#### Depuy *v.*Okie.

A writ of error in a landlord and tenant case will not be quashed before the return day of the writ, on the application of the defendant in error on the ground that the writ was brought merely for delay, although no exceptions were taken on the trial, and the assignments of error are bad, specifying the insufficiency of the evidence, etc.

The penalties for taking a writ of error for delay, under the Act of May 25, 1874, will be imposed where the plaintiff in error failed to prosecute his writ in such case because he had, since taking it, vacated the premises.

March 27, 1886, and April 3, 1886.

Rule to quash writ of error, No. 410, Jan. T., 1886, to C. P. No. 3, Phila. Co., to review judgment on a verdict in an appeal from a magistrate in a landlord and tenant case, under the Act of Dec. 14, 1863, to recover leased premises, by R. B. Okie, against Thomas Depuy, at Dec. T., 1884, No. 458. Before Mercur, C. J., Gordon, Paxson, Trunkey and Clark, JJ. Sterrett and Green, JJ., absent, March 27 ; and Paxson, J., absent April 3.

Jan. 3, 1887. Rule for penalties under the Act of May 25, 1874. Clark, J., absent.

The affidavit for the rule to quash was as follows:

“ R. B. Okie, being duly sworn according to law, doth depose and say: That he is the defendant in error ( plaintiff in the court below) in the above entitled cause. That the said writ of error was sued out of this court on the 9th. day of March, 1886, returnable on the first Monday of January, 1887. That the said suit is a proceeding by this deponent as landlord, under the provision of the Act of Assembly of December 14, 1863, to recover, from the said Thomas Depuy, possession of premises No. 37 South Second street, *770in the city of Philadelphia. That the said Thomas Depuy’s term having expired on the 31st day of December, 1884, this deponent commenced his suit on the 2d day of January, 1885, before one of the magistrates of the city of Philadelphia, who, on the 16th day of the. same month, gave judgment in favor of this deponent, the plaintiff below. Whereupon, the said Thomas Depuy, the defendant below, appealed to the Court of Common Pleas No. 3, for Philadelphia county. That the said suit was so proceeded in said court that, on the 14th day of January, 1886, the same was tried, and a verdict rendered in favor of plaintiff below, this deponent. That the said defendant below thereupon moved the said court to grant him a new trial which, after argument, was refused on the 5th day of March, 1886, and judgment was, on the next day, entered in favor of this deponent. And the said Thomas Depuy thereupon took said writ of error from this court to remove the said cause here from the said Court of Common Pleas No. 3. That this de^ ponent is advised by his counsel, and he believes, that there is no error in the record of said cause, that no exceptions were taken on the trial, that no exception was taken to the charge of the judge, and the charge has not been filed ; and deponent believes that said writ of error is intended for delay, and to keep him still longer out of possession of his said premises; and he believes that the said plaintiff in error will not prosecute the case to a termination. And further, that the record has not yet been brought up to this court.”

The plaintiff in error thereupon filed an affidavit, in answer, in which he alleged, inter alia, as follows: “Said affidavit is informal, vague, defective and uncertain, in that it simply states that deponent ( affiant therein ) ‘ believes that said writ of error is intended for delay, and to keep him still longer out of possession of his said premises. And he believes that said plaintiff in error will not prosecute the case to a termination.’ Deponent avers that said R. B. Okie, the affiant therein, should state upon what grounds his said belief is based and founded, to enable the court to properly judge of his bona tides. And deponent emphatically and unqualifiedly denies that he purchased and brought said writ of error for the purposes of delay, &c., and without any intention to prosecute the same to a termination. Deponent positively avers that said writ of error was not brought for delay and to hinder defendant in error, and that it is deponent’s intention to prosecute same to a final termination, and such were his intentions at the time he purchased and brought said writ. Deponent is further advised by counsel, and he so believes, that he has 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, and for these reasons solely, and no other, he brought said writ of error.”

*The assignments of error*were filed, upon the argument, as follows :

*771“1. The evidence does not show that three months’ notice to quit had been served upon the tenant (plaintiff in error) previous to the issuance of the original summons, such as is contemplated by the-Act of Assembly of December 14, 1863.

“ 2. The evidence does not show that F. B. Okie (a witness produced on behalf of plaintiff below) had authority to give the tenant notice to quit, or authority to accept a waiver of such notice by the tenant.

“ 3. The evidence does not show that the tenant had waived his right to receive such notice as is contemplated by said Act of Assembly. •

“4. The learned judge erred in charging the jury, inter alia, that the defendant (tenant) might waive the notice to quit.

“ 5. The learned judge erred in charging the jury, inter alia, that plaintiff (landlord) was not bound to give defendant (tenant) notice to quit, if he (tenant) had waived such notice.”

*W. H. Redheffer,*for motion to quash.

The court will not dispose of a writ of error in this summary way. The affidavit should inform the court what his information is, and from whom and where he obtained it, particularly as his assertions are denied by counter affidavit.

