Leibert v. Hocker

Per Curiam. Although it is true the act of the 28th of March 1835 makes no express provision to exempt an executor or administrator from the necessity of making an affidavit of defence, where the [264] action is on the contract of the decedent, yet analogous decisions in our courts, in reference to affidavits of defence generally, have established a rule in favour of such an exemption. It seems to be a sound construction, that the act requiring such affidavits, contemplates actions on the contract of the defendant; but where the cause of action existed at the time of the deatli of the testator or intestate, it would require dear language lo show an intention in the legislature to subject executors or administrators to the necessity of making an affidavit, of defence, or forego the advantage of a regular trial. Under the arbitration law of 1810, it lias been held that executors are entitled to an appeal without entering into a recognizance, paying costs, or making an affidavit. Insurance Company of Pennsylvania v. Hughes, 5 Binn. 508. Executors ought not to be compelled to make an affidavit in regard to facts of which their knowledge must be imperfect. Edwards v. Ewing, 4 Yeates 235. We are opinion that a fair construction of the 2d section of the act of the 28th of March 1835, does not render such a step indispensable in order to secure a trial by jury. Rule absolute.