Arr///- ■_ /kY/e/vrA- -_ /jru/A//y (flnrn^U ICaui ^ri^nnl Sltbtarg Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024706065 PRACTICAL TREATISE ON ' THE LAW OF LANDLORD AND TENANT IN PENNSYLVANIA; WITH A COMPLETE DISCUSSION OK EJECTMENT AND REPLEVIN. BY TATLOW JACKSON. AND BY JOSEPH P. GROSS, OF THE PHILADELPHIA BAR. SECOND EDITION, PHILADELPHIA: REES WELSH & CO., 19 S. Ninth Street, opposite New Post Office. 1884. Entered, according to the Act of Congress, in the year 1882, By EEES welsh & CO., in the Office of the Librarian of Congress, at Washington, D. (!. SHERMAN i CO., PEINTERE, pniLADELPHIA. TO TATLOW JACKSON, Jr. AS THE ORIGINAL IDEA OF WRITING THIS BOOK WAS SUGGESTED BY THE DESIRE THAT YOTT SHOULD STUDY LAW, EITHER AS A PROFESSION OB FOB THE ACQUISITION OP KNOWLEDGE WHICH WOULD BE USEFUL TO YOU IN LIFE, IT IS FITTING THAT THE WORK SHOULD BE DEDICATED TO YOU. (iii PREFACE. The purpose of the authors, in this work, has been to present the Law of Landlord and Tenant in Pennsylvania in a sys- tematic, practical, and compendious form. After considering tenancies of real estate and the lease, the)' have summarized the wrongs and remedies incident to the relation of landlord and tenant as between themselves, and with respect to .strangers. That summary is contained in the third chapter, commencing on page fifty-seven, and comprises a detailed classification of those wrongs and remedies which are discussed in the succeeding chap- ters. The statute law, comprising the British statutes in force, as well as the acts of Assembly, is given in full throughout the book. As soon as practicable this volume will be followed by a second, containing precedents and forms of procedure. The authors wish to express their indebtedness to Mr. Hamp- ton L. Carson, of the Philadelphia Bar, for material assistance in the correction of the proof-sheets, and the exercise of his critical taste and judgment as to style. Also, to Mr. Seymour D. Ball and Mr. Wilson C. Kress, of the Lock Haven Bar, for valuable suggestions in the preparation of this treatise. Tatlow Jackson, 520 Walnut Street. Joseph P. Gross, 32 South Third Street. Philadelphia, January 2d, 1882. (v: TABLE OF CONTENTS. PAOB Index to cases cited, . . xxi Table of cokstittjtional and statute latv, lix I. Constitution of Pennsylvania, . . ... lis II. British statutes, lix III. Acts of Congress, Ix IV. Revised statutes of the United States, ...... Ix V. Acts of Assembly, Ix Introduction, 1 CHAPTER I. TENANCIES IN PENNSYLVANIA. Sect. I. Number and connections of tenants, and the time of enjoyment, . 15 Sect. II. The quantity of interest in the estate, 17 CHAPTEE II. THE LEASE. Sect. I. Its requisites and execution, 20 Sect. II. The contracting parties, . . . . .24 Sect. III. The formal parts, .26 Sect. IV. Rent, 36 Sect. V. The incidents, .40 I. Easements, ... 40 (1.) Eight of way, . . ■ 40 (2.) Right of watercourse, . 44 (3.) Eight of light, . . 45 (4.) Common of estovers, . . 46 (5.) Common of pasture, .... ... 46 (6.) Common of turbary, 46 (7.) Common of piscary, 47 (8.) Eight of Support of neighboring soil, building, or wall, . 48 (9.) Eight of drain 50 II. Emblements, .51 III. Fixtures .53 (vii) mi CONTENTS. CHAPTER III. YEONGS AND THE REMEDIES THEREFOR INCIDENTAL TO THE RELATION OE LANDLORD AND TENANT. PAGE Sect. I. As to ihe landlord, 57 I. The wrongs against the landlord 57 II. The landlord's remedies, 57 Sect. II. As to the tenant, 61 I. The wrongs against the tenant, 61 II. The tenant's remedies, 62 3bct. III. As to the landlord or tenant, ....... 70 I. The wrongs against the landlord or tenant, 70 II. The landlord's or tenant's remedies, 71 Sect. IV. As to a stranger 74 I. The wrongs against a stranger, 74 II. The stranger's remedies, 75 THE WRONGS AGAINST THE LANDLOED, AND THE REMEDIES THEREFOR. CHAPTER IV. WASTE. Sect. I. What is waste, . . . : 80 Sect. II. The landlord's remedies, ...... .83 I. Preventive, . 83 (1.) By writ of estrepement, 84 (2.) By injunction, 87 II. The remedial, 89 (1.) Action or writ of waste, 89 (2.) Action of trespass on the case in the nature of waste, . 90 (3.) Action of covenant, under the express covenant in a lease under seal, 92 (4.) Action of assumpsit, where the lease is not under seal, . 93 III. Statutory penalties, ......... 93 CHAPTER V. NON-PAYMENT OF RENT. 3bct. I. Distress, . .......... 98 I. Defined, and how made, 96 II. Things privileged or exempt from distress, .... 105 III. ^Fraudulent removal of the tenant's goods to avoid the land- lord's di.stress, 125 IV. Landlord's remedy when the tenant's goods liable to distress are seized in execution, 130 CONTENTS. IX PAGE V. Set-off against rent, 135 VI. When distress will lie, ....... 140 VII. "When distress will not lie, 143 VIII. Demand of the rent, 146 IX. Rescue, 147 X. Costs of distress, 148 Sect. II. Re-entry, 150 Sect. III. Act of 1825, section 2, 155 Sect. IV. Act of 1830, 160 Sect. V. The action of covenant, 173 Sect. VI. The action of assumpsit for use and occupation, . . . 178 Sect. VII. The action of debt, 184 Sect. VIII. The action of annuity, 187 CHAPTER VI. FRAUDULENT REMOVAL TO AVOID DISTRESS. Sect. I. Act of 1772, section 5, 188 Sect. II. Act of 1825, section 1, 189 CHAPTER VIL RESISTANCE TO A DISTRESS. Sect. I The action of trespass on the case, 192 I. Defined, and statutes and acts relating thereto, . . . 192 II. When the action of trespass on the ease will lie, . . . 197 III. The declaration, 200 IV. The pleas, 200 V. Judgment and verdict, 201 Sect. II. Indictment, 201 CHAPTER VIII. RESCUE OP CHATTELS LEGALLY DISTRAINED. Sect. I. The action of rescous, ......... 204 Sect. II. The action of trespass on the case under the act of \T12, . 205 Sect. III. Recapture of the chattels, 206 CHAPTER IX. BREACH OF THE POUND IN WHICH THE DISTRESS IS IMPOUNDED. Sect. I. The action of pound breach, 207 Sect. II. The action of trespass on the case under the act of 1772, . . 208 Sect. III. Recapture of the chattels, 208 X CONTENTS. CHAPTER X. NON-DELIVEEY OF POSSESSION. PAGE Sect. 1. Re-entry, , 209 I. The determination of the tenancy, 209 II. The landlord's right of re-entry, 229 Sect. II. The writ of entry ad terminum qui prceterit, .... 232 Sect. III. The action of ejectment, ........ 233 I. Its history, 233 II. Synopsis of the acts of Assembly, 236 III. British statutes, 243 IV. Acts of Assembly 244 V. The title to support ejectment, 257 VI. Parties in ejectment, 259 (1.) In whose favor ejectment will lie 259 (2.) In whose favor ejectment will not lie, . . . 261 VII. When ejectment will lie, 263 VIII. "When ejectment will not lie, 264 IX. Decisions incidental to the action of ejectment, . . . 264 X. Of the prerequisites before bringing action, .... 268 (1.) Entry 268 (2.) Notice to quit, 268 (a.) When not requisite, 268 (J.) When requisite 269 (c.) Of the notice, 270 XI. The proceedings in ejectment, 271 (1.) The praecipe, 271 (2.) The writ, 271 (a.) Of the service, 272 (6. ) Of the return of the writ, . . . .274 (3.) Appearance of defendant, 274 (4.) The plaintiff's declaration or statement, . . . 275 (5.) The defendant's plea, 275 (6.) Admission of defence, 276 XII. The trial, 277 (1.) Of the evidence, 277 (2.) Of the verdict 280 (3.) Of the judgment 282 (4.) Of the execution, 283 XIII. An amicable ejectment, 284 XIV. The action of trespass vi et armis for the mesne profits, . 285 Sect. IV. Act of 1772, section 12 287 Sect. V. Act of 1825, section 2, 301 Sect. VI. Act of 1830, 302 Sbct. VII. Act of 1836, 302 Sect. VIII. ^ci 0/ 1849 817 Sect. IX. Act of 1863 319 Sect X. Actof\&6b, 333 CONTENTS. Xi CHAPTER XI. ADVEESE TITLE. PAGE Sect. I. Indictment of forcible detainer, 337 Sbct. II. Action of ejectment 339 THE WEONGS AGAINST THE TENANT, AND THE REMEDIES THEEEFOE, CHAPTER XII. FORCIBLE ENTRY. Sect. I. Indictment of forcible entry, 340 Sect. II. The action of trespass, 341 I. Defined 341 II. British statutes, 342 III. Synopsis of acts of Assembly, 342 IV. Acts of Assembly 345 V. Requisites to support trespass, ...... 352 VI. When the action of trespass vi et armis will lie, . . . 353 VII. When the action of trespass vi et armis will not lie, . , 354 VIII. When the action of trespass de bonis asportatis will lie, . 354 IX. When the action of trespass de bonis asportatis will not lie, . 355 X. When the action of guare clausum f regit will lie, . . . 