Bair & Gazzam, Lim. v. Hubartt

Citations

• 139 Pa. 96
• 21 A. 210
• 1891 Pa. LEXIS 961

Syllabus

<p>(«) Under a rule of the court below (Allegheny county), an averment of an affidavit of defence alleging a set-off filed by the defendant, not traversed specifically by a counter affidavit filed by the plaintiff, shall be taken as admitted on the trial of the case after issue joined:</p> <p>1. It was not error to admit in evidence an averment of countei’-claim for damages, alleged in an affidavit of defence to have arisen out of the failure of the plaintiff to perform a contract sued upon, which averment was not specifically traversed in the counter affidavit filed.</p> <p>2. Moreover, whether the defence set up came within the meaning of the term “ set-off,” as used in the rule, was a question peculiarly for the court below; and, in the construction and application of its own rules, a court can be reversed only for manifest and material error.</p>