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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) online

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up, without waiting a demand to that effect from the plaintiff.


[Huhn c. Long.]

We therefore think the judgment ought to be reversed, and a
venire facias de novo granted, which is ordered accordingly.

Judgment reversed, and venire facias de novo ordered.

Cited by Counsel, 1 W. & S. 255.

*[PHILADELPHIA, FEB. 6, 1837.] [*209

Watkins against Phillips.


1. A ground-rent deed is " an instrument of writing for the payment of
money," within the second section of the act of the 28th of March 1835.

2. Where it appears by a declaration or statement filed, that the action is
brought on the covenant in such deed for the payment of rent, judgment
may be entered in the District Court, for want of an affidavit of defence.

3. In covenant for non payment of ground-rent, when judgment by default
has been entered, the prothonotary may assess the damages.

THIS case came before the court, on a writ of error to the Dis-
trict Court for the City and County of Philadelphia, to remove the
record of a judgment entered for want of the affidavit of defence
required by the act of the 28th March 1835.

The action was in covenant, and brought by William Phillips
against Michael Watkins.

The plaintiff filed a statement, setting forth that the defendant
was indebted to him for ground-rent for a certain period, reserved
in four several indentures, and amounting to a certain sum, with
interest. He also filed a copy of each of the deeds, which con-
tained, among other things, a covenant by the defendant for the
payment of the ground-rent.

On the 26th of November 1836, the court, on motion of the
plaintiff's attorney, entered a judgment for want of an affidavit of
defence ; and the 29th of November following, the prothonotary
assessed the damages at $177.46.

The plaintiff in error assigned the following errors :

1. Aground-rent deed is not an instrument of writing for the
payment of money, within the meaning of the act of assembly,
authorizing the District Court to enter judgment for want of an
affidavit of defence.

2. The prothonotary had no power to assess damages in this

Mr. Isaac Norris for the plaintiff in error.

1. There was no declaration filed in this case. There are several
*covenants in a ground-rent deed. How is the defendant to r*910
know on which of them the suit is brought ? How could he

2 WHARTON 14 209

210 SUPREME COURT [Dec. Term,

[Watkinsr. Phillips.)

plead a former recovery ? It does notf appear by the deed what time
the rent was claimed. The act authorizing judgment for want of
an affidavit of defence ought to receive a strict construction. In
Read v. Bush, 5 Binn. 455, the old affidavit rule was held to apply
only to the case of a certain demand. Covenant is for the recov-
ery of damages, not of a debt certain.

2. Where the amount is uncertain or indefinite, the prothono-
tary cannot assess the damages. Armstrong v. Carson, 2 Dall.
302 ; Grubb v. Wallace, 11 S. & R. 107. The quantum of rent
was not determined by the judgment ; besides here was interest
claimed which does not follow of course. In this case notice was
not given to the defendant of the assessment of damages before the
prothonotary. Hancock v. Hillegas, 2 Dall. 280 ; Wright v.
Crane, 13 S. & R. 447.

Mr. ffazlehurst, contra. It is not alleged that there is any
defence on the merits. The plaintiff filed a statement with the
copies of the deeds, setting forth the exact amount due. This is
equivalent to a declaration by the act of assembly. Here the
ground-rent deed was an " instrument of writing for the payment
of money," within the meaning of the act of assembly ; and the
action was between the original parties. In Royer v. Ackley, 3
P. & W. 464, it was decided that no previous demand of rent is
necessary, except where a forfeiture is insisted upon. As to the
assessment of damages, there was nothing for a jury. The defend-
ant had confessed that the amount was due according to the state-

The opinion of the court was delivered by

ROGERS, J. We agree with the court in Hansell v. Nelson, 1
Miles 342, that a ground-rent deed is an instrument of writing for
the payment of money, within the meaning of the 2d section of the
act of the 28th of March 1835, which authorizes the court to enter
judgment, for want of an affidavit of defence. Nor do we think it
material that the deed contains other covenants, provided it appear
on the record (as it does here) that the action is brought on the
covenant for the payment of money, which is the principal cove-
nant. 1 The act extends to all articles, or bills, notes, bonds or
other instrument* of writing, for the payment of money ; words
sufficiently comprehensive to include an action of covenant to re-
cover the arrearages of ground-rent. It is within the spirit, cer-
tainly within the words of the act ; or it does not cease to be an
instrument of writing for the payment of money, merely because it
also contains covenants which do not partake of that character.

