Daly v. Maitland
Supreme Court of Pennsylvania
Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 2. Scire facias sur mortgage by Henry Maitland against Henry M. Daly and others, executors of John Daly, deceased. The mortgage was for $14,000, dated May 6th 1871, for five years, between John Daly and Henry Maitland. John Daly having died before the commencement of the suit the writ was issued against the executors and trustees under his will after the maturity of the mortgage.
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Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 2. Scire facias sur mortgage by Henry Maitland against Henry M. Daly and others, executors of John Daly, deceased. The mortgage was for $14,000, dated May 6th 1871, for five years, between John Daly and Henry Maitland. John Daly having died before the commencement of the suit the writ was issued against the executors and trustees under his will after the maturity of the mortgage. The pleas were nil debet and payment. The mortgage contained the folllowing clause, “ and provided also, that it shall and may…
1Opinion of the CourtChief Justice Sharswood
In Huling v. Drexel, 7 Watts 126, it was decided by this court that a stipulation in a mortgage that in the event of the necessity of proceeding to recover the mortgage by suit, the mortgagee shall be entitled, in addition to the debt and interest, to damages for cost and expenses incident thereto, was not usurious, and might be enforced in the scire facias. In consequence of this decision, it has become common to insert a provision not only in mortgages, but notes and other instruments for the payment of money, that the creditor, in the event of being obliged to resort to a suit, shall…
2Cases cited1 opinion
- Huling v. DrexellSupreme Court of Pennsylvania · 1838
3Cited by29 opinions
- Harper v. Consolidated Rubber Co.Supreme Court of Pennsylvania · 1925
- Robbins v. WeinsteinSuperior Court of Pennsylvania · 1940
- Shapiro v. MalarkeySupreme Court of Pennsylvania · 1923
- Foulke v. Hatfield Fair Grounds Bazaar, Inc.Superior Court of Pennsylvania · 1961
- Wilson v. OttSupreme Court of Pennsylvania · 1896
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