FIDELITY & DEPOSIT COMPANY OF MARYLAND, Plff. in Err., v.

UNITED STATES OF AMERICA TO THE USE OF LEWIS E. SMOOT.

(See S. C. Reporter’s ed. 315-322.)

Stare decisis — failure to give reasons for de¬ cision — validity of court rule requiring affidavit of defense — right to trial by jury.

Court of the United States upholding a rule of a court of the District of Columbia is not lessened by the former court’s failure to give the grounds for its decision, as this omission does not give rise to an inference that it had doubts as to the validity of the rule, but rather that it regarded the grounds of chal¬ lenge to such validity as without founda¬ tion.

not denied by rule 73 of the supreme court of the District of Columbia, authorizing judgment for plaintiff for want of a suffi¬ cient affidavit of defense in actions ex con¬ tractu in which plaintiff has filed a support¬ ing affidavit.

bond to insure the faithful performance of a contract is one “arising ex contractu,” with¬ in the meaning of rule 73 of the supreme court of the District of Columbia, author¬ izing judgment for plaintiff in such actions for want of a sufficient affidavit of defense.

tracts the faithful performance of which they were executed to secure, need not be filed in order to comply with the provisions of rule 73 of the supreme court of the District of Columbia, that in actions ex contractu a plaintiff who has filed an affidavit setting out distinctly his cause of action shall be enti¬ tled to judgment unless a sufficient affidavit of defense is filed.

[No. 381.]

Submitted October SI, 1902. Decided De¬ cember 1, 1902.

IN ERROR to the Court of Appeals of the District of Columbia to review a judg¬ ment which affirmed a judgment of the Su¬ preme Court of the District entered under the 73d rule for failure of the defendant to file with his plea a sufficient affidavit of de¬ fense. Affirmed.

See same case below, 30 Wash. L. Rep.

Statement by Mr. Justice McKenna:

*This action was brought in the supreme court of the District of Columbia, by de¬ fendant in error, against one Peyton D. Vinson, as principal, and plaintiff in error as surety, on certain bonds, to recover the

sum of $530.06. One of the bonds was in

Note. — On the right to trial by jury — see notes to Grand Rapids & I. R. Co. v. Sparrow (C. C. W. D. Mich.) 1 L. R. A. 480 ; Anderson v. O’Donnell (S. C.) 1 L. R. A. 632; Ellen- becker v. Plymouth County Dist. Ct. 33 L. ed. U. S. 801 ; Perego v. Dodge, 41 L. ed. U. S. 113 ; and Thompson v. Utah, 42 L. ed. U. S. 1061. 194

the United States.

the penal sum of $25,000, for the faithful performance of the covenants and conditions of a contract entered into by said Vinson with the District of Columbia. It was cove¬ nanted in the bond that Vinson would “promptly make payments to all persons supplying him with labor or materials in the prosecution of the work provided for in said contract.” And it was alleged in the declaration that Lewis E. Smoot furnished said Vinson certain materials, which were used by the latter in the completion of the work under the contract, of the value $599.- 73, of which amount only $206.95 was paid, leaving a balance of $392.78 due.

The other bond was for the penal sum of $6,000, with like covenants and conditions.

The declaration alleged that said Smoot furnished materials of the value of $143.28 to Vinson, which were used in the perform¬ ance of the latter’s contract with the Dis¬ trict of Columbia, and that said amount was not paid, though demanded. And re¬ covery of said amounts due was prayed against Vinson and the plaintiff in error, amounting *to the sum of $530.06. The dec-

laration was accompanied by an affidavit made by Smoot under the requirements of rule 73 of the court, hereinafter set out.

The affidavit was very full and circumstan¬ tial, and virtually repeated the declaration.

The plaintiff in error filed pleas to the declaration, in which it alleged that neither it nor Vinson owed the sums of money de¬ manded, or any part of either, “in the man¬ ner and form as the said United States above complained.” And also pleaded that neither it nor Vinson had broken the condi¬ tions, or any of them, on said bonds “in the manner and form as the said United States had above complained.”

The plaintiff in error on March 14, 1902, filed the following affidavit of defense:

“J. Sprigg Poole, being first duly sworn, deposes and says:

“1. That he is now, and for ten years last past has been, the general agent for the District of Columbia of the Fidelity & De¬ posit Company of Maryland, the defendant in the above-entitled cause.