It is said that the prothonotary had no power to assess the
U ' See Johnston v. Cowan, 9 Smith 275 ; Eshleman v. Thompson, 12 Id. 495.|



[Watkins D. Phillips.]

* damages. But a writ of inquiry is a mere inquest of officers r *
to inform the conscience of the court, who, if they please, t l
may themselves assess the damages : 1 Tidd 513. And it has been
the practice, instead of executing a writ of inquiry, and without
any previous application to the court, in actions on promissory
notes, bills of exchange, covenants for the payment of a sum cer-
tain, or on an award, and indeed in all cases where the court have
nothing more to do than to calculate the interest, upon a sum pre-
viously ascertained and fixed, to refer the assessment to the pro-
thonotary. If either party is dissatisfied with the assessment of
damages, the error may be corrected by appeal to the court. 1

Judgment affirmed.

Cited by Counsel, 6 Whart. 471 ; 8 W. & S. 45. || 12 Smith 496 24 Id
109 ; 11 Norris 190; 1 W. N. C. 276 ; 8 Id. 516.

Cited by the Court, 6 Whart. 606 ; 2 W. & S. 449 ; 11 Wright 351 ; 5 P F
Smith 242.

|| As to the prothonotary's power to assess damages see Johnston v. Cowen,
9 Smith 275 ; Siner v. Hendrickson, (D. C.) 1 W. N. C. 94 ; Wallace . Gib-
son, (C. P.) 11 Id. 498.

1 See 5 W. & S. 44 ; 14 Wright 184 ; 2 Miles 179.

*[PHILADELPHIA, FEB. 6, 1837.]

Dewar against Spence.


1. Where a writ has been in the hands of the sheriff, and is returned to
the office from which it issued, with an endorsement of service having been
made, though without the signature of the sheriff thereto, such return is

2. The 6th section of the act of 21st March 1806, which declares that suits
shall not be set aside for informality, &c., if the process has been duly
served, &c., extends to actions of partition.

3. A summons in partition was endorsed " nihil habet, and published as
the law directs ;" but there was no signature to the return. The record con-
tained the following entry: "and now the sheriff of Philadelphia county
makes return of the said writ," &c. ; and the sheriff duly returned the writ of
partition, that the parties had been duly warned, &c. : Held, that it suffi-
ciently appeared, that a return was made by the sheriff to the summons, and
that the return was amendable.

4. The court in which an action of partition is instituted, may, if the jury
return that the land cannot be divided, decree the same to the demandant at
the valuation ; although the defendants reside out of the commonwealth, and
judgment has been obtained against them by default.

ON a writ of error to the District Court for the City and County
of Philadelphia, the case was thus :

To the June term, 1828. of that court, Andrew B. Spence issued


*212 SUPREME COURT [Dec. Term,

[Dewar v. Spence.]

*<>191 * a summons j n partition to Helen Margaret Dewar and
' James Spence, to show wherefore partition should not be
made between them, of " a certain three-story brick messuage or
tenement, and lot or piece of ground situate on the south side of
Francis street, in the county of Philadelphia, containing in breadth
on the west side thereof, two hundred and twenty-five feet ; and on
the east side thereof, two hundred and ninety-one feet; and on
St. Andrew's street, four hundred and ninety-one feet, bounded west-
ward by Schuylkill Second street, northward by Francis street, east-
ward by Schuylkill Third street, and southward by St. Andrew's
street, together with the common use and privilege of the said
street, adjoining said lot and the appurtenances ; and also all that
certain lot or piece of ground situate on the east side of Schuylkill
Third street, in the same county, containing in breadth twenty feet
and in length or depth one hundred and eighty feet, bounded west-
ward by the said Schuylkill Third street, northward by grounds
now or late of George B. Dawson, eastward by a court called Mid-
dle court, and southward by ground now or late of the Rev. Wil-
liam McCra, together with the common use and privilege of the
said streets and court, and the appurtenances ; and the said lots of
ground being the same which Seth Johnson, and Mary his wife,
conveyed, inter alia, to Andrew Spence, by two deeds, each dated
the sixth day of August, one thousand seven hundred and ninety-
seven, recorded in the office for recording deeds for the city and
county of Philadelphia, in deed book No. 72, and page 529 and

This writ was returned into the prothonotary's office, with the
following endorsement thereon ; Nihil habet, and published as the
law directs." There was no signature to this endorsement.

