Seymour v. Hubert , 1877 Pa. LEXIS 82 ( 1877 )

Mr. Justice Woodward

delivered the opinion of the court, February 12th 1877.

For a variety of reasons this judgment cannot be sustained. On the 6th of February 1875, a rule was granted to set the scire facias aside and open the original judgment. This rule was pending and undetermined when judgment for want of an affidavit of defence was entered. But apart from this irregularity it is difficult to discover essential defect in the affidavit made by Joshua P. B. Eddy, one of the defendants. He swore that he had been informed, and believed, that there was nothing due on the judgment, but that the whole amount of it had been paid by illegal and usurious interest to the plaintiff; and he averred that he expected to be able on the trial to prove the truth of his statement. It was objected on the argument that' the language of the affidavit did not exclude the possible conclusion that the alleged payment was made on the note before the original judgment was entered. Some facts may have been developed in the previous proceedings in the Common Pleas to give foundation for the objection, but no implication of such a conclusion is consistent with the plain terms of the paper itself.

A still more important question is contained in this record. Two of the defendants were sued as executors of Sarah Tingle, deceased. In Leibert v. Hocker, 1 Miles 263, it was decided that an executor or administrator was not required to file an affidavit of defence in an action on a decedent’s contract. The same rule was applied to a suit against the committee of a lunatic in Alexander v. Ticknor, 1 Phila. R. 120. Those decisions expressed what is believed to have been the pervading professional impression in this state. In many, perhaps in all the judicial districts where rules of court, in the absence of statutory provision, have required specific defences to be set out, actions against executors and administrators have been expressly exempted from their operation. Where the practice has been regulated by statute, such actions have uniformly been held not to have been within the legislative intention. Such a construction is indispensable to protect interests that would be otherwise defenceless, and to afford security to creditors, distributees and heirs. In no ordinary case would it be possible for a personal representative to set out on oath in specific detail the nature and incidents of a transaction to which his decedent had been a party and to which he was a stranger. A dead man’s estate would be in utter peril, if a creditor could convert his demand into a judgment upon no proof other than the statement of his claim filed at the commencement of his suit. And yet, a rule that would require an affidavit from an executor or administrator would work just that result. On every ground the rule for judgment ought to have been discharged. Judgment reversed, and procedendo awarded.