#### Rau *v.*Rex.

In an action of covenant on an agreement of suretyship to pay rent, brought by an executor, there was filed a copy of the lease executed in the name of the estate, as lessor by an agent named, to which was attached the agreement of suretyship. On the same day, the plaintiff filed averments as to breach of covenants, etc., but they were not attached to the lease or to the agreement. Subsequently, an affidavit of defense was filed by the son of the defendant, averring that he appeared for his father who was sick, “that there was a good and sufficient defense to the suit, of which he was familiar, but that he was advised by counsel that he was not then required to reveal the nature of the same.” The court entered judgment “for want of an affidavit of defense,” without rule or notice to the defendant. Held,, not to be error.

March 25, 1889.

Error, No. 83, July T. 1887, to C. P. No. 3, Philadelphia Co., to review the action of the court in entering judgment for want of an affidavit of defense, in an action of covenant on an agreement of suretyship attached to a lease, by Wm. Plenty Lex, executor of Catharine H. Kates, deceased, against Edward H. Rau, at March T. 1887, No. 470. McCollum and Mitchell, JJ., absent.

The writ was issued March 5, 1887, returnable the first Monday of March, 1887. The writ was returned served. On March 12, 1887, the plaintiff filed a copy of the lease to which was attached the agreement of suretyship. The lease recited “ The Estate of Catharine Kates” as lessor, and was “ for the term of one year from the First day of September, A. D. 1884, at a yearly rent of six hundred dollars, lawful money, to be paid in equal payments of fifty dollars per month, in advance, it being hereby mutually agreed that if the said lessee shall continue in the occupancy of the said premises after the expiration of the said term, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year, and so on from year to year, until terminated by either party hereto giving to the other three months’ notice for removal previous to the expiration of the then current year.”

The lease further provided that *“*all covenants and agreements herein contained, or agreed to be kept and performed by either of the said parties hereto, shall extend to the heirs, executors, administrators and assigns of such party.”

The lease was signed “ Estate of C. H. Kates, dec’d,

“ per Horace N. Kates, [seal.]

“ James Stark.” [seal.]

The agreement of suretyship was as follows :

“ I, Edward H. Rau, in consideration of the foregoing lease, made on the First day of September, A. D. 1884, by Estate of C. H. Kates, the lessor, to James Stark, the lessee therein named, with my sanction and at my request, and of one dollar unto me paid by the said lessor at the time of the execution hereof, the receipt whereof I acknowledged, do hereby, for myself, my heirs, executors and administrators, guarantee and become responsible to the said Estate *88lessor, its executors, administrators, or assigns (without proceedings or suit first brought against the said lessee or his estate) during the whole term of the said lease, the continuance thereof, and the liability of the said lessee for the payment of the rent in said lease reserved, on the days and times, and in manner therein expressed, as well as for the faithful performance of all the covenants and agreements therein contained on the part of the said lessee to be performed and kept.”

On the same day, the following paper, endorsed “ averments,” was filed, but it was not attached to the lease or to the agreement of suretyship:

“ And the said plaintiff, by his attorney, avers that the lease, a copy of which is filed in this suit, was made and executed at his instance and request and on his behalf, by and between the estate of Catharine H. Kates, deceased, lessor, by its agent, Horace N. Kates and one James Stark, lessee. That said plaintiff is the executor of the last will and testament of the said Catharine H. Kates, deceased, and duly qualified by the register of wills for the county of Philadelphia, and has the full custody and control of her said estate (of which the premises mentioned in the said lease are a part,) and is the only person legally entitled to demise and lease the real estate thereof, and receive the rents therefor. That the said James Stark entered into possession of the premises mentioned in the said lease, and continued in the full possession thereof from the date of said lease, to wit, Sept. 1,1884, for the term of one year therein mentioned, and held over in the full possession • thereof thereafter from year to year, and up to the time this suit was brought, and still is in possession thereof by himself or by his heirs, executors or administrators; that the agreement of suretyship annexed to and a part of said lease, and upon which this suit is brought, and a copy of which is filed herein, was made and executed in like manner and at the like special instance and request of the said plaintiff, acting by his said agent, and on his behalf, by the said Edward H. Rau, the defendant. That the said lessee named in the foregoing lease, his heirs, executors or administrators, have not well and truly kept and performed all of the covenants and agreements in the said lease contained on his part to be performed and kept, but that a large amount of rent thereunder, to wit, one month’s rent due January 1, 1887, in advance, amounting to fifty dollars, and one month’s rent due February 1, 1887, in advance, amounting to fifty dollars, and one month’s rent due March 1, 1887, in advance, amounting to fifty dollars, or a total amount of one hundred and fifty dollars, was due and unpaid at the time the above suit was brought, and still remains due and unpaid to the said plaintiff, and which, by the said agreement of suretyship, the said Edward H. Rau, defendant, became, and was and is, liable, and ought to pay, and which said sum of one hundred and fifty dollars, with interest thereon from said respective *89dates last mentioned, is now sought to be recovered in this suit from the said defendant.”