On the 14th June 1828, the plaintiff's attorney filed his declara-
tion. On the llth of December following, the court ordered judg-
ment by default, and awarded a writ of partition ; and on the 19th
of December, the writ of partition issued.

To this writ the sheriff returned that " by virtue of the said writ
to me directed, on Saturday, the fourteenth day of February, in the
year of our Lord one thousand eight hundred and twenty-nine,
taking with me the jurors whose names and seals are hereunto
annexed, good and lawful men of my bailiwick, I went in my pro-
per person, to the premises mentioned in the said writ, and the
parties in the same being severally warned, and as many as chose
being present, and the good and lawful men aforesaid upon their
oaths and affirmations respectively, did say that the property as
mentioned in the said writ, cannot be parted and divided without
prejudice to or spoiling the whole ; therefore I have valued and
appraised the same at the sum of two thousand six hundred dollars.
In witness whereof, &c."


[Dewar v. Spence.J

*0n the 19th of March 1829, on motion of S. Mere-
dith, Esq., the court granted a rule to show cause why the
valuation of the jury of partition in this case should not be con-
firmed by the court, and the plaintiff be permitted to take the pro-
perty at such valuation.

On the 21st March 1829, this rule was made absolute ; and on
the same day, the following affidavit was filed, to wit :

City and County of Philadelphia, 88,

Robert A. Philson, being duly sworn according to law, deposes
and says, that he is well acquainted with Helen Margaret Dewar
and James Spence, the defendants above named, and that to the
best of this deponent's knowledge and belief, they are both at this
time absent from this country, beyond seas, to wit : that the said
Helen Margaret Dewar is in Scotland, in the kingdom of Great
Britain, and the said James Spence in New South Wales, in the
Island of New Holland ; and this deponent further says, that his
belief as above stated is founded upon knowledge derived from the
representations of their family and friends, with whom this depo-
nent is intimately acquainted, and has constant intercourse ; and
further the deponent saith not. Sworn and subscribed, &c.

On the 22d of June 1835, a motion was made for a rule to show
cause why the judgment and proceeding in the partition should
not be set aside ; and the following reasons were filed :

1. The said Mrs. H. M. Dewar, one of the defendants, was
absent from the United States, and the summons in partition was
neither served on her, nor was the notice given according to law.

2. Because there was no return to such summons in partition.

3. Because the judgment by default was irregularly entered
against the said Mrs. Dewar.

4. Because no notice was given to the said Mrs. Dewar of the
writ de partitione facienda, or of its execution.

5. Because the said property was perfectly susceptible of divi-
sion between the parties, without prejudice to or spoiling the whole.

6. Because the valuation was far below the real value of the said
real estate.

7. Because no retnrn was given of the rule to show cause why
the said return of the jury should be confirmed, to the said defend-
ant, Mrs. Dewar.

8. Because the plaintiff was allowed to take the property at a
valuation entirely inadequate, without notice to the other parties in

9. Because the said plaintiff, knowing the residence of the said
Mrs. Dewar, and corresponding with her, concealed all his pro-
ceedings in this matter, and gave her no notice of his wish or intcn-

213 SUPREME COURT [Dec. Term,

[Dewar v. Spence.]
tion to have a partition effected, or that any proceedings for that

purpose had been commenced, prosecuted or completed.

*0n the same di
was filed as follows :

* *

M ,-. *0n the same day, the affidavit of Mrs. H. M. Dewar,

City of Philadelphia, .

Helen M. Dewar, widow of Dr. Henry Dewar, late of Lassodie,
Fifeshire, in Scotland, being duly sworn, deposes that she is the
daughter of the late Dr. Andrew Spence, formerly of this city,
who died in the year 1805. The said Dr. Andrew Spence left
by his will, his real estate, and particularly a large lot of ground
on the south side of Coates street, between Schuylkill Second and
Third streets, and a lot containing 20 feet in front, on said Third
street, to be divided among his four children ; as by the said will
duly proved and of record in the said city, will appear. Imme-
diately upon the death of the said Dr. A. Spence, the whole of his
remaining family removed to Scotland, where this deponent mar-
ried, and where, with the exception of temporary absences, she has
constantly resided until her return to the United States, in the
autumn of the year 1833.

