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fenses, payment and the statute of limitations. He files the general issue and a plea of the statute of limitations and, with these, an affidavit of merits stating only the facts constituting the defense of payment. Will he be permitted, on the trial, to offer evidence in support of the defense of limitations?

To the question thus stated the Appellate Court has returned a negative answer. The most important and best considered expression of this answer is that contained in Reddig v. Looney (1917), decided in the Second District.* Here, in an action of assumpsit for the price of certain plumbing work, with affidavit of claim by the plaintiff, the defendant interposed the general issue and sundry special pleas, along with an affidavit of merits setting up a defense in part of payment, in part of recoupment. A further special plea, accompanied by a separate affidavit of merits was filed in the progress of the trial. The nature of the defense specified in this second affidavit of merits is not disclosed, but certain it is that in neither was there any denial that the material and labor claimed by the plaintiff were actually furnished. The trial court instructed the jury that, in the absence of such denial by the affidavits, the fact that the materials and labor were furnished must be regarded as established. This instruction was approved by the Appellate Court in the conclusion that “matters of defense not set out in the affidavit of merits are waived.”

The court places its reliance upon certain cases decided under the statute before its amendment, as supporting the proposition that

3. 208 Ill. App. 413.

4. Cases prior to Reddig v. Looney are West Coast Timber Co. v. Hughitt First District (1914) 185 Ill. App. 500; Miller v. Thomas Second District (1916) 200 I11. App. 125, and McGovern v. City of Chicago First District (1916) 202 Ill. App. 139. The first of these is reported by syllabus only. McGovern v. City of Chicago proceeds entirely on the mistaken notion that the affidavit of merits in the general practice is to be governed by the same principles as the affidavit of merits used in the Municipal Court of Chicago. Miller v. Thomas simply states that “under Allen v. Watt 69 Ill. 655, Haggard v. Smith 71 I11. 226, Mayberry v. Van Horn 83 Ill. 289, Henry v. Meriam & Morgan Paraffine Co. 83 Ill. 461 and Kadison v. Fortune Bros. Brewing Co. 163 Ill. App. 276, appellants were confined to the defenses set up in said affidavit.” The effect of Allen v Watts and the other Supreme Court cases thus cited will presently be noticed in connection with Reddig v. Looney. As for the Kadison case, the affidavit of merits there in question was the one peculiar to the Municipal Court practice.

After Reddig v. Looney, but adding nothing of value to the question, come: Lyon v. White Third District (1919) 214 Ill. App. 232; Hunziker v. Mulcahey, Third District (1919) 215 11l. App. 508; Goddard Tool Co. v. Crown Mfg. Co. Second District (1920) 219 Ill. App. 34; Steinberg v. Schwarts Second District (1920) 219 Ill. App. 138; Humphrey v. Orrey Second District (1921) 220 Ill. App. 523; McClintock v. Lake Forest University Second District (1921) 222 Ill. App. 468; Colfax Grain Co. v. Bradford Third District (1922) 225 Ill. App. 419, arguendo.

