#### Ankermiller *v.*O’Byrne.

A lease, with waiver of right to writ of error, and clause providing for termination of lease, on notice, and entry of amicable action and judgment in ejectment, is binding upon the lessor, and a writ of error in such case will be quashed, notwithstanding an allegation that no notice was given, etc.

In such case, the penalties for taking a writ for delay, provided by the Act of May 25, 1874, will be enforced.

March 5, 1887.

Rule to show cause why judgment of non-pros. should not be entered in writ of error No. 321, Jan. T., 1887, to C. P. No. 2, Phila. Co., taken by defendant below to review the action of the court below discharging a rule to open a judgment entered on a warrant of attorney to confess judgment in ejectment in a lease, by Malachi O’Byrne against Emil Ankermiller and wife, at Dec. T., 1886, No. 236. Before Mercur, C. J., Trunkey, Sterrett and Clark, JJ. Gordon, Paxson and Green, JJ., absent.

April 16, 1887. Rule for penalties under the Act of May 25, 1874. Paxson, J., absent.

The petition for the rule for penalties states the facts as follows :

“ This suit was a proceeding in ejectment by this deponent as landlord, under the express provisions contained in a written lease between the respective parties, dated January 17, 1884, to recover from the said Emil Ankermiller and Anna E., his wife,'possession of premises No. 245 South St., Philadelphia. That said term expired on January 17, 1887. That said lease provided, inter alia, as follows:

“ ‘ And any attorney may immediately thereafter, as attorney for the lessee, signan agreement for entering in any competent court an amicable action and judgment in ejectment (without any stay of execution ) against the lessee, and all persons claiming under her, for the recovering by the lessor of possession *of the hereby demised premises, for which this shall be a sufficient warrant; and thereupon a writ of habere facias possessionem may be issued forthwith, without any prior writ or proceedings whatsoever, and the lessee hereby releases to the lessor all error and defect whatsoever in entering such action or judgment, or causing such writ of habere far cias possessionem to be issued, or in any proceeding thereon, or con*767cerning the same; and hereby agrees that no writ of error or objection or exception shall be made or taken thereto.’

“ That, under this authority, said deponent began an action of ejectment against the plaintiffs in error in the Common Pleas No. 2 of Philadelphia County, and obtained a judgment of possession therein on January 29, 1887. On February 3, 1887, the plaintiffs in error obtained a rule to open the judgment, proceedings to stay. On February 12, 1887, the rule was argued and the same day discharged. That thereupon, on February 15, 1887, a writ of error was obtained from your honorable court, and the case removed from the common pleas, which again caused a stay of proceedings. On February 17, 1887, a rule was taken on plaintiffs to quash the writ of error, and, on March 7, 1887, after argument, was made absolute. That, by reason of suing out said writ of error by plaintiffs, deponent was kept out of possession of his property for one month and twenty days. That deponent, by reason of the expiration of plaintiffs’ term under the lease, and in full expectation of receiving possession of the premises, gave notice of his intention to give up possession of the premises formerly occupied by him at No. 241 South St. as a millinery store, and terminated the lease thereof. That plaintiffs, knowing this fact, and that deponent must have possession of said premises No. 245 South St., or suffer great loss in his business by reason thereof, positively refused to move and surrender possession of said premises ; thereupon said plaintiffs sued out said writ of error only and merely for the purpose of delay, and to keep deponent out of possession of his said premises.”

Anna E. Anlcermiller, one of the defendants below, filed the following affidavit:

“ She denies in the most positive and emphatic manner and terms that the writ of error in this case was sued out by her only for the purpose of delay, and to keep said defendant herein (plaintiff below) out of possession of said premises in dispute.

“ That at the time of the suing out of said writ of error, and before and since, deponent acted under the advice of her counsel in the premises, and deponent was advised by her said counsel, and she so believed and still believes that she had good, meritorious and legal grounds for a review and correction by this honorable court of said cause, and the proceedings therein in the court below.

