Barbe v. Davis

Stroud, J. -The defendant asks that the judgment should be opened on three grounds: 1. Because he has sworn that he has a set-off to the demand of the plaintiff. 2. Because he has sworn that [119] another person ought to have been made a co-defendant with him. 3. That the judgment was granted before he had eateied special bad, and before the expiration of the time which, by a rule of court then m force, was allowed for that purpose. In regard to the first two grounds, while it is conceded that on satisfactory evidence of lire existence of a just defence on the merits of the action, the court would opeo a judgment taken under this law, where the application was seasonable, as in this instance, yet such evidence is not furnished by this affidavit. The statement, as to the set-off, is too indefinite to be regarded ; and the omission of his co-partner cannot seriously injure the defendant. His claim for contribution will still subsist unaffected by this omission. The third ground is, however, very important, inasmuch as if sustained, it will interfere with the beneficial operation of the act of assembly toa great extent. The section of the act of assembly under which this judgment was granted, is in these words: “in all actions instituted on bills, notes, bonds, or other instruments of writing for the payment of money, &c., it shall be lawful for the plaintiff, on or at any time after the third Saturday succeeding the several return days hereinbefore designated, on motion, to enter a judgment by default, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of defence, stating therein the nature and character of the same ; provided, that in all such cases no judgment shall be entered by virtue of this section, unless the said plain tiff shall, within two weeks after the return of the original process, file in the office of the prothonotary of the court hereby erected, a copy of the instrument. of writing, &c,, on which such action has been brought.” The language of this section, “all actions instituted,” manifestly comprehends as well those commenced by capias as by summons. The same reason exists for granting summary judgment where the process is of the one kind or of the other. If a discrimination had been intended, it would have been expressed ; and an action is instituted or brought (this latter word being used in the proviso) the moment the writ is sued out. Such is not only the common acceptation of this language, but its legal import. Thus, in Arundel v. Arundel, Cro. Eliz. 677, “ Error to reverse a fine levied.” Three errors were assigned ; one of which was, “because the writ of covenant whereupon it was levied, bore teste the 2d of January; 21 Elk.; and the dedimus polestatem, to take the conusance, bore date the sanie [120] 2d dny of January, reciting quail cum breve comentiords pendét, &c., whereas it was not depending until the return, which was Oc-tob. Hilarii. But the court held this was not error; for the writ is pendent presently upon the purchase thereof. And see Hertzog v. Ellis, 3 Binn. 209 ; Moulson v. Rees, 6 Binn. 32 ; and Combe v. Pitt, 3 Burr. 1423. The defendant’s counsel concedes, that, the literal meaning of the expression “instituted and brought,” would justify the construction that the moment the writ issues, it originates art action in court; and he has no doubt, that when the process is a summons, the delivery of the writ is, according to the spirit of the act, the commencement of a suit, upon which judgment may be entered. But he contends, that inasmuch as where the process is a capias, and the defendant gives bail to the sheriff, a rule of this court allows four weeks to the defendant to enter special bail after the return day of the writ, and that until the entry of such bail, the defendant is not in court, the plaintiff cannot obtain judgment, although he has complied with all the provisions of the law to do so. In Hertzog v. Ellis, 3 Binn. 209, an analogous question was raised in relation to the arbitration act of 1810. The language of that act is, “it shall be lawful, &.c., in all civil suits or actions pending, or that hereafter may be brought, &c., to enter at the prothonolary’s office at any time after the entry of such action, a rule of reference, &c.” The court decreed, that a rule of reference might be entered by the plaintiff at any time after the writ had been issued; Tilghmao, C. J., saying in the course of his argument, “the action is entered from the time that it is placed on the prothonotary’s docket. The entering or bringing the action is one thing; 'the appearance in court another.” Much stress is laid in the conclusion of his opinion on the words “entry of the action;” but he manifestly considers bringing the action as of like import; and without doubt, in that connection they are synonymous. This sentiment is plainly expressed by him after-wards in Moulson v. Rees, 6 Binn. 32, where he begins his opinion thus: “the arbitration may be entered at any time after ike issuing of the writ, which is the commencement of the suit, according to the opinion of the court in Hertzog v. Ellis.” In Moulson v. Rees, one exception taken to the record, was this : “that the action was arbitrated by the plaintiff below, or before the plaintiff in error (defendant below) entered “special bail after being arrested on the capiasThis Was answered by the- court precisely as the present objection may properly be answered. “The plaintiff, although a capias was issued, [121] has dispensed with special bail, as he had a right to do; and this kfnr the advantage of the defendant Although probably undesigned, there is a striking similarity in the language of the arbitration act and that of the section of the law under which (lie judgment in this case was granted. The words of this section are: “ in all actions instituted, &c., it shall be lawful for the plaintiff, at ant time after the third Saturday, &c,, to enter a judgment by default,” &c. As then, in respect to the arbitration act, the special language was regarded by the supreme court as overruling the implied obstacle to a rule of reference arising from the common law doctrine that in personal actions the plaintiff can take no step in the cause until the defendant has appeared; so, I have no doubt, the terms of the 2d section of the act constituting this court, should be construed to sustain the judgment obtained by the plaintiff in this case. It was in the power of the defendant to enter special bail at any time after the return of the writ; and it would be strange if his voluntary omission to do so should prejudice the plaintiff, more especially since the entry would have given him no advantage which he could not enjoy without it. He might have filed his affidavit of de-fence in due time, and afterwards entered special bail. He has chosen to omit it, and the plaintiff is entitled to retain his judgment,