On March 26, 1887, a son of the defendant filed the following affidavit of defence:

“ Harry A. Rau, being duly sworn, deposes and says that, by the advice, and having full knowledge of the facts, and at the request, of defendant, he makes this affidavit on his behalf, the defendant being sick and unable to appear in his own behalf; the affiant is thoroughly familiar with the defence, and knows there is a good and sufficient defence to the claim of the plaintiff, but he is advised by counsel, learned in the law, that the nature and character of the same he is not compelled to reveal at this time.”

On the same day, the court, disregarding the affidavit, entered judgment for want of an affidavit of defence, without rule or notice to the defendant.

On March 30, 1887, a supplemental affidavit was offered to be filed, but was not received. It averred, inter alia, “ that the said James Stark, named as lessee, did well and faithfully keep and perform all the covenants mentioned to be performed in said paper or lease, and did not fail to pay said rent as it fell due as alleged but on the contrary well and truly performed and paid the same, but the said James Stark has since deceased, and was not in possession of said premises by himself, his heirs, executors, administrators, or assigns, or of any part thereof, for or during the time, or any part of the time, for which plaintiff seeks to recover under said lease and averment. That defendant is in nowise liable for the rent alleged to be due, and claimed by plaintiff, because he further says that, long before the time said rent is alleged to have accrued, the lessor had accepted possession of said premises, as also a surrender of the term, and has long since, and long prior to the time said rent is alleged to have accrued, rented said premises to another, viz., one, William Owen, who was placed in possession by lessor, and is still in possession and was in possession at the time said rent is alleged to have accrued.”

A rule to strike off the judgment was subsequently granted and afterwards discharged.

It is stated, in the paper book of defendant in error, that the above affidavit was not a supplemental affidavit of defence, but an affidavit in support of the motion for the rule to strike off the judgment. The testimony, taken upon the hearing of the rule, contradicted the averments of the affidavit.

*The assignments of error*specified the action of the court, 1, in entering judgment for want of an affidavit of defence; 2, in entering judgment for want of an affidavit of defence after an affidavit had been filed; 3, in entering judgment after an affidavit of defence had been filed, before the time fixed by the Act of Assembly entitling plaintiff to judgment by default and before the time fixed by *90rule of the court for taking judgments for want of affidavits, and without any rule for judgment for want of the sufficiency thereof being first taken, and defendant afforded any opportunity of being heard; *4,*in entering judgment without permitting defendant an opportunity to file a supplemental affidavit of defence setting forth the merits of his defence in full; 5, in entering judgment upon the copy filed; 6, in holding the copy filed to be such an instrument of writing as entitled the plaintiff to judgment for want of an affidavit of defence; 7, in refusing to strike off the judgment; 8, in holding the averments, which were not filed with, or attached to, the instrument of writing upon which suit was brought, to be a part of the copy filed; 9, in holding that the averments so filed should be considered as a part of the instrument sued upon, and the allegations therein be denied by the affidavit of defence ; 10, in holding that the affidavit made by the son of defendant, “ who swore there was a defence to plaintiff’s claim,” was a nullity.

*Henry B. Freeman,*for plaintiff in error.

These papers are alleged to have been drawn by, for, or on behalf of the defendant in error, so that it is not a case of the plaintiff in error endeavoring to take advantage of his own mistake or to avoid his own act.

Plaintiff below avoids alleging in his averments or anywhere “ that Stark, the lessor, entered into possession under said lease, or under said executor as plaintiff,” or that he paid rent under the same. The court had no right to presume, before trial, any fact not alleged against the defendant. Hall *v.*Bank, 6 Wh. 611, 612. The mere signing of a lease by defendant is not a demise to him. . Kelsey *v.*Tourtelotte, 59 Pa. 184.

Had the averments been attached to, filed with, or made a part of, the instrument sued upon, the defendant undoubtedly would have had to meet them in his affidavit of defence ; but not otherwise.