“if the original affidavit was adjudged insufficient and a defendant asked leave to file an amended affidavit, the court had a right to require him to state therein the facts showing a meritorious defense, and when he filed such an affidavit his defense was limited to what he set out therein.” As to the first half of this proposition, there can be no question: it always lay within the discretion of the court, as a matter of reasonable terms, to make specification of the defense a condition of the defendant's being allowed to file an amended affidavit, where he had failed to comply with the statute, in the first instance. But we are unable to see any warrant for the second half of the proposition, viz., that the defense in such case was limited to what appeared in the affidavit. Of the cases cited in this regard, Haggard v. Smith (1874)s and Mayberry v. Van Horn (1876)6 do no more than hold that it was proper for the plaintiff to take judgment for the amount admitted by the affidavit, and that the plaintiff having thus waived the residue of his claim (as he must prior to 1907) the defendant had no further right of defense. McCord v. Crooker (1876)' and Culver v. Johnson (1878) decide that where a defendant undertakes to set forth in his affidavit the facts upon which he relies in defense, these facts must show a meritorious defense: the question in each being the sufficiency of the affidavit to prevent judgment by default. McKichan v. Follett (1877) simply recognizes the power of the court to require a specification of the defense as a condition of amending a defective affidavit already filed. Allen v. Watt (1873) 10 and Henry v. Meriam Co. (1876) 11 are equally without bearing. In the former, the defendant's affidavit being only as to $42, parcel of the claim, the plaintiff signified in writing his willingness that this sum be deducted from his demand and moved for judgment as to the balance. Before the granting of the motion, however, the defendants filed an affidavit for continuance, alleging that all sums due from the defendants to the plaintiff had been attached in a suit brought against the plaintiff by third parties in the State of Ohio. The motion for continuance was denied and judgment was rendered in accordance with the plaintiff's motion. It is this situation, therefore, and no other, to which the Supreme Court had reference, when it said that the affidavit of merits should "disclose the entire ground of defense” and that it was “not competent to set up a defense not included in the affidavit.” In Henry v. Meriam Co., supra, the defendant pleaded the general issue and nul tiel corporation and filed an affidavit of merits admitting all of the plaintiff's claim, except $40, on which admission the plaintiff had judgment. The court held, and properly, that the presence of the plea of nul tiel corporation did not make it error to render this judgment. Thus, in both these cases, what barred the defendant from further defending was not a mere failure to specify facts in the affidavit of merits, but an absolute declination to contest the action, as to part, which, by the plaintiff's relinquishment of the contested portion of the claim, became an absolute declination to contest the whole. In other words, the relinquishment operated to cancel, in toto, the effect of the affidavit of merits, and the case was then in the same position as if the defendant were attempting to proceed by plea alone. None of these decisions, therefore, furnishes even the shadow of support for supposing that where there was defense to the whole by affidavit of merits, the defendant was restricted, in his proof, to the particular grounds of defense stated in the affidavit.

5. 71 Ill. 226. 6. 83 Ill. 289. 7. 83 111. 556. 8. 90 I11. 91. 9. 87 111. 103. 10. 69 111. 655. 11. 83 I11. 461.

The cases in relation to the affidavit of merits in the Municipal Court of Chicago are without even the slight persuasive force which the Appellate Court attaches to them, for the significant thing is not merely that there is a rule of the Municipal Court, restricting the defendant to proof of what he has stated in the affidavit, but also and this seems not to be fully recognized in the instant case—that the rule makes the affidavit of merits the sole means of stating the defenses :12 in fourth class cases from the outset and in first class cases since 1910, the affidavit of merits has, for the Municipal Court, superseded the plea or pleas of the ordinary practice.13

