Gavit v. Hall

2 Foster 183

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: May 11, 1874
• Status: Published

Opinion

Opinion delivered May 11, 1874, by

Mercur, J.

This was a proceeding before two aldermen to dispossess a tenant after the expiration of her term. The inquest found all the facts made necess'’ry by the act of assembly to require the possession of the demised premises to be given to the plaintiff. The record made by the aldermen is in accordance with the finding, and correct m form. Upon certiorari and exceptions filed, the common pleas reveised the judgment, but filed no opinion.

On the argument, two grounds were urged against the judgment of the aldermen, to wit : First, the insufficiency of't.he affidavit to the complaint. Secondly, the insufficiency of the sheriff’s return, relating to summoning the jurors

1. No objection is made that the complaint is not full and explicit, nor that it does not contain every fact required to be therein set forth It is claimed, however, that it is not shown with sufficient certainty by whom the affidavit was made. There is no room to doubt that the affidavit was m.ade by the person who signed the complaint. It is clearly manifest that it was signed by Blair, as agent for Gavit. I see not how that fact could have been averred in more unequivocal language. The conclusion necessarily follows that Blair, made the required proof.

The two aldermen adjudged the proof sufficient, and issued their warrant to the sheriff. We see no error in this : Cunningham v. Gardiner, 4 Watts & Serg. 120.

2. The sheriff made return to the writ, inter alia, that he had summoned twelve substantial freeholders of his bailiwick. It is true, he omitted to state their names in his written return, but the inquisition, taken very soon thereafter does give the name of each juror. No objection was then or thereafter made, that they were not the identical freeholders summoned by the sheriff. The presumption is that they were. If the defendant was not satisfied of that fact, she should then have challenged the array, or have made some objection before the jury was sworn. By going to trial without objection, it was afterwards too late to interpose a hypothetical-assumption to set aside the finding of the jury and aldermen: McDermott v. Hoffman, 20 P. F. Smith, 31. The maximomnia pre-sumuntur rite esse acta," applies with full force to these official acts.

We discover no fatal error in the judgment of the aldermen, and the judgment of the common pleas must be reversed.

Judgment reversed and judgment in favor of the plaintiff.