Legal Opinion

De Cou Bros. v. Englander

Superior Court of Pennsylvania

Decided April 19, 1909No. Appeal, No. 136Published

Appeal, No. 136, Oct. T., 1908, by-defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,777, making absolute rule for judgment for want of a sufficient affidavit of defense in case of De Cou Brothers Company v. Samuel Englander. Assumpsit on a guaranty. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court.

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Appeal, No. 136, Oct. T., 1908, by-defendant, from order of C. P. No. 2, Phila. Co., March T., 1908, No. 2,777, making absolute rule for judgment for want of a sufficient affidavit of defense in case of De Cou Brothers Company v. Samuel Englander. Assumpsit on a guaranty. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court. Error assigned was in making absolute rule for judgment for want of a sufficient affidavit of defense.

1Opinion of the Court

Opinion by

Rice, P. J.,

The affidavit of defense does not go to the merits of the plaintiff’s claim, but only to the sufficiency of the statement. This being so, allegations of fact which do not appear in the statement should not have been introduced into the defendant’s history of the case and brief of argument. If he deemed it important that they be brought to the notice of the court, he should have put them in his affidavit of defense and sworn to them.

We gather the following facts from the statement:

At the time the writing hereafter quoted was executed by the defendant and delivered to the…

2Cases cited3 opinions

  1. Woods v. ShermanSupreme Court of Pennsylvania · 1872
  2. Bill Posting Sign Co. v. JermonSuperior Court of Pennsylvania · 1905
  3. Leek v. Livingston Manor Manufacturing Co.Superior Court of Pennsylvania · 1906

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