
    Umberger executor of Umberger against Zearing.
    
    Great regard is due to the opinion of a Conri, in the construction of its own rules*
    Where an action is brought against an executor for a debt due from, the testator, an affidavit of d« fence is not required. But where there is a judgment against the executor himself, suoh an affidavit is necessary, in a scire facias post annum et diem.
    -In Error.
    ON a writ of error to the Court of Common Pleas of Dauphin county, it appeared that the defendant in error, the plaintiff below, brought an action against the plaintiff in error, in which he obtained judgment. No execution having been taken out within a year and a day, the plaintiff issued a scire facias to revive thé judgment. The defendant pleaded payment with leave, &c. On the same day, but before the plea was entered, the plaintiff had moved for judgment, agreeably to a rule of the Court of Common Pleas, by which it is ordered, “That in all actions of debt or contract fo>the payment of a specific sum, the plaintiff shall be entitled to judgment by default, to be-entered in the Court at his request, on- the third day of the next succeeding Term to which the process issued is returnable, when the Term is for One week, and on the second Monday of the Term, when the same is to continue two weeks, or in the Prothonotary’s office at any time after,' unless the defendant, or some person for him, shall have made an affidavit and filed the same with the Prothonotarv, before judgment asked for in Court or entered in the Prothonotary’s office as aforesaid, stating, that to the best of his knowledge and belief, there is a just defence to the whole or a part of the demand in the said cause,” &c. “ But no judgment shall be entered by virtue of this rule, unless the plaintiff shall have filed a declaration or statement, on or before the third day of the Term to which the process issued is' returnable,” &c. Under this rule, judgment was afterwards entered, which the Court refused to set aside.
    
      Elder and Norris for the plaintiff in error, contended,
    that the judgment was erroneous: 1. Because, before the judgment was entered, the defendant had pleaded. 2. Because the rule did not extend to cases in which the defendant was an executor, an administrator, or an infant, lor which he referred to Read v. Bush, 5 Binn. 455. 3. Because the rule requires, as a preliminary to a judgment under it, that a declaration or statement should he filed, which was not done, and is never done in a scire facias. The rule was intended to co-operate with the Act of the 21st of March, 1806, Purd. Dig. 325, called the Statement Act, which does not comprehend a scire facias.
    
    
      Weidman and Buchanan, for the defendant in error j
    answered, that the Court'of Common Pleas had power to make a rule requiring an affidavit of defence, Vanatta v. Anderson, 3 Binn. 417: That the.rule was politic, because it prevented vexatious delays, and imposed no hardship on the defendant, to oblige him to sweár that he had, to. the best of his knowledge and belief, a just defence; and should therefore receive a liberal construction: That, the original judgment being against the defendant as executor, he of course knew whether or not he had a defence on the scire facias,. and therefore the rule was applicable to him, notwithstanding the case of Read v. Bush: That a scire facias was an original action, 6 Johns. 106, and the substance óf a declaration was contained in the body of the writ, which rendered any other unnecessary : That this Court had decided that the Act of Assembly,' requiring a statement in an ejectment, was complied with by the description contained in the writ, Cahill v. Benn, 6 Binn. 99; and the cases were analogous.
   Tilghman C. J.

delivered the opinion of the Court.

.Christian Zearing, the plaintiff below, obtained a judgment against the plaintiff in error, John Umberger, executor of Leonard Umberger, deceased. The judgment having remained without execution for more than a year and a day, the plaintiff issued a scire facias, to which the defendant appeared, and the plaintiff afterwards entered judgment against him by default, because no. affidavit, that there was a just defence, according to the best of the defendant’s knowlédge and belief, yvas entered, agreeably to the rules of the Court of Common Pleas. . The .error assigned is, in entering the judgment by default under the rule, which, as the defendant’s counsel contends, is not applicable to this case for several reasons: 1. The defendant relies on the case of Read v. Bush, 5 Binn. 455, in which it was decided, that this rule does not extend to executors. It is true, that where an action is brought against an executor for a debt due from the testator, the rule does not apply, because it is not supposed that the executor has sufficient knowledge of his testator’s affairs, to make an oath on the subject. But here the original judgment was against the executor himself; on which judgment, the scire facias issued,, whereon the affidavit of defence was required. Now surely it must be within the executor’s own knowledge,«whether he had a just cause of defence to an action thus circumstanced.. Payment is almost the only defence that can be set up in such a case ; and he must know whether he had paid any thing, and how much. Another reason offered by the plaintiff for the rule’s not extending to this case is, that judgment by default is not to be entered, unless the plaintiff has filed a declaration or statement of his cause of action.; which is never done on a scire facias, and was not done in the present instance. There is more of subtlety than of substance in this objection. A scire facias, though not in all respects an action, but rather a demand of execution, does in truth partake, in a great measure, of the nature of an action. There would be no impropriety in filing a declaration on a scire facias, though it is seldom done, because there is no occasion for it, as every thing necessary to be set forth in a declaration, is contained in the body of the scire facias, to which the defendant may plead. This rule, authorising the entry of a judgment by default, unless an affidavit of defence is put in, is a very sa-lutary one, and has had a great effect in preventing vexatious delay. Great regard is due to the opinion of the Court of Common Pleas in construing its own rules. It is the opinion of that Court, that a scire facias post annum, &fc. is within the rule ; nor can I conceive why it should not be. A judgment is a debt of the highest nature. If an action of debt had been brought on the judgment, it is not denied that the case would have fallen within the rule. Inasmuch then as a scire facias is only another mode of proceeding to recover the same debt, it should be subject to the same law. I am of opinion that an affidavit of defence was necessary, under the rules of the Court of Common Pleas, and therefore the judgment by default was regularly entered, and should be affirmed, \

Judgment affirmed.  