355 XI. When the action of quare clausam f regit will not lie, . . 358 XII. The declaration, 358 XIII. The plea, 359 XIV. Of the verdict and damages, 360 CHAPTER XIII. FORCIBLE DETAINER. Sect. I. Indictment of forcible detainer 363 Sect. II. The action of trespass on the case, ...... 364 Sect. III. The action of ejectment, ........ 364 Sect. IV. The action of covenant, 364 Sect. V. The action of assum.psilfor use and occupation, .... 364 CHAPTER XIV. DETENTION OR OBSTRUCTION OF AN EASEMENT. Sect. I. The action of trespass on the case, 365 Sect. II. Indictment, 365 Sect. III. Bill in equity for specific perform,ance, . . . . 366 I. When equity will entertain jurisdiction, 867 II. When specific performance will be decreed, .... 368 III. When specific performance will be denied 369 IV. Of the bill, 370 Sect. IV. The action of assumpsit, ........ 371 Xll CONTENTS. Sect. n will not lie, CHAPTER XV. DETENTION OE OBSTEUCTION OF AN EMBLEMENT. Sect. I. The action of irepass quare clausum f regit, Sect. II. The action of trespass on the case, Sect. III. The action of detinue, Sect. IV. The action of trover and conversion, I. Its nature, II. British statutes III. Acts of Assembly, .... IV. When the action of trover and conversion -will lie, V. When the action of trover and conversion will not lie, VI. Prerequisites in the action of trover and conversion, VII. Of the declaration, VIII. Of the pleas, IX. Of the judgment and damages, V. The action of replevin, I. Its origin and definition, II. Exceptions to general rule, and when replevi; III. British statutes, .... IV. Acts of Assembly, .... V. Its nature, VI. Parties in replevin, (1.) In whose favor replevin will lie, VII. For what property replevin will lie, VIII. Of the proceedings in replevin, (1.) The praecipe, (2.) The writ, .... (3.) The writ de homine rrplegiando, (4.) The replevin bond and proceedings thereon, (5.) Neglect of the sheriff to take a sufficient replevin bond, (6.) The claim property bond (7.) Appearance of defendant, (8.) The plaintiff's declaration or narr, (9.) Defendant's judgment of non pros, and of the writ of retorno hahendo, ....... (10.) Pleas to the declaration, (11 ) Avowry by defendant or landlord, or cogniznnce by the bailiff, (12.) Plaintiff's or tenant's pleas to the avowry or cogni- zance, ......... (13 ) Pleas not admissible to the avowry or cognizance, . IX. Of the trial, (1.) Amendments in pleading, (2.) When the plaintiff should commence, (3.) When the defendant should commence, (4.) The evidence, where the replevin is of a distress for rent, PAGE 872 372 373 374 375 378 379 380 383 384 384 385 385 386 386 388 397 402 410 414 414 418 423 423 424 426 427 433 435 438 438 440 441 445 448 454 455 455 456 458 458 CONTENTS. XIU PAGE A. On the part of the plaintiff or tenant, . . 458 (a.) Under an avowry or cognizunee, . . 458 (J.) Under the plea of non demisit, . . 469 (c.) Under the plea of won ie««i< moifo ei/orwrt, 460 (d.) Under plea of Hens i» orrere, . . . 461 (e ) Under plea of eviction, .... 464 (/.) Under plea of trespass, .... 465 [g.) Under plea of cepit in alio loco, . . 466 B. Evidence on the part of the defendant or landlord, 466 (a.) Under plea of non demisit or »ora tenuit, . 466 (b.) Under plea of hors de son fee, . . . 467 (c.) Under plea denying bailiff's authority to distrain, 468 (d.) Under plea of non est factum, . . . 468 (e.) Under jilea of eviction 468 (5.) The evidence, v?bere the replevin is founded on aright of property, ... .... 469 A. On the part of the plaintiff, . . . 469 (a.) Under the plea of property, . . . 469 (b ) Under plea of non cepii, .... 470 B. Evidence on the part of the defendant, . . 470 (ffi.) Under plea of property, .... 470 (6.) The verdict, 471 (a.) For the plaintiff, 471 (b.) For the defendant, . .... 472 (7.) The recovery of damages, 473 (a.) For the plaintiff, 473 (6.) For the defendant, 475 (8.) The costs, 477 (9.) The judgment, 479 (a.) For the plaintiff, 479 (i.) For the defendant 480 (c.) For the plaintiff and defendant, . . . 483 (10.) The execution, 483 (a ) For the plaintiff, 483 (5.) For the defendant, 483 CHAPTEE XVI. BREACH OF IMPLIED COVENANTS. Sect. I. Nature of implied covenants, . 486 Sect. II. The implied covenants- on thepart of the landlord, . . . 490 I. The implied covenant for quiet enjoyment, .... 490' (1.) Where there is a breach of the implied covenant for quiet enjoyment, 491 (2.) "Where there is no breach of the implied covenant for quiet enjoyment, 492 (3.) The tenant's remedies for a breach, .... 494 (4.) The action of covenant, 495 (5.) The tenant's judgment or measure of damages, . . 497 XIV CONTENTS. PAGE II. The implied covenant for payment of taxes 503 (1.) The acts of Assembly, 503 (2.) E&um^ of the acts 509 (3.) Valuation of real estate 611 (4.) Sales for unpaid taxes 511 Sect. III. Covenants that are not implied on the part of the landlord, . 512 Sbct. IV. The implied covenants on the part of the tenant, . . . 515 Sbct. V. The covenants not implied on the part of the tenant, , . , 516 CHAPTER XVII. BREACH OF EXPRESS COVENANTS. Sect. I. Nature of express covenants, 518 I. Defined and character, 618 II. Of joint and several covenants 520 III. Of dependent and independent covenants 521 IV. Of real covenants, or covenants running with the land, . 522 V. Of covenants running with the reversion, .... 525 VI. The statute of 32 Henry VIII., 527 (1.) When the statute of 32 Henry VIII. applies, . . 528 (2.) When the statute of 32 Henry VIII. does not apply, 530 VII. What express covenants run with the land and the reversion, 531 (1.) On the part of the lessor, . .... 531 (2.) On the part of the lessee, 533 VIII. Of personal covenants, or covenants not running with the land 540 IX. What express covenants are personal 540 (1.) On the part of the lessor, 540 (2.) On the part of the lessee, 542 X. When express covenants void 544 XI. When discharged 54g Sect. II. The express covenants on the pari of the landlord, . . , 547 I. The express covenants for quiet enjoyment, . . . 547 (1.) Its character, and wherein it differs from the implied covenant, 547 (2.) Its effect, 549 (3.) What constitutes a breach, 55O (4.) Where there is a breach of the express covenant for quiet enjoyment, 551 (5.) Where there is no breach of an express covenant for quiet enjoyment, 555 (6.) Its application 550 (7.) On whom binding, and by whom available, . . 560 (8.) The tenant's remedies for a breach, .... 560 II. The covenant against incumbrances 560 (1.) Its character and recovery thereunder, , . . 560 (2.) What constitutes an incumbrance 562 CONTENTS. XV PAGE (3.) When there is an incumbrsince between vendor and vendee 562 (4.) When there is not an incumbrance between vendor and vendee, 563 III. The covenant for further assurance 56'i IV. The covenant to renew the lease, 565 (1.) Its character, 566 (2.) Special covenants for renewal construed, . . . 569 (a.) What covenants create a covenant for perpetual renewal, 569 (J.) Whatdoes not amouuttoacovenantforperpetual renewal, 571 (c.) Other covenants of renewal, .... 573 (3.) The tenant's remedies, 574 (a.) When equity cannot be invoked, . . . 575 V. The covenant to repair, 577 (1.) Implied on the part of the tenant, .... 577 (2.) Not implied on the part of the landlord, . . . 679 (3.) When expressed on the part of the landlord, . . 581 (4.) When there is a breach of a covenant to repair, . . 582 (5.) When there is no breach of a covenant to repair, . 583 (6.) On whom binding, and by whom available, . . 584 (7.) The tenant's remedies for a breach, .... 584 (8.) The amount of damages recoverable, .... 586 VI. The covenant to rebuild, 588 VII. Other covenants 589 CHAPTER XVIII. WEONGFUL DISTRESSES. ■Sect. I. Distinctions in England, but none in Pennsylvania, . . . 590 Sect. II. Difference between distress in England and in Pennsylvania, . 591 I. British statutes in force, 592 II. Certain sections of British statutes not in force, but from whence the act of 1772 was compiled, .... 594 III. Certain .sections of British statutes not in force, and from whence the act of 1772 was not compiled, . . . 612 IV. Some observations on the difference in conducting distress, . 619 (1.) As to the sale, 619 (2) As to growing crops, 620 (3.) As to corn loose, or hay, 621 (4.) As to the impounding, 621 Sect. III. What constitutes wronqfvl distress, and the remedies therefor, 623 I. Exceptions with regard to trespass, and where the action does not lie, ..." 