The brother of this deponent, Andrew B. Spence, had pre-
viously left Scotland, and fixed himself permanently in Philadel-
phia, where he carried on business as a merchant, and took charge
of the property of the family, as the administrator of his mother,
Mary Spence, but without any power of attorney or authority,
either from this deponent or from her late husband. This depo-
nent was in the habit of regular correspondence with her said
brother while he resided in this city, and his letters reached her
without difficulty or delay. During the whole of their correspond-
ence, the said Andrew B. Spence never once intimated to her,
directly or indirectly, any wish or intention to have a division of
the real estate of their father effected by course of law ; nor did
he ever give her any information whatever, in relation to the pro-
ceedings instituted and carried on by him against her ; although
he wrote to her on family matters just before and during, or soon
after the commencement and prosecution of the above-mentioned
suit in partition. This deponent never heard, knew or suspected
that any such suit had been instituted, carried on, or determined,
or that the property of her said father had been taken at a valu-
ation by the said Andrew B. Spence, until her arrival in this
country, when she made inquiries in relation to her affairs. The
only information she received on the subject, was in a letter dated
in March 1833, and received a short time before her leaving
Scotland, in which the said A. B. Spence stated that her share
of St. Andrew's square had been paid into court, but without


[Dewar . Spence. |

any statement of the means or course by which this had been

The said A. B. Spence has always been indebted to said depo-
nent, both on account of her mother's estate and on account of the
rents of the real estate of her father; and by his own accoun^
furnished *to her, admits himself to be so still. This depo- r!|t91 -
nent has been informed and believes that the proceedings '
in the said partition are irregular, in not having been regularly
and fully published according to law ; and she verily believes the
valuation at which the property in the said writ and proceedings
mentioned, was inadequate, and far below the real value thereof,
whereby she has suffered considerable injury.

She is further informed and believes that the lots of ground
were perfectly susceptible of division into equal and fair pur-
parts and shares, without any prejudice to or spoiling of the whole.
She is also informed, that there are other matters in which the said
proceedings are irregular, and ought to be set aside.

Since her arrival in this country, this deponent has been induced
to delay proceedings to recover what she conceives her just claims
on the above-mentioned property, by the repeated assurances of her
brother, that they should all be adjusted in a satisfactory manner.

Sworn and subscribed, c.

The following entry appears among the records, under date of
June 15th 1836. " The signature of Jacob Stremback, endorsed
on the original writ of summons in partition in this case, having
been so endorsed on said writ in the year 1836 (under the impres-
sion that it was done according to the course of the court), after
the writ had been returned into the office of this court, and after
the motion to set aside the proceedings had been made, and the
reasons filed ; by writing filed, it is agreed that the said signature
of Jacob Strembach, sheriff, be considered as if the same had
never been endorsed on the said writ; and the court order that the
said agreement stand as part of the record."

On the 25th of June 1836, the District Court discharged the
rule to show cause why the proceedings should not be set aside ;
and the defendant, Mrs. Dewar, sued out a writ of error from this

The following was the assignment of errors :

1. The summons in partition was not served or published accord-
ing to law.

2. No return was made by the sheriff to the summons in par-

3. The judgment by default was erroneous ; the defendant not
having been summoned, and having had no notice of any proceed-
ings in the cause.


215 SUPREME COURT [Dec. Term,

[Dewar r. Spence.]

4. The breve de partitione facienda was not served according to

5. The confirmation of the valuation of the jury of partition,

* dn d the permission to the plaintiff to take the property
at that valuation, were both erroneous ; no notice what-
ever having been given to the defendants of the application to the
court for that purpose ; and H. M. Dewar being then, and having
been from long time previous to any proceedings in the cause, domi-
ciled in Scotland.

6. The property was susceptible of division without prejudice to
or spoiling the whole.

Mr. Williams, for the plaintiff in error.

