Neiss v. Foster

64 Pa. 495, 1870 Pa. LEXIS 398

• Court: Supreme Court of Pennsylvania
• Decided: March 31, 1870
• Status: Published

Opinion

The opinion of the court was delivered,

by Thompson, C. J.

— The defendant in error, in effect, demurs to the assignment of errors by the plaintiff in error, for want of compliance with the rules of court. It is his right to do so. By reference to the rules of this court, 6 Harris 578, and to the case of Buckholder v. Stahl, 8 P. F. Smith 371, it will he seen that the objection is well taken, and when so taken we are pledged by the rules and the cases mentioned to regard it. These references will explain fully wherein these assignments are defective. The points should appear in the assignments of error, with the answers of the court thereto, if there be any. The former of these requisites is wanting. The latter is not.

We will, however, step out of our way, to say, which we may do when we would affirm, that the learned judge was altogether right in charging as he did, that if the trespass was complete while. Foster, the legal plaintiff, was the owner of the land, the right of action immediately accrued to him, and was not divested by his subsequent sale to another; nor did it pass to that other by the conveyance. He was also right in disregarding the use plaintiffs in the case. Indeed, this is anomalous in torts. In fact, strictly speaking, it is so in most cases, beyond possibly serving, under some circumstances, as notice of an equitable assignment; perhaps, rather as evidence of it. In this case- the title to the money, as the learned judge properly said, could be determined after recovery had. It is no matter to the defendant who gets it, if there be a legal party entitled to recover it from him.

Judgment affirmed.