author: by SharsWOOD, J.

text:
    City of Philadelphia versus Miskey.
    1. Where damages have been assessed or agreed on for land taken for Fairmount Park, the land vested in the City of Philadelphia, and if the landowner continues in possession it is at sufferance and he can be turned out at any time.
    2. Either under the Act of April 14th 1868, or by a common-law action of debt, the landowner may recover the damages assessed or agreed on immediately upon confirmation of the report relating to damages.
    3. Stewart v. County, 2 Barr 340, distinguished.
    Error to the District Court of Philadelphia: To January Term 1870, No. 271.
    This was a writ of error by the City of Philadelphia to the judgment of the court below in Miskey v. Philadelphia, immediately preceding; it was argued with that case. It was, tried in the court below, October 21st 1869.
    On the trial the plaintiff offered in evidence the record of the Court of Quarter Sessions of the report of the commissioners and the confirmation of the report; also the petition of the plaintiff to the same court, praying the court to decree the payment of interest on the sum agreed on with the commissioners from the date of the agreement with the decree of the court for the payment of interest from the date of the confirmation of the report. These offers were objected to by the defendant, admitted by the court and bills of exceptions sealed.
    The defendant offered to prove that the plaintiff had possession of the land until April 6th 1869, the day when the damages were paid. The offer was refused by the court and a bill of exceptions sealed.
    The verdict was for the plaintiff for $2175, the amount of interest from the day of the agreement as claimed by him.
    The District Court, upon reserved points, afterwards entered judgment for $1115.10, being interest from the day of the confirmation of the report.
    The points submitted by the defendant are stated in the assignments of error, which were:—
    1 and 2. Admitting in evidence the records of the Court of Quarter Sessions.
    8. Rejecting the evidence offered by the defendant.
    4. Refusing to charge that section 9th of the Act of April 21st 1869 related back and became part of the Act of March 26th 1867, and its supplement of April 14th 1868; and there having been no judicial interpretation of that act and its supplement, upon the faith of which the plaintiff below acted, he had acquired no such vested rights as would prevent the 9th section of the supplement of 21st April 1869 from having a retrospective operation.
    5. Refusing to charge that the decree of the Court of Quarter Sessions was not such a judicial interpretation, for their jurisdiction is limited by the act to a revision of the negotiations of the park commissioners. But if it be such a judicial interpretation, the plaintiff below did nothing upon the faith of it, and therefore it does not prevent the supplement of April 21st 1869 from relating back.
    6. Refusing to charge that the only right to sue in another court upon a decree of the Court of Quarter Sessions is derived from the Act of April 21st 1855, and the year there mentioned had not expired at the time this suit was brought.
    7 and 8. Not charging that the verdict should be for the defendant below; and in not entering judgment for the defendant below on the points reserved.
    9. The assessment of damages is excessive and beyond the amount proved.
    The substance of the 7th section of the Act of 1855 is stated in the opinion of the Supreme Court; the sections of the other acts are found in Haley v. Philadelphia, antea p. 45.

      May 8th 1871,

      0. IT. Jones (with whom was T. J. Barger, Oity Solicitor), for plaintiff in error,
    cited the same authorities as in Miskey v. Philadelphia, antea 48 ; and on the 4th and 5th assignments: Dwar. on Statutes 685; Attorney-General v. Pougett, 2 Price 241; Hepburn v. Curts, 7 Watts 300; Lambertson v. Hogan, 2 Barr 22; Braddee v. Brownfield, 2 W. & S. 271; O’Connor v. Warner, 4 Id. 223; Gault’s Appeal, 9 Casey 94.

      J. 'O. Longstreth and IT. 0. Townsend, for defendant in error,
    cited, as to the 4th and 5th assignments, Reiser v. William Tell Association, 3 Wright 137, and also the same authorities cited by them in Miskey v. Philadelphia.
   The opinion of the court was delivered,

by SharsWOOD, J.

The judgments just entered in Haley v. The City, and Miskey v. The City, have settled the two principal points of contention in this cause. 1st. That in proceedings under the Act of April 14th 1868, Pamph. L. 1083, interest is payable to the owner of land appropriated for the purpose of the Fair-mount Park, upon the valuation agreed upon between him and the commissioners from the date of its confirmation by the Court of Quarter Sessions. 2d. That the 9th section of the Act of April 21st 1869, Pamph. L. 1194, declaring “ that no interest shall be allowed on damages for ground taken up to the time of their payment, or the issue of any warrant for their payment by the city of Philadelphia,” so far as it undertakes' to establish a rule for cases which had arisen and been adjusted either by agreement of the parties, or the award of a jury prior to its passage, is unconstitutional and void. Some other grounds of error have been raised upon this record by the plaintiff which it is our duty to notice.

The 1st assignment is to the admission in evidence of the record of the Court of Quarter Sessions, showing the report of the commissioners of the valuation agreed upon and the confirmation thereof by the court. But it was certainly necessary, in order that the plaintiff should sustain his action against the city, supposing the court below to have had jurisdiction, a question to be considered presently, that he should show that the commissioners had made report, and that it had been confirmed. This he could only do by the record.

The 2d assignment is to the admission of the record of the Court of Quarter Sessions, showing the order and decree of that court upon the subject of interest. We may assume it to be true, as the plaintiff in error contends, that the Quarter Sessions had no jurisdiction to make that order, that their power in the premises was exhausted when they approved and confirmed the original report. Yet if, as we shall see, the question of interest ■was a pure question of law arising upon tbe first record, tbe error of admitting the second record, if it was an error, was an entirely harmless one. It is not contended here that the award of interest by that court was final and conclusive, as it undoubtedly would have been in any collateral proceeding if the court had jurisdiction.

The 3d error assigned is, that the court below did not permit the defendant to prove that the plaintiff enjoyed possession of the land in question until payment of the damages was made. ‘ The evidence offered was clearly irrelevant. The Acts both of 1867 and 1868 had vested the title in the city; if the plaintiff below continued in possession it was at sufferance merely. He could be turned out at any moment. As was remarked by Mr. Justice Strong in City of Philadelphia v. Dyer, 5 Wright 463 : “Delay of payment is not the less an injury because the landowner may continue the occupation of the land. Such occupation can be but permissive, at all times subject to the paramount rights of the public. The land cannot be built upon or improved, except at the hazard of the improver, and it is worthless for sale. Its principal value has been taken away, * * * and the city has acquired the right to enter at will.” Stewart v. The County, 2 Barr 340, upon which the plaintiff principally relies, has no bearing upon this question. The road laws under which that case was decided were peculiar in this, that no right to sue for damages was given by the statute, and after the lapse of a year without payment the entire proceedings fell. It was considered to be a reasonable inference that the legislature did not mean to give interest. In this case the Act of 1868 expressly declares that the amount of the agreed valuation or damages shall be payable forthwith upon the confirmation of the report. If the contention of the .plaintiff in error should prevail by merely not making an actual entry upon the land, the defendant might be kept out of his money indefinitely, and yet the plaintiffs in error have all they wished for the purposes of a park, namely, an open space unimproved and unoccupied.

The 4th and 5th assignments, which relate to the effect of the Act of 1869, are disposed of by the opinion in Haley v. The City.

The 6th assignment relates to the jurisdiction of the court below to entertain this action. It is urged that the only remedy of the plaintiff was under the 7th section of the Act of April 21st 1855, Pamph. L. 266. That section provides that the landowner, if the damages assessed for the opening of streets “ be not paid within one year, may sue said city for the recovery thereof.” The suit below was brought in less than a year from the confirmation. But the Act of 1868 provides that the amount confirmed by the court shall be payable forthwith by the city. The provision of the Act of 1867, as to the remedy being the same as that provided by law in the opening of roads in the city of Philadelphia, is in words, indeed, confined to damages assessed by a jury, but if it is to be so confined there is no remedy provided by the act, and it follows that the party has his common-law remedy by action of debt. But if the words of the act be extended by construction to include the case of an agreed valuation, it is nevertheless plain that, the Act of 1855, giving the city one year in which to make payment, has been superseded and changed in that respect by the Act of 1868, which makes the amount to be payable forthwith.

The 7th and 8th errors assigned are general ones, and need not be particularly noticed. The 9fch is, “ that the assessment of damages is excessive and beyond the amount proved.” The learned court below on the reserved point reduced the amount of the verdict. If there was any mistake in the calculation it was the duty of the plaintiff to have pointed it out specially in his assignment, or at least upon the paper-book. He should have given us his own calculation and the result. We are not expected to be experts in such matters. After puzzling my brains somewhat over the figures, though I have not been able to arrive at the same exact amount with the learned court below, yet the difference is but a few dollars, and de minimis non curat lex.

Judgment affirmed.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Brown’s Appeal.
    1. It is within the discretion of the court after having decreed a private sale under the Act of 1853, to open the decree and receive a more favorable proposition for the estate before proceedings under the order have been consummated. _ *
    2. This, after an investigation by an auditor and the assent to the decree by all parties interested has been obtained.
    3. The decree in its nature is interlocutory and the proceedings are in fieri until the sale be reported to the court, approved and the deed acknowledged.