“2. That the said defendant admits the execution of the bonds as alleged in the dec¬ laration in said cause.

“3. That the said defendant, its officers and agents, has no personal knowledge of the contracts alleged in said declaration to have been entered into by and between Lewis E. Smoot and Peyton D. Vinson, or of the indebtedness alleged to be due from said Vinson to said Smoot under said al¬ leged contracts; that the said defendant, its officers and agents, has not sufficient infor¬ mation, in the opinion of the affiant and of the counsel of said defendant, its attorney of record in said cause, to be safe in admit¬ ting or denying under oath the allegations of said declaration in regard to said con¬ tracts between said Smoot and Vinson, or the indebtedness thereunder, and in so far as said defendant is sought to be charged with the payment of said alleged indebted¬ ness from Vinson to Smoot it calls for strict proof of said alleged indebtedness.

187 U. S.

Fidelity & Deposit Co. v. United States, Use op Smoot. 817-319

“4. That sa id defendant is advised by its counsel that it is entitled under the law of the land to trial by jury as to the truth of the allegations of the declaration in regard to said alleged contracts between the said [3 18] Smoot and Vinson and the ‘alleged indebt¬ edness under said contracts ; that said defend¬ ant does not waive, but expressly claims, the benefit of the right of trial by jury, and prays that this honorable court will not en¬ ter judgment against it, the said defendant, without trial by jury upon the issues ten¬ dered by the pleas filed to said declaration.

“That this prayer for trial by jury is not made for the purpose of delay, but solely because the defendant is advised by counsel, and believes, that, under the law of the land, it is entitled to trial by jury in this cause, and that it cannot waive or surrender that right without exposing itself to the danger of being deprived of its property without due process of law.”

On the 18th of March the defendant in error filed a motion “for judgment, under the 73d rule, for failure of the defendant to file with his plea a sufficient affidavit of defense.”

Upon hearing, the motion was granted and judgment entered as prayed for in the declaration. The judgment was affirmed by the court of appeals, and the case was then brought here.

The 73d rule is as follows:

“In any action arising ex contractu, if the plaintiff or his agent shall have filed, at the time of bringing his action, an affi¬ davit setting out distinctly his cause of ac¬ tion, and the sum he claims to be due, ex¬ clusive of all set-offs and just grounds of defense, and shall have served the defend¬ ant with copies of his declaration and of said affidavit, he shall be entitled to a judg¬ ment for the amount so claimed, with inter¬ est and costs, unless the defendant shall file, along with his plea, if in bar, an affi¬ davit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must be such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part. And where the defendant shall have acknowl¬ edged in his affidavit of defense his liability for a part of the plaintiff’s claim as afore¬ said the plaintiff, if he so elect, may have judgment entered in his favor for the amount so confessed to be due.

“Sec. 2. The provisions of this rule shall not apply to defendants who are representa¬ tives of a decedent’s estate except when the affidavit filed with the declaration sets [3 19] forth that the contract ‘sued on was direct¬ ly with such representative, or that a promise to pay was made by him.

“Sec. 3. When the defendant is a corpo¬ ration, the affidavit of defense may be made by an officer, agent, or attorney of such cor¬ poration.

“Rules of the supreme court of the Dis¬ trict of Columbia adopted at the April term, 1898, p. 28.”

187 U. S.

Mr. L. H. Poole submitted the cause for plaintiff in error:

Judicial proceedings cannot be valid un¬ less they proceed upon inquiry and render judgment only after trial.

Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841.

'The 7 3d rule is “ inconsistent ” with that provision of the District Code which con¬ tinues the “ common law ” in force in the District.

3 Bl. Com. p. 342 ; Tayloe v. Riggs, 1 Pet. 596, 7 L. ed. 277 ; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000.

The affirmative description of the cases in which the jurisdiction may be exercised im¬ plies a negative on the exercise of such power in other cases.

Marbury v. Madison, 1 Cranch, 174, 2 L. ed. 72.

The courts which affirm the validity of the rule characterize ex parte affidavits, upon which alone judgment is rendered under the rule, as “ a kind of testimony the law ab¬ hors, and never resorts to except in case of necessity.”

Fries v. Fries, 1 MacArth. 294.

Such evidence lacks the essential element and crucial test of cross-examination, and presents more frequently the ingenious ma¬ nipulation of counsel than the candid testi¬ mony of witnesses.

