This was an action brought against the Penn- | Bockius, for $15,613.67 without the knowledge of sylvania Company, administrators, on a claim the plaintiff; that the defendant, well knowing the due to the plaintiff by the decedent. The case premises, and that the plaintiff had a good cause was tried before a jury, and a verdict obtained of action against the said George Bockius, and against the administrators. Subsequently a scire facias was issued against the widow and heirs to charge the real estate of the decedent. Judgment was entered against them for want of an affidavit of defence, and execution issued, whereupon this rule was taken. E. F. Pugh showed cause. that a judgment obtained for the same might be satisfied out of the goods and chattels of the said George Bockius, fraudulently intending to mislead and deceive the plaintiff, did on the 5th day of January, at the county aforesaid, falsely and maliciously represent and pretend to the plaintiff that if the plaintiff would not proceed against the The only object of the Act of Assembly is to said George Bockius, then the defendant would give the heirs an opportunity to defend. Murphy's Appeal, 8 W. & S. 170. The judgment against the administrators is The Act of Assembly requires judgment to be given on all actions of scire facias on judgments. Act of Assembly 28 March, 1835, Purd. Dig. p. 495, pl. 13. This is analogous to the scire facias to revive judgment et quare executionem non, and in such case judgment is entered for want of affidavit of defence against terre tenants. 2 T. & H. Pr. 537. pay to the plaintiff the money due to him by the said George Bockius. By means of these deceitful and false representations, the defendant, with intent to cheat and defraud the plaintiff, did induce and procure him not to issue process against the said George Bockius or his goods and chattels, which the plaintiff would otherwise have done. By means of which false artifice and pretence of the defendant, the plaintiff has been deceived and imposed upon, and has wholly lost the said sum of $3643.32, etc. etc. issue, filed a special plea, traversing each of the The defendant, besides pleading the general above facts set out by the plaintiff as matter of inducement. George Biddle, for the rule. The special plea of the defendant amounts to no more than the general issue, because it is "merely a denial of such allegations in the declaration as the plaintiff would on the general W. F. Harrity and Archer, for the rule, were issue be bound to prove in support of his case." not called on. I Chitty on Pleading, 558, and cases there cited. Nichuals v. Milne, 2 WEEKLY NOTES, 80. Joseph M. Pile, contra. THE COURT. Executors are not obliged to file an affidavit of defence, and by analogy we think that the heirs should not be compelled stated as matter of inducement. It was neverThe plea of "not guilty" does not deny facts to do so. In the case of judgments against tes-theless necessary for the defendant to deny such tators, the executors are not obliged to file an C. A. V. affidavit of defence, and the same rule should facts, and that was the purpose of the special with greater force apply to the heirs. Plaintiffs plea. cannot include widow and heirs now, as they were not parties to the original judgment, but must, in our opinion, go to a jury. Rule absolute. Per HARE, P. J. Rule absolute. Keen v. Bockius. Pleading-Striking off special plea which amounts to the general issue. Rule to strike off special plea. Seidel v. Brecker. Rule to strike off non pros. for want of a narr. On May 17, 1877, the plaintiff entered an appeal from the judgment of an alderman. The cause of action was thus set out in the transcript: Action on the case, in deceit. The narr. laid" Plaintiff claims $49.16, balance of rent of as matter of inducement that George Bockius, a house situate No. 485 York avenue, Philadelphia, son of the defendant, was indebted to the plain-ending March 8, 1877, and occupied by Philip tiff in the sum of $3643.32; that the defendant Theis as tenant, and for payment of said rent obtained a judgment against her said son, Geo. defendant became security. G. C. Seidel (the plaintiff) sworn and examined; plaintiff gives for the adornment of the city, etc. (5) That lease in evidence." On June 6, 1878, the defendant entered ment of non pros. for want of a narr. J. W. Hunsicker for the rule. at the time said work was done there was a proper judg-pavement and curb on the premises, and the recurbing, etc., was done without authority of law. (6) That the ordinance under which the work was done had been repealed by resolution of Councils of May 19, 1873, ordering plans for survey of Broad Street, fixing the width of footways at 22 instead of 28 feet. The transcript may be used as a declaration. intention of treating the transcript as a narr. ; he Ellis v. Pennington, 2 WEEKLY NOTES, 