      4. The court should not set aside the order without good and sufficient reasons affecting the estate and only upon reimbursing expenses to the purchaser.
    5. Hamilton’s Estate, 1 P. E. Smith, approved.
    March 1st 1871. Before Thompson, C. J., A&new, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Philadelphia: No. 278, to January Term 1870.
    The facts in this case are the following:—
    About the 2Sd of December 1868, Joseph Chew the elder died, having made his will, which was duly proved, and by which he gave the residue of his estate to his son Joseph Chew, Jr., and J. Gr. Brinckle, in trust, amongst other things to pay the income in the proportions mentioned to certain children and grandchildren during their lives, and upon the death of any of the life beneficiaries to pay the principal sum to the children of such decedent. He also authorized his trustees to sell his real estate when in their judgment it should he for the interest of his estate. He appointed the trustees executors of his will. Letters testamentary were granted to Joseph Chew, Jr., alone, Mr. Brinckle having renounced both as executor and trustee.
    On the 2d of October 1869, the petition of Joseph Chew, Jr., the executor and all the beneficiaries, present and remote, under the will, the minors by their guardians, was presented to the Orphans’ Court, setting out as above; and further that the testator died seised of certain real estate in Philadelphia, which was subject to a ground-rent of $686 per annum, which Joseph Chew, Jr., as executor and trustee, had agreed to sell to Benjamin H. Brown for $5250, subject to the ground-rent, provided authority to make such sale should be granted to him by the Orphans’ Court; that the real estate was in a dilapidated condition and would require a large outlay of money to make it tenantable; that the price was a full price, and greater than could be obtained at public sale. They prayed the court to authorize the trustee to make the sale as aforesaid to Brown.
    The petition was referred to an auditor. On the coming in and confirmation of his report, on the 16th of October 1869, the court authorized the trustee to sell the real estate to Brown at private sale for the price, &c., as set out in the petition.
    On the 6th of November 1869, the trustee presented a petition to the Orphans’ Court, reciting the foregoing proceedings, and setting forth that nothing further had been done under the order, and that none of the purchase-mon.ey had been paid; that his cestuis que trust had notified him that one C. M. Whiting had offered $6400 for the premises, and that Whiting had also made the offer in writing to the petitioner; he prayed that the order to sell might be vacated unless Brown would be willing to give the same price. Accompanying the petition was the notice to the trustee referred to iri the petition, signed by a number of the cestuis que trust, notifying him not to make a deed to Brown until the further order of the court, as Whiting had offered $1150 more than he; and requesting the trustee to petition the court to vacate the order of sale to Brown.
    Brown filed an answer to the petition, in which he set out the original negotiation and contract with the trustee; he further represented that one Crooker held at the time of the contract a lease of the premises which he, Brown, then agreed to purchase for $1000, solely to “ obtain the title together with the possession of the property;” that an order was drawn on him by Crooker in favor of the trustee for $262.50 for rent of the premises due July 1st 1869, which order was still in the possession of the trustee.; that upon the faith of the order of sale and before notice of any dissatisfaction, he engaged a conveyancer, whose bill was $85, to prepare the necessary papers, and had paid Crooker $125 on account of the purchase of the lease; that he had been obliged in consequence of these proceedings to employ counsel, whose fees would not be less than $50; that he was unwilling to add anything to the price he had agreed to give for the property, &c.
    After argument, the Orphans’ Court, December 14th 1869, decreed, “ that the order heretofore made in the premises, to wit, on the 16th day of October last past, be vacated upon the said Joseph Chew, trustee aforesaid, paying to the said Benjamin H. Brown, the sum of $1286.50, in case the said Benjamin H. Brown shall elect to convey and assign to him, the said trustee, the lease or unexpired term of said premises so purchased by him, the said Benjamin H. Brown, of John M. Crooker, and shall the said Benjamin H. Brown so elect, the said trustee shall have the option of returning to the said Benjamin H. Brown the acceptance of him, the said Benjamin II. Brown, for $262.50, given to the said trustee on account of back rent, and upon his doing so, shall he allowed a credit to that amount on account of said $1286.50. But in case the said Benjamin H. Brown shall refuse to elect so to assign and convey the said lease or unexpired term to the said trustee, then the said order, &e., shall become vacated upon the said trustee paying to the said Benjamin H. Brown $86.50, liability he has incurred under said decree. And thereupon the said trustees have leave to sell the said premises to the said Chester M. Whiting for the price and upon the terms proposed by the said Whiting. And in case the said trustee shall not comply on his part with this decree within twenty days hereafter, the said order of October 16th last past in the premises shall stand ratified and confirmed.”
    Brown appealed to the Supreme Court from this decree, and assign ed it for error.

      Q-. W. Thorn, for appellant.
    In Pennsylvania a court does not set aside a sale made under its own process on the sole ground of inadequacy of price: Carson’s Sale, 6 Watts 140.
    The sale to the appellant was, in some sense, a private contract. The testamentary trustee had power under the will to sell, and did sell, and the court, acting on the request of all the parties beneficially interested, did not only approve the contract, but by its decree ordered the sale to he made to the appellant: Silverthorn v. McKinster, 2 Jones 67; Coles v. Trecothick, 9 Ves. 234 ; Livingston v. Byrne, 11 Johns. 566; White v. Damon, 7 Ves. 30; Burrowes v. Locke, 10 Id. 470.
    Before confirmation the biddings were usually opened on an advance; but the rule now seems to be not to allow it on a mere advance after confirmation: Hoffman’s Masters in Chancery 223; Collier v. Whipple, 13 Wend. 224; Watson v. Birch, 2 Ves. Jr. 51; Williamson v. Dale, 3 Johns. Ch. 292; 2 Seton on Decrees 1204, 5; Ware v. Watson, 7 De Gex, M. & G. 739.
    May 8th 1871,

      A. Briggs, for appellee.
   The opinion of the court was delivered,

by Thompson, C. J.

We think it very clearly within the discretion of the Orphans’ Court, when it has decreed a private sale of real property under the Act of 18th April 1853, even after investigation by an auditor as to the terms proposed, and even where the assent of heirs and guardians has been obtained for the proposed sale, to open the decree, and receive a more favorable proposition for the estate, before proceedings under the order have been consummated. This is what was done in this case. Nothing had been done to consummate the first order, when a better offer for the property was made by another party, and the testamentary trustee, heirs and guardians, prayed the court to vacate the first order and allow a sale in accordance with the last proposition. In answer to the application made by the appellant, no sufficient reasons were shown to withhold the exercise of this discretionary power in the matter, and a new order was accordingly made, authorizing the acceptance of the increased bid on the terms of reimbursing the appellant for expenses incurred under the expectation of becoming the purchaser. This was proper. The first decree was in its nature interlocutory, for the Act of 1853 requires the sale to be reported to the court, approved, and the deed acknowledged before it. The proceedings were therefore in fieri until all this was done. The court ought not, we agree, to set aside an order of sale without good and sufficient reasons affecting the estate; and then only on reimbursing expenses to the first provisional or proposed purchaser. It is complained by the appellant that this has not been done in this case; but we have no testimony on the subject to sustain the complaint. The answer of the appellant to the petition to vacate the first order is not sufficient to establish the complaint, and that is all we have. The power of the Orphans’ Court over sales is well defined in Hamilton’s Estate, 1 P. F. Smith 58. At present we need not cite other authorities.

The proceedings of the Orphans’ Court are affirmed, and the appeal is dismissed at the costs of the appellant.


author: by Sharswood, J.

text:
    Kline versus Jacobs and Wife.
    1. If one occupies land by consent and permission of tbe owner, tbe jury may presume a promise to pay a reasonable rent.
    2. It would be an answer to the plaintiff's claim upon an implied assumpsit that the occupancy bad not been beneficial.
    3. A tenant in common cannot recover in assumpsit against his fellow for tbe use and occupation of tbe common property without an express contract to pay rent.
    4. Under such contract the defendant could not set up as defence that the premises were untenantable, more than any other tenant.
    5. Uor ordinary repairs to keep the premises in the same condition, the tenant can make no set-off against rent.
    6. If a tenant put permanent repairs on the premises without consent of the landlord, he cannot charge the landlord for them.
    7. An express contract to pay rent may be proved under a count for use and occupation.
    8. Statutes 4 Anne c. 16, § 14, and 11 Geo. II., c. 19, l 14, as to use and occupation, considered.
    March 1st 1871. Before Thompson, C. J., Asnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No 292, to January Term 1870.
    To March Term 1868, John Jacobs and Elizabeth his wife, in her right, brought an action of assumpsit against William O. Kline. The first count in the declaration was for the use and occupation of certain farms in the state of Delaware, “ used and occupied by the said defendant at his special instance and request from the said plaintiff, and by her permission,” &c. The second count was that in consideration that the plaintiff had permitted the defendant to have and use the farms, he promised “ to pay her so much money as she had reasonably deserved to hare for the same,” &c.
    The plaintiff Mrs. Jacobs and the defendant were tenants in common of the farms, she being the owner of an undivided fourth part.
    The plaintiffs furnished the defendant a bill of particulars, which was “ for the use and occupation by the defendant of the undivided estate of plaintiff Mrs. Elizabeth Jacobs of three farms, &c., jointly owned by her and the defendant. She claims as due her five years rent * * * at $300 per annum,” &c.
    Plaintiffs afterwards furnished another bill of particulars, similar to the foregoing, in which she claims as due her six years rent, * * * at $500, &c.
    On the trial December 4th 1869, before Hare, P. J., the plaintiffs offered to prove that the defendant agreed with Mrs. Jacobs in June 1862, to rent the farms from her and pay a reasonable rent for her share. The defendant after showing the bills of particulars, objected to the offer; it was admitted and a bill of exceptions sealed.

      March 13th 1871,
    Maria Jacobs then testified that in a conversation between Mrs. Jacobs and defendant, he said, “How about the Delaware property ?” She replied, “I cannot be going up and down to Delaware — go on and farm the farms and allow me a reasonable rent for my share.” He said, “Very well, I am satisfied; I will do so.”
    Charles Jacobs testified to a conversation between the parties, in which Mrs. Jacobs said to the defendant, “ Then you agree to take those Delaware farms and pay me a reasonable rent ?” He answered, “Yes, I do.”
    John Jacobs testified to a conversation, in which the defendant said, there was “ no way of getting at a definite rent, that he would pay a reasonable rent.” The plaintiffs gave evidence to show what was a reasonable rent for the farms.
    The defendant then offered to show the expenses and products of the farms; also the expenditures by him for the necessary repairs of the farms, without which they would not have been “tenantable and rentable.” Both offers were rejected and several bills of exceptions sealed. The defendant testified in contradiction of the evidence of the plaintiffs. The’verdict was for the plaintiffs for $862.50.
    The defendant having removed the record to the Supreme Court, assigned for error the admission of the evidence offered by the plaintiffs and the rejection of that offered by himself.

