#### Miskey *versus*City of Philadelphia.

1, The price of land taken for the Fairmount Park as agreed upon with the commissioners, bears interest from the day of the confirmation of their report by the court, not from, the date of the agreement.

2. Acts of March 26th 1867 and April 14th 1868, relating to Fairmount Park, distinguished.

February 28th and March 1st 1871. Before Thompson, 0. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.

Error to the District Court of *Philadelphia:*to January Term 1869, No. 869.

This was an action of debt brought to June Term 1869, by William E. Miskey against The City of Philadelphia.

The facts of the case are as follows, viz.:—

The plaintiff, owning a piece of land within the limits of Fair-mount Park, on the 19th of June 1868 agreed with the park commissioners, who had appropriated.the same under the Act of March 26th 1867, on the price of $46,000, to be paid therefor by the city. The commissioners reported this sale and purchase to the Court of Quarter Sessions, who, on the 13th of November 1868, confirmed the report. On the 6th of April 1869, plaintiff received $45,000, and brought this suit to recover the balance, alleging that the price bore interest from the date of his agreement with the commissioners. The Court of Quarter Sessions had, previously to the payment on account, adjudged that the plaintiff was entitled to interest from the date of the confirmation of the report, and the District Court, after a verdict for the larger amount, $2175, gave judgment on points of law reserved for $1115.10, the balance due after the payment of April 9th 1869, calculating interest only from the date of the confirmation of the report of the commissioners, with interest on that balance to the date of verdict. The plaintiff brought this writ of error, and assigned for error, not entering judgment for the plaintiff for the whole amount of the verdict.

*J. Q. Longstreth*and *H. Q.*Townsend, for plaintiff in error.—

By the 10th section of the Act of April 14th 1868, Pamph. L. 1083, upon confirmation by the court, the valuation was made forthwith payable by the city. The debt bore interest from the time it was contracted, not from the time it was confirmed: City *v.*Dyer, 5 Wright 463; Penna. Railroad Co. *v.*Cooper, 8 P. F. Smith 408; Delaware, Lackawanna and Western Railroad Co. *v.*Burson, 11 Id. 369; Estate of Bank of Pennsylvania, 10 Id. 471.

*O. S. Jones,*for defendant in error,

cited Act of April 21st 1855, § 7, Pamph. L. 266; City *v.*Dickson, 2 Wright 247; City *v.*Dyer, 5 Id. 463; Owners of Land *v.*City, Leg. Int. 77; *49Stewart *v.*County, 2 Barr 340 ; Act of April 21st 1869; Pamph. L. 1196.

May 8th 1871,

The opinion of the court was delivered,

by

Sharswood, J.

In this case the plaintiff in error, being an owner of land appropriated for the Fairmount Park, agreed with the commissioners for the price on the 19th of June 1868. -The report thereof to the Court of Quarter Sessions was duly confirmed on the 18th day of November 1868. The learned court below held that the amount thus agreed upon bore interest not from the date of the original agreement but from the confirmation. In this we think they were entirely right. These proceedings were all subsequent to the passage of the Act of April 14th 1868, Pamph. L. 1083, the 10th section of which declares that “ whenever any report of the said commissioners shall have been confirmed by the court, the valuation made shall be forthwith payable by the city of Philadelphia.” It was certainly within the power of the legislature so to provide, and it would be contrary to all rule to make the city liable for interest upon a demand before it is by law payable. It will be observed that there is a marked difference between this language and that employed in the Act of March 26th 1867, Pamph. L. 547, under which Haley *v.*The City, antea p. 45, has just been decided. In coming to an agreement as to the valuation both parties must have known that it was subject to the approbation of the court when alone it would have become payable, and they must be considered to have regulated their terms accordingly.

Judgment affirmed.