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U.S. Supreme Court


4 U.S. 154 (Dall.)

Nicholson's Lessee

Supreme Court of Pennsylvania.

December Term, 1798

THIS cause had been decided, by the board of property, in favour of the defendant, upon a caveat, respecting lands in Northumberland county, on the 14th of February 1796; but the patent was staid for six months, within which time, the party is allowed, by the act of assembly, to enter his suit, at common law, in the nature of an appeal. 3 State Laws, 213. s. 11. Dall. edit. For that purpose, a declaration in ejectment was framed, entitled as of April term 1796; it was served by a private hand (not the sheriff) on the defendant, in Philadelphia, on the 10th of August 1796; and it was entered on the docket of the Supreme Court, on Saturday, the 20th of August 1796: but the Court had risen (contrary to the usual practice, and the expectation of the bar) on the preceding day, when, of course, the term ended.

In April 1797, a rule was obtained, by the defendant, to show cause, why the ejectment should not be struck off the docket; on the ground, that it was not entered, within the six months allowed by the act of assembly. And, upon the argument, in chief, at the present term, it was contended, that the cause was not in the possession of the Court, until the process was returned. 6 T. Rep. 617.; that, in the case of the sheriff, the Court might have called for a return, but not in the case of a special agent, employed by the plaintiff to execute a writ; 4 T. Rep. 119.; and that a service of the declaration in ejectment upon the defendant, is not an entry of the suit, within the terms, or meaning, of the law.

The plaintiff's counsel, urged the injustice, that would be done, by a mere matter of accident and surprise, if the rising of the Court, a day earlier than the usage, should be the ground of quashing the present suit. They further insisted, that the service

Page 4 U.S. 154, 155

of the declaration in ejectment upon the defendant, was a commencement of the suit within six months, according to the spirit and intention of the law; that the declaration was the only process in ejectment; 2 Sell. Pr. 164. that it might be served on the tenant himself, in any place; though if the service was on a wife, or servant, it must be on the premises; 2 Cromp. Pr. 165. Runn. Eject. 155. that the sheriffs of the several counties were now obliged, by law, to serve declarations in ejectment; 3 State Laws, 170. s. 10. Dall. Edit. that the return is the certificate of the sheriff, stating what has been done touching the execution of the writ; Compl. Sheriff, 144. Dall. 162. and that the proceedings of a special bailiff, being recognised by law, as a competent person to serve the process in ejectment, must be as effectual as the proceedings of the sheriff.

After consideration, the COURT were of opinion, that the ejectment was well brought, within the six months allowed by the act of assembly: and ordered that the rule to show cause be discharged.

Rule discharged.

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