      W. L. Hirst, for plaintiff in error.

      J. Q. Longstreth, for defendants in error.
    Action for use and occupation lies wherever the demise is not by deed: Stat. 11 Geo. 2, cap. xix., sect. 24; Roberts’ Dig. 237. It lies where the relation of landlord and tenant subsists on an agreement express or implied: Taylor on Landlord and Tenant, sect. 636; Day v. Tomlinson, 5 J. B. Moore 558.
   The opinion of the court was delivered,

by Sharswood, J.

At common law one tenant in common could maintain an action of account against his companion only in the case where he had expressly constituted him his bailiff of his part: Co. Litt. 200, b. The statute of 4 Anne, c. 16, s. 27, Roberts’ Dig. 48, introduced an amendment of the law in this respect by allowing the action against the co-tenant “ as bailiff for receiving more than comes to his just share or proportion,” without proof of an express contract. But neither at common law nor under any statute could assumpsit for use and occupation be maintained upon the mere occupation, though it might be shown to be permissive. Each tenant has an equal right to the possession of the whole, and without an express contract to pay rent, account was the only remedy under the statute of Anne. The statute of 11 Geo. II., c. 19, s. 14, Roberts’ Dig. 237, provides that “ it shall and may be lawful to and for tbe landlord or landlords when tbe agreement is not by deed, to recover a reasonable satisfaction for tbe lands, tenements or hereditaments, held or occupied by the defendant or defendants, in an action on the case for the use and occupation of what was held or enjoyed; and if in evidence on the trial of such action, any parol demise or any agreement (not being by deed) whereon a certain rent was received, shall appear, the plaintiff in such action shall not thereupon be nonsuited, but may make use thereof as evidence of'the quantum of the damages to be recovered.” This section of the statute is reported by the judges as in force in this state: 3 Binn. 626. It is recognised also in Pott v. Lesher, 1 Yeates 578, and Henwood v. Cheeseman, 3 S. & R. 500. “Under the statute,” as is said by Lord 0. J. Eyre, in Naish v. Tatloch, 2 Hen. Bl. 323, “ a landlord who has rent owing to him is allowed to recover, not the rent but an equivalent for the rent, a reasonable satisfaction for the use and occupation of the premises, which have been holden and enjoyed under the demise, by the action for the use and occupation, and it is provided on his behalf, that if the demise be produced against him, it shall not defeat his action as it would have done before the statute, but the fixed rent shall only be used as a medium, by which the uncertain damages to be recovered in this form of action shall be liquidated.” Had the action in this ease in the court below been between strangers and not tenants in common, there would have been great reason to question the soundness of the rulings of the learned judge upon the offers of evidence. For then the jury, even if they had not believed the testimony of the witnesses as to the express undertaking of the defendant to pay the plaintiff a reasonable rent, could still have found upon the contract implied from the permitted occupancy. If a defendant occupies land by the consent and permission of the plaintiff, the jury may presume a promise to pay a reasonable rent: Henwood v. Cheeseman, 3 S. & R. 500. It is clear that this is not so as between tenants in common. It would be an answer, however, to the plaintiff’s claim upon an implied assumpsit to show that the occupation had not been beneficial: 3 Stephens’ Nisi Prius 2722. But here, unless the plaintiff had succeeded in satisfying the jury that there was an express contract to pay rent she had no title to recover whatever. The defendant made this contract with his eyes open. He could not set up as a defence that the premises were untenantable to avoid the payment of any rent, any more than any other tenant could. For ordinary repairs to keep the premises in the same condition in which it was when he made the contract, he could make no set-off against the landlord’s demand for rent. And if a tenant choose to put permanent repairs on the leased property without the consent of the landlord, he cannot charge them in an account with him: Long v. Fitzimmons, 1 W. & S. 530; Cornell v. Vanartsdalen, 4 Barr 364; Hitner v. Ege, 11 Harris 305. Had the offers of evidence in the court below been to show the condition of the premises as bearing upon the question of what would be a reasonable rent, undoubtedly tbe testimony would have been pertinent and admissible. But no such offer was made; on the contrary, rthe first offer was expressly to show the “ expenses and products of the farms;” and the second “ tbe expenditures by defendant for the necessary repairs of the farms.” To have admitted this evidence would have been in effect to turn the action into an action of account. If the object was to show that the farm was worth no rent at all, it should have been stated in such a way as not to mislead the mind of the judge from that object. It is clear, that presented in this form, the jury would have been equally drawn aside from what was the only question raised upon the pleadings and evidence. As to the first assignment of error, Pott v. Lesher, 1 Yeates 576, and Henwood v. Cheeseman, 3 S. & R. 500, are authorities in point, that an express contract to pay rent may be proved under a count for use and occupation. Tbe terms of tbe statute 11 Geo. 2 are too clear to admit of controversy on this point.

Judgment affirmed.


text:
    Bain et al. versus Lyle.
    1. A verdict, and judgment in an issue under a sheriff's interpleader is a judicial proceeding, -which, is final and conclusive on the parties and their privies as to the questions tried and decided.
    2. Privity in such cases denotes mutual or successive relationship to the same rights of property.
    3. Punk levied on goods on an execution against Austin, Oorry claimed the ownership and they were delivered to him under a sheriff’s interpleader upon his giving bond, &c. They were levied on and sold to Bain on an execution against Corry. The issue between Punk and Oorry was decided against Oorry; the sheriff under Punk’s execution took the same goods from Bain, and the court discharged a rule for an interpleader issue on Bain’s claim of ownership. Bain sued the sheriff in trespass. Held, that he was concluded by the verdict against Corry.

      4. Austin not being a party to the issue, neither he nor his creditors or assignees were bound by it.
    5. The interpleader bond being for the forthcoming of the goods to answer the execution, &e., should the issue he decided against the claimant, they are to be sold under that execution or a venditioni following it.
    6. The production of the same goods, although depreciated, if without the fault of the claimant, would discharge him.
    7. If by the act of the law the performance of the condition has become impossible, the bond is saved.
    8. An execution creditor cannot lose his lien or priority unless by his fault, without having a remedy against the sheriff and on his official bond.
    9. A fi. fa. having a lien on goods being stayed by a judicial order does not lose its priority to subsequent executions, though there was no stipulation in the order of stay that it should not lose its lien.
    10. It is proper practice to make stipulation for the continuance of the lien.
    March 1st and 2d 1871. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Bead, J., at Nisi Prius.
    Error to the District Court of Philadelphia: Of January Term 1870, No. 852.
    In the court below James Bain and James N. Kern, trading as Bain & Kern, on the 19th of September 1868, brought an action of trespass d. b. a. against Peter Lyle, sheriff of Philadelphia.
    On the 23d of August 1866, judgment was entered on a bond and warrant of attorney in favor of Greorge B. Corry against William Austin for $7000. On the 11th of May 1867, a fi. fa. was issued on this judgment, and his personal property sold by -the sheriff on the 24th of May to Corry.
    On the 25th of May, Amos Funk recovered judgment against Austin for $849.17, on which a fi. fa. was issued, and the sheriff levied on the goods previously sold to Corry under his judgment and execution. Corry claimed the goods and gave his bond, &c., under the Sheriff’s Interpleader Act; the sheriff withdrew from the possession of the goods and delivered them to Corry. On the 29th of July, whilst the interpleader issue was pending, Charles S. Poole obtained a judgment against Corry for $4000, and issued an execution, on which the sheriff sold and delivered the same goods, then in possession of Corry to Bain, and Kern became interested in them as partner of Bain.
    On the 6th of February 1868, the interpleader issue between Corry and Funk was decided in favor of Funk, who issued a venditioni, and the sheriff took the goods which Bain had purchased under the execution of Poole against Corry, and which were then in Bain’s possession. Bain & Kern, the plaintiffs, claimed the goods. The sheriff took the usual interpleader rule, which was discharged June 4th 1868, and the sheriff -sold the goods under the venditioni.
    Tire taking and selling these goods was the cause of action in this case.
    The case was tried, January 30th 1870, before Hare, P. J., when the foregoing facts were given in evidence.
    On the trial, Bain having testified that he had been deputy under sheriff Howell, further said:—
    “ On the 25th of May 1867, to the best of my belief, there was an execution put into my hands, Funk v. Austin. I returned that nulla bona. There was an alias fi. fa. in the same case issued, and in that arose the interpleader, the return to that writ which you had read in my return. The interpleader was pending when I quitted the sheriff’s office.”

      The return to the alias fi. fa. was:—
    “ In obedience to the within writ, I levied upon certain goods and chattels as the property of the defendant, July 24th 1867, which said goods and chattels were afterwards claimed as- the property of George R. Corry, upon which claim a rule and inter-pleader was filed. Rule absolute. Narr. and bond filed. Feigned issue ordered by the court to September Term 1867, No. 22, which said issue is still pending and undetermined as appears of record. So answers James Bain,
    Dept. Sheriff,” &c.
    The court charged:—
    “ This case turns on a point of law. It is admitted that the goods sold under the venditioni exponas were those which formed the subject of the interpleader, and Bain states that he knew of the interpleader when it was framed, and actually prepared the returns. Under these circumstances your verdict must be for the defendant.”
    The jury found for the defendant, and the plaintiffs removed the case to the Supreme Court, where they assigned the charge of the court for error.
    The rule of the District Court, under the Sheriff’s Interpleader Act, is as follows:—
    “ Whenever a rule taken by the sheriff, under the 9th section of the Act, * * * shall be made absolute by the court, a feigned issue shall be formed in such case upon a wager in the usual form, to determine whether the right of property in the goods levied on and claimed, or any part thereof, is in the defendant or in the claimant, in which issue the claimant shall be the plaintiff, and the plaintiff in the execution the defendant.
    “ The declaration in such issue shall be filed by the claimant within fourteen days from the time such rule is made absolute; and within the said time the claimant shall give bond to the plaintiff in such penal sum, and with such security as shall be approved by one of the judges .of this court, conditioned that the goods levied on and claimed shall be forthcoming upon the determination of the said issue, to answer the execution of the plaintiff, if said issue shall be determined in favor of the said plaintiff in the execution, or so many of them as shall be determined to belong to the defendant, and to be subject to the execution of said plaintiff. When said declaration is filed and bond given, the sheriff shall withdraw from the possession of such of the goods and chattels seized by him under the execution as are claimed by the claimant; no action shall be brought against the said sheriff in respect of the said goods and chattels; and the question of costs, and all further questions, be reserved until after the trial of the said issues.”