624 (1.) When distress is excessive, 624 (a.) When for more rent than due, .... 624 (6.) When on more chattels than necessary, . . 625 B XVI ^ CONTENTS. PAGE (2.) When after impounding tender of rent is made, . . 628 (3.) With regard to notice of diatrees, 633 (a.) When none, 633 (b.) When on tenant, 633 (4.) With regard to impounding of distress, .... 634 (a.) When out of county or more than three miles, . 634 (6 ) When impounded in several places, . . 635 (5.) When distress is made in the highway, . . 636 (6.) When distress is on things in the custody of the law, . 687 (7.) When distress Is on goods upon premises in the way of trade, 638 (8.) When distress is made after termination of tenancy, 639 (9.) When lamJlord fails to appraise distress where no sale occurs, ...... ... 640 641 645 648 649 (10.) When second distress is made, (11.) When the distrainer re-enters forcibly,. II. Landlord's responsibility for a wrongful distress, Sbct. IV. Requisites of a rightful distress. THE WROjSTGS AGAINST THE LANDLORD OR TENANT, AND THE REMEDIES THEREFOR. CHAPTER XIX. TRESPASS. Sect. I. Injury to the estate demised generally, ...... 651 I. Trespass defined, .... 651 II. Statute and common law remedies, ..... 651 (1.) Action of trespass by tenant, case by landlord, 652 (o.) When tenant cannot maintain trespass quare clau- sumfregit, ........ 653 Sect. II. Cutting down trees, ....... . 654 I. Remedies therefor, ....... . 654 Sect. III. Fences and strays, . 656 1. When a trespass occurs, 65(5 II. When and from whence the counties were created, . . . 657 III. Acts of Assembly, relating to fences and strays, . . . 662 (1.) Act of 1700 662 (2.) Act of 1700, ' . . . .662 (3.) Act of 1705 667 (4.) Act of 1721 6711 (5 ) Act of 1729 G70 (6 ) Act of 1729, 671 (7.) Act of 1763, 671 (8.) Act of 1782, 67 J (9 ) Act of 1784 (i72 (10 ) Act of 1800 673 (11.) Act of 1805, 673 (12.) Act of 1st April, 1805 674 CONTENTS. XVll (13.) Act of 1807, . . (14.) Act of 13th April, 1807, (15.) Act of 1808, . (16.) Act of 1810, . (17.) Act of 20tli March 1810 [No (18.) Act of 20th March 1810 [No (19) Act of 1812, . . (20.) Act of 1813, . . (21.) Act of 25th April, 1S13, (22.) Act of 1814, . (23.) Act of 15th March 1814, (24.) Act of 1816, . (25.) Act of 17th February, 1816, (26.) Act of 1818, . (27.) Act of 1819, . (28.) Act of 1820, . (29.) Act of 1821, . (30.) Act of 1822, . (31.) Act of 1832, . (32.) Act of 1834, . (33.) Act of 1842, . (34.) Act of 1847, . (35.) Act of 1849, . (36.) Act of 1851, . (37.) Act of 18^53, . (88.) Act of 1855, . (39.) Act of 27th April 1S55, (40.) Act of 1857, . (41.) Act of 15th April, 1857, (42.) Act of 24tli April, 1857, (43.) Act of 1858, . (44) Act of 1859, . (45.) Act of 15th February, 1860, (46.) Act of 22d February, 1860, (47.) Act of 1862, . (48) Act of 11th April, 1862, (49.) Act of 1863, . . (60.) Act of 1864, . . (51.) Act of 22d March, 1865, (52.) Act of 23d March 1865, (53.) Act of 23d March, 1868, (54.) Act of 28th March , 1868, (55.) Act of 1st April, 868, . (56.) Act of 1st April, 1868, . (57.) Act of 9th April, 1868, . (58.) Act of 13th April 1868, (59.) Act of 17th April, 1869, (60.) Act of 24th February, 1870, 2],, PAGE 674 675 679 680 680 680 681 681 682 682 682 682 682 682 682 684 684 685 685 €85 686 687 687 688 688 688 689 689 689 690 690 690 690 690 691 093 694 694 694 695 695 696 697 698 698 699 699 700 XVUl CONTENTS. PAGE (61.) Act of 6th May, 1870 701 (62.) Act of 17th March, 1871, 701 (63.) Act of 25th May, 1871, 701 (64.) Act of 29th May, 1871, 702 (65.) Act of 18th March, 1873, 702 IV. Acts of Assembly applying to only parts of counties, . . 702 V. Acts of Assembly relating to trespassing dogs, . , . 706 (1.) Act of 1809, 708 (2.) Act of 1851, 707 (3.) Act of 1878, 707 (4.) Act of 1881, ' . . .710 VI. Observations on the acts of Assembly relating to trespassing animals, .......... 711 (1.) Act of 1700 711 (2.) Partition fences, 712 (3.) Act of 1705 714 (4.) Act of 1807, 716 (5.) Act of 1813 719 (6.) Acts of 1831 and 1851 720 (7.) Act of 1878 721 Sect. IV. Statutory penalties for trespass, . . . . . .721 I. The various trespasses, 721 II. The acts of Assembly, 723 (1.) Act of 31st March, 1860, 723 (2.) Act of 30th March, 1860 726 (3.) Act of 1861, 726 (4.) Act of 1867, 727 (5.) Act of 1869, 728 (6.) Act of 1870 728 (7.) Act of 1871, . 728 (8.) Act of 1879, 728 (9.) Act of 1881 729 III. The remedies, .... 730 CHAPTER XX. OUSTER. Sbct. I. Defined, 73l Sect. II. The remedies 731 I. The tenant's remedies, . 731 II. The landlord's remedies, 732 CHAPTER XXI. DISTURBANCE OF AN EASEMENT. Sect. I. The easements 734 Sect. II. The remedies, 736 I. Action of trespass on the case 735 II. Assize of nuisance, 736 CONTENTS.. XIX PAGE III. Writ of quod permiitat prosternere, 736 IV. Abatement, 736 V. Injunction 737 CHAPTER XXII. NUISANCES NEAB DEMISED PREMISES. Sbct. I. Nuisances by strangers, 741 Sect. II. The remedies, 743 I. Abatement, 743 II. Action of trespass on the case, 743 III. Assize of nuisance, 744 IV. Writ of quod pertrditat prosternere, ..... 744 V. Indictment, 744 VI. Injunction, 744 CHAPTER XXIII. FAILURE TO PAY OVERPLUS. Sect. I. The ojieer's duty, 746 Sect. II. The tenant's remedies, ........ 747 I. Action of trespass on the case, 747 II. Indictment 747 III. Actions of debt on scire facias, 747 CHAPTER XXIV. REFUSAL TO PAY ONE YEAR'S RENT. Sect. I. The officer's duty, 749 Sect. II. The landlord's remedy, ........ 749 CHAPTER XXV. REFUSAL TO ALLOW EXEMPTION. Sect. I. The officer's duty, 750 Sect. II. The tenant's remedies, ........ 750 THE WRONGS AGAINST A STRANGER, AND THE REMEDIES THEREFOR. CHAPTER XXVI. NUISANCES ON DEMISED PREMISES. Sect. I. Nuisances by landlord or tenant, 751 I. Nuisance defined, 751 II. Nuisancesjoer se, 752 III. Not nuisances per se, ....... • 763 IV. Landlord's liability, 753 V. Tenant's liability, 754 VI. Landlord and tenant's liability, 754 Sect. II. The remedies, 754 XX CONTENTS. CHAPTER XXVII. DETENTION OF OUTGONE TENANT'S EMBLEMENTS. PAGE Sect. I. Emblements defined, ......... 755 I. When outgoing tenant is entitled to emblements, . . . 756 II. When outgoing tenant is not entitled to emblements, . . 75H Sect. II. Ihe remedies, .......... 708 CHAPTER XXVIII. WRONGFOL DISTRESS OF STRANGER'S CHATTELS. Sect. I. When privileged from distress, I. When on premises in the way of trade, II. When on premises for agisting or feeding, III. When on premises by consent of lessor, IV. When formerly belonging to an ex-tenant, V. When belonging to the tenant, but in custodia legis, Sect. II. The remedies 760 760 761 762 762 76-2 763 CHAPTER XXIX. DISTRAINING STRANGER'S CHATTELS APTER REMOVAL. Sect. I. Right of removal, ......... 76-4 Sect. II. The remedies, .......... 764 CHAPTER XXX. DISTRAINING DECEASED TENANT'S CHATTELS. Sect. I Deceased tenant's chattels exempt from distress, .... 766 Sect. II. The remedies, 767 CHAPTER XXXI. DISTRAINING FOREIGN AMBASSADOR'S CHATTELS. Sect. I Foreign ambassador's chattels exempt from, distress, . . . 768 Sect. II. The remedies, .......... 769 CHAPTER XXXII. DISTRAINING STRANGER'S CHATTELS. Sect. I. Tenant's liability, 770 Sect. II. The remedy, .......... 77^ CHAPTER XXXIII. SEARCHING FOR TENANT'S CHATTELS ON STRANGER'S PREMISES. Sect. I. Landlord's liability, ......... 