Baker v. Tustin

245 Pa. 499 | Pa. | 1914

Per Curiam,

The sole defense set up by the appellant in his affidavit is that the appellee had unlawfully entered judgment against him on his bond accompanying the mortgage upon which this writ of scire facias was issued, and the averment upon which he relied in the court below, in asking for the discharge of the rule for judgment for want of a sufficient affidavit of defense, is merely that he had been damaged by the entry of the said judgment in the sum of $10,000. It does not appear that he ever asked to have it opened or stricken off; but, aside from this, the vague allegation of the damage sustained was utterly insufficient to prevent the entry of judgment on the mortgage. “Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness: Markley v. Stevens, 89 Pa. 279. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such a claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood : Loeser v. Warehouse, 10 Pa. Superior Ct. 540. An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would allow: Comly v. Simpson, 6 Pa. Superior Ct. 12; Kemp v. Kemp, 1 Woodw. 154”: Law v. Waldron, 230 Pa., 458.

Judgment affirmed.