      May 8th, 1871,

      A. Briggs, for plaintiffs in error.
    When the sheriff has seized property and returns it to the possession of defendant without some mark to indicate that it is still under levy, it should remain in the hands of its possessor as free from the levy as it was before the sheriff levied upon it: Commonwealth v. Contner, 6 Harris 439.

      S. Sanson and D. Dougherty, for defendant in error.
    Where property, the subject of a levy, is bought, the purchaser takes it subject to the lien of the levy, although he did not know of the levy: 2 Cases inEq. abridged, pi. 1, p. 381; Burdon v. Kennedy, 3 Atk. 739. A fortiori where he who buys knows that the goods are subject to a levy.
    Under the Interpleader Act the claimant, instead of the sheriff, becomes the custodian of the goods; the lien of the execution continuing: Hagan v. Lucas, 10 Peters R. 400; Campbell v. Spence, 4 Ala. R. 543 ; Johnston v. Minor, 1 Tr. & H. Prac., part 2, p. 903, new ed. (old ed., vol. 1, p. 724).
   The opinion of the court was delivered,

by Sharswood, J.

A verdict and judgment in a feigned issue under the Sheriff’s Interpleader Act of April 10th 1848, Pamph. L. 450, is a judicial proceeding, which is final and conclusive upon the parties and their privies, as to the question tried and decided in it: Marsh v. Pier, 4 Rawle 273; Smith v. Elliott, 9 Barr 345. That such a verdict and judgment rests on the same principle as all other judicial determinations of controversies wras recognised in King v. Faber, 1 P. F. Smith 387. Interest reir publicce ut sit finis litium. Privity in the sense in which it is used in this rule denotes mutual or successive relationship to the same rights of property: 1 Greenl. on Ev. 523. Indeed, the strongest reasons exist for the rigid application of the principle to this class of cases. Otherwise, an execution which ought to be the end of the law would only be the beginning of an interminable succession of lawsuits. If either party, pending an issue to determine the question of property between the claimant and the plaintiff in the execution, by transferring his interest to a third person, could invest that party with the right to levy on the same goods by another execution against the same defendant, or to put in a fresh claim, there would be no end to the controversy. It would be tried over and over again with all the chances of varying success before different juries.

Unless, therefore, the legal effect of the order of the court upon the sheriff’s interpleader, and the claimant’s bond for the forthcoming of the goods was, so far as the execution creditor was concerned, to divest the title of the defendant, whatever it was, and vest it in the claimant — in other words, to shut up the execution creditor to his remedy upon the bond — it is clear that the learned judge below was right in his instruction to the jury to render a verdict for the defendant. Bain, as a privy — claiming under Corry by a sale pendente lite — was as fully concluded, so far as the execution creditor was concerned, by the result of that proceeding, as Corry himself. It settled as to all parties and privies, that Corry had no right of property or of possession as against Funk; and neither Corry himself nor his assignee could insist upon another trial. Bain’s own evidence showed conclusively that he had no cause of action against Sheriff Lyle for seizing and selling the same goods which he levied upon under Funk’s execution against Austin. If, however, the claimant’s bond and order of the court had the effect of throwing Funk entirely upon the bond, then the judge below committed manifest error. The question is as I have stated it, and not whether the lien of Funk’s execution was gone. That would arise as between him and a vendee of Austin or a subsequent execution creditor. Austin was no party to the feigned issue, and therefore neither he, his creditors or assignees, were concluded by it. As to him and them the question would be, whether the lien of Funk’s execution continued to bind the goods. That was the way in which the question arose in Hagan v. Lucas, 10 Pet. 400, as we shall presently see.

There are two grounds upon -which the contention on the part of the plaintiff in error rests: — 1st. The analogy of replevin and claim property bonds. And 2d. The policy which is supposed to sanction such a rule.

The bond in this case is entirely different from either a replevin or property bond. A replevin-bond is conditioned to make return of the goods if a return shall be awarded. If the sheriff does not find the goods upon the writ de retorno habendo in the possession -of the plaintiff he returns eloigned, and thereupon anciently a capias in withernam issued to seize other goods of the plaintiff.There was no power in the sheriff to follow the identical goods into the possession of any person to whom the plaintiff had sold them: Morris on Replevin 230. The remedy of the defendant is then upon the replevin-bond or against the sheriff for taking insufficient pledges. A claim property bond is security for the damages which may be recovered. Nothing but money can be recovered on it. That part of the bond usually given by the defendant which provides for a return of the property is a nullity. The judgment, if a verdict is found for the plaintiff, can only be for damages: Chaffee v. Sangston, 10 Watts 265; Moore v. Shenk, 3 Barr 13; Fisher v. Whoollery, 1 Casey 197.

There are other cases more analogous, in which the determinations sustain the ruling of the learned judge below. The bond given by the claimant under the interpleader was “ conditioned that the goods levied on and claimed shall be forthcoming upon the determination of the said issue to answer the execution of the plaintiff, if said issue shall he determined in favor of the said plaintiff in the execution, or so many of them as shall he determined to belong to the defendant, and to be subject to the execution of said plaintiff.” It will be observed, that it is not simply that the goods shall be forthcoming, but in order to answer the execution of the plaintiff — the execution before mentioned — upon which the levy was made — not an alias execution with its necessary accompaniment of a new levy, but that identical execution, or one following it up and perfecting it as a venditioni exponas. Nobody can pretend that the production of the identical goods, however depreciated in value, if not injured by his fault, would not discharge the claimant. In Sedgwick’s Appeal, 7 W. & S. 260, where, under the provisions of the 4th section of the Act of' July 12th 1842, entitled “An Act concerning executions,” Pamph. L. 408, usually called the Stay Law, a bond was given conditioned “ for the faithful forthcoming and delivery of all and every part of the said personal property upon the expiration of the said stay of execution to the proper sheriff, coroner, or constable,” it was held, that where such bond was given and the execution returned, and within the year an execution issued at the suit of another plaintiff, and the latter’s property was levied and sold, the first execution was entitled to the proceeds of sale. It is not easy to draw a distinction between that case and this. “This property,” says Mr. Justice Huston, “is during the year in the custody of the law as much as it was before this act, from the time of levy during the time which elapsed till the day of sale. No court can construe a law so as entirely and totally to defeat its operation. If any other creditors could take the property as soon as the bond was given, no man would have given bond to deliver it at the expiration of a year. Besides no law would require bail to deliver property at the end of twelve months, and yet allow it to be taken by law in twelve days or less. The bail then would, according to the law of the land, give a conditional bond which, by the law of the land, might become absolute in a week or a day without any default.” The surety in the bond undertakes for the forthcoming of the identical goods, not for their value, except in case of breach; if by act of law the performance of the condition has become impossible, upon every principle the bond is saved: Co. Litt. 206, a. So where without any law to authorize it, the sheriff delivered the property to the defendant upon a forthcoming bond; it was held not to avoid the lien as against a subsequent execution creditor: Lantz v. Worthington, 4 Barr 153. Indeed the principle is a general one — actus legis neminifaeit injuriam. The execution creditor cannot lose his lien or priority without some neglect or default on his part, without at least having a full remedy against the sheriff and on his official bond. Therefore it was held that a testatum fi. fa. from one county, docketed in the Common Pleas of another, and a lien on the defendant’s goods, does not lose its priority over subsequent executions by reason of a judicial order staying it, though there was no stipulation in the order staying the testatum that its lien should remain : Batdorff v. Focht, 8 Wright 195. “ It is a general principle,” said Mr. Justice Woodward, “that interlocutory orders shall not impair vested liens. It is usual to accompany such orders with a stipulation that the lien of the writ which is the subject of the order shall remain until the motion has been disposed of on final hearing; and this is a prudent and proper practice. But when, as in this case, it is omitted, the lien must nevertheless be regarded as preserved — for it is one of the vested legal rights of the plaintiff, and can no more be sacrificed by an edict of the court without a hearing than any of his other civil rights, whether of liberty or property.” To these decisions of this court maybe added one of the Supreme Court of the United States which is entirely in point. In the case of Hagan v. Lucas, 10 Peters 400, where there was under review a law similar to our Act of 1868, and a delivery of the property levied on to the claimant on a forthcoming bond, it was held that the lien of the execution was not discharged by the giving of bond with security. “ On the giving of the bond,” says Mr. Justice McLean, “the property is placed in the possession of the claimant. His custody is substituted for the custody of the sheriff. The property is not withdrawn from the custody of the law.”