29. [THAYER, P. J. If we take off this non pros. for the reason urged, we abrogate Rule xxvii. The object of that rule is to require the plaintiff to proceed with the cause within twelve months from the first day of the term to which the appeal is entered. It may very well be that the transcript is a good narr. to plead to; but it is obvious that you must do something more than file a transcript. If you elect to treat that as a narr., you must rule the defendant to plead to it. You must indicate your intention of treating the transcript as a narr., and so keep the case alive.] The rule went over in order that the plaintiff might take depositions in support thereof on other grounds. City, to use, &c. v. Wistar. Practice-Entry of judgment on whole record after different judgments on demurrers to different pleadings. Sur rule for judgment for the defendant upon the whole record. This was a claim for work done in paving and curbing defendant's premises on Broad Street, in pursuance of Ordinances of Councils in relation thereto, ordaining curb-stones and pavements of specified character, and increasing the width of the footway on Broad Street. The plaintiff joined issue on the 1st and 2d pleas, demurred to the 3d, 4th, and 6th, and to the 5th replied specially. The defendant deCourt gave judgment on the demurrer to the 4th murred to the replication to the 5th plea. The plea and on the demurrer to the replication to the 5th plea for the defendant. On the demur plaintiff. The pleas sustained went to the whole rers to the 3d and 6th pleas, judgment for the cause of action. E. Spencer Miller, for the rule. cause. When there is a judgment for the defendant on Chitty's Archbold's Nisi Prius, 1154. If final judgment is entered for the defendant, the record will be left in a ragged condition with issues of fact undisposed of. The 5th plea, which was traversed, avers substantially the same facts as the 4th, which was demurred to. Suppose judgment standing for the defendant upon the demurrer to the 4th plea, and upon the demurrer to the replication to the 5th plea, and final judgment entered for the defendant upon the whole record; if the Supreme Court reverses the final judgment the case will, in any event, have to come back upon the remaining issues-upon nil debet and payment with leave, etc. These are real issues of fact, and the case should go to a jury upon them. C. A. V. The defendant pleaded, in substance, as follows: (1) Nil debet. (2) Payment with leave. (3) That the work, &c., was done without authority of law. (4) That the premises upon which the work claimed for was done were paved Oct. 7, 1878. THE COURT. The defence set and curbed in accordance with the rules and reg-up in the pleas on which the defendant has been ulations for the city in general, and in a proper successful is decisive of the whole cause of action. manner; that the curb set by the claimants was If the plaintiff were to succeed upon the other not such as the ordinance calls for, but cost three issues, the defendant would nevertheless be entimes as much as that generally used. And that titled to final judgment. the work was without authority of law, being part of a scheme to make Broad Street a public drive Rule absolute. Opinion by THAYER, P. J. Right of eminent domain-What constitutes actual appropriation of land by a railroad company-Right of corporation to abandon a line taken When the owner's right to damages vests-Acts of April 13, 1846, and April 10, 1867. The Pennsylvania R. R. Co. filed a petition which set forth that under its charter and the supplements thereto it had located a new line of road, and prayed for the appointment of viewers to assess the damages due the owners of the land through which it passed. These were appointed and filed their report. The railroad company objected to its confirmation as to certain of the property holders, on the ground that the route of the portion of the proposed new road running through their land had been altered, and the Court thereupon set aside so much of the report as assessed the damages on their land. The rest of the report was confirmed: Held, that this action of the Court was a final judgment, and therefore the subject of appeal: Held further (reversing the judgment of the Court below), that the company's location of its new road was an appropriation of the ground marked out, and vested a right to damages in the owners thereof that no subsequent alteration of the route could destroy. 