Warren v. Steer

• Decision Date: 30 January 1888
• Docket Number: 438
• Citation: 118 Pa. 529,12 A. 264
• Parties: HENRIETTA WARREN ET AL. v. EDWARD J. STEER
• Court: Pennsylvania Supreme Court

12 A. 264

118 Pa. 529

HENRIETTA WARREN ET AL. v. EDWARD J. STEER

No. 438

Supreme Court of Pennsylvania

January 30, 1888

Argued January 12, 1888

ERROR TO THE COURT OF COMMON PLEAS NO. 2 OF PHILADELPHIA COUNTY.

No. 438 January Term 1888, Sup. Ct.; court below, No. 491 September Term 1879, C.P. No. 2.

In the court below, on July 23, 1884, judgment was entered upon a verdict in favor of Edward J. Steer against Henrietta Warren and David K. Large, guardian of Annie Warren, a minor, in an action of ejectment for the recovery of possession of a lot on Eighteenth street. No claim was made or recovered for mesne profits. The defendants, having entered into a recognizance in the sum of $400, with the usual conditions purchased a writ of error to No. 166 July Term 1884, Sup Ct., and on due hearing by this court, on May 17, 1886, the said judgment was affirmed: Warren v. Steer, 112 Pa 634.

Upon the filing of the remittitur in the court below, a writ of habere facias was issued, executed, and possession given to the plaintiff on June 8, 1886. On July 1, 1886, the plaintiff caused to issue a "writ of inquiry of damages accruing to plaintiff herein by reason of the taking of the writ of error to the Supreme Court of Pennsylvania by the defendants herein and the affirmance by that court of the judgment heretofore entered, whereby the plaintiff is entitled to recover among other damages a reasonable return or rental for the real estate, pending the said proceeding in error." After a rule to set the writ aside was discharged, it was executed and on January 5, 1887, an inquisition, over the hands and seals of the sheriff and twelve jurors, was filed saying that the plaintiff had sustained "by means of the premises in said writ mentioned," damages to the amount of $287.50. To this inquisition the defendants then filed the following exceptions:

1. Because the defendants have not been served with notice of the issuing and execution of the writ of inquiry.

2. Because the writ of inquiry is not authorized by the law.

3. Because it does not appear how, in what manner or by what means, the jury assessed the damages upon the said writ of inquiry.

On the argument of these exceptions, they were dismissed and the court, HARE, P.J., directed judgment to be entered for the plaintiff for the finding on the writ of inquiry, nunc pro tunc, as of February 19, 1887. Judgment being entered, the defendant took this writ, assigning that the court erred in dismissing the exceptions and directing judgment to be entered upon the return to the writ.

Judgment reversed.

Mr. Wm. Hopple, Jr., and Mr. Thomas R. Elcock, for the plaintiffs in error:

1. The verdict in the ejectment proceeding was for the possession only. No claim was made for mesne profits on the trial; no notice given that mesne profits would be claimed, and without notice such profits may not be recovered: Cook v. Nicholas, 2 W. & S. 27; Carman v. Beam, 88 Pa. 319. But the plaintiff contended that the British statute, 16 & 17 Charles II., c. 8; Roberts' Dig., 40*, 41*, is in force in Pennsylvania, and that in this he was sustained by Boyd v. Cowan, 4 Dall. 138. The case cited decides nothing but that mesne profits may be recovered in ejectment by way of damages, but, as before observed, this can only be done after notice of an intention so to claim. No case can be found in our courts where such a writ as in the present case was issued; and, certainly since our act of June 16, 1836, P.L. 762, under § 7 of which the recognizance of the defendants here was given, the British statute has no force.

2. The writ of ejectione firmae, provided for in the British statute relied upon, is not the action of ejectment known in Pennsylvania. That statute, therefore, has no application: 2 Shars. Bl. Com. 199* et sequitur. The bond required of plaintiffs in error under our act of 1836 is not the bond provided for in the statute of Charles II. And in the absence of any precedent in Pennsylvania, showing that, since 1808, the date of the report of the Judges contained in Roberts' Digest, such a writ of inquiry was known in our practice, this court will not now for the first time send to a sheriff's jury important questions of law and evidence to be passed upon without a legal mind to direct, without bills of exception and without power in this court to review.

Mr. Wm. W. Wiltbank, for the defendant in error:

1. The damages claimed by the plaintiff are not in the nature of mesne profits. They accrued after judgment pending the proceedings for review. Boyd v. Cowan, 4 Dall. 138, settled the practice as to the right to proceed for mesne profits as well as possession in one case of ejectment. The right to proceed after the judgment in ejectment to recover compensation equivalent to the loss of the value of the land was established by the statute of the 16 and 17 Charles II., c. 8. This statute was designed to prevent arrests in judgments and a superseding of executions, except upon condition therein prescribed, and has been in force in Pennsylvania, according to the reports of the judges, who say of it: "This statute is in force subject to the same exceptions as were mentioned with relation to the thirteenth chapter of Charles II., chapter 2." The exceptions referred to are set forth in their report upon the earlier statute thus: "This statute is in force except certain parts which have a local object and are, therefore, inapplicable to this commonwealth, and certain other parts which are altered by our acts of assembly or the practice of our courts." The fourth section of chapter 8 of the 16 and 17 Charles II. reads as follows: "And to the end that the same sum and sums and damages may be ascertained, it is further enacted, That the court wherein such execution ought to be granted upon such affirmation, discontinuance or nonsuit, shall issue a writ to inquire as well of the mesne profits as of the damages by any waste committed after the first judgment in dower or in ejectione firmae; and upon the return thereof, judgment shall be given, and execution awarded for such mesne profits and damages, and also for costs of suit." It was, therefore, competent for the court below to issue the writ of inquiry complained of in this case.

2. But it is submitted that the authority of the court in the premises does not rest exclusively on this...