Almost immediately after the passage of the Act of 1848 and the adoption of the rule of court which regulated the mode of proceeding and provided for the claimant’s bond, the District Court of Philadelphia, construing their own rule, adjudged this to be the law: 1 Troubat & Haly 903, Fish’s edition. That decision was acquiesced in by the profession, and the practice has since conformed to it. After the determination of the feigned issue the sheriff has proceeded to sell on the same execution, or if for any reason it has been returned with a levy upon a venditioni exponas founded upon it, and if the goods were not forthcoming to answer the execution has returned that fact. During all that period I have never heard of any practical inconvenience resulting from it. It is possible that now and then a claimant has had restored to him a store of goods, which he has proceeded to retail. The lien of the execution has never stood in his way. It is next to impossible for the sheriff or execution creditor to follow the goods in such a case, and in the majority of instances, and in all of that character, he is necessarily thrown on his bond. A grocer may sell by the pound to many hundred customers a hogshead of sugar to which he has no title. No doubt actions of trover may be brought against them all by the true owners. His store is not a market overt as it would be in London. Yet the community has suffered no practical inconvenience from this principle, and we should be very careful lest in infringing upon it we do not introduce greater practical inconvenience and injustice than we aim to avoid. It is the province of the courts to construe, not to legislate — jus dieere, not jus dare. It might have been wise for the District Court in the adoption of this rule to have provided a bond which would be absolute for the payment of the appraised value of the goods if found to be subject to the execution. Much, however, might be said on both sides of that question. They adopted the policy of a forthcoming bond, and held that the execution and delivery of such a bond did not discharge the goods from the lien of the execution, or substitute the bond for the goods. At this distance of time we will not reverse that ruling and the practice which has grown up in consequence of it.

Judgment affirmed.


text:
    Jarrett’s Executor versus Cope, Treasurer.
    1. An unincorporated saving fund, loan or building association, cannot recover more than the amount actually loaned to its members and legal interest.
    2. An association for “ the accumulation of a fund by the saving of its members to build or purchase for themselves dwelling-houses or real estate or to enter into business,” is not within the Building Association Act of May 8th 1855.
    S. The Act of April 12th 1859, relating to mutual saving fund, loan or building associations, applies only to corporations.
    March 2d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 10, to July Term 1870.
    This was an amicable action and case stated, in which William Cope, Treasurer of the Mutual Building Association No. 2, of Germantown, was plaintiff, and Anthony Weisenberger, executor, &c., of Thomas Jarrett, deceased, was defendant. The case presented the following facts:—
    The Building Association was formed in May 1867, and was unincorporated. By the articles of association its object was declared to be “ the accumulation of a fund by the saving of its members to build or purchase for themselves dwelling-houses or real estate, or to enter into business, as they should deem most advisable.” It was further provided, that every member for each share held in the association should pay $1 initiation fee, and at each monthly meeting 60 cents as part of the capital stock, and 25 cents annually to form a fund to pay taxes and current expenses. When each stockholder should have received $100 for each share of his stock, or the whole fund be sufficient to divide that amount, the association was to determine and close, and the treasurer deliver all papers to the borrowing stockholders, and enter satisfaction thereon. On the death of a member his legal representatives were to receive his full interest in the association; each stockholder might have a loan of $100 for each share of his stock when the funds should warrant, the stockholders to bid openly for the loan which was to be awarded to that one offering the highest premium, who should pay the premium before receiving the loan ; the loan to be secured by mortgage or judgment in the name of the treasurer on real estate; the borrower to transfer also to the treasurer a corresponding number of his shares of stock as collateral; interest to be paid every month at the rate of six per cent, per annum.
    Thomas Jarrett, the decedent, held thirteen shares of stock, 'and in February 1868 borrowed $300, paying 21 per cent, premium and receiving $237; he gave his bond, with a mortgage for $300, and transferred to the association three shares of his stock as collateral security. In February 1869, he borrowed $1000 from the association, paying 20 per cent, premium, receiving $800 and giving his bond, with a mortgage for $1000, and transferring ten shares of stock as collateral.
    . Jarrett died in October 1869: it was agreed that November 9th 1869 should be taken for the settlement of his account.
    In the settlement of Jarrett’s account, the association claimed according to the following statement:—
    “ Dr. Amount of loan, February 22, 1868, . $300 00
    “ interest, to November 9, 1869, 30 90

      “ of loan, February 19, 1869, . 1000 00
    “ interest, to November 9, 1869, 43 83
    1374 73
    Or. Interest paid,.....$36 50
    Dues paid, ..... 169 00
    Five per cent, on dues paid, . . 8 45 213 95
    $1160 78
    Or if the defendant is entitled to full value of his stock, $1132.73 And in either case, interest from November 9, 1869.”
    The defendant stated the account as follows:—

      “Dr. Net amount of loan of February 22, 1868, . $237 00
    Interest to November 9, 1869, . . 24 29
    Amount of loan, February 17, 1869, . . 800 00
    Interest to November 9, 1869, . . 33 33
    $1094 62
    Or. Interest paid, . $36 50
    Dues paid, . .... 169 00 205 50
    $889 12
    and interest from November 9, 1969.”
    “ If settlement is to be made in accordance with tbe articles of tbe Association, then judgment for $1160.78 and interest from November 9th 1869.
    “ If the defendant is entitled to have credit for full value of his stock, then judgment for $1135.26 and interest from November 9th 1869.
    “If the defendant is entitled to a deduction for premiums paid, then judgment for $889.12 and interest from November 9th 1869.”
    The court below entered judgment for the plaintiff for $1135.26, with interest from November 9th 1869.
    This was assigned for error on the removal of the case to the Supreme Court by the defendant.

      J. Starr, for plaintiff in error.
    In such associations as this, the rule has invariably been to allow the recovery only of the actual loan, with lawful interest: Bechtold v. Brehm, 2 Casey 269 ; Kupfert v. Guttenberg Building Assoc., 6 Id. 465; Hughes’s Appeal, Id. 471; Schober v. Accom. Loan Assoc., 11 Id. 223; N. Am. Building Assoc. v. Sutton, Id. 463; Philan. Building Assoc. v. McKnight, Id. 470; Reiser v. Wm. Tell Savings Assoc. 3 Wright 137; Kelly v. Perseverance Building Assoc., Id. 148 ; Denny v. W. Phil. Building Assoc., Id. 154; Premium Fund Assoc. Appeal, Id. 156; Houser v. Hermann Building Assoc., 5 Id. 478 ; McGrath v. Ham. Loan Assoc., 8 Id. 383; Everham v. Oriental Loan Assoc., 11 Id. 352; Seagrave v. Pope, 15 Eng. L. & Eq. R. 478; Johnston v. Potomac Building Assoc., 14 Leg. Int. 393 and 401.

      O. S. Panaoast, for defendant in error.
    This is simply a partnership whereby the members may, by the monthly payment of certain amounts, interests and profits, raise a fund for their joint benefit. The laws against usury do not apply to partnership transactions: Silver v. Barnes, 6 Bing. N. C. 180; Burbridge v. Cotton, 8 Eng. Law & Eq. 62; Seagraves v. Pope, 15 Eng. Law & Eq. 480; Mosely v. Baker, 6 Hare 87; Acts of April 22d 1850, Pamph. L. 550; May 8th 1855, Pamph. L. 519. The latter act simply repeals the usury laws as to these associations. Building Assoc. v. Seemiller in note, Schober v. Saving Fund, 11 Casey 225.
    March 20th 1871,
   The opinion of the court was delivered,

by Sharswood, J.

I do not propose to review the course of decisions in this court on the subject of building association loans. I am afraid that I do not understand them all, and certainly never would, have united in several of them as to the construction and application of the Acts of Assembly upon the subject. But there is one point which seems to be very clear, that it is entirely too late now to overrule them. These decisions settle two points : First, that an unincorporated society like that now before us could not under the Act of March 2d 1782, 1 Sm. L. 156, lawfully recover more than the amount actually advanced in loans to their members, and the legal rate of interest thereon: Bechtold v. Boehm, 2 Casey 269. In that case the English view that such associations were partnerships and the agreement of members to share the profits was not within the usury laws was urged on the court. “ We think,” said Tindal, C. J., “it was a dealing with the partnership fund, in which the defendant, had an interest in common with the other members of the society, and that it was not a loan. The defendant was interested in the fund when the money was advanced and when it was repaid. The rules of the society are in effect a mere agreement by partners that their joint contributions shall be advanced for the use of one or others as occasion requires:” Silver v. Barnes, 6 Bingh. N. C. 180. This was the ground upon which the judgment of the District Court below in that case had been entered, and that judgment was reversed and judgment was entered for the amount actually advanced and interest. The legislature, however, had interfered. By an Act of Assembly of April 22d 1850, sections 4, 5, 6, 7 and 8, Pamph. L. 150, any number of persons, citizens of Philadelphia, Schuylkill and Berks, associated for the purpose of forming “mutual savings funds, land and building associations, might apply to the Court of Common Pleas and obtain charters of incorporation, and by a subsequent Act of Assembly of May 8th 1855, Pamph. L. 519, it was declared that in investments by building associations in loans to members thereof, the premium given for purchase or priority of loan, shall not be deemed usurious.” In Kupfert v. The Guttenberg Building Association, 6 Casey 465, it was decided that a society formed for the purpose of loaning money to its members, is not a building association, within the meaning of the Acts of 1850 and 1855. “ This company,” said Chief Justice Lowrie, “ is not a building association at all. True, in the second article of its constitution ,it declares its object to be to erect buildings; but this is a mere sham, for all the rest of its constitution and by-laws shows most distinctly that its only purpose is to loan out its money.” “The Mutual Building Association No. 2, of Germantown,” is clearly within the ban of this opinion. By the first article of the constitution its object is stated to be “ the accumulation of a fund by the saving of its members to build or purchase for themselves, respectively, dwelling-houses or real estate or to enter into business, as they shall deem most advisable.” All the other articles, like those of the Guttenberg Building Association, show its purpose to loan out its money, and certain it is that a member having obtained a loan could do what he pleased •with the money — build or buy a house, go into business or spend it. Accordingly, in the Premium Fund Association’s Appeal, 3 Wright 156, where the loan was dated in 1857, it was held that under all contracts of loan by building associations at that time, whenever the rate of interest received exceeded that established by law, the borrower is not liable to pay the excess above the legal rate. The second point, then, which must be considered as at rest, is that an association, like that now in question, whether incorporated or unincorporated, is not a building association within the Act of 1855. Subsequently the legislature passed the Act of April 12th, 1859, Pamph. L. 544, — a well considered and ably drawn law — by which throughout the entire state mutual saving fund, loan or building associations, may be incorporated by the several Courts of Common Pleas, and it was declared to have been “ the true intent and meaning of the Act of 1850 to authorize the incorporation of companies or associations, with power to loan or advance, to the stockholders thereof the moneys accumulated from time to time, * * * * and that the premiums taken by the said associations, for the preference or priority of such loans should not be deemed usurious.” It is very clear that the provisions of this section do not apply to any associations but those incorporated under the Act of 1850. Unincorporated associations are unaffected by it. As to corporations under the Act of 1859, it is provided by the sixth section, “ that no premiums, fines or interest, or such premiums that may accrue to the said corporation, according to the provisions of this act, shall be deemed usurious.” The result then is, that the defendant below was entitled to a deduction for premiums paid.