1 June 19th filed their report. The railroad company filed three exceptions to the report, complaining that the damages were excessive, and that certain irregularities occurred in the proceedings. Later it filed an additional exception, setting forth that since the report of the viewers was made, the line of the road through the land of Young, Beale, and the widow and heirs of Miller had been revised, and that the company had approved the revision. On September 25th the Court dismissed the first three exceptions, sustained that last filed, set aside so much of the report as assessed the damages on the land of the persons mentioned, Beale and the widow and heirs of Miller took and confirmed the remainder thereof absolutely. these writs of certiorari, assigning for error the action of the Court in sustaining the fourth exception and setting aside the viewers' report as to the damages to their property. R. Jones Monaghan, for the plaintiffs in error. The company's location of the new road was an appropriation of the ground it traversed, and vested in the owners thereof a right to compensation. This right was complete without any physical occupation of the land on the part of the company, and could not be divested by its subsequent alteration of the route. Wadhams v. R. R. Co., 6 Wr. 310. Harrington v. Commissioners, 22 Pick. 263. Neal v. R. R. Co., 2 Grant's Cases, 137. Mifflin v. R. R. Co., 4 Har. 188. No final judgment was entered. Either party may proceed to a new view and assessment of Certiorari to the Common Pleas of Chester damages. Therefore these writs of certiorari County. This case came up in the Court below on exceptions to the report of viewers appointed to assess the damages due the owners of certain lands appropriated by the Pennsylvania Railroad in locating a new portion of its road. On February 3, 1876, the Pennsylvania R. R. Co. filed a petition setting forth that under the provisions of its charter and the several supplements thereto, especially that of April 10, 1867, and for the purpose of straightening its road, it had surveyed, located, and marked upon the ground" the route of a new line of road; that this new line passed through the land of T. S. Young, J. Beale, the widow and heirs of B. J. B. Miller and some twenty-nine others; and that it had been unable to agree with any of the owners as to the amount of damages, and praying for the appointment of viewers to assess the same. On February 14th viewers were appointed; on March 10th they assessed the damages, and on were improperly taken and should be quashed. May 6, 1878. THE COURT. These two cases were argued together. They present the same question. On the 3d of February, 1876, the defendant in error presented its petition to the Common Pleas, setting forth that it had surveyed, located, and marked on the ground the route of a new line of railroad between certain points named; that it passed through the lands of the appellants and twenty-nine other persons, setting forth their names; that it had been unable to agree with any of the owners of the lands in regard to the damages, and praying for the appointment of viewers to assess the same. Viewers were appointed. On the 10th of March they assessed the damages. The report of the viewers was filed on the 19th of June. The same day the company filed three exceptions | report of the viewers set forth the measure of thereto. They were to the excess of damages them. The duty to pass upon them was imfound and to irregularities attending the assess-posed on the Court. This application for the ment. Afterwards, but on the same day, the assessment of damages was made under the supcompany filed an additional exception, setting plement to the Act of 13th April, 1846 (P. L. forth that it had caused the view of the railroad, 319), incorporating the defendant in error, and through the land of the appellants, "to be re- its several supplements. As no trial by jury is vised and laid upon ground different from that given, the evidence bearing on the merits of upon which it was laid when said assessment was the case cannot be brought before us for remade;" that the company had approved the re- view. This makes it more necessary that the vised line, whereby the former line was super- Court should keep within the undoubted limits seded. On the 25th September the Court of its authority. The "location" made by the dismissed the three exceptions first filed, but sus- company was an "appropriation" of the land, tained the additional one. Thereupon it con- under the Act of 10th April, 1867 (P. L. 993). firmed absolutely the report as to the twenty-(Wadhams v. Lackawanna and Bloomsburg R. nine other claimants, but set it aside as to the plaintiffs in error. The assignments of error are to treating this change of line as an exception to confirmation, and to setting aside the report by reason thereof. The defendant in error asks us to quash the writs on the allegation that the action of the Court was not final. We think this position is unsound. The application was limited to the assessment of damages on the route which the company "had surveyed, located, and marked on the ground." On that petition neither the Court nor the jury could have assessed damages for any other route. By confirming the