Gregg and others against Meeker

[Philadelphia, Monday, July 6, 1812.] Gregg and others against Meeker. Where there has been an award of arbitrators, finding that the plaintiff has no cause of action, an affidavit of defence is not required. This was an amicable action to March term 1811, in which the defendant on the 27th of March in the same year entered a rule of arbitration. The arbitrators on the 24th of April following, reported that the plaintiffs had no cause of action, and within the time prescribed the plaintiffs appealed. On the 17th of September they filed their declaration, and on the 20th of December, signed judgment for want an affidavit °f defence. The defendant filed his affidavit during an adjourned court on the 4th of January, and now obtained a rule to show cause why the judgment should not be opened. Ingersoll for the defendant, said that the affidavit was required to show that in his own opinion the defendant had a legal defence, and to interpose this obstacle to the artifices that might otherwise be practised, without any view but to delay. Now it is impossible to doubt that the award of impartial men who have investigated both sides of the case, and have given their opinion against the plaintiff, is at least as good if not better for this object, than the affidavit of the party. Here however the affidavit was filed at an adjourned court of December which is the second term, and therefore is within the rule, the narr. not having been filed until the 17th of September. Bradford contra, contended that the rule of arbitration and the proceedings under it, made no difference. That when a cause which has been referred to arbitration, is brought back by appeal, all previous rules remain ; and the mere appeal puts every thing in the same condition as if no rule had been entered. So it has been decided by the Common Pleas in Delisle v. Priestman, Brown’s Rep. 115, and in Newton v. Wolbert, Id. 141. The award of arbitrators is not equivalent to the oath of the defendant, because no scrutiny can be equal to that which his own conscience will make into his motives for setting up a defence. There can be no doubt that by the rule of court, the affidavit is out of time. It was not filed until after the judgment had been entered. This and the following cases reported as of March term 1812, were decided at an adjourned session of the Supreme Court for the Eastern District, which commenced upon the 6th of July. [MAJORITY — Tilghman C. J.] Tilghman C. J. delivered the opinion of the Court. The arbitration law has introduced a new state of things which must have some operation upon this rule of court. It may happen that the time for making the affidavit may elapse while the cause is depending before the arbitrators. Such a state of things must certainly have some effect upon the rule. Ye shall however confine our opinion to the case before us, without establishing any general principle. Here has been a '^hearing before arbitrators, and an award in favor of the defendant. This is sufficient ground for dispensing with an affidavit of defence. An award, after hearing both parties, has more weight than the affidavit of either of them. The object of the rule, was to prevent delay in cases where there was no just cause of dispute. Ye are of opinion that the rule should be made absolute. Pule absolute. [Cited in 4 C. 519.]