771 Sect. II. The remedies, 772 Index 773 TABLE OF CASES. [the BEFERUSfCES ARE TO THE PAQES.] A. Abeel & Abeel v. EacJclifT, 5-15 Abel.Walwortli v., 376 Abert v. Knight, 656 Abbott V. Allen, 495 Wilson v., 213 Abrahams, Tripner v., 282 Abrams, Halstead v., 431 Adair, Clark v., 476 Adam V. Duncalfe, 449, 458, 468 Adames, Field v., 107, 198 Adams v, Adams, 211 Brindle i-., 474 Herring i>., 138 Kimball v. 451, 457, 465, V. La Comb, 126, 145, 189, 199, 355, 420, 453, 635, 741 V. McKesson, 28, 53, 269, 292, 317 V. MeKinney, 656, 711 Pattison v., 438 Ponsonby y., 537 Thompson v., 241, 263 Thornton v., 603 Adams Express Co., Taylor v., 410, 425, 428, 429 Addams, McDowell v., 38, 52 Addenbrook, Foley v., 520 Addleman v. Way, 353 Addis, Harker v., 128, 480 A jnew V. Johnson, 377, 383 Aiken, Finley v., 495 Ainsley & Rutter, Pindard v., 581, 585 Ake, Royer v., 37, 174, 267, 5.i4 Akenwright, Lessee of Mathers v., 281 Albany Exchange Co., Tracy v., 546, 574 Alberson, Black v., 157 Albree, Gannett v., 576 Albright V. Pickle, 441, 446, 461, 472, 473, 475, 481,483,484,641,614 Alburtis, Randall v., 493 Alcorn, Ewing v., 271, 280 V. Commonwealth, 140 Alden v. Blaque, 538 V. Grove, 257 V. Lee, 259 Aldenburg v. Peaple, 102, 141, 143, 145, 147, 356, 451 Aldred's Case, 741, 743 Alexander, Arnot v., 573, 574, 566 V. Harris, 450, 457 V. Herr's Executors, 286 V. Jameson, 23 V. Stokely, 426 Webb v., 496 Alford V. Vickery, 639 Algar, Fisher v., 381, 597, 627 Alger, Heflbrrt v., 609, 641 Merchants' Ins. Co. v., 176 Algeo, Young v., 284, 302 Allegaert, Smart v., 465, 498, 499 Allen, Abbott v., 495 Altwater v. Woods, 734 Allen V. Bryan, 534 Allen, Commonwealth v., 748 V. Culver, 29, 532, 539, 540, 543, 583, 584, 585, 588 Doe v., 216 Fisher v., 134, 199, 749 V. Flicker, 596 V. Flock, 280 V. Getz, 237 Jackson v., 216 V. Nash, 172 V. Woodford, 428 AUin, Darey v., 106, 107 Allison's Appeal, 730 Allison, Beck v., 368, 370, 586 Waltman v., 445 Allsopp, Graham v., 461 Alshouse, Claylron's Lessee v., 266 Alter V. Bowman, 730 Altemas v. Campbell, 237 Altimus V. Elliott, 260 Alwood V. Ruckman, 390 Aments's Executor v. Wolf, 238 Amer v. Lanstreth, 352 ^ Ames, Stafford v., 380 V. Weston, 442 Wilson v., 448, 449, 468 Amory v. Flynn, 381 Amos, Hall v., 384 Ammons, Lessee of Simpson v., 260 Ancaster v. Milling, 355 Anderson's Appeal, 103, 127, 133, 141 Anderson, Firteg ■»., 332 Freytagj)., 157, 159 Howeth v., 579 V. Knox, 561 Lametti v,, 533, 541 Marys v.. 27, 37, 102, 325 Anderson v. Phndlo, 213 r. Reynolds, 413, 449, 462, 463 Anderton, Newman v., 606 Andreas, Noumoyer v., 236, 299 Andrew, Spurr v., 563 Andrews, CoUum ti.,359, 360 V. Needham, 547 V. Paradine, 492, 555 Anglesea v. Rugeley, .545 Ankrim, Smith v., 174, 175, 580 AnonymovLs, 539, 610, 641, 642, 643 Anscomb v. Shore, 629, 630 Anthony v. Brecon Market Co., 487 Welsh v., 95, 148, 3.57, 361, 655 Appleton V. Campbell, 22.5 Archbishop of York, Roe v., 219 Archer v. Dudley, 609 Arden v. PuUen, 579 Ardesoo Oil Co. v. Richardson, 537, 577 Arkwright, Gilliam v., 603 Armstrong's Appeal, 431 Armstrong, Bentz v., 7M V. Caldwell, 237 V, Noyinger, 1'28 Wright v., 386 Arndt, White v., 54, 376, 383 Arnitt v. Garnett, 601 ( xxi ) xxu TABLE OE CASES. [The references are to the pages.] Arnold v. Cornman, 44 V. Fitzgerald, 281 Rogers v., 396, 440, 442 Smith v., 537 Zell v., 193 Arnot V. Alexander, 573, 574, 566 Arrison v. Harmstead, 5 Arthur, Patterson v., 064 Arthur, Vyvyan v., 634, 536, 542 Arundell, Connelly v., 169, 327, 331, 332 Arundel, Brown v., 760 V. Trevil, 421 Ash V. MoGlll, 284, 356 Ashforth Smith v., 626 Ashland Iron Co., Green v., 389, 422 Ashmead, Maule v., 30. 222, 364, 486, 487, 490, 494, 499, 518 Astel, Caldthrop v., 426 Ashton V. Clapier, 413 Astor V. Miller, 523, 534 Willis v., 568, 573 Atkins D. Uton,566 Atkinson v. Rittenhouse, 261 Atlantic & Great Western Railway Co., Rob- inson v., 393, 367 Attack V. Bramwell, 648 AttersoU v. Stevens, 357 Aughenbaugh, Shippen v., 280 Aughenbaeh, Warner v., 439, 440, 441, 474, 479, 484 Aurand, Smith v., 446, 473, 475 Aurentz v. Porter, 377 Austen v. Howard, 610 Austin, Hancock v., 647 Avery, Gafheld v., 425 Awder Noke v., 531 Axford V. Perrett, 609 Ayres v. Novinger, 295, 299, 313, 314 Richards v., 219 B. Babcock v. Sooville, 523 Bachelder v. Sturges, 562 Backenstoss v. Stabler, 385 V. Spelcher, 394 Backus's Appeal, 367 Backhouse, Willoughby);., 625 Bacon, Potter v., 495 Badger v. Phinney, 386 Bagge V. Mawby, 642, 643 Bagley v. Wallace, 236, 260, 280 Bailey, Fisher v., 168 Keppell v., 542 II. Miltenburg, 223 Bain v. Fothergill, 497, 498 Baird v. Porter, 410, 411, 412, 414, 439, 447 Baker, Bittinger v., 52, 269, 316, 756, 757, 758, 769 V. Garratt, 429 Handcock v., 654 V. Howell, 183, 376 V. King, 353 Sprague v., 551, 561, 664 Baldridge v. McFarland, 237 Baldwin v. Cash, 412, 425 Commonwealth v., 236 Baldv's Appeal, 114, 115, 116 Bale, Gilchrist D., 78 Ballard, Wyman v., 561 Bally V. Wells, 640 Balsley v. Hoffman, 428, 429, 434, 437, 475, 476 Banders v, Fletchers, 210 Bandy v. Cartwright, 487, 518 Bank V. Perdriaux, 272 of Pa, V. Wise, 38, 177, 316 Banks, Harvie v., 369 V. Haskie, 671, 674 Banister, Job v., 576, .577 Banoon, Brandon v., 210, 238, 269, 293 Bantleon v. Smith, 98, 140 Barber , Dennis v., 38.J " Ludfordtp., 210 Ludford v., 544 Barbour v. White, 425 Barclay, Hill v., 676 V. Steamship Co., 31, 632, 666 Bard u. NevUl, 287 Barker v. Barker, 686 V. Damer, 185 V. Norton, 442 Ross v., 280, 260 Shult v., 82, 83, 91, 382 Barkley, Jones v„ 521, 522 Barlow v. McKlnley, 563 Barnby, Harrison v., 6iJ7 Harrison v., 448, 469 Barnes's Appeal, 40, 3.S9 Barnes, Chicago & Allegheny Oil & Mining Co. v., 422, 448, 449, 458, 467 V. Lucas, 435 Shute v., 563 Barnet v. Ihrie, 44, 735 Barnett v. Reed, 200 Barney v. Keith, 486, 495 Barr v. Hughes, 445, 446, 447, 466, 557 Rush v., 237 Barrett, Daly v., 167, 166 Horan v., 638 Barrington v. Justice, 83 Barron v. Richard, 637 Barrow v. Holloway, 389 V. Richard, 751 Barry v. McAvoy, 370 Harrison v., 596 Bartholomew, Dailey v., 330 Bartland, Kendrick v., 736 Bartle, Hatch v., 120, 423 Bartlett, Gibbs v., 428 V. Greenleaf,552 Hartley v. Williams, 376 Barton, Brooke v., 495 Threr v., bW Baskin's Appeal, 121 Baskin V. Seechrist, 336 Bastard, Jeffrey v., 433 Basterfield, Rich u., 764 Bateman, Freeman v., 215 V. Murray, 575 Bates, Camp v., 89 Stedman v., 448, 607 Batten, Crane v., .524 Bauders v. Fletcher, 223, 286 Bauer v. Boden, 465 V. Broden, 177, 221 Kooning v., 170, 294, 329, 333 V. Roth, 186 Baum, Du Bois v., 263, 367 Bannister v, Hyde, 644 Baughman, Russell v., 235, 264 Bayard, Shaw v., 284 Bayne v. Walker, 581 Baynes v. Smith, 106, 107, 198 Baynham v. Guy's Hospital, 668, 569, 575 Baxter, Buchanan v., 299, 330, 333 V. Graham, 434 V. Smith, 23, 24 Beach, Copper Mining Co. v., 570 V. Miller, 583 Beates, Hess i'., HI, 114, 120 Beale v. Sanders, 214 Beals V. Guernsey, 360 Bean v. Bolton, 385 Hartley v., 478 Seybert v., 26 Bear v. Bitzer, 52 V. Whisler, 264 Beasley, Vertue v., 66, 35S Beaumont v. Wood, 449, 459, 461, 463 Beavans, CuUum v., 386 Beaver, Hamm v., 256 TABLE OP CASES. xxm [The references are to the pages.] Beayer, Eobb v., 9 Bechtel's Appeal, 122 Beck V. Allison, 368, 370, 586 V. Ulrioh, 282 Becker, Strouse's Executor v., 122, 123 Beckwith v. Philleo, 3a3 Beddow V. Dewitt, 3()7 Bedel, Loomis v., 511 Bedell, Chambers v., 358 Bedford u. Jones, 140 V. Kelly, 26, 172, 299, 327, 328, 330, 333 V. McElherron, 211, 268, 270 Bedingfleld v. Onslow, 653 Beems, Clifford v., 102, 126, 141, 189, 199,354, 420, 453, 762 Beenken, Knight v., 49 Beeson v. Hutchinson, 279 Beheeam v. Hearne, 369 Beidelman v. Foulk, 44 Beissell v. ShoU, 14 Belcher v. Mcintosh, 538 Belfour v. Weston, 581, 585 Belinda, Wilson v., 426 Belknap v. Wendell, 1^3 Bell V. Bronson, 49 Doe dera Kigge v., 214 V. Hartley, 238 V. Eeed, 734 Bellas V. Houtz, 273 Beltzhoover, Vogalsong v., 123 V. Waltman, 199, 359, 420, 453, 762 Bemis v, Upham, 737 Bender v. Fromberger, 178, 496, 498 Benedict, McClay v., 236, 265, 278 Benjamin, Lynd v., 438 Pierce v., 373 Benlow, Boyer v., 238 Benn, Cahill v., 271 Benner, Gratz v., 259, 274 V. Hauser, 280 Bennett v. Bayes, 628 V. Bittle, 221, 464, 493 ' Knight v., 446, 439, 467 Schoul Trustees of Trenton v., 578 ■u. Waller, 531,' 565 Bensal v. Chancellor, 237 Bent V. Bent, 425 Bentley, Rawstone v,, 575, 576, 577 Benton, Loudenslager v., 144 Bentz V. Armstrong, 734 Berdan, Graves v., 175 Berg, Linderman v., 236, 266, 277 Berger, Ulrich v., 13& Bergman v. Roberts, 166 Berkheiser, Cadwalader v., 281 Berrill v. Flynn, 326 Berry, Delashman v., 567 V. HamiU, 193, 341 Berryman, Phillips v., 627, 713 Bettison, Cotsworth v., 207 Betz, Hiffner v., 2-il, 265 Bevan v. Crooks, 78, 106, 143, 760 Perreau v., 609 Perrin v., 431 Beyer v. Fenstermaoher, 103, 127, 138, 141, 143, 413, 450, 462, 463, 461 Bias, Read v., 199 Bickerstaffe, Hays v., 552 Bickford v. Parson, .526, 529 Bidwell, Evans?;., 297 Biegenwald v. Winpenny, 452 Bigger, Wilson v., 282 Biggs V. Brown, 52, 356, 372, 380 Biggins V. Goode, 626 Bill V. Ohio & Pa. B. R. Co., 46 BiUings, Goodonier v., 281 Morris v., 132 V. Tucker, 382 Bills »i. Vose, 4.55, 457 Bingeley, Wakefield v., 538 Binlow, Royer v., 239 Binns v. Hudson, 132, 134 Bird, Doe dem. wetherell, 539 Holland v., 625 Birtles, Piggott v., 627 Bisbee, Cook v., 570 Biscop V. White, 653 Bishop V. Bryant, 381, 596, 625 V. Lee, 238 V. Montague, 418 V. Reed, 257 Bissett V, Caldwell, 107, 198 Bitner v. Brough, 499 Bittenger's Appeal, 111, 121 Bittenger v. Baker, 52, 269, 316, 756, 757, 758, 759 Bittle, Bennet v., 221, 464, 493 Bitzer, Bear v., 62 Black V. Alberson, 157 Boggs v., 211, 271, 293, 295, 299 ehapmann v., 467 V. Ebner, 585 Galbraith v., 299 V. Gilmore, 486 V. Hepburne, 263, 264 Johnson v., 419, 640 Ralston v,, 416 ». Trioker, 216, 415 Blackburne, Sarch v., 721 Blackmore v. Boardman, 568, 569, 570 King v., 130, 431 Blackriell, Wharton v., 433, 609 Blagrave, Hodges v., 570 Blake's Case, 538 Blain, Hilson v., 419 Sager v., 392, 470 Blair v. Rankin, 495 Wallaces., 419 Blakev, Clayton v., 21, 212 Blanchard v. Vaughan, 221, 468, 492 Shipwick v., 375, 378 Blanche v. Bradford, 106, 142 Bland's Administrator v. Umstead, 713 Elantem, Collins v., 544 Blaque, Alden v., 538 Blase, Holbert v., 23, 24 Blasford v. Duncan, 298, 299 Blashford v. Duncan, 291, 292. 