Peck v. Jones
Supreme Court of Pennsylvania
Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 27. This was a scire facias sur mortgage, issued July 8th 1870 by Thomas Jones against John Peck and others. The mortgage was dated June 1st 1866, to secure the payment of $1000, part of the purchase-money of a lot of 5| acres of land purchased from the plaintiff by the defendants.
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Error to the Court of Common Pleas of Allegheny county: Of October and November Term 1871, No. 27. This was a scire facias sur mortgage, issued July 8th 1870 by Thomas Jones against John Peck and others. The mortgage was dated June 1st 1866, to secure the payment of $1000, part of the purchase-money of a lot of 5| acres of land purchased from the plaintiff by the defendants. The defendants filed an affidavit of defence, viz.:— “ The defendants purchased the grounds covered by said mortgage, from plaintiff for the purposes of a cemetery, and made that fact known to plaintiff. Plaintiff made to…
1Opinion of the Court
The opinion of the court was delivered, November 8th 1871, by
Sharswood, J.
An affidavit of defence, which is required by law or rule of court, to set out the nature and character of the same, ought to aver distinctly either upon knowledge or information and belief, every fact necessary to constitute a defence. Nothing should be left to mere inference. The affidavit in this case does not for this reason sustain the contention of the plaintiffs in error. It does not allege that the plaintiff below knew at the time of the contract of sale of the lot, the fact that Bedford avenue as laid out in…
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