
    GEORGE AND WIFE VS. THE TRADESMEN’S B. & L. ASSOCIATION.
    An averment of a fact in a scire facias sur mortgage is conclusive, if not pleaded to.
    The affidavit and depositions taken on a rule to open the judgment, are no part of the record, and the refusal to open the judgment is not reviewable.
    Error to the Common Pleas of Philadelphia County. No. 116 January Term, 1877.
    This was a sci. fa. sur mortgage by the Tradesmen’s Building and Loan Association No. 2, of Philadelphia, against James H. George and Jeannette, his wife. The facts were as follows: In May, 1873, the Tradesmen’s Building and Loan Association issued a fourth series of stock, and in May, 1874, Jeannette George, a married woman, became the holder of thirty shares of that series and obtained a loan from the association upon stock in her name. On the 18th of that month she joined with her husband in executing a mortgage of $6,000 upon her separate estate to secure the payment of his bond of same date, given as security for the loan to her, by which he bound himself to pay monthly installments and interest upon stock in the wife’s name, and such fines as might be imposed; and provided, in case of default of interest or dues for the space of six months, the principal and interest should become due, scire facias to issue. Upon the payment of the money loaned, the premium of thirty-two per cent, bid was first deducted, and the balance, $4,080, was applied by plaintiffs in error to the payment of the value of the stock, which was considerable, being thirteen months back installments upon thirty shares, interest, fees, insurance, and necessary expenses of the loan. Default was made in the payment of the interest and dues in September, 1875, after which some payments were made on account, until March, 1876, whereupon on August 5 th, 1876, there being in amount equal to seven months arrears due, the association proceeded upon the mortgage and obtained judgment. October 7th, against both plaintiffs in error for want of an affidavit of defence, and exposed the premises described in the mortgage for sale under an alias levari facias.
    
    After the entry of judgment plaintiffs in error upon an affidavit (called in plaintiff in error’s paper book an affidavit of defence) obtained a rule from the Court below to open judgment and let them into a defence, which was discharged. Again, after the damages had been assessed, and the premises advertised for sale under the levari facias, they obtained another rule to set them aside, which rule was also discharged. \
    Defendants took this writ, assigning for error inter alia; . That the scire facias was issued before the forfeiture.
    2. That there was no cause of action, the scire facias having been issued before the six months had expired after the alleged forfeiture had occcurred.
    7. That the Court below erred in entering judgment against Mrs. George, one of the defendants below, for want of an affidavit of defence.
    
      A. Thompson, Esq., for plaintiffs in error, argued:
    that the sci. fa. was issued too soon, and the judgment being against a married woman was too much; and cited Siner vs. Hendrickson, 1 W. N. C. 94; Purves vs. Corfield, 1 Phila., 174; Wolback vs. Lehigh Building Ass., 3 Norris, 211.
    
      C. H. Krumbhaar, Esq., contra, argued:
    that the affidavits and depositions are not part of the record: Gamble vs. Woods, 3 P. F. S. 160; Ringwalt vs. Brindle, 9 P. F. S. 52. The sci. fa. avers a default, and if not denied it is conclusive: Swift vs. Allegheny B. & L. Ass., 1 Norris, 142. If the wife was incapacitated from becoming a member of the building association yet her husband was liable, and her mortgage would be good as a security of his indebtedness: Haffey vs. Carey, 23 P. F. S. 431; Unangst vs. Fitler, 3 Norris, 136.
    
      Error will not lie to the refusal of the Court to open a judgment: Reminger vs. Thompson, 6 S. & R. 2; Ordroneaux vs. Pardy, 6 S. & R. 512; Kalback vs. Fisher, 1 Rawle, 323; Evans vs. Clover, 1 Grant, 164; McKee vs. Sandford, 1 Casey, 105; Hill vs. Irwin, 8 Casey, 314; Putney vs. Collins, 3 Grant, 72; Henry vs. Brothers, 12 Wright, 70; Breden vs. Gilliland, 17 P. F. S. 36; Reigle vs. Wilson, 10 P. F. S. 394.
   The Supreme Court affirmed the decision of the Court below on March 17th, 1879, in the following opinion :

Per Curiam.

The first, second and seventh assignment are the only matters on this record reviewable here. The first and second are answered by the averment of the fact in the scire facias that default had been made in the payment of interest for more than six months after the same became due and payable. The seventh assignment cannot be sustained on the record, which is all we have before us, as that only shows a mortgage in which husband and wife joined to secure the bond of the husband. What is called an affidavit of defence was put in out of time and was and only is an affidavits upon which a rule was granted to open the judgment. Thataffidavit and the depositions and document produced to support the rule,, are no part of the record, and the decision of the Court below upon that evidence, is very clearly not a matter of review here.

Judgment affirmed.  