324 Blatchford v. Mayor of Plymouth, 559 Blazer, Carson v., 47, 52 Bleakley's Appeal, 367 Bleakney, Craven v., 264 Blencowe v. Bugby, 20 Blerins, McCarty v., 393 Bliss V. Cottle, 470 Bliss, Doe dem Broscowen v., 216, 217 Bliven Petroleum Co., Union Petroleum Co. v., 44, 197, 365, 735 Bloodgood, Coughanour «., 236, 256 Bloomer v. Juhel, 449, 450, 451, 4.58, 461 Blore V. Sutton, 368 Blume V. MeClurken, 183, 184 Blunt, Sargeant v., 200 Blythe v. Wright, 153 Boardijian, Blackmore v., 568, 569, 570 B. carman Towns v., 414 Boden, Bauer v., 465 Bodine v. Glading, 367 Boehm, Shotwell v., 286 Boggs V. Black, 271, 295, 295, 299 Bohm V. Taylor and Collins, 360 Bolton, Bean v., 385 Bombaugh v. Miller, 43 Bonsall v. Comly, 119, 123, 146, 389, 423 Phillips v., 521 Boone v. Eyre, 522 Booth, Cooke v., 568, 569 V. Starr, 551 Booland's Appeal, 174 Booland v. Murphy, 103 Borrell v. Borrell, 182 V. Dewart, 269, 318 Borough of Hamsburg v. Crangle, 280 XXIV TABLE OF CASES. [The references are to the pages.] Bortz V. Bortz, 24 Bosler v. Kuhn, 8 Bossier, Demi v., 52, 356, 372, 756, 758, 759 Botfleld, Boadburne v., 520, 521 Bothum, Wharton v., 263, 266 Bottomley, Harrison v., 384 Boulton V. Eeynolds, 628 Boults V. Mitchell, 8i2, 357 Bowater, Dibble d.,603 Bower's Appeal, 121 Bower, Mann v., 193 V. Tallman, 387, 412, 414, 416 Bowers v. Fitzrandolph, 721 Bowermaster v, Bowermaster, 115 Bowles, Cowne v,, 448 Bowley, Dyer v., 460, 461 Bowmaker, Moore v,, 430, 432 Bowman, Alter v., 730 Catheart v., 525, 561, 663 V. Fry, 279 and Fulford, Doughty v., 542 V. Smiley, 120 V. Foot, 150, 215, 267 Keine v., 219 Rifeiier v., 363 Shaw v., 759 Bowser v. Cessna, 498 Bowyer's Appeal, 119, 121 Boyce v. Brockway, 375 Boyd, Keite v., 387, 410, 418 V. MoCombs, 36, 87, 318 Phipps v., 414, 445, 466, 447 Boycr v. Benlow, 238 Henderson's Executors v., 103 ■V. Smith, 236, 265, 266 Boyle, Byrne v , 86, 87 V. LairCj 546 V. Rankin, 387 Boyson v. Cobs, 394 Brace, Marsh v., 186 Bradburne u. Botfleld, 520 Braddee, Brownfield v., 315 V. Wiley, 316 Braddyll, Duck v., 600 Bradfield v. Kehm, 327, 328 Bradford, Blanche v., 106 V. Fatten, 576 Stedman v., 169, 330 Bradshaw, Salmon v., 496 Brady, Quire v., 279 Brackenbury v. Pell, 432 Bradley, Potter v., 438 Smith v., 361 Bradstock, Govild v., 145, 356, 451 Bradstreet, Shannon v., 368 Braford, Blanche v., 142 Bragg V. Wiseman, 520 Bramwell, Attack v., 646, 618 Brande, Kidwelly v., 151 Brandner, Evans v., 610 Brandon, Bannon v., 210, 288, 293 Brannon, Bannon v., 269 Branscomb v. Bridges, 366, 381, 625 Brant's Appeal, 121, 122 Brashier v. Jackson, 487 Brason v. Dean, 546 Bratton v. Mitchell, 262, 263, 276, 279 Bray, Gather v., 473 Brayton, Faget v., 438 Brearley v. Cox, 422 Breokbill v. Turnpike Co., 182 Brecon Market Co., Anthony i>., 487 Breiver v. Fleming, 417 Bremer v. Fleming, 422 Brenneman, Shrouder v., 43, 44 Brent v. Hagner, 393 Brett V. Read, 179 Roberts v., 522 Bretzman v. Ferric, 154 Brewer v. Fleming, 388, 421 Moffett v., 737 Brewster v. Kitchell, 545 Rodgcrs v., 200 Bridge Co., Gardner v., 284 Bridges, Branscomb v., 366, 381, 625 V. Hitchcock, 570 V. Smith, 357, 451 Bricker, Keeler «.,120 Briggs V. Brown, 757, 761 V. Lane, 69 V. Large, 79, 106, 129, 140, 367, 378, 381, 420, 452, 634, 759, 760, 763 V. Thompson, 210, 221, 356, 464,465, 492, 494 Brill V. Folger, 721 Brindle v. Adams, 474 V. Mcllvaine, 279 Patterson!)., 276 Bringhurst, Ingles v., 49 Brink, Cromehen v., 83, 296, 389, 390 Brisbane, Sassman v., 77, 79, 378, 411, 634 Brisben v. Wilson, 103, 128, 129, 142, 198, 366, 357, 381,412, 419, 451, 465, 691 Bristow V. Wright, 466, 607 Brizee v. Maybee, 476 Brockway, Boyce v., 375 V. Bnrnap, 422 Broden, Bauer v., 177, 221 Brodrick, Dixon v., 390 Brolaskey v. Ferguson, 181, 182 V. Hood, 31 V. McClain, 260 Bromley v. Hopewell, 133 V. Jeffries, 546 McDonald v., 45 Bronson, Bell v., 49 Brook V. Buckley, 566 V. Bulkeley, 532 Brooke v. Barton, 495 Connery t).,42 Smith v., 112 V. Willet, 479 Brooks V. Humphreys, 496 V. Moody, 562 V. Olmstead, 199, 354 Brotherline, Smith v., 280 Brough, Bltner v., 499 Brown's Appeal, 324 Brown v. Arundel, 760 Briggs v., 62, 366, 372, 380, 757, 759 V. Butler, 218 V. Caldwell, 376, 389,391, 890, 411 Campbell v., 199, 720 V. Carpenter, 721 Daniels v., 390 V. Dickerson, 494, 498, 550, 551 Dobbins v., 223 Drake v., 312, 313 V. Dysinger, 258, 269, 262, 336 Entriken v., 353 Erb v., 51 Foulk v., 37 V. Glenn, 366, 451, 646 J>. Gray, ai7, 813, 314 V. Haughton, 444 V. Hedges, 384 Holton v., IV29 Hylton's Lessee v., 268 V. Mayor of London, 545 V. Metz, 263 V. McKinney, 237, 714 Muraford v,, 579 V. O'Brien, 236, 239, 206, 276, 277 V. Perkins, 786 V. Quilter, 659, 581 V. Sayce, 447, 460. 466, 607 V. Sax & Kimball, 392 V. SheviU, 760, 761 V. Sims, 106, 143, 420, 452, 760, 761, 763 V. Smith, 478, 483 Spargo v., 625 V. Tighe, 672 TABLE OP CASES. XXV [The references are to the pages.] Brown v. Torrance, 741 V. Vanhorn, 270 V. Wagner, 634 Browne v. Powell, 628 Warren v., 212 Brownfleld v. Braddee, 315 Browning v. Dann, 647 Parker v., 393 Bruen v. Ogden, 386 Bruner, Hay v., 55 & Carl, Spade v., 119 Mobler v., 278 Brunott V. McKee, 199 Branson, Denny v., 82. 83, 88 Brunts, Rhodes & Rider v., 471 Brashfield, Howes v., 557 Bryan, Allen v., 534 Cobb v., 447, 450, 466, 453 Bryan's Estate, 122 Bryant, Bishop d., 596, 625, 381 Byam and Wife, Lyman's Administrator v., 121 Byrd v. O'Hanlin, 386 Byrne -v. Boyle, 86, 87 Buck, Hagar v., 531 V. Rodgers, 587 Buchanan v. Baxter, 299, 330- 833 Bucherj Sennett?j.,.259 Buckeridge, Long v., 413 Buckhurst, Nlavho v., 542 Buckley, Brook" t)., 566 V. Buckley, 421 V. Handy, 443, 470 V. Pirk, 537 Scott v., 616 V. Wood, 200 . Buckworth v, Simpson. 529 Buehler & Hoffman, Balsley v., 428, 429 Bugby, Blencowe v., 20 Building Association v. O'Conner, 114 Bullock 11. Dommitt, 577 McDonough, v., 390, 395 Bulpit V. Clarke, 606 Bumm, McAfee v., 30, 503 Bunker v. McKenney, 421 Bunting v. Dessau, 376 Burd V. Commonwealth, 154, 231 Burdwick, Oland v., 758 Burford v. McCue, 257 Burgess, Hare v., 568, 569, 670 Burginhofen v. Martin, 330 Burk V. Gleason, 121 Burke, Crum v., 278 Burkhalter, Hockey v., 376, 437 Burkhart, Commonwealth v., 171 Bulkeley, Brook v., 532 Buiiey, Read v., 760 Burn V. Mattain, 425 Burnap, Brookway v., 422 Bumell, Inchiquin v., 572 Burns v. Cooper, 52, 38 V. Huntingdon Bank, 431 Myers v., 582, 587 V. Smith, 239 Burr & Co. v. Dougherty, 393 Hungerford v., 457 Husse »., 676 V. VanBuskirk, 445 Burrage i>. Nelson, 388 Burrell, Williams v., 488, 489, 490,493, 500, 519, 631 Burton, Yelverton v., 114, 118, 124 Burwell, Greenvelt v., 159, 171, 447 Bush V. Calls, 633 V. Cole, 539 V. National Oil Company, 223, 269, 293, 317 V. Steinman, 753 Walker v., 312, 315 Bussman v. Ganstir, 21, 31, 80, 174, 175 Buster v. Newkirk, 390 Butcher, Doe dem Simpson v., 225 Buth V. Coles, 519 Butler, Debozearu., 297, 314 Brown v., 218 V. Swinnerton, 552 Buts, Walker v., 368 Buzzard, Capel v., 637 C. Cadogan, Keates v., 513 Cadwalader v. Berkheiser, 281 V. Tindall, 106, 144, 354, 420, 452, 463, 760, 761, 763 Cahill V. Benn, 271 O'Neill v., 172, 294 Cahoon, Tibball v., 410, 429, 434, 437, 476, 978 Caldcleugh v. HoUingsworth, 77, 129, 377, 378, 634, 638 Calder, Chapman v., 361 Caldercott, tear v., 68, 642 Caldwell, Armttrong ^., 237 Caldthrop v. Astel, 426 Caldwell, Bissett v., 107, 198 Loos, v.y 277 I'. Lowdeu, 260 Calls, Bush ■«., 633 Callahan, Frederick v., 532 Calvert, Clark v., 605 Cambria Iron Co. v. Tomb, 283 Camden v. Haskill, 282 Cameron, Carpenter v., 261 Camley, Johnson v. , 469 Camp V. Bates, 89 V. Welles, 274 Campbell, Altemus v., 237 Appleton II., 225 V. Brown, 199, 376, 389, 390, 891, 411,720 / V. Galbreath, 260, 276, 281 Lewis, v., 530, 631, 664 V. O'Neill, 63 V. Penn, 300 Powell ij., 167 Respublicaii.,155 . V. Wenlock, 514 Canfield, Hill v., 385 Cannock v. Jones, 519 Canning, Levitzky v., 549, 654, 555 Capel V. Buzzard, 637 Caiienhurst v. Capenhurst, 545 Carfrey, Snyder v., 293, 298, 323, 324, 325, 325 Carlisle v. Stitler, 268, 337 Carlen, Try on v., 271 Carnly, Johnson v., 443 Carpenter, Brown v., 721 V. Cameron, 261 Carr v. Ellison, 668 HoUis v., 519 Pier v., 219, 464 V. Wallace, 46 Carsaw, Lewis v., 363 Carson v. Blazer, 47, 52 V. Godley, 513, 514 Carter v. Carter, 625, 628 V. Denman, 562 V. Hess, 328 V. James, 356, 372 Tinicum Fishing Co. v., 47 V. Hess, 163 Jones v., 176 Cartwright, Bandy v., 487,518 Carty's Appeal, 43 Case V. Davis, 133, 134 Templeman v., 390 Casebeer u Mowry, 45, 199, 657, 736, 741 Cash, Baldwin v., 412, 425 Rose !)