Baker v. Tustin

Supreme Court of Pennsylvania

Baker v. Tustin

91 A. 891, 245 Pa. 499, 1914 Pa. LEXIS 904

CourtSupreme Court of Pennsylvania

DecidedMay 22, 1914

DocketAppeal, No. 388

StatusPublished

Cited by9 cases

This text of 91 A. 891 (Baker v. Tustin) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baker v. Tustin, 91 A. 891, 245 Pa. 499, 1914 Pa. LEXIS 904 (Pa. 1914).

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Opinion

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 [501]*501precision 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.

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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 [501]*501precision 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.

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Bluebook (online)

91 A. 891, 245 Pa. 499, 1914 Pa. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-tustin-pa-1914.

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