Judgment reversed, and now judgment for the plaintiff below, for $889.12 and interest from November 9th 1869.


author: by Williams, J.

text:
    Day versus Zimmerman.
    1. A promissory noto may bo attached before maturity in the hands of the maker by a creditor of the payee.
    2. It is a debt within the meaning of the attachment laws, and as between payee and attaching creditor, is bound by the service of the attachment on the maker.
    3. The attachment is unavailing against a boná fide holder or endorsee for value to whom the note has been transferred before maturity, without actual notice of the attachment.
    4. In such case notice from lite pendente does not apply.
    5. D., March 1st 1866, made a negotiable note to M., payable in two years. An attachment at the suit of Z., a creditor of M., was served on D., as garnishee, November 1867. M. endorsed the note February 22d 1868 to Y. boná fide for value, Y. having no notice of the attachment, but knowing that M. had failed. D. paid the note to Y. Held, that it was discharged and D. not liable under the attachment.
    March 2d 1871. Before Thompson, C. J., Asnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 449,.to January Term 1870.
    This was a scire facias in foreign attachment by Peter Zimmerman against Israel L. Day, garnishee of Depue S. Miller; it was issued September 7th 1868. The foreign attachment was issued November 8th 1867 and served the same day. Judgment was entered against the defendant Miller on the 20th of June 1868 and the damages assessed at $416.83. Interrogatories were filed October 17th 1868 and answers November 7th. The garnishee, February 5th 1869, pleaded “ nulla Iona.”

    The cause was tried, November 4th 1869, before Stroud, J. The plaintiff gave evidence that the garnishee had said in November 1867, that about March 1866 he had given the defendant Ms promissory note for $5000, which matured about March 1st 1868. I-Ie then closed.
    For the garnishee, E. A. Depue, of the firm of Yohe & Depue, brokers and bankers in Easton, testified, that on February 22d 1868, the defendant at their banking-house offered the firm for sale or discount, a note dated March 1st 1866, drawn by the garnishee to the order of the defendant for $5000 in two years with interest. Witness gave $5450 for the note; he had no notice of any attachment or of anything wrong about the note; the note was protested for non-payment March 4th 1868. On the 5th Yohe & Depue gave to the garnishee a certificate that the note belonged wholly to them, having been endorsed by the defendant for a valuable consideration before maturity, and the defendant had no interest in it nor claim on the proceeds. The garnishee then paid the note to Yohe & Depue.
    On cross-examination, witness said some time before he had heard that the defendant had failed and gone to the West; he had not- heard of the attachment against Miller.
    The garnishee testified that he had determined to let the note go to protest: after learning from Depue how his firm came by the note, and consulting his counsel, he paid the note to Yohe & Depue upon receiving the certificate spoken of by Depue. Garnishee gave the defendant the note six or eight weeks before he left home for the West. He had bought from the defendant 200 shares of Warren Foundry stock, at $40 per share, and some land for $3500, making in all $11,500; he was endorser for defendant and bought the property to protect himself; for the purchase he gave him the $5000 note, and notes amounting to $6500 directly to defendant’s creditors, and had paid all but one of small amount; the price for the stock was more than its value; he knew defendant was in business troubles, but did not know then that he was going away.
    The plaintiff, in rebuttal under objection and exception, gave evidence that the defendant was largely indebted, and absconded from his-residence in Stroudsburg, and that this was rumored and known in Stroudsburg.
    The defendant submitted these points which the court refused:—
    1. If Yohe & Depue bought the note of the defendant without actual notice of the attachment before its maturity, the payment to them by defendant was a good and valid defence to this attachment, and their verdict must be for the defendant.
    2. There is no evidence that the defendant Day in any way assisted Miller in passing the note in question to Yohe & Depue.
    The verdict was for the plaintiff against the garnishee for $416.83.
    The garnishee removed the case to the Supreme Court and, amongst others, assigned for error the refusal to affirm his points.

      Gf. Junhin, for plaintiff in error.
    The presumption is, that an endorsee has received the note in the usual course of business: Snyder v. Riley, 6 Barr 164. An attachment is unavailable against a bond fide holder for value of a negotiable note, obtained after the attachment was served on the maker as garnishee, and after its return, before the maturity of the note, and without actual notice of the attachment. The doctrine of implied notice by Its pendens is not applicable in such cases: Kieffer v. Ehler, 6 Harris 388; Hill v. Kroft, 5 Casey 186 ; Ludlow v. Bingham, 4 Dall. 47; Maine Ins. Co. v. Weeks, 7 Mass. 439; Enos v. Tuttle, 3 Conn. 27; Huff v. Miller, 7 Yerger 42; Hinsdell v. Stofford, 11 Verm. 309; Little v. Hale, Id. 482; Eunson v. Healy, 2 Mass. 32; Grant v. Shaw, 16 Id. 341; Carlman v. Hays, 20 Pick. 132.

      J. Gf. Shipman (of New Jersey) and L. D. Vail,

    for defendant in error. — A deduction of fraud may be made not only from deceptive assertions and false representations, but from facts, incidents and circumstances which may be trivial in themselves, but decisive evidence in the case of a false design: 2 Kent’s Com. 48 d, 5th edition. The neglect of Day to take proper steps to protect himself is a fraud. The money was attached in his hands; he was restrained from paying until the attachment was disposed of, and was bound to act in good faith towards the attaching creditors: Ege v. Koontz, 3 Barr 109.
    May 8th 1871,
   The opinion of the court was delivered,

by Williams, J.

The law is well settled, that a promissory note is liable to be attached before maturity in the hands of the maker at the suit of a creditor of the payee. Though not due, it is a debt within the meaning of the Attachment Laws, and, therefore, as between the payee and attaching, creditor, it is bound by the service of the attachment on the maker; and if, after being attached, it remains in the hands of the payee until maturity, it is bound by the attachment as against all persons into whose hands it may thereafter come. But the attachment is unavailing as against a bond; fide holder, or endorsee for value, to whom it has been transferred, before maturity, without actual notice of the attachment. The doctrine of notice by Us pendens is not appli-' cable to such a case: Kieffer v. Ehler, 6 Harris 388; Hill v. Kroft, 5 Casey 186; and, therefore, a subsequent holder is not affected with constructive notice of the attachment.

In the case before us, the evidence shows, that Tohe & Depue purchased the note in controversy of the payee at their banking-house in Easton, shortly before its maturity, for $5450, without any notice of the attachment whatever. The fact, that they had heard that the payee had failed and gone West, was not sufficient to put them upon inquiry as to his right to dispose of the note. It was no notice of the attachment, nor of anything from which it could be inferred. It is clear then, that they took a good title to the note as against the plaintiff’s attachment. There was no evidence that the defendant assisted the payee in selling the note, or that he knew of his intention to dispose of it until after the sale had taken place. Nor was there any evidence, that the defendant colluded with the payee for the purpose of enabling him to hinder or defraud his creditors. So far as the defendant’s cross-examination shows, and this is all the evidence on the subject, he did not purchase the property for which the note in part payment was given, for less than its value, nor with intent to cover it up and conceal it from the payee’s creditors. The defendant was clearly entitled under the uncontradicted evidence in the case, to an affirmative answer to the points which were submitted by his counsel. Instead of declining to charge as requested, the court should have instructed the jury, that there was no evidence that the defendant, in any way, assisted the payee in passing the note to Yohe&Depue; and if they bought it without actual notice of the attachment before its maturity, the payment to them by defendant was a good and valid defence to the attachment, and their verdict must be for the defendant.

It is clear that under the law' and the evidence, the plaintiff was not entitled to recover.