Bart v. Hines, 10 App. D. C. 373; Stand¬ ard Oil Co. v. Oeser, 11 App. D. C. 85.

The rule is “inconsistent” with the com¬ mon-law principle governing the burden of proof.

Reeves v. Low, 8 App. D. C. 115; Daniels v. Solomon, 11 App. D. C. 175; United States ex rel. de Yturbide v. Metropolitan Club, 11 A; D. *C. 201; Faul v. Hulick, 18 App. D. C. 22.

A contested issue of fact at common law can only be determined by a trial before a jury of twelve men, and the unanimous ver¬ dict of those twelve men upon the issue.

District of Columbia v. Humphries, 12 App. D. C. 127.

In the District of Columbia the common law prevails, except as it may have been changed or modified by statute.

Willard v. Wood, 1 App. D. C. 57; De Forest v. United States, 11 App. D. C. 466.

“Trial by jury, as it existed at the com¬ mon law,” is not “ preserved ” under a “ rule depriving a party, under certain conditions, of his right to a trial by jury in the regu¬ lar mode of the common law.”

Gleason v. Hoelce, 5 App. D. C. 5.

The common-law system of pleading is in force in the District, binding alike upon this court and the inferior courts, in the absence of statutory provisions changing that law.

Marine Ins. Co. v. Hodgson, 6 Cranch, 219, 3 L. ed. 204; United States v. Eliason, 16 Pet. 301, 10 L. ed. 972; McKenna v. Fisk, 1 How. 249, 11 L. ed. 120; Baker v.

195

Supreme Court of the United States.

Oct. Term,

Cummings, 181 U. S. 122, 45 L. ed. 778, 21 Sup. Ct. Rep. 578.

Changes? in the common-law system of pleading in the District are to be made by Congress.

Baker v. Cummings, 181 U. S. 122, 45 L. ed. 778, 21 Sup. Ct. Rep. 578; 3 Bl. Com. 81, 84; Itoacli v. Vanltiswick, MacArth. & M. 178; Prigg v. Pennsylvania, 16 Pet. 617, 10 L. ed. 1089.

The actions ex contractu to which the rule has reference are necessarily such as arise upon money demands pure and simple, — ac¬ tions for a liquidated and specific amount of money, for the payment of which there is an express Contract between the parties, or for which the law implies a contract.

Deane v. Echols, 2 App. D. C. 528. See also Bailey v. District of Columbia, 4 App. D. C. 369,' 171 U. S. 161, 43 L. ed. 118, 18 Sup. Ct. Rep. 868.

The demand which the a ffidavit-of -defense law makes upon parties sued, to set forth, within a comparatively short space of time and with a considerable degree of precision and minuteness of detail, a complete defense to the cause of action, must necessarily pro¬ ceed upon the supposition that the party is speaking of his own affairs.

Endlich, Affidavits of Defense, § 317.

Bonds with collateral conditions are not within the spirit or principle of the a-ffi- davits-of-defense rule.

Endlich, Afiidavits of Defense, §§ 90, 100, 101, 103-105, 107-110.

The same is true of a “ contract of surety¬ ship for goods, etc., to be furnished to a third person.”

Ibid. § 158.

Instruments which are executory on the plaintiff’s part, or which for any reason re¬ quire averments supplemental to the copy filed, to complete the showing of defendant’s liability, are without the affidavit-of-defense law.

Ibid. §§ 171, 178.

Contracts under which the defendant’s lia¬ bility is in any manner conditional are out¬ side the scope and legitimate intention of the affidavit-of-defense law.

Ibid. § 182.

It is not every case of assumpsit, express or implied, which comes within the rule, but only those in which there is some direct dealing between plaintiff and defendant.

Ibid'. § 225.

Without violation of the fundamental rule of evidence that the best evidence' must be produced, the contents of the bonds in suit and of the contracts between the District and Vinson could not be proved by the plain¬ tiff’s ex parte affidavit.

Ibid. §§ 227, 228; Sebree v. Dorr, 9 Wheat. 563, 6 L. ed. 161.

A general and excellent test of the suffi¬ ciency of an affidavit of defense is contained in the rule that, if it put the plaintiff upon proof of any matter dehors the instrument (or copy), it will be sufficient to prevent judgment. Conversely, if the plaintiff be obliged, in order to make out his case against the defendant, to introduce matters 196

dehors the copy filed by him as the basis and sole evidence of his claim, he cannot be entitled to judgment; for if that rule means anything it means that the plaintiff’s case, as regards the defendant’s liability, must rest upon the face of the copy, unaided by any extraneous averments.

