Evans v. Springer

2 Miles 29

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: November 19, 1836
• Status: Published

Opinion

The opinion of the Court was delivered by

Pettit, President.

All parts of the act concur in showing that this proviso in regard to fifteen days, has relation only to cases in which the claim itself was filed after the law went into operation. The direction in the second and several succeeding sections as to the quantity and boundaries of ground to be covered by any claim, and in the eleventh and other sections as to the mode of setting forth the claim, as they comprehend matters contained in no former law are necessarily prospective, and to go into effect at the period designated in the law.

The fifteenth section then enacts, that “ the proceedings to recover the amount of any claim as aforesaid shall be, by a writ of scire facias in the following form,” Ac.

The sixteenth section then provides, that “ no such scire facias shall in any case, be issued within fifteen days,” &c.

It is plain, therefore, that the writ referred to in this act, is only such a writ, as is issued upon a claim filed agreeably to the act, that is, after the first day of September, 1838. The rule is therefore to be discharged.

Rule discharged.

a

The same point was ruled during the present term in the Common Pleas of Philadelphia, (King, President, Randall J. and Jones J.) in the case of Matlack v. Hoy, which was a scire facias on a mechanic’s claim. The claim was filed April 7th, 1835, and described the property (two houses and lots in Spruce street between Schuylkill Third and Fourth streets) sufficiently under the old law and decisions, but not with sufficient accuracy for a sale. On motion to amend the record by filing a complete description of the property, as the foundation of a levari facias under the new act, thehourt held that the proceeding having been commenced by the filing of the claim under the old law, the new act does not apply to the case, and therefore execution should be by fieri facias according to the practice under the old law.