Judgment reversed, and a venire facias de novo awarded.


author: by Thompson, 0. J.

text:
    Keating versus Condon.
    1. After the death of a lessee for years, the lease is the property of the administrator, whensoever appointed, for the benefit of the estate.
    2. No act of an administratrix, although his widow, could lawfully change the right of the estate to the lease; sne could not surrender it and take another lease in her own name.
    3. The widow of the lessee was dispossessed under the Act of December 14th 1863, before the expiration of the lease, on the allegation, which she denied, that she had surrendered it and taken a new one which had expired. Held, in an appeal from the judgment of the justice, that the lease was evidence that the term had not expired and that she had not taken a new lease.
    4. The premises were a tavern; the license was evidence on the question of damages.
    5. Her letters of administration were evidence as showing the character in which she was entitled to recover.
    6. The administration related to the death of her husband, and rendered her liable to account as administratrix for any disposition made of the lease with or without her consent.
    March 2d 1871. Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of jPhiladelphia: No. 376, to January Term 1870.
    This was a proceeding under the Landlord and Tenant Act of December 14th 1863, commenced June 24th 1868, before an alderman, by Martin Keating against Joanna Condon, for possession of a tavern in Buttonwood street, Philadelphia. The aider-man gave judgment against the tenant; she appealed July 14th 1868, to the Common Pleas, and was subsequently removed from the premises by a writ of possession issued by the alderman at the suit of Keating, the landlord.
    The premises originally belonged to P. Daily, who on the 7th of November 1866, by writing leased them to Thomas Condon for five years from the 22d of June preceding. Daily afterwards sold the property to Ke'ating, the plaintiff.
    Condon died in January 1867, leaving the defendant his widow in possession. Letters of administration of his estate were granted to her December 2d 1868,

      On the trial, October 22d 1869, before Peirce, J., the plaintiff called Patrick McGowan, who testified that he was agent of the plaintiff, and went to defendant’s house in February 23d 1867, to collect rent; she told him she had a lease which would run out June 22d 1867; witness further testified that the date (of the lease) was changed February 23d 1867; she said her husband was dead, and she wanted the receipt in her own name, and would not pay unless it was given in her own name; he receipted in her own name, and made a new contract with her for one year from June 22d 1867.
    Another witness testified that he was present when the plaintiff bought from Daily, who then said that Condon had a lease but for one year; that Daily said after he got the purchase-money from plaintiff, that he had got $ 100 from Condon for a lease for five years.
    Plaintiff also gave evidence that on March 11th 1868 he had given notice to defendant to quit; it was stated in the notice that her term would end June 22d 1868.
    Defendant offered in evidence the lease from Daily to her husband ; also the letters of administration: also her tavern license, and what she had paid for it. These offers were objected to by the plaintiff, admitted by the court, and several bills of exception sealed.
    She also gave evidence to show the amount of damage; and in contradiction of McGowan’s testimony.
    The court charged :—
    “ This is a landlord and tenant case to recover possession of premises at the end of the tenant’s term, in which case the defendant has the right of appeal, but the appeal does not act as a supersedeas; and if the tenant be dispossessed, and you should find that the tenancy had not terminated, then the defendant would be entitled to damages for the removal.
    “It appears that a lease was made November 7th 1866, to Thomas Condon, the defendant’s husband, in his lifetime, for five years, who died leaving her in possession; then it is alleged by plaintiff that the premises were leased to her. McGowan says, that on the 23d February 1867, she agreed to take the premises in her own name, when he made a parol agreement with her, to expire June 22d 1867.
    “ If there was an outstanding five years’ lease, it matters not whether the plaintiff knew it or not. Daily, the former owner, had parted with his possession for that time before he sold to the plaintiff, and he had no right of possession; the law cast the leasehold estate, as a part of the decedent’s personal estate, on the administratrix, and the defendant had no authority to surrender the lease, so far as the estate of the decedent is concerned, at the time it is alleged that she surrendered it, as it appeared in evidence that no administration was granted unto her until more than one year afterward.
    May 8th 1871,
    “ If you should find for the defendant, it would then be your duty to assess the damages which the plaintiff suffered by having been unlawfully, put out — that every paying business is supposed to have a certain value, known as good-will, and the jury should take that into consideration in making up their damages.
    “ That the measure of damages was the outlay for license, also expenses incurred by defendant in consequence of the removal, if she was removed unlawfully, and good-will, if any, of the place.”
    The verdict was for the defendant for $400 and possession.
    The plaintiff took a writ of error, and assigned for error the admission of the offers of evidence, and, in several specifications, the charge of the court.

      E. E. Pettit (with whom was L. P. Eleteher), for plaintiff in error.

      L. Hirst, for defendant in error.
   The opinion of the court was delivered,

by Thompson, 0. J.

No act of the defendant in this case could lawfully change the right of Thomas Condon’s estate to the lease granted him by Daily. By the death of Condon, it became the property of his administrator for the benefit of the estate, whensoever appointed; and the court was right in saying the widow was not authorized to surrender it and take another in her own name for a few months only. Indeed the fact of doing so was disputed and left to the jury, as we understand it. We see no error in this instruction. Nor in any other portion of the charge. Nor in admitting in evidence the lease to Condon. It is said, but upon what authority we do not know, that it was not given in evidence before the magistrate. This allegation is as positively denied by the other side. We have no means of deciding who is right. That, however, is not material, for it was properly evidence on the appeal, to show that it was not out when the defendant was dispossessed, and also to show a state of fact contrary to McGowan’s statement under oath, that defendant took a new lease by parol for four months as agent, when she had a lease of the same property which had-then four years and five months to run. The license was also properly admitted in evidence. As she claimed she was wrongfully deprived of its benefits by an unjust deprivation of possession, she was entitled to its cost, if this were 80. Nor was there a semblance of error in allowing the letters of administration to be given in evidence. They showed the character in which she defended, and was entitled to recover if at all; 'and it related back, so far as property was concerned, to the death of her husband, and rendered her answerable to account as administratrix for any disposition which had been made of it, with or without her consent.

We see nothing in any portion of the charge which we think requires correction, and

The judgment is affirmed.


author: by Agnew, J.

text:
    Sopp et al. versus Winpenny.
    L A judgment in ejectment against the defendant is conclusive evidence that he was in possession when the writ was served.
    2. Such judgment is hut prim®, facie evidence that he continued in possession when the habere was executed; and he may show that he had left the possession or was not in it after the service of the writ.
    3. Interest may he allowed on mesne profits.
    4. In an action for mesne profits and judgment against several, error appearing hut as to one, the judgment was reversed as to him and affirmed as to the rest.
    March 2d 1871. Before Thompson, C. J., A&new, Shakswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 302, to January Term 1870.
    This was an action of trespass for mesne profits to March Term 1866, brought by Samuel Winpenny against Ernst Sopp, John Born, Squire Dunkerly, Alexander Krail and Henry Becker. Sopp, Born and Krail pleaded “not guilty;” judgment was entered against Dunkerly and Becker for want of a plea.
    The cause was tried, January 6th 1869, before Greenbank, J. The plaintiff gave in evidence the record of an action of ejectment by the plaintiff against the defendants in this case, commenced June 29th 1865, for the premises for which the mesne profits were claimed, and judgment July 12th 1866; also writ of habere facias to March Term 1867, under which the plaintiff obtained possession, February 10th 1867, up to which time from June 29th 1865 the plaintiff claimed for mesne profits.
    John Hamm, for the plaintiff, gave evidence of the amount of rent collected by him as agent of the plaintiff, from the tenants of the premises. The defendants then offered to show the statement made by Dunkerly and Krail, tenants, to witness when he called on them for rent. Plaintiff objected, to the question, it was overruled, and a bill of exceptions sealed. He gave evidence of the value of the rents and profits of the defendant.
    Sopp then offered to prove that he had not been in possession of any part of the premises, nor in the receipt of any rents and profits since June 29th 1865. He also offered in evidence the record of a second ejectment for the premises brought March 3d 1866 by the plaintiff against the defendants in this case in which the verdict was in favor of Sopp. Both these offers were objected to, rejected by the court, and several bills of exception sealed.
    The court charged:—
    “ The plaintiff- brought an action of ejectment against the defendants for the property in question, and recovered a verdict and judgment therein. In February 1867, the plaintiff obtained' possession. Sopp has offered to show that he was not in possession. His possession was one of the questions in that suit, and [that suit settled that all the parties defendant therein were in possession from June 29th 1865, until February 10th 1867. The only question, therefore, is as to the amount of the damages.] The plaintiff has a right to claim interest on the mesne profits.
    “ The counsel of defendant, Sopp, has requested me to charge you as follows, viz.:—
    ‘ 1. If the jury believe from the evidence that the defendant, Sopp, has not been in possession of any part of the premises in question at any time since June 29th 1865, nor in the receipt of any part of the rents or profits thereof, the verdict should be for the defendant, Sopp.’
    ‘ 2. Under the evidence the verdict should be for the defendant, Sopp.’
    “ I decline to charge you as requested in either of those points.”
    The jury found a verdict for f674 for the plaintiff, on which a general judgment was entered.
    The defendants took a writ of error and assigned for error:—
    I. The rejection of the offer in the first bill of exceptions.
    2 and 3. The rejection of the offers in the other bills of exception.
    4. Not affirming defendants’ points.
    5. The part of the charge in brackets.
    , 6. Charging that plaintiff was entitled to interest on the mesne profits.

      J. Gr. Leach (with whom was B. Woodward), for plaintiff in error.
    The plaintiff must prove the length of time the defendants have been in actual possession: Adams on Ejectment 458; West v. Hughes, 1 Harr. & Johns. 574; Hare v. Fury, 3 Yeates 13; Poindexter v. Cherry, 4 Yerger 305.

      It. P. White (with whom was Gr. S. Parle), for defendant in error.
    The judgmentin ejectment was conclusive as to mesne profits from its commencement until possession under the habere: Osbourn v. Osbourn, 11 S. & R. 55; Drexel v. Man, 2 Barr 271. Born’s possession was Sopp’s: Doe v. Harlow, 2 M. & Rob. 40. These assignments of error go only to the judgment against Sopp ; it may be reversed as to him and affirmed as to the rest: McCanna v. Johnston, 7 Harris 434.
    May 8th 1871,
   The opinion of the court was delivered,

by Agnew, J.

