Philadelphia Savings Institution v. Smith

Per Curiam.

Whatever tbe defects in tbe cause of action filed, it is decisive that tbe defendant did not satisfy the statute by filing an affidavit of defence. Tbe filing of tbe cause of action is not to set it out with technical precision, but to individuate tbe transaetion from which it springs, tbe declaration and plea forming tbe issue on which tbe parties are to go to trial. Nor does it follow that tbe cause of action filed is to control tbe cause of action stated in tbe declaration, provided tbe same contract or transaction be tbe subject-matter of each. He may waive defects in tbe first instance, and reserve himself for bis demurrer or motion in arrest of judgment, provided a good cause of action be not laid in tbe narr.; but then be must show that be waives nothing, and that be bas a defence at least on tbe plaintiff’s own showing; which be can do only in tbe manner prescribed in the act of Assembly. Tbe judge is not bound to look at the cause of action till he has been possessed of the affidavit of defence; and it is not our business to reverse his judgment for an error he did not commit.

Judgment affirmed.