Endlich, Affidavits of Defense, §§ 289-293.

As the statute which created the right to such a recovery also prescribed the remedy, that remedy was exclusive of all others for the enforcement of that right.

Stephens v. Monongahela Nat. Bank, 111 U. S. 197, 28 L. ed. 399, 4 Sup. Ct. Rep. 336; Slocum v. P ornery, 6 Cranch, 221, 3 L. ed.

When the case turns, in whole or in part, upon the construction to be given to an in¬ strument in writing, the original or a copy should be filed as an exhibit.

Whitaker v. Middle States Loan, Bldg. tC Constr. Co. 7 App. D. C. 207 ; Siggers v. Snow, 15 App. D. C. 408.

It is the court’s duty to construe all writ¬ ten instruments given in evidence, as a ques¬ tion of law.

United States v. Hodge, 6 How. 282, 12 L. ed. 439.

Defendant’s affidavit is sufficient to put the plaintiff to proof.

5 Wash. L. Rep. 130; Young v. Grundy,

6 Cranch, 51, 3 L. ed. 149; Brown v. Pierce,

7 Wall. 205, 19 L. ed. 134.

The rule is inconsistent with the laws of the United States, because it impairs de¬ fendant’s right to "due process of law.”

Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841.

The rule is inconsistent with such laws, because it impairs defendant’s right to “ trial by jury ” in cases within the 7th Amendment, and authorizes summary judg¬ ment against him in such cases without such trial.

Barney v. Schmeider, 9 Wall. 248, 19 L. ed. 648 ; Hodges v. Easton, 106 U. S. 408, 27 L. ed. 169, 1 Sup. Ct. Rep. 307 ; Baylis v. Travellers’ Ins. Co. 113 U. S. 316, 28 L. ed. 989, 5 Sup. Ct. Rep. 494; Capital Trac¬ tion Co. v. Hof, 174 U. S. 1, 43 L. ed. 873, 19 Sup. Ct. Rep. 580.

The rule is. inconsistent with such laws, because it impairs defendant’s right to the protection of the statutory “ mode of proof,” and authorizes the entry of summary judg¬ ment against him without such proof.

Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724.

The rule is inconsistent with such laws, because it impairs defendant’s right to have the damages assessed in the manner pro¬ vided by law, and authorizes the entry of summary judgment against him without such assessment of damages.

Simonton v. Winter, 5 Pet. 149, 8 L. ed

The rule is inconsistent with such laws, because it exacts of defendant in actions at law discovery, in advance of trial, in cases in which he is not required by law to make

187 U. S.

Fidelity & Deposit Co. v. United States, Use of Smoot.

discovery, and authorizes the entry of sum¬ mary judgment against him if he . fails to make such discovery.

Union P. R. Co. v. Botsford, 141 U. S. 250, 35 L. ed. 734, 11 Sup. Ct. Rep. 1000; Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; National Cash-Register Co. v. Leland, 37 C. C. A. 372, 94 Fed. 502, 77 Fed. 242; Turner v. Shackvian, 27 Fed. 184; Sulzer v. Watson, 39 Fed. 414; Thomas v. American Freehold, Land d Mortg. Co. 12 L. R. A. 681, 47 Fed. 554; Shellabarger v. Oliver, 64 Fed. 307; Tabor v. Indianapolis Journal Newspaper Co. 66 Fed. 424; United States v. National Lead Co. 75 Fed. 94; Dcspeaux v. Pennsyl¬ vania R. Co. 81 Fed. 80S.

The rule inverts the rule of discovery laid down by this court.

Brown v. Swann, 10 Pet. 502, 9 L. ed.

The rule is inconsistent with the laws of the United States, because it violates the rule requiring the best evidence, and permits the contents of written instruments in suit to be proved by ex parte affidavit.

Tayloe v. Riggs, 1 Pet. 596, 7 L. ed. 277 ; Mills v. Bank of United States, 11 Wheat. 439, 6 L. ed. 514.

That formal proof of the execution of in¬ struments in suit is dispensed with unless denied under oath cannot authorize second¬ ary evidence of their contents.