., 414 Casselbery, Miller v., 280 Cassidy, McManus & Henry v., 173, 183 XXVI TABLE OF CASES. [The references are to the pages.] Castor V. McShaffery, 376, 383 Cate V. Schaum, 646, 647, 648 Cathcart v. Bowman, 625, 561, 663 Cather v. Bray, 473 Catliu V. Ensign, 112 V. Robinson, 319 Caulli V. Everly, 587 Warner v., 450 Cavan v, Pultney, 552 Cawdor, Vere v., 721 Center, Hall v., 369 Central Iron Worlcs, Pennsylvania Canal Co., v., 277 Cerf, Geisenberger v., 156, 167 Cessna, Bowser v., 498 Chadwiclt v. Felt, 281 Chaffee v. Sangston, 438, 477, 479 Chambers v. Furry, 353 Hutching v., 354, 356, 357, 419, 624, 6;«, 642, 643 Kensel v., 447 V. Lapsley, 286 Chancellor, Binsal •!>., 237 Chandler v. Doulton, 627 Chapin , PearsoU v., 394, 416, 423 Chaplain v. Southgate, 553 Chaplin, Tatem v., 637 Chapman v. Black, 467 V. Calder, 361 V. Homes, 561 V. Kimball, 56'Z Chappell V. Gregory, 513 Charles's Administrators, Seidenbender v., 644 Chase, Doran v., 33, 177, 221, 450, 464, 491 Chaworth v. Philips, 216 Chaworth MUes v. Philips, 630 Cheatham, Leeds v., 581 V. Shearon, 7u2 Cheeseman, Kenwood v.. 161, 177, 181, 624, 525 Cheetham v. Hampson, 515, 516, 539 Cheney, Middlebury Coll'- ;e v., 665 Mulholm v., 3S7 Chestnut Hill & Spring House Turnpike Co. V. Piper, 50 Chestnut HiU & Spring House Turnpike Co. V. Rutter, 182 Chevalier, Rector i'., 386 Chew, Chew's Executors v., 261 Chew, Doran v., 210 Chew's Executors v. Chew, 261 Chicago & Alleghany Oil & Mining Co. v. Barnes, 422, 448, 449, 468, 467 Chicago, Transportation Co. v., 734 Chichester, Crofut v., 438 Chickeley's Case, 537 Child V. Sands, 197, 364 Chllds, Fitzpatrick v., 271, 295, 324 Chrisman, Wheatley v., 44 Chrismas, Standen v., 529 Christine v. Whitehill, 620 Christy, Reid v., 167 Christie, Overfield v., 238 Churchill v. Watson, 360 Churchman, McCrelish v., 519, 521 Churchwardens, Johnson v., 524 Churchwardens, etc., v. Smith, 621 Chuck, Page v., 466 City of Bloomington, Gridley v., 587 City of Erie, Sharon Iron Co. v., 210, 214 City of Indianapolis v. Miller, 737 City V. Kendrick, 172, 332 City of London v. Mitford, 576 City of New York, Presbyterian Church v., 545 City of Philadelphia v. Reeves, 520, 521 City Sewage Utilization Co. v. Davis, 739 Clapham, Crabtree v., 476 Clapier, Ashton v., 413 Claridgev. Mackenzie, 460 Clark's Appeal, 367 Clark V. Calvert, 605 V. Clark, 368 V. Everly, 68, 166, 167 Grannis v., 486 V. Harvev, 52, 756, 759 Hooper t'., 534, 539 Isaack v., 384 V. Keith, 476, 478, 483 V. McKisson, 361, 362, 385 Meyers v., 428, 429, 434 Mott v.. 279 V. Nevill, 389, 300 Prayi;., 646, 374 Rex v., 636 Rhines v., 6r2 Slocum v., 104 »). Smith, 37, 358 Steadman v., 104 V. Trindle, 277 V. Trinity Church, 278 V. Yeat, 171, 173, 299, 331 Clarke v. Adair, 476 & Brown, Doe v., 537 Bulpit v., 606 Collier v., 457 V. Davies, 607, 469 V. Dougan, 237, 2-39 V. Gaskarth, 107, 452, 605 tJ.Holford, 381,452 r. MerrOl, 567 V. Patterson, 299, 331 Remolds B., 45, 199 Roiilston v., 606 Wood v., 106, 760, 761 Clantice, Neale v., 359 Clay, Coe v., 491 Clayton v. Blakey, 21, 212 Clayton's Lessee v, Alshouse, 266 Clayton, Simpson v,, 532 Clegg V. Houston, 123 Jenner v., 639 Clement, Miller v., 52, 759 &Masser v. Youngman & Walter, 271 V. Wright, 376, 389, 422 Clemsen v, Davidson, 457, 469 Clen-Unning, Wright v., 300 Clerk V. Withers, 637 Cleves V. Willoughby, 613 Clifford V. Beems, 102, 126, 141, 143, 144, 145, 189, 199, 354, 420,-453, 762 Clift V. White, 419 Clinan v. Cooke, 546 Clipsham, Eccleston v., 520 Clipsam, Moore v., 425 Cloud, Pierce ji., 41 Clue, Martyn v.. 537. -=.38, 539 Cluggage V. Leasee of Duncan, 238 Clugh, Criswell r., 203 Clyde V. Clyde, 03, 368, 371 Coanr. Bowles, 448 Coats, Penington v., 220 Cobb V. Bryan, 394, 447, 450, 463, 466 Cobel II. Cobel, 22, 38, 52 Cochran, Finney v., 433 & Russell, Long v., 367 Wilson v., 561, 562, 563, 564, 491 Cock, Cocksen v., 537 Coe V. Clay, 491 Cohen, Gallaher v., 378, 382 Colby V. Osgood, 531, 665 Colden, M.inell & Weller v., '200 Colder, Winebrenner v., 370 Cole's Case, 539 Cole, Bush. II., 539 Green r., 60, 91 Pordage v., 521 Yates v., 630 Coleman's Appeal, 82 Coleman v. Sherwin, 486, 489 Weiler v., 469 TABLE OF CASES. xxvu [The references are to the pages.] Coles, Buth v., 519 Coles, Glover v., 431, 432 Collier v. Clarke, 457 Collier, Whitesifles v., 395 ColUns's Appeal, 119, 132 V. Blantern, 644 Forsdlck v., Til Lindonu, 606, 608 V. Whilldin, 37 CoUison V. Lettsom & Whitton, 632 CoUum V. Andrews, 369, 360 Colstone v. Hiscolbs, 468 Colvin, Foote v., 356, 372 Colyer v. Speer, 601 Comalt V. Stanley, 387, 422, 417 Comfort V. Duncan, 51, 766, 758, 759 Newbold v., 161 V. Taylor, 129 Comly, Bonsall v., 119, 123, 145, 389, 423 Wardi),, 419 Common'vvealth, Alcorn v., 140 V. Allen, 748 V. Baldwin, 236 Burd t'., 154, 231 u Burkhardt, 171 V. Caldwell, 71 V. Contner, 27, 132, 748 V. Couway, 154, 155, 293 Davis u, 71 Dean v., 155, 339 V. Fiegle, 332 Finn v., 148 V. Fourteen Hogs, 714, 716, 716 Hellings v., 203 V. Hapten, 155 Hutchinson v., i22, 388 V. Jackson, 155, 339 V. Johnson, 225 V. Keeper of the Prison, 164, 338 V. Kensey. 165, 211 V. Lelar, 107, 144, 145, 748 V. Lyle, 748 V. McCoy. 748 McKeshan v., 236 V. McNeile, 31, l53, 155 V. McStay, 202 V. Miltenberger, 236 Mitchell v., 22 V. Morelana, 645 Moyer v., 94 Myers v., 434 V, Oliver, 154 V. Park, 754 V. Philadelphia, 42 V. Pittsburg &ConnellsTilIe E. K. Co., 224 V. Reese, 154, 428, 429, 430, 434 V. Keiter, 271 V. Eodgers, 154, 337 EuUimani;., 159 V. Shaw, 47 11. Sheppard, 128, 746 Smith v., 748 V. Stoever, 153 V. Toram, 154, 337, 338 Torrence v., 165, 231, 338, 839 V. Vandyke, 428 Vanpool v., 338, 339 V. Van Sickle, 752 Walsh v., 662 V. Wellsboro & Tioga Plank- road Co., 367 V. Wentworth, 752 V. Wisner, 153, 165, 363 Comstock, Connor v., 395, 416, 422 Concanen v. Lethbridge, 610 Condon, Keating v., 210 Cones V. , 551 Cocksen v. Cock, 637 Congregational Society v. Fleming, 422 Connaii i;. Hale, 381 Connell, McCormick v., 36, 37, 160, 161, 267 Connelly v. Arundell, 169, 327, 331, 332 Dean v., 312, 313 Connery v. Brooke, 42 Connor v. Comstock, 396, 416, 422 Conover v. Smith, 640 Contner, Commonwealth v., 27, 132, 748 Conway, Commonwealth v., 154, 155, 293 Cordrye, Koyston v., 186 Cook V. Bisbee, 670 Cox u., 361 V. Dunkle, 163 Dunlap'i'., 312 V. Gilbert, 285 Horton v., 187 Kramer v., 567 Lee v., 643 V. McDevitt, 291 Miles v., 26 Morford v., 241 Morland v., 525 Ranlet v., 573 ■V. Reinhart, 171, 300, 313, 314, 330 V. Trimble, 264 Cooke V. Booth, 668, 669 Clinau v., 646 V, England, 684 V, Green, 479 11. Neilson, 212,294 Cookson, Forster v., 600 Cooper, Burns v., 38, 62 Gochenauer v., 187 V. Henderson, 260 Monk v., 581 V. Robinson, 463 V. Smith, 33, 236, 238, 263, 274, 336 Coover, McCall d., 237 ' ShoulHer v., 103, 127 Cope, Glover v., 530 Hunter v., 177, 460, 463 Coppard, Hodson v., 537 Varley v., 536 Copper Mining Co. v. Beach, 570 Corbett v. Lewis, 396, 422 Cormel v. Lisset, 186 Comman, Arnold v., 44 Cornell v. Green, 261, 264 V. Lamb, 13, 14 V. Vanartsdalen, 516, 682, 687 Correy, Gordon v., 37 Corson v. Mulvany, 235, 264, 367, 369 Corns V. , 653, 557 Coryton v. Lithebye, 416 Cosby V. The Lessee of Brown, 262 Cossy V. Diggons, 466 Costar, Taunton v., 414 Cotsworth V. Bettison, 207 Cotteral v. Cummins, 193 Cottle, Bliss v., 470 Cotton, Eossell v., 711, 712 Rex v., 637 Cougnam v. Kmg, 523, 530 Coughonour & Glessner v. Bloodeood, 236, 256 Coulter V. Philips, 2.'