Lash v. Von Neida

Mr. Justice Paxson delivered the opinions of the Oourt LASH v. VON N ET D A, No. 245. Judgment was entered against the defendant below for want of a sufficient affidavit of defence. The bond upon which suit was brought was dated in 1854. The copy filed liad various payments indorsed thereon commencing in 1855 and ending in Í882. The credits are no part of the bond and aro not evidence of such payments until proved. Before they can have any force to rebut the presumption of payment which arises after the lapse of twenty years, it must be proved that they were made when it was against the interest of the obligee to make thorn: i, e. before the presumption of payment had ripened: Addams v. Seitsinger, 1 W. & S., 243; Cremer’s Estate, 5 Id. 331; Shaffer v. Shaffer, 5 Wright, 51. As the plaintiff below was not entitled to judgment until the presumption was rebutted, it was of little consequence what the affadavit of defence contained. A mere suggestion setting up the presumption was sufficient. J udgment reversed and a procedendo awarded. IN EE PETITION OF SARAH VANDERSLICE, NO. 246. This judgment was entered upon a warrant of attorney dated in 1854. The bond was between the same parties as in Lash v. Von Neida, just decided. There were indorsements upon the bond of payments of interest as in that case. No judgment by warrant of attorney or otherwise can be entered upon a bond after the presumption of payment has attached, until that presumption lias been in some way rebutted. The reason is that in such case the bond does not even furnish prima fade evidence of indebtedness. It is not needed to cite authority for so plain a proposition. After twenty years a presumption of payment arises as to every instrument, whether under seal or otherwise. It is a presumption of fact, however, and may be rebutted. Has this presumption been so rebutted as to justify the entering of the judgment? The bond was given to Thomas Vanderslice, executor of Wm. Vanderslice, deceased, and the judgment was entered in the name of the administrator of the latter. A petition was presented to the court below by Sarah Vanderslice, who avers that she is co-executor with Thomas Vanderslice of Wm. Vanderslice ; that Thomas Vanderslice is now deceased; that one Isaac R. Lasli, who is still living, executed a judgment bond .... in the sum of $2000, conditioned for the payment of $1000 with interest; that interest was paid thereon at vari [212] ous times, and payments were made as in said bond and war-rent is set forth; that the money is unpaid upon said bond and warrant, &c. It was upon this affidavit that the rule to show cause why judgment should not' be entered upon the warrant of attorney was based, and which rule the court below made absolute. The affidavit is vague. It was made by a person not a party to the bond, and who for aught that appears never had the possession of it. She does not say that the credits upon the bond were placed there by the obligee before the presumption of payments had ripened, nor does she say that any of the said payments were made by the obligor. Much is left to inference where we should have had specific averments. If however we concede the sufficiency of the affidavit we are of opinion that the judgment was improperly entered for other reasons. The defendant below put in an answer to the rule in which he averred “ that the bond, to which said warrant of attorney is attached, has been paid.” This certainly is not specific, and it is not too much to say that, as an affidavit of defence in anordinary case it would have been insufficient. But the bond was about thirty years old, and in view of the vague character of the petition, the defendants’ counsel may well have been misled into believing that the same strictness of averment, was not necessary when the prima fades of plaintiff’s case was destroyed by the presumption of payment. Upon the argument of the rule in the court below he asked leave of court to file a supplemental affidavit of defence. To this application the court responded that a supplemental affidavit would be considered if received before the entry of judgment, and then adjourned the court until the following Saturday. This was on Monday. A supplemental affidavit was prepared and sworn to and taken into court on Saturday for the purpose of filing, when the counsel ascertained that the judge had filed his opinion making the rule absolute on the preceding Wednesday. The supplemental affidavit is full and complete, and if filed in time was sufficient to bar judgment. We are aware that it is within the discretion of the judge below to allow a supplemental affidavit of defence to be filed, and had leave to file it in this case been refused at the time it was asked for, we would have had another question before us. We will dispose of the one we have. The discretion referred to is one that should be exercised discreetly and in the interest's of a just administration of the law. To refuse it in many instances might result in oppression anda denial of just rights. The learned judge having granted leave to file a supplemental affidavit ought to have allowed a reasonable time to [213] prepare it. It was promptly done and taken into court on the following Saturday. The rule had been made absolute three days before. Promptness is always commendable in judicial proceedings, but the interests of justice must not be sacrificed to speed. Here was a case of a bond and warrant about thirty years old; if the answer was not specific the petition was also vague, and if more time — -a reasonable time — was required to prepare a fuller answer it should have been allowed in view of an allegation that the proper facts existed upon which to base it. Where a party is called upon to meet a claim as stale as this, and asks for time, at most a few days, he ought to have it. The language of this court in Lord v. Ocean Bank, 8 H., 384, is not inapplicable here: “ Let the defendant satisfy the court that he has made diligent effort to inform himself, or that he has failed by no fault or laches of his own, and we can venture to assure him that he will have as much time to file an affidavit of defence as is reasonably necessary.” The court below having, in a case where a supplemental affidavit of defence was eminently proper, assented to the consideration thereof in case it was presented before final action upon the rule, we are of opinion it was error to make this rule absolute without giving a reasonable time to prepare and file it. And as the supplemental affidavit itself is a full answer to the rule, we have no hesitation in reversing the judgment. Judgment reversed. LASH v. VON NEIDA, No. 247. In this ease the presumption of payment did not arise, as the suit was brought upon a bill single dated in 1868. It is ruled, however, by the case, “In Re petition of Sarah Vandersliee ” just decided, where it was held that a reasonable time should have been allowed to have filed a supplemental affidavit of defence. That case is upon all fours with this upon that point and we need not repeat what was there said. As the supplemental affidavit which was prepared and ought to have been received, sets out a defence, this ease must be reversed and sent to a jury. Judgment reversed, and a procedendo awarded.