Sebree v. Dorr, 9 Wheat. 563, 6 L. ed. 161. Mr. Crandal Mackey submitted the cause for defendant in error:

The requirement of an affidavit of merits in certain actions is an old common-law rule of practice.

3 Chitty, Gen. Pr. p. 543; 1 Tidd, Pr. p.

The constitutionality and legality of the rule have been attacked in every possible way, and the rule has been everywhere sus¬ tained.

Vanatta v. Anderson, 3 Binn. 423; Hoff¬ man v. Locke, 19 Pa. 57 ; Lord v. Ocean Bonk, 20 Pa. 387, 59 Am. Dec. 728; Law- rance v. Borm, 86 Pa. 225; Randall v. Weld, 86 Pa. 357 ; Laicrance v. Smedley, 6 W. N. C. 42; Honeywell v. Tonery, 5 Kulp, 360; Krause v. Pennsylvania R. Co. 20 W. N. C. Ill; Hunt v. Lucas, 99 Mass. 404; Merchants' Nat. Bank v. Glendon Co. 120 Mass. 97; McDonnell v. dwell, 17 Ill. 375; Roberts v. Thompson, 28 Ill. 79; Honore v. Home Nat. Bank, 80 Ill. 489; Harres v. Com. 35 Pa. 416.

In the District of Columbia the constitu¬ tionality and legality of the 73d rule is no longer an open question.

Cropley v. Vogeler, 2 App. D. C. 28; Foertsch v. Gerrnuiller, 2 App. D. C. 340; Smoot v. Rittenhouse, 27 Wash. L. Rep.

Rule 28 of the supreme court of New York requires an affidavit of defense to pre¬ vent judgment in all common-law actions.

3 Wait, Pr.

The statute of Massachusetts requires an

187 U. S.

319, 320

affidavit of defense in all common-law ac¬ tions.

Hunt v. Lucas, 99 Mass. 404.

Even at common law, in certairf cases, af¬ fidavits of defense were required to be drawn with great technical skill and accuracy to prevent judgment for the plaintiff.

Chitty, Gen. Pr. 543; 1 Tidd, Pr. 302.

The rule requires no more than that the defendant shall file a special plea under oath, where the plaintiff makes an affidavit of merits.

Cropley v. Vogeler, 2 App. D. C. 28 ; Law- rance v. Borm, 86 Pa. 225; Hunt v. Lucas,

99 Mass. 404; Honore v. Horne Nat. Bank,

80 111. 489.

Actions against sureties on bonds are within the purview of the rule.

Coursen v.. Browning, 86 Ill. 57; Myers v. Shoneman, 90 Ill. 80.

The contracts and bonds being matters of public record, it was not even necessary for the plaintiff to make profert of them.

United States v. Ritchie, 3 Mackey, 162.

The allegation of profert only need be made in the declaration, and the deed is then, constructively, in possession of the court.

Bouvier, Law Diet. 769; Tucker v. State, use of Kneighlon, 11 Md. 322; Germain v. Wilgus, 14 C. C. A. 561, 29 U. S. App. 564,

67 Fed. 597.

Mr. Justice McKenna delivered the opinion of the court:

The principal assignments of error are re¬ ducible to these contentions: (1) The court had no power to enact the rule; (2) that the rule was invalid, in that it de¬ prived defendants of due process of law and the right of trial by jury, in contravention of the Constitution of the United States and “the mode of proof of trial” prescribed by Revised Statutes, §§ 861 et seq.

The rule was formerly number 75 and has existed a long time. The court of appeals of the District has sustained its validity in a number of cases. This court also sus¬ tained its validity in Smoot v. Rittenhouse [27 Wash. L. Rep. 741] decided January 10,

The case is questioned as authority be¬ cause, it is said, that “if this court upheld a rule of such important character and doubtful validity it would give the grounds of its decision.” But the objection assumes that the court had doubts. The better in¬ ference is that the court regarded the grounds of challenge to the validity of the rule as without foundation. And its va¬ lidity was challenged and necessarily passed on, which disposes of contention that the decision was based on another point.

tention, — the right of a jury trial. In passing upon it we do not think it necessary to follow the details of counsel’s elaborate argument. In Smoot v. Rittenhouse [27 Wash. L. Rep. 741] the validity of the rule was sustained, as *well as the power of the[32Q] court to make it. If it were true that the rule deprived the plaintiff in error of the right of trial by jury, we should pronounce

197

320-322

Supreme Court of the United States.