!7 Countess of Salop v. Crompton, 90 County of York, Smeich v., 136, 107 Courrier, Sargeant v., 390 Courts, Johnson v., 360 Covert V. Irwin, 257 Covey V. Railroad Co., 144 Covode, Irwin v., 86 Cowan, Grier v., 103, 127, 143 V. Silllman, 6.51 Coward v. Gregory, 582 Cowell J). Lumley, 584 Cowher, McCulloch v., 257 XXVIU TABLE OF CASES. [The references are to the pages.] Cowperthvvaite v. Jones, 426 Oxley v., 428, 434 Woglam v., 79, 108 128, 141, 142, 143,147,206,484 Cowne V. Bowles, 448 Cox, Brearley ii., 422 u Cook, 361 Detwiler v., 649 V, Leigh, 600 Lynch »■., 260, 286 Plitt v., 41 Cox's Administrators v. Henry, 498, 499 Cozens v. Stevenson, 487, 494 Cozzens, Lloyd v., 20, 212, 270, 324, 636 Crabtree v. Claphara, 476 Craft V. Yeaney, 357 Craig V. Dale, 755, 759 V. Kline, 887, 474, 475 V. Mayor, etc., of Alleghany, 224 Craln, Van Home v., 524, 531 Van Horner v., 560 Crane v. Batten, 524 Stoker «., 438 Crangle. Harrisourgw., 224, 280 Cranmer, Hinman v., '2Z1 Craven v. Bleakney, 264 Crawford, Hmit v., 260, 265 "Wheeleru, 175, 580 Creed, Doe d. Davis, Chees, etc., v., 269 Creamer, Moore v., 170 Creigh v. Shatto, 257 Creighton, Ladley v., 22 «. M.Kee,546, 668, 573 Cressman, Fulmer v., 174 Cresson, McNamee t)., 140 D. Stout, 422 Crew, Furnival v., 368, 666, 668, 669 Crispe, Lloyd v., '2X1 Criswell v. Cliigh, 203 Crofut V. Cliichester, 438 Crogate's Case, 455 Croghan's Administrators, McClowry v., 488, 489, 493, 499, 600, 620 Cromellen v. Brink, 83, 90, 295, 389, 390 Crooks, Bevan v., 78, 106, 143, 760 Cropp, Dawson v., 68, 642 Crosse v. Young, 551, 552, 557 Crouch, Flever v., 736 Eolph D., 500 Crow, Jones v., 42 V. Wolbert, 43 Crowley v. Gleason, 666 Hoops v., 125, 188 Crown V. McKee, 734 Croyle, Miltenberger v., 237 Crutchley, Selby v., 413, 478 Crum V. Burke, 278 Lytle v., 391 Crunckleton, Hastings v., 82 Culbertson, Hazen v., 168, 329 V. Martin, 312 Culler V. Motzer, 237 Cullum V, Beavans, 386 Cully V. Spearman, 448 Culpeper, Sheape u, 473 Culver, Allen v., 29, 532. 539, 540, 543, 583, 684, 585, 588 Cumberland Valley E.R. Co. v. McLanahan, 260 Cummings, Hayne v., 518 Milne v., 260 Smith v., 752 Cummins, Cotteralv., 193 V. Gann, 430, 434, 444 Garrett d., 221,468,492 Cunningham v. Gardner, 292, 296, 297, 314 V. Pattee, 646, 668, 674 V. Patton, 238 Curry r. Raymond, 266, 277 Wetberill v., 312 Curtis V. Dearing, 551 Curtis V. Hubbard, 647 V. Kearney, 440 Stevens v.j 378 V. Wheeler, 455, 457 Cuthbert v. Kuhn, 8 Cuthbertson, Grey v., 541 Cutter V. Powell, 520 Cutts, Hamilton v., 491, 651 Dalley v. Bartholomew, 330 Dalbrow, English v., i2A, 387 Dale, Craig v., 756 Dallam v. JFltler, 353 Dalton V. Whittem, 381, 452 Daly v. Barrett, 157, 166 Damarest v. WiUard, 634 Darner, Barker v., 185 Danforth, Lamb v., 563 Daniels v. Brown. 390 Danley, McCoy v., 45 Dannaker v. Riley, 49 Danu, Browning v.t 647 Dannels v. Fitch, 433 D' Arras v. Keyser, 261, 369 Darby & Bristow, Right dem Flower v., 213 Darcy v. Allin, 106, 107 Darley v. Harris, 452 Darhng, Saunders v., 434 Darlington, Napier v., 369, 532 Spencer v., 417, 462 and wife v. United States, 224 Darnes v. Welsh, 265, 283 Dart V. Pearce, 736, 737, 743 Daskam, Renoud v., 566 Dassigney, Tarbet v., 426 Dauchy, School District v., 678 Dauphin Deposit Bank, Roberts v., 198, 387, 389, 414 Davenport, Galley v., 330 Davids, Goodright dem. Walter v., 214 Davidson, Clemson v., 457, 469 Douglass v.f 193 Davies, Clark v., 469, 607 V. Powell, 107, 421 Davis, Case v., 133, 134 City Sewage, etc., Co. v., 739 Eddy v., 411 Greenvault v., 651 V. Moss, 64, 216, 232 Payne ti., 385 Perry u, 216 Quinn v., 387, 423 Roe v., 151 V. Shoemaker, 37, 58, 185 V. Townsend, 519 Whetstone v., 546 Davis's Est., 115 Davy, Kerr v., 531 Dawson v. Cropp, 68, 642 V. Dyer, 852 Garvin v., 78 t). McGill, 286 V. MUls, 281 Mounsey v., 430 Day, Glascott v., 629 Kerr v., 869 Maxham v., 389, 419, 444 Deacon, Wright v., 426 Deal, Peppard v., 237 Dean, Brason i;., 545 V. Commonwealth, 155, 339 V. Connelly, 813, 312 Hull v., 561 Leer., 499 and Chapter of Windsor's Case, 638, 539 Dearborn, Ormsby u., 392 Dearing, Curtis v., 551 Debar Taylor v., 566 TABLE OF CASES. XXIX [The references are to the pages.] De Beauvoir, Owen v., 457 Debozear v. Butler, 297, 814 Decker v. Livingston, ago, 448 De Coursey v. Guarantee Trust, etc., Co., 159, 169, 800, 321, 330, 332, 643 De Forest, Prescott v., 380 Daggett V. Robbins, 386 De Haven v. Laudell, 267 Delavergne v. Norrls, 501 De La Bastide v. Eeynell, 426, 427 Delashman v. Berry, 567 Delashmutt v. Thomas, 545 De Longchamps, Eespublica v., 108, 144, 768 Demarest v. 'Willard, 538 Demi v. Bossier, 52, 356, 372, 769 Demott V. Hageman, 391 Denis, Hill v., 488 Dennis v. Barber, 385 Dennison, Druce r., 368 Van Rensselaer v,, 14 V. Wertz, 219 Denny v. Brunson, 82, 83, 88 Denman, Carter u, 562 Dent V. Hancock, 646, 647 Depui, Dyer v., 737 Depuy V. Silver, 138 Dermott v, Jones, 578 V. Wallack, 443 De Robick, Hopkins v,^ 355 De Roche, Mitchell v., 261 Derrett, Kemp v., 213 De Silver's Case, 7 De Silver, Sandwith v., 32, 534 Dessau, Bunting v., 376 Detwiler v. Cox, 649 Detweiler, Hagey v., 280 Devitt V. Morris, 435 Devore, Eespublica v., 153, 154, 363 Dewart, Borrell v., 269, 316 Garrett D., 316 Dewberry, Waring v., 601 Dewey v. Dupuy, 32, 174 Dewitt, Beddow v., 367 De Wolf V. Harris, 443 Dias V. Freeman, 432, 609 Dibble v. Bowater, 603 Dice, McElroy v., 128, 198, 455, 623, 649, 746 Dickensheets v. Hotchkiss, 327 Dickerson, Brown -v., 494, 498, 550 Hatermehl v., 224 Dickey v. McCullough, 34 Reed v., 280 Stultz v., 52, 197, 342, 356,- 372, 373, 375, 418, 654 759 Dickinson v. Nicholson, 86 Dickson Jermyn v., 53 Scheerer v., 515, 681 ■ Dieffendafer, Wyant v., 91 Dieffenderfer v. Fisher, 122, 123 Diehl, Bmig v., 280 V. Holben, 120 , Diermond v. Robinson, 278 Dietrick v. Mateer, 274 Dififendorfer v. Jones, 15, 418, 759 Digges, Pluck v., 607 Diggons, Cossey v., 466, 471, 472 Dikeman v. Parrish, 237 Dill V. Haugh, 741 DUler V. Roberts, 127, 146, 211, 214 DiUinger, Macky v., 387 Dilworth's Appeal, 782 Dlngley, Seaver v., 386 Ditson, Wireman v., 119 DivelUn & Musser, Lessee of John Penn v., 262 Dixon V. Brodrick, 390 V. Oliver, 281 Rickner v., 428 Dobb, West v., 535, 536 Dobbins v. Brown, 223 Dock, Lykens Valley Coal Co. v., 385 Dod V. Monger, 205 V. Saxby, 601 Dodd V. Joddrell, 479 Dodge, Pisk v., 753 Jones v., 390 Dodson's Appeal, 121, 122 Doe V. Allen, 216 Doe dem Boscowen t'. Bliss, 216, 217 Campbell v. Scott, 212 Castleton v. Samuel, 213 Collins V. Weller, 226 V, Clarke & Brown, 537 Davis, Chees, etc., v. Creed, 269 V. Grubb, 336 V. Hawke, 537 Holcomb V. Johnson, 213 Jeffries v. Whittick, 269 Jones V, Jones, 269 V. Long, 336 Manu V. Walters, 270 Martin v. Watts, 225 Nepeau v., 156 V. Oliver, 13 Stroude v. Seaton, 543 Tilt V. Stratton, 269 Upton V. Wetherwick, 758 Wetherill v. Bird, 889 V, Woodbridge, 216 Doee, Gibson v., 537 Doidge, Gregory v., 449, 460 DoUiver, White v., 417 Dolph V. Ferris, 666, 711 V. White, 642 Dommitt, Bullock v., 577 Donohugh, Lorman v., 508 V. Roberts, 507 Donaldson v. Lickens, 244 V. Smith, 31, 102 Donally, McGrath tj.,328 Doran u Chase, 33, 210, 221, 450, 464, 491 Dougan, Clarke v., 89, 237 Dougherty, Burr & Co. v., 393 V. Jack, 210 Jack 1!., 220, 257 Laguerenne i;., 211, 214 V. Snyder, 237 Williams v., 368 Doughty V. Bowman & Fulford, 542 Stewart v., 366, 372 Douglass V. Davidson, 193 Doulton, Chandler v., 627 Dowman, Hunt v., 340, 663 Downing, Kribbs v., 265 Drabenstadt, Ferry's Executors v., 498 Drake v. Brown, 312, 313 Stewart & Fine v., 661 Draper, Hall v., 416 Dravo, Evans v., 178, 496 Drexel v. Man, 236 Marr v., 286 Driggs V. Dwight, 574 Drinkwater, Moore v., 648 Druce v. Dennison, 368 Drummond v. Hopper, 386 Drury v. Macnamara, 487 Dubasse v. Martin, 210, 334, 335 Du Bols V. Baum, 367 Dubois, Baum v., 263 Duck V. Braddyll, 600 Duddy V. Hill, 169, 330, 332 Dudley, Archer v., 609 V. FoUiott, 656 Duff V. Fitzwater, 291, 299 V. Wilson. 