The rule of court requires notice when the copy is filed after the first week. How much more necessary when two papers are filed, showing a different claim, title, or right to sue ?

The affidavit of defence in this case was filed in time to prevent the entry of “judgment for want of an affidavit.” Act of March 28, 1835, § 2, P. L. 89; Purd. 495-6, § 13. The power to render judgment is given to the court by Act of March 11, 1836, § 3-

If an affidavit or suggestion of defense be filed, the usual prac•tice is to enter a rule for judgment for “ want of a sufficient affidavit,” which, upon notice to the defendant or his attorney, is heard on the following Saturday, upon a current list. This is the safe and proper practice to be pursued. While it is admitted that, in a few exceptional cases, judgment has been entered upon inspection of the affidavit of defence by the court, without notice to the defendant, or rule taken, and the affidavit treated as a nullity, there was *91always some exceptional cause for such procedure. None such existed in the present case.

When the party on the record is unable to make affidavit by reason of sickness or absence, his clerk, or any person having knowledge of the transactions, may malee the same. Sleeper *v.*Dougherty, 2 Wh. 177; Potts *v.*Smith, 2 Wh. 180; Potts *v.*Crabb, 2 Wh. 182; Hunter *v.*Reilly, 36 Pa. 509.

The affidavit was filed in time. An affidavit of defense may be filed at any time before judgment. Gillespie *v.*Smith, 13 Pa. 65.

The court, in their discretion, may permit a supplemental affidavit of defense to be filed, which, if sufficient, will prevent judgment. West *v.*Simmons, 2 Wh. 261 ; Riley *v.*Bullock, 2 Wh. Dig. 492, p. 251. A discretion abused or not soundly exercised is ground for review and reversal.

The alleged lease and agreement of suretyship is insensible and impossible of performance. To sustain it as a contract, there must be parties to contract, able to contract, and who do contract. There must be mutuality; both must be bound or neither. Bellas *v.*Hays, 5 S. & R. 426. It must be a legitimate party, who has a real existence. Hurst *v.*Fisher, 1 W. & S. 440.

This is not a case of a tenant denying the title of his landlord, but of a guarantor or surety denying the right of plaintiff to recover, in covenant, upon the instrument sued upon. A covenantor is not liable beyond the words of his contract. Ward *v.*Vance, 93 Pa. 499. In covenant, the action must be brought in the name of the covenantee. Strohecker, who survived Garver, *v.*Grant et al., Executors of Grant, 16 S. & R. 237, 241.

Plaintiff cannot, by averments, supply material facts that must be proved aliunde. Ins. Co. *v.*Brierly, 10 W. N. C. 45 ; Imhoff *v.*Brown, 30 Pa. 506; Lash *v.*Von Neida, 16 W. N. C. 93; Calhoun *v.*Association, 104 Pa. 392.

The lease is for a year, and not from year to year, there only being an agreement as to a further term “ if lessee continues in the occupancy,” and no notice was necessary, as the lease expired at the end of the year lessee ceased to occupy. Jones *v.*Kroll, 19 W. N. C. 505 ; McGregor *v.*Rawle, 57 Pa. 184.

Even the averments are not positive as to occupancy by lessee, for they allege that lessee “ or ” his heirs, etc.

*Chas. E.*Lex, for defendant in error.

The plaintiff in error is endeavoring to escape his liability by pleading a pure technicality, and does not deny that he is liable to some person. The averments set out the title of the plaintiff below and his right to bring suit,' and allege an entry with possession and a holding over from year to year. The plaintiff nowhere denies the entry and payment of rent, but alleges that Stark kept his covenants. This is an ackowledgment of the agreement of suretyship. The court has not been asked to presume, before trial, any fact not alleged against him, and the case of Hall *v.*Bank, 6 Wh. 611, has no application whatever.

*92The case of Kelsey *v.*Tourtelotte, 59 Pa. 184, does not apply, as, in that case, the lease was not delivered, nor was possession of the premises given, or any rent paid, under the lease.

The plaintiff below filed averments simultaneously with the copy of the agreement of suretyship, and the docket of the lower court shows this to be the fact, and any careful examination of the docket and record would have disclosed them.

Had the plaintiff below filed a declaration, under the old practice, with a view of obtaining judgment for want of an appearance, what answer would it be to the court that counsel did not see the declaration, because it was not attached to or made a part of the copy which was filed ?

A careful examination of the law does not show any authority or rule of court which requires averments to be attached to and made a part of the copy which is filed.

