Read v. Bush

Tilghman C. J. This case comes before us, on a motion on the part of the defendant, to open a judgment entered against him for want of an affidavit of defence. The defendant was an infant at the time of entering the judgment. Affidavits of defence had been filed in four other actions brought against him to the term next preceeding the commencement of this suit, so that it was well known that his [457] guardian intended to dispute those contracts which were made during infancy. The rule of court under which the judgment was entered, was founded on an agreement signed by most of the counsel at the bar, to confess judgment at certain periods, unless their clients would swear that they had a just defence. Although the agreement is in terms so general as to comprehend all actions, yet it has been construed according to its intent. It does not extend to torts, or those actions in which the plaintiff, having no certain demand, it is evident, from the nature of the case, that there is cause of dispute. It does not extend to executors or administrators, because, not being privy to the transactions of the deceased, it would be unreasonable to put them to an oath. So neither do I think it extends to infants, who can appear only by guardian; because it ought not to be supposed, that any agreement of attorneys with respect to the confession of judgments in general, was intended to comprehend cases in which the defendant cannot appear by attorney. The insisting on an oath from the defendant or his guardian, is not consistent with that care and protection which have ever been extended to infants by courts of justice. I am therefore of opinion, that the judgment should be opened, because it was not regularly entered. Yeates J. was unable to attend, in consequence of sickness, and gave no opinion. Brackenridge J. concurred with the Chief Justice. Motion granted.