We contend that there was no return to the writ of summons.
It does not appear in whose handwriting the endorsement is, but
it is agreed that it is not the handwriting of the then sheriff.
The statute of York, 12 Edw. II., st. 1, c. 5, provides that the
sheriff shall put his name to the king's writs. It was necessary
at common law that the sheriff shall sign all returns. Rowland's
Case, 5 Rep. 41. In Strainer v. James, Cro. Eliz. 311, is was said
to be no return where the sheriff's name is not subscribed. Young
v. Watson, Id. 308-9 ; Blodwell v. Edwards, Id. 509 ; Bonner v.
Rye, Id. 587 ; Dawson v. Thorpe, Id. 767 ; Scroggs v. Spencer,
Id. 703 ; Holworth v. Proctor, Cro. Jac. 188 ; Lamb v. Wiseman,
Hob. 70 ; Ackridge v. Conham, 3 Bulstr. 220 ; Brook v. Ellis, 1
Salk. 363 ; Rogers v. Smith, 1 Ad. & Ellis 772, s. c. 28, E. C.
L. R. 228. It is the signature that gives validity to the return.
What remedy could we have against the sheriff for a false return,
if he have not signed it ? Has the defect in this case been cured
by statute? The statute of 18 Eliz. c. 14, provides that after ver-
dict, judgment shall not be stayed or reversed by reason of any
imperfect or insufficient return. In some of the cases which I
have cited, it is decided that where there is no return, the statute
of Elizabeth does not apply. At all events, it is confined to
the case of judgment upon verdict, not judgment by default.
The statutes of 21 Jac. L, c. 13 ; 16 and 17 Car. II., c. 8, and
4 Anne, c. 16, do not aid this case; Tidd's Practice 213. In
Allnat on Partition, pp. 66, 70, the practice in England on pro-
ceedings in partition is laid down. There can be no judgment by
nil dicit ; and therefore the statute 4 Anne does not apply. It
is a general rule, that no amendment will be allowed in real
actions ; and although it has been admitted in partition, yet it
was with reluctance. Baker v. Daniel, 6 Taunt. 193 ; 8. C. 1
E. C. L. R. 353. The act of 21st March 1806, applies
only to actions for damages ; besides, it was passed previously to
the act which authorized publication of the summons in partition,


[Dewar v. Spence.]

and cannot be extended so as to embrace a judgment given under
the latter act. The only case in which the writ is not album breve
is where the sheriff writes his name either in the body of the
return, or at the foot. Even if under the statute of Jeofails, the
court think that this return may be amended, they will, nevertheless,
*look into the service of the writ, and they will find that i> 017
publication was made in one newspaper only, although the *
act of 1807 directs that it shall be in two. Fitzsimmons v. Solo-
mon, 2 Binn. 436.

The District Court had no power to award the land to A. B.
Spence at the valuation. The act of 1799, which authorizes the
court to adjudge between the parties in this respect, supposes
them all to be in court. The act of 1807, which authorizes pub-
lication in the case of absent defendants, seems to apply only to
cases where the property is actually divided; not to cases of
valuation. If the parties are absent from the country, the court
ought to order a sale.

Mr. Meredith and Mr. James S. Smith, contra.

We represent a bona fide purchaser, who knew nothing of the
situation of the parties ; and relied upon the judgment of the Dis-
trict Court in the action of partition. The objection on the
other side is made by Mrs. Dewar alone. The other % party in
interest (James Spence) is content with the proceedings. As to
Mrs. Dewar, it was in evidence that she knew of the proceedings
in the spring of 1833, and that she arrived here in the autumn
of 1833 ; and her first application to the court below was on the
22d of June 1835, after a sale had been made by Andrew B.
Spence to a third person.

[THE COURT here requested the counsel to confine himself to
the question of the validity of the return to the summons in par-

In point of fact, the return was in the handwriting of the sheriffs
clerk, who usually made the returns, and the omission of the
sheriff's name was accidental. We have evidence here to prove the
handwriting to the return.

This is a return by the sheriff, though not subscribed by him.
It has been recognised by him in the recitals to other writs, and
in the deed executed by him to A. B. Spence. The advertise-
ment also, which is annexed to the return, has his signature. la
Dyer 182, pi. 56, it appears that the sheriff might have come in
and disavowed it ; and there are many other authorities to the
same effect. In Scroggs v. Spencer, Cro. Eliz. 704, cited on the
other side, it was held that coroners were not within the statute
of York, and the reason is because coroners have always been
elected in England by the people, not appointed by the king,

217 SUPREME COURT [Dec. Term,

[Dewar v. Spence.]

as in the case of sheriffs. In the former case no uncertainty can
exist in respect to the officer. Here sheriffs are elected as cor-
oners in England. It never was necessary that the high sheriff
should sign the return. It was sufficient if signed by the under

Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 2) → online text (page 24 of 68)