report as to part of the claimants, and setting it aside as to the others, for the reasons stated, the case was as finally ended against the appellants as it was in favor of the other claimants. A change of route through the lands of the plaintiffs having been made, a new petition and new proceedings would be necessary to assess the damages. The action of the Court was final. It was substantially a dismissal of the claims of the plaintiffs in error for want of jurisdiction in the pending case. The other branch of the case is, whether the Court erred in setting aside the report as to the plaintiffs in error for the reasons given. R. Co., 6 Wright, 310; Heise v. Penna. R. R. Co., 12 P. F. Smith, 67.) An actual location and appropriation then having been made, it is manifest that the Court did not give due effect to the rights of the claimants. It was said in Wadhams v. Lackawanna and Bloomsburg R. R. Co., supra, that when the railroad has been located the land has been taken and appropriated for the public use, the right of the land-owner to sue for his damages is complete, and he may recover all which may be caused by the location and by the subsequent construction. The company had averred of record the actual location and legal appropriation of the land. The jurisdiction of the Court had thereby attached. That jurisdiction could not be divested, after the viewers had assessed the damages, by a change of the route by the company. It is true in disposing of this case we must look at the record only. We cannot go beyond it; nor is it necessary to do so. The record shows clearly and distinctly that every other exception was dismissed, and this additional one only was sustained. Assuming all the facts therein stated to be true, as we do, yet we think them insufficient to sustain the action of the Court. If the company could once thus stop the action of the Court as it is about to confirm a report assessing damages, what legal impediment is there in the way of its again changing the route so as to defeat a second assessment of damages, and so on ad libitum ? If the application had been made to amend the description or location of the route, and to send the case to viewers again, there would have been some plausibility in the motion. (Penna. R. R. Co. v. Lutheran Congregation, 3 P. F. The Acts of Assembly to which we have reSmith, 445.) The Court would then have con- ferred give very large discretionary powers to sidered it, and decided, according to its sound this company in regard to the change of lines of discretion, whether it was within the spirit and its roads and the appropriation of lands adjoining meaning of the laws permitting amendments. or contiguous thereto. But there is nothing in But nothing of the kind was asked for. No their letter or spirit which will permit the comrequest was made to bring within the jurisdiction|pany to roam at pleasure over a person's land, of the Court the claim for damages arising from changing the route as often as it is dissatisfied the new location. The action was substantially with the amount of damages assessed, thereby to strike from the record these claims for defeating the action of the Court in a case penddamages which had become vested in the claim- ing. The recognition of such a power would be ants through the action of the company.. Its fraught with too great mischief to be sanctioned petition showed a right to claim damages. The by any just rule in the administration of the law. As, then, no other objections existed than those | Jan. '77, 118. Jan. 16, 1878. Shakespeare v. Delany. Judgment reversed in each case, and the re- Practice-Execution-Setting aside sheriff's sale port of the viewers is confirmed absolutely. Opinion by MERCUR, J. PAXSON and WOODWARD, JJ., dissent. [In I Redfield on the Law of Railways, 3d ed. p. 240, the law is laid down rather differently than in the present opinion, as follows: "Where the charter of the company provides that after the appraisal of land for their use, upon the payment of the same,' or deposit (as the case may be), the company shall be deemed to be seized and possessed of all such lands; they must pay or deposit the money before any such right accrues.' The payment or deposit of the money awarded is a condition precedent to the right of the company to enter upon the land for the purposes of construction, and without compliance with it they may be enjoined by a court of equity, or prosecuted in trespass at law for so doing. The right of the land-owner to the damages awarded is a correlative right to that of the company to the land. If the company has no vested right to the land, the land-owner has none to the price to be paid."" This view is based on the cases of Stacey v. The Vt. Central Railway, 27 Vt. 39; S. C., 1 Redfield's R. W. Cases, 247; and Bloodgood v. Mohawk & Hud. R. R. Co., 18 Wend. 10, 19. In his