but upon the cause for which the suit was brought. Undoubtedly the defendants are liable for the value of the articles if they were lost or stolen by their negligence, because it was their duty to keep them safely. But the plaintiff is not entitled to a judgment under the rule, even if the law implies a promise or undertaking on their part to pay the plaintiff their value. In Woodwell v. The Bluff Mining Company, 1 Casey 365, this court decided that under the rule in question no judgment can be entered for want of an affidavit of defence in an action upon on imp>lied contract to pay money. The defendant in that case was the owner of stock in the company upon which the directors, in pursuance' of the by-laws, had made various assessments, and the action was brought to recover the amount. The District Court entered judgment for the plaintiff for want of a sufficient affidavit of defence. This court reversed the [398] judgment, saying at the outset of the opinion: “ It is unnecessary to consider me sufficiency of the affidavit, for this was not a case in which an affidavit of defence was legally required.” Nor is the case within the first section of the rule which provides that in all actions of debt or assumpsit, and covenant for a sum certain, when the plaintiff shall file with his praecipe an affidavit stating the amount verily believed to be due from the defendant, he shall be entitled to judgment, or for want of appearance, unless defendant shall file an affidavit of defence with his appearance. This rule, as is obvious, does not require the defendant to file a specific, but only a general affidavit of defence, in default of which the plaintiff is entitled to judgment, or for want of appearance. Under this rule no judgment can be rendered by default for want of a specific affidavit of defence, and the question of the sufficiency of the affidavit cannot be raised if it avers that the defendant has a good and valid defence to the plaintiff’s claim. Nor has the second section of the fifth rule any application to this case. It was not intended to authorize the entry of a judgment in default either of a general or specific affidavit of defence. Its sole purpose was to dispense with the necessity of proving the items specified in the plaintiff’s claim, when not directly traversed by the affidavit of defence. It admits the sufficiency of a general affidavit in such case, but declares that it shall be deemed and taken as a confession of the plaintiff’s cause of action, or so much thereof as is not traversed, and a claim that the defendant has a just defence by way of avoidance thereof. If, then, the judgment entered in this case was not authorized by any rule of the District Court, it is unnecessary to consider whether the facts set out in the affidavit of defence would, if true, be a defence to the plaintiff’s action. Judgment reversed, and a procedendo awarded.