Drexel v. Man ( 1843 )

The opinion of the Court was delivered by

Sergeant, J.

As this court does not, upon a writ of error, sit to try the merits of the case, but merely those points which are raised by the record, a great part of the argument in this case has been wasted on matters concerning which this court cannot judicially enquire, because they do not appear upon the record. To these alone can our attention be directed, and if there are others that are really material to the party, they ought to have been made to appear in such a shape that we could regularly take notice of them.

All .the errors assigned have been waived except three ; the two first appear in the bills of exception, and the last is to the charge of the court.

1. The first of these errors is in the admission of the record in the case of Brooks v. Dyott. It was upon this judgment that the sheriff’s sale of the premises took place, under which the plaintiff holds his title. The objection made to this record is that thefieri facias was void, because it was issued on a judgment recovered by Brooks before a magistrate, the transcript of which was filed in the office of the Prothonotary of the Court of Common Pleas, and no certificate of the magistrate was filed, such as the Act of Assembly requires, namely: that an execution had been issued by the magistrate to which there‘had been a return of nulla Iona. But we think there is no weight in this objection, for all that is required by the Act of Assembly does appear in the transcript certified and filed. It is there stated, that execution issued on the 22d October 1838 and was returned “ no goods and defendant not found.” Where the judgment alone is first filed, it will be necessary to give another certificate that the magistrate subsequently issued execution ; but where that is done before the transcript filed, and so appears in the transcript, it is in substance the same thing, and this we believe is the usual practice.

2. The 2d error is in admitting Daniel Man as a witness. He was the purchaser at sheriff’s sale, and obtained possession, but was turned out of it by the present defendant (after a recovery in ejectment) by a habere facias possessionem, in January 1843. On the 2d February 1843, Daniel Man, Sr. conveyed the premises in fee to the present plaintiff Daniel Man, Jr. When Daniel Man, Sr. was offered as a witness for the plaintiff, the defendant objected to him on the ground that he was entitled to the mesne profits for one day, viz : between the 2d and the 3d February 1843. There must have been some misconception or mistake in the defendant, in the statement of this objection ; for it is plain he could not have any interest in the mesne profits on the day specified, having conveyed away all his estate in the houses. Other reasons have been given here, and much argument on the rights of Daniel Man, Sr. to the mesne profits, from the time that intervened between his dispossession by the sheriff, and his conveyance to his son, but we think that the plaintiff in error is not at liberty to travel beyond the reason assigned and appearing on the record. He chose to confine himself to that, and he must be bound by it. It would be unfair to reverse the decision of the court below, for objections that, for aught we know, were never made, and which, if they had been made, the other side might have obviated, or have waived the evidence. On them, therefore, we give no opinion. We can only notice the one relied on, and that we think untenable.

3. A point has been much insisted on here, which js liable to the same remark : that Daniel Man, Sr. was guilty of fraud at the sheriff’s sale under which he purchased, in relation to a certain notice promulgated at the sale by Mr Pennock. The purport of this notice was, that the sale was made subject to a mortgage of $8000, dated September 5th 1828, and interest, and another of $8000, dated August 6th 1830, with interest. Whereas the plaintiff in error alleges that a considerable portion of this interest had been paid off, and that the mortgage debts were therefore much less than by this notice they appeared to be. All that we find on the record is, that the court, among other things, charged the jury that if they should find but one notice was given at the sheriff’s sale, and that this was given by Mr. Pennock, without the knowledge, direction or interference of Capt. Man, Man could not be affeeted by it. In this we see no error. Whether the notice if given by Daniel Man, would make him guilty of such fraud as would render void the sale — what particular conduct or act of his own, or another, would make him a participator in it, are questions not raised here; and whether they were put by the plaintiff in error on the trial, and answered by the court, we cannot tell, and cannot therefore notice them. On the whole record we perceive no error, and are of opinion that the judgment be affirmed.

•Judgment affirmed.