note to Stacey v. R. R., supra, Judge Redfield says of the decision of the Supreme Court of Pennsylvania in Neal v. R. R., cited in argument of counsel, supra: "This is certainly good sense, and one would suppose ought to be good law; but the decisions do not seem to fully bear it out." There would seem to be a distinction between the Pennsylvania cases and the other decisions from which Judge Redfield deduces his rule, in that the latter appear to be all cases of a condition precedent before either title vests to the easement on the one hand or right to the damages on the other, as in the general road law of Pennsylvania (Purd. Dig. 1273, pl. 7); while our railroad statutes lay down no precedent condition to the act of appropriation by the railroad companies, but seem to contemplate that on the taking of the land for railroad purposes, evidenced generally by the location of the route, the title of the company becomes perfect, subject to the equity of compensation. If so, the right of the owner to damages must be deemed vested, for all the cases agree that the title and the right are correlative, and one becomes complete whenever the other does. The Pennsylvania statutes recognize no right to have damages assessed until the taking is complete. Darlington v. U. S., supra. If, therefore, the "taking" does not vest title to the easement until payment is made of the damage, or security given therefor, it is clear there could not properly be a view until one or the other was done. The English cases relied upon by the Judge who delivered the opinion in Stacey v. The R. R., supra, as everruling the earlier cases on that subject, probably do not go that length. The York & N. Midland R. W. Co. v. Regina (18 Eng. Law and Eq. 206) was simply the construction of a permissive charter. Burkinshaw v. The Birmingham & Oxford Junction R. W. Co. (4 Eng. Law and Eq. 489) distinctly affirmed the earlier cases, which agree with the case now reported, but turned on a section of a statute which referred only to lands previously taken by actual physical occupancy. "Taking," in the broader sense used in the other cases, was provided for by other sections of the same statute. R. J. M.] at instance of purchaser after acknowledgment of sheriff's deed-Discretionary powers of the Court of Common Pleas. A. bought in at sheriff's sale a property on which he held a mortgage. He had previously obtained a prothonotary's search, certifying a judgment against the owner which was a prior lien on the property, and made his bid, supposing that the lien of the mortgage was divested by the sale. The judgment was afterwards stricken off, and the mortgage therefore became a first incumbrance not divested by the sale. He thereupon took a rule asking that the sale be set aside, the purchase-money refunded and the sheriff's deed cancelled, on the ground that, misled by the search he had obtained, he had bid the full value of the property unincumbered. The Court made the rule absolute. Held, that this action of the Court was entirely within the limit of its discretionary powers. Error to the Common Pleas No. 1, of Philadelphia County. The facts of the case are these: On September 18, 1876, Charles Delany bought at sheriff's sale for $2950 two properties belonging to Henry Delany, and sold under a judgment of W. M. Shakespeare against him and George Fisher. On October 7, the purchase-money was paid and the sheriff's deed acknowledged. On November 4, an auditor was appointed to distribute the fund, and on November 18, Charles Delany took a rule to set aside the sheriff's sale, vacate the acknowledgment, cancel the deed, and refund the purchase-money, proceedings meanwhile to stay. His affidavit in support of the rule set forth, that at the time of the sheriff's sale he held a mortgage for $5000 against the property he then bought in; that before the sale he had obtained a search of the prothonotary certifying a judgment of W. A. Levering against Henry Delany for $1079.06, entered prior to the date of his own mortgage; that he was advised by counsel that the sheriff's sale would, this judgment being a prior lien, discharge the lien of his mortgage, and in consequence of this advice he bought the property; that on October 28, the Levering judgment was stricken off the judgment index, its entry having been the result of a mistake of Henry Delany's counsel; that therefore the lien of the mortgage was not divested by the sale; and that the property bought was not worth $5000; and prayed the Court, as Charles Delany had made the purchase under a clear and justifiable misapprehension of his rights, to set aside the sale and refund the purchase-money. Depositions were taken on both sides, and on December 23, the Court made the rule absolute, ALLISON, P. J., filing the opinion. Shakespeare took this writ, assigning for error the above action of the Court. |
