Heydrick v. Eaton

2 Binn. 215, 1809 Pa. LEXIS 55

Opinion

Tilghman C. J.

But did the defendant in fact know of the levy?

Ross offered to read the defendant’s affidavit that he did not.

Milnor objected, upon the authority of Hoar v. Mulvey

(a).

Court. The affidavit cannot be read, but the plaintiff must shew notice; the defendant is not bound to prove a negative.

Time was then given to the plaintiff to prove notice of the levy; but at a subsequent day, Milnor informed the court that proof could not be obtained.

Construe the law as you will, the inquisition must be set aside. It is not necessary to sav how the case would be, if there had been notice either of the levy or inquest; but where there has been neither, the proceedings cannot be supported. Here the defendant had no notice of the levy, nor any except the general notice of the inquest, put up in the prothonotary’s office. Let the rule be made absolute.

Yeates J. of the same opinion.

Be.ackenr.idge J.

I take thi,s occasion to express my ©pinion, that the notice required by the act, has nothing to do with the levy, but relates solely to the inquisition. The return of the levy is nótice; but there does not appear either time or place for holding the inquisition, without notice to the defendant. The object of the act was to prevent surreptiti°us inquests to procure the condemnation of property, without giving the defendant an opportunity to shew that the rents and profits would pay in seven years. They might be held in an obscure place, or at an unseasonable time; but when notice is given, the defendant may say, hold the inquest on the land.

Rule absolute.

1 Binn. 145.