Zerbe v. Bewry

3 Foster 11

• Court: Pennsylvania Court of Common Pleas, Schuylkill County
• Decided: March 29, 1875
• Status: Published

Opinion

Opinion delivered 29 March, 1875, by

Walker, J.

The reasons assigned for this motion are:

1st. That the writ is to the justice and a constable.

2d. That the affidavit for the writ is defective.

3d. That the bail is insufficient and irregularly entered.

The answer to the first objection is, that the court ordered the writ to be amended by striking out the name of the constable as surplusage, after which the justice certified his proceedings and returned the same. This was certainly within the power of the court.

As to the second objection, the original affidavit set forth that the writ was not sued out for delay, but because, if the defendant is obliged to pay said judgment, he will have to pay more than is justly due. In Benner v. Ducoing, 1 Browne, 217, it is ruled that it is not necessary to pursue the words of the act, but should substantially set forth the reasons of removal, and that the very essence of the affidavit is to state that the proceedings, if not removed, will oblige the defendant to pay more money than is justly due. We think that this is a substantial compliance with the act, even though the additional affidavit be not considered. Purdon’s Dig. 608, pl. 28.

* With reference to the insufficiency and irregularity of the bail, as the defendant has offered to give additional security, we direct him so to do, to cure the insufficiency of the bail and the irregularity in entering it (if there was any) previous to the issuing of the writ.

Motion refused.