Werner v. Gross

Citations

• 174 Pa. 622
• 34 A. 327
• 1896 Pa. LEXIS 937

Syllabus

<p>Attachment under act of March 17, 1869 — Fraud—Affidavit.</p> <p>On an appeal from an order refusing to dissolve an attachment under f^e act 0f March 17, 1869, P. L. 8, where the testimony on'the motion to dissolve has not been brought up, and there is nothing before the Supreme Court but the affidavit on which the attachment was founded and the petition to dissolve, and the affidavit follows the general language of the act, and contains also specific averments of fraud, and there is nothing to show abuse of discretion, the Supreme Court will not reverse the action of the lower court.</p> <p>Affidavit of defense — Statement—Extraneous matter.</p> <p>On a rule for judgment for want of a sufficient affidavit of defense, the court may not go outside of the case as presented by the claim and affidavit to consider extraneous facts either in support of, or against the line of defense disclosed.</p> <p>The defendant is required to deny only the grounds of liability averred and those which arise. by implication from the averments made, and an affidavit which' puts the plaintiff to proof of matters outside the statement is sufficient to prevent judgment.</p> <p>Where an action has been begun by attachment under the act of March 17, 1869, the plaintiff, on a rule for judgment for want of a sufficient affidavit of defense, cannot supplement his statement of claim by the affidavit upon which the attachment was founded, nor by the finding of the court upon a motion to dissolve, nor by the verdict in a feigned issue to determine the validity of a judgment confessed by the defendant, upon which an execution had issued, and a levy been made on his goods prior to the service of the attachment.</p> <p>In an action of assumpsit to recover on a book account, an affidavit of defense is sufficient which avers that promissory notes were given and accepted as payment for the goods purchased by the defendant, and that such notes were not due when the action was brought.</p>