Brisben v. Wilson , 1869 Pa. LEXIS 112 ( 1869 )

The opinion of the court was delivered,

by

Sharswood, J.

The 1st and 4th assignments of error have not been pressed upon the argument, nor indeed could they be with any show of reason or authority. The judge was clearly right in his answers to the plaintiffs’ 1st and 4th points complained of in these assignments, nor need we occupy time and space in vindicating them.

The 2d and 3d assignments do show, as we think, an error to have been committed in the answers to the plaintiffs’ 2d and 3d points; a very natural error from the hasty reading of McKinney v. Reader, 6 Watts 49, which is all that can be given at Nisi Prius. The Act of Assembly of March 21st 1772, 1 Smith 370, provides that the tenant shall have five days next after a distress and notice thereof wherein to replevy the goods: “ then and in such ease after such distress and notice as aforesaid, and expiration of the said five days,” an appraisement shall be made, and “after such appraisement” six days’ notice shall be given of sale. McKinney v. Reader determined that the rule adopted and applied in all other cases in the computation of time should also be the rule under this statute, notwithstanding the decision of Wallace v. King, 1 H. Blacks. 13, under the corresponding British statute; a case which, however, has since been expressly overruled as to. this point in Robinson v. Waddington, 13 Ad. & Ell. 753. That rule is, that the time shall be computed excluding the day on which the act was done from which the count is to be made. It does not appear in the report of McKinney v. Reader on what day the appraisement in that case was made: all that does appear is in the statement of facts in the opinion of the court that as the fifth day from Tuesday, the day of the distress, fell on Sunday— dies non juridieus — the tenant had all the day following to replevy. The question, then, really was whether the landlord was a trespasser in leaving the goods on the premises during the five days.’ “Seeing, then,” says Kennedy, J., “this time was allowed him for this purpose, can it be considered as prejudicial to him that a reasonable portion of the leased premises was taken by his landlord and appropriated to the safe keeping of the goods distrained during that period ?” When it is once settled that the day of the distress is to be excluded in the computation of the time, the Act of Assembly itself determines the rest. The appraisement cannot be made on the fifth or last day. The words of the act are not open to any question or doubt. It is not to be made until “after the expiration of the said five days.” It would be unwise to speculate about the reason of this, and to say . that provided the tenant had on the whole the time allowed by' the statute before the sale, as he undoubtedly may replevy after the five days as well as during their running, Jacob v. King, 5 Taunt. 451, it matters not to him except as to the costs when the appraisement is made. It could do him no harm, whether in anticipation of the regular time or afterwards. It is to be observed, however, that by the frame of the act, the six days’ notice of sale may be given at any time after the appraisement, so that to hold that it may be made on the fifth day, shortens the time of the required notice one whole day. The legislature, however, have so provided, and it is certainly the law of this state as it was of England before the statute of 11 Geo. 2, c. 19, § 19, that such an irregularity makes the landlord a trespasser ab initio: Kerr v. Sharp, 14 S. & R. 399; and as no legal right or title can grow out of a trespass,the sale is invalid, and trover can be maintained against the purchaser for the goods. The unlawful act of purchase itself is a conversion: McCombie v. Davies, 6 East 538.

Judgment reversed, and venire facias de novo awarded.