To the mind of the court, however, the faulty conclusion which it draws from the group of cases first mentioned seems to be decisive of the question. It is reasonable to suppose, says the court, that, when the legislature amended the statute so as to require specification of the defense, it "intended thereby to also adopt the principle of the previous decisions that, when the nature of the defense was required to be stated in an affidavit, all the defense the party had should be so stated, and that he would not be permitted to give in evidence any matter of defense not so stated in the affidavit." This, as has been seen, is emphatically not the principle of the previous decisions: the court has been misled by superficial resemblances into confusing omission to state defenses by an affidavit fully contesting the action with failure of the affidavit to contest the action at all. "If a defendant,” the court continues, "might at the trial give in evidence substantial matters of defense not stated in the affidavit of merits, the requirement that he should set forth the nature of his defense would be of no avail and would operate as a snare to the plaintiff.” The difficulty, here, is that the court quite overlooks the underlying reason of the legislation now in question. The object of the affidavit of merits as it existed, prior to 1907, was not that of giving the plaintiff notice of the defense, but of establishing the fact of the defendant's good faith in defending the cause. It was aimed at foreclosing the possibility of sham pleas by making the defendant vouch by his oath for the honesty of his proceeding. But it is a matter of common knowledge that the general affidavit was a constant source of temptation to unscrupulous persons, particularly as it was made upon the affiant's belief, and the possibility of convicting an offender for false swearing was virtually nonexistent. Now, when the act was amended in 1907, by requiring the nature of the defense to be specified, is it not fair to assume that the legislature had still before its view the original object of the statute and that, by the change, it was seeking not to overturn settled rules of pleading, but merely to require an intensification of the evidence of good faith as a condition of preventing judgment by default? And is it not equally fair to assume that when there had been stated in the affidavit one good defense, the purpose of the statute is satisfied ? Certainly, no one can contend that, with one good defense stated in the affidavit, the plaintiff could ever demand judgment by default. What justification, then, can there be for extending the effect of the change into the sphere of proof? The only alteration in the language of the statute so far as the present question is concerned is the interpolation of the words “and specifying the nature of such defense.” Is this not a rather tenuous basis for revolutionizing the whole system of pleading defenses, and transforming the affidavit, hitherto merely a check upon causeless litigation, into a proof-conditioning pleading?

12. Rule 17, Municipal Court of Chicago; Foster "Municipal Court of Chicago" (2nd ed.) pp. 168, 169, 204 sqq.

13. For the case of set-off a separate affidavit is prescribed. Rule 18.

Despite the alluring picture which the court draws of a bilaterally symmetrical system in which the "plaintiff can prove and recover only what is stated in his affidavit of claim,” but must nevertheless have a proper declaration, and the "defendant can only prove such defense as is stated in his affidavit of merits," but must also have a "pleading appropriate to his defense,” we remain unconvinced. For one thing, the affidavit of claim is not a pleading and cannot bind the plaintiff in his proof: the Supreme Court has distinctly said that "the only purpose subserved by the affidavit of the plaintiff in such cases is to entitle him to a judgment, as in case of default, unless the defendant shall file an affidavit of merits with his plea."14 And, as to the affidavit of merits, we find it difficult to believe that the legislature could have purposed anything so cumbersome and one-sided as to retain the existing system of pleading defenses, and, at the same time, require the defendant to furnish as a co-ordinate and equally indispensable basis for his proof a complete and independent set of allegations made upon his oath. To impose upon the defendant such a double task of allegation, with a double chance of variance between allegation and proof, would not only be a useless defiance of the insistent demand of the present day for simplification of judicial procedure, but, as a measure necessarily applicable to the defendant alone, would be positively unfair. And what if the affidavit of merits, consonant to the plea, sets up a defense in confession and avoidance?: there is no provision for answering it by a reply affidavit, no provision of any sort for taking issue upon it. And suppose the affidavit, after setting forth one defense in such wise as to prevent judgment by default, sets forth another which the plaintiff conceives to be insufficient. Is the affidavit then to be subject to demurrer or motion to strike? These questions answer themselves. The affidavit of merits has never been and is not now a proof-conditioning pleading and nothing but a chain of fundamental misconceptions can make it so.

Our statute in reference to the affidavit of merits, both in its old form and the new, was probably inspired, directly or indirectly, by the Pennsylvania practice, as existing prior to 1915. This required an "affidavit of defense” to prevent default in certain actions on liquidated demands. According to the Supreme Court of that state, in Andrews v. Blue Ridge Packing Co. (1903), 15 "the origin of the affidavit of defense law was in an agreement of the Philadelphia bar in 1795 (see note by Mr. W. W. Carr to Detmold v. Gate Vein Coal Co.16), subsequently enforced by rule of court, the validity of which was sustained in Vanatta v. Anderson.17 The affidavit

14. Kern v. Strasburger (1874) 71 Ill. 303. 15. 206 Pa. St. 370. 16. 3 Weekly Notes Cases 567. 17. 3 Binn. 417.

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