The first assignment of error needs no notice. If at all competent the offer was made out of order. The 2d, 3d, 4th and 5th assignments raise a single question upon the conclusive effect of the action of ejectment, the record of which was given in evidence. This was an action for mesne profits, and the defendant, Sopp, offered to show that he was not in possession after the bringing of the ejectment; but the court below held that his possession was one of the questions in that suit, and that it settled that all the defendants were in possession from the 29th of June 1865, the date of the issuing of the writ, until the 10th of February 1867, when possession was delivered to the plaintiff upon the writ of habere facias possessionem, and that they were all liable for the mesne profits during that period. This was an error. The ejectment is conclusive evidence that Sopp was in possession when the writ was served on him, but only primff facie evidence that he continued therein until the delivery of the premises to the plaintiff. It is well settled that the verdict and judgment in ejectment are conclusive of the plaintiff’s right of possession, and his right to the mesne profits between the bringing of the ejectment and the delivery of the possession under the habere facias possessionem. During this interval his right cannot be questioned: Postens v. Postens, 3 W. & S. 182; Drexel v. Man, 2 Barr 271; Man Jr. v. Drexel, 2 Barr 202; Osbourn v. Osbourn, 11 S. & R. 55; Huston v. Wickersham, 2 W. & S. 313; Tillinghast’s Adams on Ejectment, ed. 1840, pp. 388, 389. But the defendant’s continuance in possession after service of the writ stands on a different footing, and neither on principle nor authority will he be prevented from showing that he had left the possession, or was not in it after service. The trial of an ejectment proceeds upon the state of the case as it stood at the bringing of the suit, and evidence of the possession after the service of the writ down to the time of trial is not generally given, except where the plaintiff is proceeding under notice to recover the mesne profits in the ejectment. The verdict and judgment, therefore, conclude the defendant only as to the plaintiff’s right to the mesne profits during the interval before mentioned, and his own tortious possession at the bringing of the suit. Butpf he openly, notoriously and fairly abandons the possession, or if the plaintiff resumes it before trial, there is no reason why he should pay for profits never reaped. The ejectment decided against him being conclusive of his possession at the time of the service upon him, the presumption is that he continues in possession, and the record is, therefore, primff facie evidence of the fact. But the plaintiff’s present action being for damages for the withholding of the possession from him, the mesne profits, which constitute the principal measure of the damages, must he determined by the length of the possession as well as the defendr ant’s acts while therein. It is, therefore, reasonable that he should be permitted to show when his possession actually ceased. The authorities are also in this way: Hare v. Fury, 3 Yeates 13; Bailey v. Fairplay, 6 Binney 450; Mitchell v. Freedley, 10 Barr 198; Tillinghast’s Adams’s Equity, ed. 1840, p. 390.

The question being one of damages the jury may allow interest on the mesne profits: Drexel v. Man, 2 Barr 276; Huston v. Wickersham, 2 W. & S. 208.

The error of the court not having injured any one but Sopp, the judgment will be reversed only as to him, and modified by affirming it as to the others, according to McCanna v. Johnson, 7 Harris 435.

Judgment reversed as to Ernst Sopp, and affirmed as to the other defendants, with leave to the plaintiff to move the court, if there be cause, for a venire facias de novo as to Sopp.


author: by Read, J.

text:
    Chestnut Avenue.
    By the Acts of March 18th and April 10th 1869, damages for opening streets in the Twenty-second Ward are to he assessed on all properties on the whole line of the street opened, not merely on those properties on that part of the street opened.
    March 3d 1871. Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 20, to July Term 1870.
    Chestnut Avenue is laid down on the plan of the city of Philadelphia as a continuous street from Thirty-second street to the-Chestnut Hill and Spring-house Turnpike. For years it had been opened between the Spring-house Turnpike and the Perkiomen Turnpike, and between Thomas’s Mill Road and Thirty-second: street, leaving the space between Thomas’s Mill Road and thePerkiomen Turnpike unopened, all being in the Twenty-second Ward. The unopened portion was ordered by councils to be-opened through property the estate of Isaac L. Hottenstein, deceased, whose heirs petitioned the court for a jury to assess the-damages they would suffer by reason of the opening.
    By the Act of 1st April 1864, § 1, Pamph. L. 206, it is provided that “ when any street in the city of Philadelphia is ordered-to be opened in accordance with law, the jury * * shall also make-inquiry as to the, advantages of opening said^street to property in the immediate vicinity of the same,” and shall determine “what amoufff,~if“any, shall be paid by the property owners benefited.”'

      May 18th 1871,
    The Act of March 18th 1869, § 11, Pamph. L. 395, and the Act of April 10th 1869, § 3, Pamph. L. 828, provide “ that the damages required to be assessed and apportioned among and against owners of land benefited by the opening of any streét, shall hereafter be assessed and apportioned in like manner only among and against owners of land on the line of such streets as may hereafter be opened in the Twenty-second Ward,” &c.
    A jury was appointed, who assessed $2500 damages to the petitioners,jj^arging a considerable.-pDr.tioji^of Jhe^amount to land .which Jay. upb¿ the part of the avenue theretofore op'enedT Jane M. Boudinot and others, whose land was 'thus sitnateaiiA'chai’gsd; filed exceptions to the report. The principal exception, — that considered in the Supreme Court, — was that the assessment of damages should have been against that land only which was on the line of the portion of the street opened under the recent proceedings.
    The Court of Quarter Sessions, Allison, P. J., delivering the opinion, dismissed the exceptions and confirmed the report.
    The exceptors removed the proceedings to the Supreme Court by certiorari, and assigned for error the dismissal of their exceptions.

      B. L. Boudinot and B. C. MeMurtrie, for exceptors.

      W. P. Messiah and J. Q-. Johnson (with whom was Thomas J. Worrell), contrd.
   The opinion of the court was delivered,

by Read, J.

Chestnut Avenue is laid down on the city plan as a continuous street from the Spring-house Turnpike to Thirty-second street, and the portion of it between the Perkiomen Turnpike and Thomas’s Mill Road was ordered by councils to be opened, and a jury was appointed to assess the damages. By the general law applying to the whole city, the persons benefited as property owners in the immediate vicinity would be assessed whether on the line of the street or not. The Acts of 1869, 11th section, 18th March, Pamph. L. 395, and 3d section, April 10th, Pamph. L. 828, confine the assessment to property owners on the line of the street in the Twenty-second Ward, in which this street is situated. The court below, upon a fair construction of these acts, has held that it applies to all property owners on the whole line of the street, and not merely to those on the line of the portion opened, which we think to be the correct and reasonable interpretation of the legislative language.

The benefits excepted to are small, amounting only to $222, and divided amongst five property owners.

Decree affirmed and appeals dismissed at costs of the appellants.

Sharswood, J., dissented.


text:
    Black versus Johns et al.

    1. Where a summons has been served ten days before the return-day and no rule of court directs otherwise, the practice is to take judgment for default of appearance after the first four days of the term.
    2. A service of the 28th of October, the return-day being the 7th of November, is ten days before the return-day, that day being left out of the count.
    3. The time for appearance in such case was on the 10th, and judgment for default on the 11th was regular.
    4. But where the declaration is not filed before the return-day the judgment is irregular.
    5. Foreman v. Schricon, 8 W. & S. 43, Dennison ». Leech, 9 Barr 164, recognised.
    March 3d 1871. Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Philadelphia: Of January Term 1871, No. 169.
    This was an action of assumpsit issued October 22d 1870, by Edward A. Johns and William A. Lippincott, trading as Johns & Lippincott, against Robert J. Black.
    The writ was issued to November Term, the return-day of which was November 7th; it was served October 28th.
    The declaration was filed November 10th 1870. On the 11th of November the court directed judgment to be entered for want of an appearance against defendant in favor of the plaintiff; the prothonotary to assess damages; they were assessed at $839.10. This was assigned for error on the removal of the record to the Supreme Court by the defendant.

      PJ. O. 'Mitchell and W. S. Price, for plaintiff in error.
    1. Sufficient time had not elapsed after the service of the writ, viz., quartm dies post after the return-day. 2. Because the declaration was not filed before the return-day: Act of June 13th 1836, §§ 33, 34, Purd. 32, pi. 14,15, Pamph. L. 579; Michew v. McCoy, 3 W. & S. 502; Act of March 20th 1724, 1 Sm. Laws 164; Fisher v. Potter, 2 Miles 148; 1 Tr. & H. Prac. 274, note 5; 1 Tidd’s Prac. 122; Co. Litt. 135 a; 3 Thomas’ Coke 282; Hatfield v. Swiler, 4 Casey 522; Foster v. Reynolds, 1 Phila. Rep. 241; Foreman v. Schricon, 8 W. & S. 43; Dennison v. Leech, 9 Barr 164.

      J. W. Patton and M. O. McMurtrie,'for defendants in error.—
    Judgment on the 14th day, exclusive of the day of service, is not premature: 1 Tr. & H. Pr. part 1, 274, n. 5; 1 Tidd’s Prac. 122. Every reasonable presumption is to be made in favor of a judgment: Hall v. Law, 2 W. & S. 136; McMurray v. Erie, 9 P. F. Smith 226. Each court is the best exponent of its own rules, and a mistake must be véry obvious to induce a court of error to reverse a judgment for that reason alone: Dailey v. Green, 3 Harris 128; Wickersham v. Russell, 1 P. F. Smith 73. The first day is to be excluded and the last day included: Cromelien v. Brink, 5 Casey 524.
    March 13th 1871,
   The opinion of the court was delivered,

by Agnew, J.

As to time, this judgment was taken regularly. When the summons has been served ten days before the return-day, and no rule of court directs otherwise, the practice is to take judgment for default of appearance after the first four days of the term have elapsed. Judgment therefore can be taken on Friday of the first of the term. This practice has prevailed both before and since the passage of the Act of 13th June 1836, relating to actions. The summons in this case was served on the 28th of October, the return-day being Monday, the 7th day of November. This, according to universal practice, is a service of ten days before the return-day, the return-day being left out of the count. Adding the first four days of the term, making fourteen in all, the time for appearance expired on Thursday, the 10th day of November: judgment was therefore properly entered on the 11th day of November, which was Friday.

But the declaration was not filed before the return-day, and the judgment was therefore irregular on the authority of Foreman v. Schricon, 8 W. & S. 43, and Dennison v. Leech, 9 Barr 164. Dennison v. Leech was decided in 1848, after the decision by the District Court of May v. Sharp in 1846, and must therefore govern, especially as it was directly on the point now before us.

After two decisions it would be improper now to give a new reading of the Act of 1836. The declaration must therefore be filed before the return-day of the writ to warrant a judgment for the default of an appearance.

Judgment reversed and procedendo awarded.