The court will not infer that delay was intended, merely from a view of the proceedings, without an acknowledgment by the party that the writ was sued out merely for delay: Somerville *v.*White, S East, 145 ; Butterfield *v.*Windle, 1 Smith (English), 335.

The court ought to give judgment of reversal if there be error in law, notwithstanding no error in law is assigned: Castledine *v.*Mundy, 14 B. & Ad. 94; Charnley *v.*Winstanley, 5 East, 270; Le Bret *v.*Papillon, 4 East, 502. A party has the right of review in all cases unless excluded by statute: Gosline *v.*Place, 32 Pa. 523. A writ of error lies where a party is aggrieved by any error in the foundation proceedings, judgment or execution of a writ: Com. *v.*Beaumont, 4 Rawle, 368; Tidd, 1134.

On certiorari, nothing can be reviewed but error in law upon the face of the record, whilst an appeal brings up the entire case: McClemmons *v.*Graham, 3 Bin. 89.

A writ is a matter of course under the Act of 1722, Purd. 602.

Under the Act of June 16, 1836, §§7, 8, P. L. 762, a writ of error is a supersedeas: Bryan *v.*Comly, 2 Miles, 271 ; Adams *v.*Hindman, 2 Miles, 464; McDonald *v.*Gifford, 1 Brews. 276; s. c. 6 Phila. 315. See Act of March 11, 1834, P.L. 135.

In Wright *v.*Clenndening, 1 Brews. 449; s. c. 6 Phila. 329, a writ of error with sureties was held a supersedeas in all landlord and tenant cases. See, also, Haines *v.*Levin, 51 Pa. 412; Byrne *v.*Building Ass’n, 6 W. N. C. 254; Jackson & Gross, L. & T., pp. 319, 322, 330, and §§ 533, S3S, 603.

*772April 12, 1886.

*J W. Mercur*and *H. Haverstick,*contra.

The answer of the plaintiff avoids the real question involved in this rule, namely, is there any error or probable ground to allege error in the record ? And sets up as defence mere technicalities. ■

In regard to the allegation of defendant in error that the writ of error was brought by plaintiff in error only for delay, it is, of course, met by a denial. But defendant bases his belief upon the advice of counsel that there is no error on the record and no bill of exceptions was taken or filed. If plaintiff in error can show even one probable error, our rule should be discharged.

Per Curiam,

Rule to quash discharged, as the writ is not yet returnable.

. Jan. 3,1887, a judgment of non-pros, was entered. On the same day, the rule for penalties was entered, the defendant in error filing an affidavit substantially the same as before.

Plaintiff in error then filed the following affidavit:

“ Thomas Depuy, being duly sworn, says he is the plaintiff in error in above-stated case; he emphatically denies, in the most positive terms, that the writ of error in this cause was sued out by him only for the purpose of delay and of keeping said Okie, defendant in error, out of possession of said premises in dispute, as alleged by said Okie as his belief in the affidavit filed by him, Okie, herein for the present rule, &c. That, at the time of the suing out of said writ of error, and before and since, deponent, plaintiff in error, acted under the advice of counsel, and deponent was advised by his said counsel, and he so believed, and still believes, that he, plaintiff in error, had good, meritorious and legal grounds for a review and correction, by this honorable court, of said cause and proceedings therein in the court below. That, while these proceedings were pending in this court, he, deponent, determined to vacate and remove from the premises in dispute, to avoid further trouble, annoyance and indignities from said landlord, defendant in error; that, in pursuance and furtherance of said resolve, he leased and rented other premises for the prosecution of his business, and has removed thereto and located thereat (in the doing of which he has acted solely under advice of counsel); that, sometime in March or April last, deponent offered to pay the defendant in error all money, rent, interest, &c., due and owing up to that time, and requested a statement thereof to enable him so to do, same to be paid without prejudice to defendant in error, and with the express understanding that he, defendant in error, was to waive none of his rights in the premises. Deponent made this offer bona fide, and simply to allow defendant in error to have the use of the said moneys, interest, &c., all of which offer defendant in error positively refused to, and would not, accept, and replied that he would rather wait until the case was finally ended.' Deponent further avers that he, by his counsel, visited the defendant in error sometime about the beginning of De*773cember, 1886, and notified him of his, deponent’s, intention to remove from said premises before, or by the end of, his then current month, December, and demanded a full statement and account of the full amount of rent, interest, costs and charges of every kind due and owing him in the above matter, in order that he, deponent, might pay the same and remove from said premises. Defendant in error referred the matter to his counsel and refused to act in the matter at all. Defendant’s counsel, about the middle of same month, December, made the same request (twice) to the counsel of defendant in error, and he has, down to the present time, failed, neglected and refused, to make the said statement so demanded and required, as aforesaid. Deponent’s reason for not prosecuting his said writ to a final determination are hereinbefore stated, and none other.”

*J. W. Mercur*and *H Haverstick,*for rule for penalties.

*W. H. Redhcffer,*contra.

Per Curiam,

Jan. 8, 1887.

The rule for penalties under the Act of May 25, 1874, is made absolute.

See, also, the preceding case.