“ Deponent further avers that said Emil Anlcermiller is improperly made a party of record herein, as will appear upon inspection of the original lease between deponent and defendant O’Byrne. That ten days previous notice was not given deponent previous to the entering of said amicable action by confession of judgment in the court below, as is required by the conditions of said lease, &c. That said defendant herein had served upon deponent, on or about the 16th of October, A. D. 1886, a notice of his (defendant’s) desire and intention to determine said lease; that, in pursuance of said notice to quit, said defendant, on or about January 20, 1887, in*768stituted proceedings under the Act of December 14, 1863, before Magistrate Durham, of Court No. 6, for the recovery of possession, &c., of said premises. That, after and pending these proceedings before said magistrate, said amicable confession of judgment was confessed in C. P. No. 2, as recited in defendant’s affidavit for the rule herein.

“ That prior to the service of said notice of October x6th, 1886, the defendant had promised and agreed with deponent to release and relet unto her said premises in dispute for another term of one year ( from and after her then current term ending January 17, 1887), at a rental of fifty dollars per month. All of which terms and conditions were accepted by deponent and agreed to by defendant. But, contrary thereto and in violation of said agreement for an extension of deponent’s term in said premises, said defendant instituted said proceedings before said magistrate, and in C. P. No. 2 as aforesaid.

“ All of which facts were set up and filed of record under oath by deponent in said proceedings in the court below ( C. P. No. 2) and were in nowise contradicted or denied by the defendant. De-' ponent further avers that she is advised by her counsel, and she so believes, that her waiver, in said lease, of her right to a writ of error &c., (which was the basis of defendant’s application for the quashing of the writ of error herein ) simply applies to the entering of an amicable confession of judgment in ejectment therein, and is not a waiver of her right to allege objection and error to other matters or things as hereinbefore set forth.”

*Henry J, Scott,*for rule to quash.

The writ should be quashed, 1. Because the writ of error is a supersedeas: Haines *v.*Levin, 51 Pa. 412; Warren *v.*Steer, 17 W. N. C. 12.

2. Because the plaintiff in error has expressly waived his right to the-said writ of error, and said waiver is binding and conclusive: Cunde *v.*Dripps, 3' P. & W. 291; McCahan *v.*Reamey, 33 Pa. 536; Williams *v.*Danziger, 91 Pa. 233; Ranch *v.*Becker, 12 S. & R. 416; Bingham *v.*Guthrie, 19 Pa. 422.

*Amos*Briggs, contra.

Per Curiam, March 7, 1887. — Rule to quash writ made absolute.

*Frederick A. Sobernheimer,*with him *Henry J. Scott*and *Andrew J. Maloney,*for rule for penalties.

The plaintiffs in error had three months’ notice of intention to determine the lease. The judgment in the common pleas was in favor of the landlord ( defendant in error ) and was confirmed, after a full argument, on a motion to open the judgment. By the writ of error, the landlord was kept out of possession for nearly two months, at a time of vital importance to his business. He had surrendered possession of the premises occupied by him, in expectation of getting possession of his own premises at the expiration of the lease. The plaintiffs in error *769knew of his strait, and deliberately sued out a writ of error to take advantage of his position, notwithstanding they had expressly waived the right to such writ, and well understanding that when the case was reached it would have to be dismissed because they had no standing in this court. The evident purpose tof the writ of error was delay and to retain possession, and it was because of this apparent delay that your honors summarily quashed the writ. It therefore follows that the plaintiffs in error have brought themselves directly within the Act of May 25, 1874, and the present rule should be made absolute. In Depuy *v.*Okie, of Jan. T., 1886, No. 410, decided in January last, under almost the same circumstances, and with the same counsel for plaintiff in error, the court made absolute a similar rule. [The next case.]

April 18, 1887.

*W. H.*Redheffer, contra.

Per Curiam,

Rule for penalties under the Act of May 25, 1874, made absolute.