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under this rule, however, was only that to the best of defendant's knowledge and belief there was a just and good defense. But, under the act of 1835 in relation to the District Court of Philadelphia, it was required that the affidavit should state the 'nature and character of the defense.18 Under this act, the District Court held that to enable the court to judge of the nature and character of the defense, the affidavit must set forth the facts.” As further appears from the same case, the practice thus established became a general one, although it was not until 1887 that it was expressly extended to all the courts of the state.19

Concerning the Pennsylvania requirement that the affidavit of defense state the “nature and character” of the defense, it was the uniform doctrine of the Supreme Court that, while the lower court had power to provide by rule for restricting the defendant to proof of what had been stated in the affidavit, yet, if it had not done so, the allegations of the pleas alone controlled the defendant's evidence. Thus in Flegal v. Hoover (1893),20 where it was assigned for error that the court, on the trial, had refused leave to file an amended affidavit of merits, it was said: “The case had passed the stage when an affidavit of defense was of any importance. The relevancy of evidence is determined by its bearing on the issue, and the issue is made up by the statement and the pleas. In the absence of a rule of court, the affidavit of defense has nothing to do with it. When it has prevented a summary judgment it has performed its whole office and is not before the court on the trial, unless it is put in evidence, as an admission, against the party making it. It does not in any way limit the defense to be made at the trial.” So, in Muir v. Preferred Accident Insurance Co. (1902):21 "An affidavit of defense in Pennsylvania practice is no part of the pleadings, and has an entirely different function. It is a mere step or incident of the proceedings required in order to prevent a summary judgment by default. When it has served that purpose, its function is ended, unless further enlarged by express rule of court. . . Its sole use is to prevent a summary judgment by default under the statute, and its function in this respect is precisely analogous to that of an appearance required to be entered after service of a writ in order to avoid a judgment by default for want of it. The wholly different function of a plea is to raise and make certain the issue on which the controversy between the parties is to be fought out. With this the affidavit of merits has nothing to do and it may be disregarded and the case put at issue on other grounds.” Other cases to the same effect are National Insurance Co. v. Brown (1889) 22 and Taylor v. Beatty (1902).23 Hence, the affidavit “need not set up a defendant's whole case; it need do no more than show one sufficient reason why summary judgment should not be entered."24

18. “In all actions instituted in the said court on bills, notes, bonds or other instruments of writing, for the payment of money, and for the recovery of book debts, in all actions of scire facias on judgments and on liens of mechanics and material-men under the Act of March Seventeenth, eighteen hundred and six, and the various supplements thereto, 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 defense, 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 plaintiff 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, book entries, record or claim, on which the action is founded." Purdon's Dig. (13th ed.) III p. 3638.

19. Act of 25 May 1887 $ 5: Purdon's Dig. III p. 3640.
20. 156 Pa. St. 276.
21. 203 Pa. St. 338.

The circumstance that, under the Pennsylvania rule, the affidavit of defense and the pleas were not necessarily filed at the same time is a detail which in nowise affects the question. In that practice, as in ours, when the plaintiff had complied with the statutory condition precedent, both affidavit and pleas were necessary, and the relation prescribed between them is precisely the same in both procedures. Whether our Circuit Courts, lacking the special statutory power vested in the Municipal Court of Chicago, would be authorized to make rules requiring the proof to conform to the affidavit of merits is a matter of serious doubt, but not one of any present relevance. This apart, it is perfectly clear that the view taken by the Pennsylvania courts is the only one consistent with sound principle. The affidavit in their procedure and in ours is simply a manifestation of that check upon groundless litigation, common enough in the history of procedural systems, which is found in exacting an oath from the defendant, as evidence of his bona fides.