Oct. Term,

it void without reference to eases. But it does not do so. It prescribes the means of making aji issue. The issue made as pre¬ scribed, the right of trial by jury accrues. The purpose of the rule is to preserve the court from frivolous defenses, and to defeat attempts to use formal pleading as means to delay the recovery of just demands.

Certainly a salutary purpose, and hardly less essential to justice than the ultimate means of trial. And the case at bar illus¬ trates this. It certainly does not seem un¬ reasonable to charge one who has become responsible for the performance of an act by another with knowledge of that act or with means of ascertaining it, so as to state a defense within the liberal interpretation of the rule declared by the court of appeals.

As early as 1879 the supreme court of the District recited the history of the rule, and explained its purpose. “It is a rule,” the court said, “to prevent vexatious delays in the maturing of a judgment where there is no defense. . . . Now, what does the rulo mean, this being its office? It is couched in very plain language. It says the defendant shall set out his grounds of defense, and swear to them. It does not mean a defense in all its details of incident and fact, but the foundation of the defense. That is all. Those grounds ought not to be vague and indefinite. They should have significance and meaning, and should ex¬ press the idea of defense upon the ground to which they are addressed. It was never contemplated that this rule required a par¬ ty to follow his case through all the lights and shadows of the evidence in it. That would be to hold it essential that he should try his case in his plea.” National Metro¬ politan Bank v. Hitz, MacArth. & M. 198.

This interpretation was affirmed in Crop- ley v. Vogeler, 2 App. D. C. 28; see also 2 App. D. C. 340; Gleason v. Hoeke, 5 App. D. C. 1, 12 App. D. C. 161; Bailey v. Dis¬ trict of Columbia, 4 App. D. C. 356.

And the facts stated in the affidavit of defense will be accepted as true. Strauss v. Hensey, 7 App. D. C. 289, 36 L. R. A. 92.

It would seem a logical result of the ar- 321]gument of plaintiff #in error that there was a constitutional right to old forms of pro¬ cedure, and yet it seems to be conceded that Congress has power to change them, even to the enactment of rule 73. The concession of that power destroys the argument based on the Constitution, and whether Congress ex¬ ercised the power directly or delegated it to the supreme court of the district of Colum¬ bia can make no difference. And that such power had been delegated to the supreme court of the District was virtually decided in Smoot v. Rittenhouse, 27 Wash. L. Rep.

out in the declaration “are not within the purview of the rule.” By “pqrview of the rule” is meant, as counsel explains, the spirit of the rule, and that, it is urged, in¬ tends only “money demands, pure and sim¬ ple,” not contracts of suretyship or condi¬ tional obligations. It is, however, conceded that the causes of action are within the let- 198

ter of the rule, and we are not disposed to make exceptions based on disputable consid¬ erations of its spirit against the interpreta¬ tion of the court, which has administered the rule for many years.

of its affidavit, and asserts the insufficiency of that of defendant in error. In support of the latter assertion, it is claimed, “copies of the bonds in suit and of the contracts between the District and Vinson should have been filed.” We may adopt the reply of the court of appeals of a like claim in that court. That learned court said:

“There is no merit in the formal objec¬ tions urged to the declaration and support¬ ing affidavit of the plaintiff. The bond is alleged to have been executed in accordance with the formal provision of the statute which makes it a public record, and profert of it was not required to be made. It is nothing more than a simple statutory obli¬ gation to pay any and all demands against the contractor of the nature claimed by the plaintiff. It does not appear that there was any formal written contract between the contractor and the plaintiff relating to the materials furnished by the latter, upon the necessary interpretation of which the liability in whole or in part depends. For the purposes of recovery it was sufficient to say, as was done, that ‘plaintiff agreed to

furnish certain materials at a certain price, for use, by the contractor, that he did fur¬ nish the same in specific amounts, and that the contractor received them and then re¬ fused to pay the sum due for them.”

The affidavit of plaintiff in error was not sufficient. The rule requires the affidavit, not only to deny the right of the plaintiff, but to state also in precise and distinct terms the grounds of defense, “which must be such as would, if true, be sufficient to de¬ feat the plaintiff’s claim in whole or in part.” See cases cited above.

Finding no error in the record, the judg¬ ment is affirmed.