Frank *v.*Maguire, 42 Pa. 77, is similar in all respects to the present case, being an action of covenant against a surety upon a lease. A copy of the lease and covenant of suretyship was filed, and the court held that plaintiff was entitled to judgment without filing a declaration or statement.

If the lease or the agreement of suretyship was at all obscure, the averments filed in the case (even if they were necessary) make his title and right to recover clear and undoubted, and this is the proper scope of averments. Vulcanite Paving Co. *v.*Traction Co., 19 W. N. C. 233.

The alleged affidavit of defence was filed in time, but an inspection clearly shows its frivolous character, and the learned judge of the court below, who was granting judgment, upon the regular judgment day, having had his attention called to the same, granted judgment to plaintiff below, treating the affidavit as a nullity. This is the regular practice and has been expressly recognized in the supreme court in the case of Pluber *v.*Com., 11 W. N. C. 496; see also Taylor *v.*Nyce, 3 W. N. C. 433.

It is error to suppose that any affidavit requires a rule to show cause, and insures additional, delay. If the court deem it frivolous, it will be disregarded. Bank *v.*Flanigan, 15 Phila. 102.

The affidavit, filed by Henry A. Rau, on behalf of the defendant below, disclosed no defence whatever. The courts have always required an affidavit, which is made by a stranger, to set out all of the facts with particularity. Stollaker *v.*Lardner, 1 W. N. C. 169; *Cityv.*Devine, 1 W. N. C. 358; Blew *v.*Schock, 1 W. N. C. 612; Cowperthwait *v.*Roney, 10 W. N. C. 482.

In Hunter *v.*Reily, the affiant was a party in interest. Sleeper *v.*Dougherty and Gillespie *v.*Smith, do not apply, as the affidavit here was not in good faith.

The court’s authority to allow a supplemental affidavit is not doubted or denied, but it is purely discretionary and will only be exercised when injustice would be done to the defendant. No in*93justice will be done to defendant below in the present case. Defendant-below did not file any supplemental affidavit of defence, and the allegations which he made, in the affidavit for the rule to strike off the judgment, he could not support by his depositions, and the court did him no injustice in discharging the rule, as he had shown no defence.

The suit was properly brought and could not have been brought by any one other than the executor. Frankem *v.*Trimble, 5 Pa. 520; Broom on Parties to Actions, 41.

If the judgment is allowed to stand against the plaintiff in error, Edward H. Rau, and suit should be brought by any other person for the same cause of action, the present recovery can be pleaded in bar of the action. Com. *v.*Lightner, 9 W. & S. 117 ; Armstrong *v.*Lancaster, 5 Watts, 68.

Ins. Co. *v.*Brierly, 10 W. N. C. 45, expressly states that an averment of demand was allowed, where that was necessary to entitle the party to interest at any particular rate, oras to the extent of his claim.

In Imhoff *v.*Brown, 30 Pa. 506, the court recognized the plaintiff’s right to file averments, and added “ that the better practice was to confine the plaintiff to his copy and the statement respecting the extent of his claim and his right to sue, and not to permit him by his oath to allege facts against the defendant in the absence of which a recovery would be impossible.”

Lash *v.*Von Neida, refers to the right of the court to allow supplemental affidavits of defence to be filed, and does not touch upon the point of averments.

Calhoun *v.*Association, was a suit upon an injunction bond, and the parties filed a copy of the bond and an averment of the amount of their damage by reason of said injunction, which damage could only have been ascertained by a jury, and therefore was not the subject of an averment, and judgment could not have been entered upon the instrument of writing for want of an affidavit of defence.

In McGregors, Rawle, 57 Penna. St., 184, the tenant endeavored to remain after his term expired, contrary to a notice served upon him by the landlord prior to the expiration of his term, and it has no application to the present case.

The rule taken by the defendant below being a matter purely in the discretion of the court below, and having been discharged by said court, the writ of error should be quashed. Ins. Co. *v.*Hartshorne, 84 Pa. 45 5 ; White *v.*Leeds, 51 Pa. 187; Breden *v.*Gilliland, 67 Pa. 34.

A court has not power to strike off a judgment regular on its face. Breden *v.*Gilliland, 67 Pa. 34; Post *v.*Wallace, no Pa. 121.

A motion to set aside or strike off a judgment must be on the • ground of irregularity appearing on the face of the record; a mo*94tion to open it is an appeal to the equitable power of the court to let the defendant into a defence. O’Hara *v.*Baum, 82 Pa. 416.

March 25, 1889.

Per Curiam,

Judgment affirmed.