As yet, the question under discussion has not been passed upon by the Supreme Court. Two decisions of that court, however, contain expressions which might be thought to have some bearing in the present regard. In Firestone Co. v. Ginsburg (1918),26 where the question was upon the action of the lower court in striking affidavits of merits from the files, it was urged in justification of this action that the statute had been violated by the filing of a separate affidavit of merits with each of the pleas, regarding which the court observed that "there is no reason why an affidavit of merits may not be filed with each plea which sets up a different defense as to separate causes of action on different promissory notes." And in Harrison v. Rosehill Cemetery Co. (1920),26 on a like assignment of error, the court said that defendant in his affidavit “must state the kind or character of the defense, and it necessarily must be a legal defense which could be made under his plea. If the plea is non assumpsit, the affidavit must show a defense under that plea, and if there are special pleas, such as payment, release or accord and satisfaction, the affidavit must show facts of such a nature as will be a defense under those pleas, with sufficient particularity to apprise the plaintiff of the nature of the defense, but it is not necessary to state the evidence or the facts in detail." As to the first of these utterances, since it is carefully qualified so as to admit the separate affidavits of merits only when they set up distinct defenses to distinct causes of action, respectively, there is nothing here from which supporters of the Appellate Court doctrine can derive any comfort, although it seems to us that, in view of the statutory purpose, it would be better practice to combine all the sworn defenses in the one affidavit. The second utterance, however, seems on its face to exhibit a leaning toward the doctrine under criticism, in that it (a) insists that the defense made by the affidavit shall conform to the plea and (b) speaks of the affidavit as being required "to apprise the plaintiff of the nature of the defense.” But it is undoubtedly a sound rule that the affidavit shall conform to the plea, within the discharge of its function. If, for example, a defendant in an action on debt on a specialty were to plead only non est factum, and accompany this plea with an affidavit setting up only the defense of release, it would be properly stricken. The inconsistency would be such as to prevent its stopping a default. But if there had been also a plea of release and default were thus stopped, there would be nothing to hinder the defendant, according to the true view of the matter, from filing additional pleas by leave of court, without amending the affidavit of merits: in this second phase there is no need for conformity between the pleas and the affidavit. And, in the light of the question before it, it is undoubtedly the first of these situations and not the second to which the court's observation on the subject of conformity was intended to apply. It is proper to suppose that the same thing is true of the court's reference to apprising the plaintiff of the nature of the defense. Unquestionably, the affidavit must set forth facts with such explicitness as to apprise both the plaintiff and the court that a defense exists; this, however, only for the purpose of preventing default. That the court had in mind notice for the purposes of trial we cannot believe. And we are confirmed in this notion by the fact that, in the same opinion, the court, recapitulating the history of this legislation in Illinois, makes it plain that the purpose of the statute, in its former form, was to prevent frivolous defenses and vexatious delays, and, later in the discussion, referring to the interpolated words of the amendment, says: “This being the only change in the statute, the construction to be given it is the same, except that the defendant must specify the nature of his defense.”

22. 128 Pa. St. 386. 23. 202 Pa. St. 120.

24. United States v. Schofield Co. (U. S. Circuit Court, E. D. Pa. 1910) 182 Fed. Rep. 240.

25. 285 111. 132.

26. 291 I11. 416.

The way, therefore, is open to the Supreme Court, unhindered by any prior decision, to adopt what is manifestly the correct rule. The question is a vital one, for upon it depends the maintenance of the integrity of our procedure in common law causes, or its disfigurement by an erratic innovation which tends to complication and delay. It is to be earnestly hoped that the compelling logic of the situation and the precedent set by the Pennsylvania decisions will be effective in preventing the acceptance of any such unfortunate doctrine as that of the Appellate Court.




Have the two sister commonwealths—the common-law state of Illinois and the code state of Indiana-in their efforts adequately to protect the interests of infants and those who are non compos mentis, added further complexities to the existing intricate land title laws ? Under the existing Illinois statute relating to wills

"If any person interested shall within one year after the probate of any such will, testament or codicil in the county court, as aforesaid, appear and by his or her bill in chancery contest the validity of the same, an issue at law shall be made up whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the circuit court of the county wherein such will ... shall have been proven and recorded as aforesaid ..; but if no such person shall appear within the time aforesaid, the probate, subject to provisions hereinafter set forth, shall be forever binding and conclusive on all parties concerned, saving to infants or non compos mentis the same period after the removal of their respective disabilities."

And under the Indiana statute relating to wills it is provided

Infants and persons absent from the state or of unsound mind shall have one year after their disabilities are removed to contest the validity or due execution of such will.2

In the light of these two statutes which confer upon the favored persons an absolute right to contest the validity of any will within a given period of time after the removal of their respective disabilities, how much effect has an executor's deed duly given, in the process of the administration and settlement of a solvent decedent's estate, to a bona fide purchaser of the testator's real estate, where there are infants or others under disability who have not at the time of the executor's sale exercised their right of contest?

The question may be illustrated by the following form of will:

“My executor, hereinafter named, shall sell all of my real estate, personal property, of which I may die the owner of, converting the same into cash as soon as the same can be done, without making any

*[Of the Chicago bar.) 1. (1921) Cahill Ill. Rev. St. Ch. 148 sec. 7. 2. Burns Ind. Rev. St. Sec. 3159.

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