30, 486, 490, 494 DuiSeld v. Stille, 286 Duffy V. Ogden, 293, 295, 325 Dugro, Giles v., 662 Duke, Wager v., 133 of Northumberland v. Errington, 519 of St. Albans v. Ellis, 519 Dumars v. Millar, 498 XXX TABLE OP CASES. [The references are to the pages.] Dumpor's Case, Si Dunbar v. Jumpar, 535 Rhodes v., 87, 752, 753 Dunoalfe, Adams v., 449, 458, 468 Duncan, Blashiord v., 291, 202, 298, 299, 324 Comfort v., 51, 759 Parry v., 603 Dunham v. Wyckoft", 414 Dunlap V. Cook, 312 V. Wallingford, 734 Dunkle, Cook v., 163 Dunk V. Hunter, 446, 449, 459, 607 Duppa V. Mayo, 104, 160, 215, 267, 447 Dupuy Dewey ti., 32, 174 Dupr(S, Perrett v., 514 Dutch, Gardners;., 390 Dutton V. Gerrish, 613, 614 Dye V. Leatherdale, 3.)6 Dyett, Pendleton v., 221 Dyer v. Bowley, 450, 461 Dawson v., 552 V. Depui, 737 V. Pemsen, 394 V. Wightman, 210, 222, 223, 493 Dyott V. Pendleton, 492 Dysart v. Leeds, 712 Ross v., 30, 487, 490, 491 Dysinger, Brown v., 258, 259, 262, 336 Dwight, Driggs v., 574 V. Enos, 476 Mays v., 297, 336 E. Eadowes, Jasper v., 643, 644 Earner Page v., 430 Earl of Bedford's Case, 451, 468 Earle, Williams v., 635, 636, 539, 543 Earnest, Frost v., 223, 493, 550, 556, 667 East India Company, The, Hotham v., 522 Easterby v. Sampson, 519, 537, 538, 688 Easton v. Worthlngton, 387, 410, 421, 436, 472, 474, 476, 479 480, 483, 484 Eastwood, Hellavoell v., 452 Yates v., 597 Eaton V. Lyon, 574, 575 V. Southey, 76, 354, 637 Eberhart'3 Appeal, 124 Ebner, Black v., 586 V. Stichter, 43 Echternacbt, Strasburg R.R. Co. v., 739 Eccleston v, Clipshara. 520 Eehert v. Ferst, 730 Eckels, Eiland v., 276 V. Stewart, 260 Eckfeldt, Hemphill v., SO, 486, 491, 494 Eddowes, Vasper v., 643, 644 Eddy V. Davis, 411 Edgington, Morris v., 492 Edmonds, Lean;., 620, 044 Edwards, Etter v., i^S, 470, 474, 475, 479 Gale v., 662 Jenks v., 491 V. Mahon, 114, 124 Vasperu, 613, 644 Eeles V. Lambert, ,557 Efflnger v. Lewis, 209, 569, 670 Ege V. Ege, 23, 24, 130, 133, 134 Farmers' and Mechanics' Bank v., 316 Hitner »., 30, 415, 516, 680 Kille v., 601 V. Medlar, 276, 279 Egerton, Knight i'., 626 Egginton, Smith v., 529 )i;isenhart v. Slaymaker, 294, 312 iilder, Galbraith v., 260, 280 V. Robinson. 370 Eldridge, Staward v.. 561 Elliott, Altimusti., 260 Hamilton v., 312 V. Johnson, 529 Elliott, Kenege v., 8, 264 V. Kunszlg, 437 V. Powell, 1.54, 376. 391, 411, 422, 655 V, Rogers, 181 J Scott u, 393 V. Smith, 186, 258, 297, .336 Wllkeiibarre, etc.. Coal Co. v., 730 Ellis V. Ellis, 630 Duke of St. Albans v., 519 V. Medwin & Sandham, jsl V. Taylor, 630 V. Welch, 549, 560, 557 V. Wilson, 170, 353, 146 Ellison, Carr v. 568 EUsey, Lake Shore and Michigan Southern Railway Co. v., 387, 392, 414, 469 Ellsworth V. Henshall, 424 Elton, Oilman v., 760 Emerick, Rees v., 78, 146, 148, 198, 343, 354, 356, 381, 418, 691, 652 Emerson, Smith v., V12, 123 Emig V. Diehl, 280 Emlen v. Hoops, 266, 277 Emson, Partridge v., 636 England, Cooke v., 584 King v., 619 English V. Dalbrow, 387, 424 Enos, Dwight v., 476 Ensign, Catlin v., 112 Entrlken v. Brown, 363 Washabaugh v., 237 Epperby, Noble v., 474 Erb V. Brown, 51 V. Sadler, 452, 761 Erety v. Wiltbank, 156, 157 Erie Canal Co. v. Walker, 740 Erie County. Evans v., 237 Erisman v. Walters, 355, Si2 Errington, Duke of Northumberland v., 519 Erington, Read v., 214 Esher, Maynard v., 46 Esling V. Williams, 41 Esseck, Knaub v., 260 Essex, Tisdale v., 566 Essler v. Johnson, 166, 172, 173 Esty, Page v., 671 Etherton v. Popplewell, 70, 355, 627 Etter V. Edwards, 4.36, 470, 474, 475, 479 Evans v. Bidwell, 297 V. Brandner, 610 V. Dravo, 178, 496 V. Erie County, 237 V. Evans, 367 V. Fries, 53o Hart v., 45 V. Hastings, 211, 268, 259, 262, 268 V. Radford, 108 Thomas v., 629 V. Vaughan, 552 V. Weight, 597 Evelyn v, Raddish, 6">3 Everard, Ward v., 415 Everhardt, Potts v., 712, 714 Everly, Caulk v., 587 Clark v., 166, 157 Evert, Lessee of Crunkerlton v., 260 Ewen„ Scott ti., 145 Ewer V. Moile, 90 Ewing V. Alcom, 271, 280 Pittfleld v., 294 Waitt v., 128, 142, 356, 45'.', 590, 623, 618 632 ' V. Vanarsdall, 445, 446, 448, 419, 456. 458 467 Ex parte Chamberlin, 886 Eyre, Boone v., 522 Eyster, Wickey v., 89, 133 Eyton, Eoden v., 596 F. Faget V. Brayton, 438 TABLE OF CASES. XXXI [The references are to the pages.] Fahnestock v. Faustenauer, 212, 292, 293, 298, 324 Fairman v. Fluck, 138, 177, 413, 462, 463, 464, 550 Falkner, Gorton v., 106, 452 Falmouth, Swann v., 642, 644 Farley, Fisher v., 42 V. Lenox, 238 V. Stokes & Tyrrell, 367, 368, 369 Farllng, Spotts v., 326 Farmers' and Mechanics' Bank v. Ege, 239, 316 Farmers' Banik v. McKinney, 193 Farnsworth, Surplice v., 685 Farr, Schuylkill Navigation Co. v., 260 Farrls, Masters!)., 599 Faulkner, Gorton v., 453 Fawcett v. Fox, 424 Fayette R. R. Co., Gallagher v., 739 Fehr, Graver v., 326, 328, 330, 331 Fellows, Griffin v., 82 Felt, ChadwickD.,281 Fenn dem Matthevi's v. Smart, 214 V. Stille, 286 Fenstermacher, Beyer v., 103,127, 138, 141, 143, 413,450,462,463,464 Ferguson, Brolasky v., 181, 182 Fergus, Haverstick v., 391 Ferree, Pritzman v., 154 Ferrers, Schofleld v., 437, 474, 475, 476, 479 Ferris, Dolph v., 666, 711 Kennedy v., 183 ■V. Zeidler, 295 V. Irons, 312 Ferst, Echert v., 730 Fessler, McGee v., 126, 291, 298, 300, 331 Fiegle, Commonwealth v., 332 Field V. Adames, 107, 198 V. Mitchell, 626 Tennant v., 630 Fegley, Schoneman v., 183 Ferteg v. Anderson, 332 Filbert v. Hofif, 358 Finch, Wilson v., 514 Finlay, Heaton v., 419, 422 Finley v. Aiken, 496 Finn v. Commonwealth, 148 Finney v. Cochran, 433 Susquehanna Boom Co. v., 444 First NationalBank of Vevay, Thiebaud v., 667, 668 Firth V. Purvis, 147, 60.5, 598, 630 Fisher v. Algar, 381, 597, 627 V. Allen, 134, 199 ' V. Bailey,n68 Dufifenderfer v., 122, 123 V. Farley, 42 Doe dem, v. Giles, 269 Harnerv., 416 Huddy v., 488 V. Lanck, 271 V. Lewis, 537 LeavittD., 583 V. Milliken, 32, 174, 222 V. Morris, 360 McCaffrey v., 238 Streaper v., 151 V. WhooUery, 410, 437, 470, 471, 474, 479 Fisher's Executors v. Lewis, 624 Fisher's Heirs, Zelgler v., 276 Fisk V. Dodge, 763 Fitch, Dannels v., 433 King v., 90 Raymond v., 544 Fitler, Dallam v., 353 Kneasji., 415, 425.435 V. Shotwell, 353, 365 Fitzgerald, Arnold v., 281 Hart v., 390, 392 Fitzgibbons v. Keller, 228 Fitzunmons, Long v., 30, 515, 516, 517, 680 Pitzpatrick v. Chllds, 271, 295,324 Fitzrandolph, Bowers v., 721 Fitzwater, Duff jj., 291, 299 Sheetz v., 238 V. Stout, 716, 718 Flanigan v. Philadelphia, 271, 285, 738 Flannagan, McElderry d.,395 Fleischer, Treaster v.^ 236 Fleming, Bremer v., 422 Brewer?)., 388, 417, 421 Congregational Society v., 422 V.' Ramsey, 712 Tilford v., 326 Flemming, Hoevleru, 460, 466, 491, 492, 550, 566 Fletcher, Banders v., 210, 223, 286 Hurd v., 652 Leavitt v., 678, 688 Tapsford v., 450, 461, 628 V. Wilkins, 412 Fleyer v. Crouch, 736 Flicker, Allen v., 596 Flickwire, Rush v., 450 Flint V. Marsh, 388 Flock, Allen v., 280 Fluck, Fairmain v., 138, 177, 433, 450, 462, 463, 464 V. Eeplogle, 200 Flynn, Amory v., 381 Berrill v., 326 Hemphill v., 293, 270 D.Trask, 682,583, 588 Foley V. Addenbrooke, 620 Moore v., 668, 569, 571 Folzer, Boill v., 721 Folkroad, Muck v., 439 Folloott, Dudley v., 556 Foltz V. Huntley, 670 Foot, Bowman v., 160, 216, 267 Foot s Case, 445, 466 Foote V. Colvin, 356, 372 Tritton v., 568, 571 Ford, Keuney v., 672 Marshall v., 279 Fordick, Wardell v., 200 Forney, Ulrich v., 283 Warren v., 127, 140, 143, 145 Forsdick v. Collins, 737 Forseman & Earl, Sherry v., 432 Forster v. Cookson, 600 Forsyth v. Price, 53, 356, 372, 380, 756, 759 Rhea v., 42, 740 V. Wells, 382 Forsythe, Le Ray De Chaumont v., 631 Forte V. Vine, 553 Forth V. Pursiey, 376 Fortz V. Imber, 447, 463, 466, 667 Foster, Freeman v., 564 Perley v., 414 V. Pierson, 496, 656 Poe v., 237 Fosdick & Davis v. Wardell, 200 Fotbergill, Bain v., 497, 498 Foulds V. Willoughby, 376 Foulk, Beidelman v., 44 V. Brown, 37 Fourteen Hogs, Commonwealth v., 714, 715, 716 Foust V. Ross, 297 Foutz, Miller v., 413, 418, 436, 437 Fowkes V. Joyce, 420, 453 Fowler, Jenkins v., 713 V. Welsh, 553 Fox, Fawcett v., 424 Grubb v., 169, 299, 300, 330 Staniforth v.j 467 Watts & Parker v., 296 Wells v., 236 Frame, Merrill v., 222, 487, 548, 556 Franciscus v. Reigart, 104, 142, 411, 446, 450, 461, 468 xxxu TABLE OF CASES. [The references are to the pages.] Francis v. Wyatt, 761 Frank v. Maguire, 29, 174 Franklin v. Tuton, 589 Frantz v. Lenhart, 341 Frederick v. Callahan, 532 ■ Fredericks v. Royal, 446, 455 Freedly v. Mitchell, 272, 282, 286 Free, Guffey v., 361 Freeman v, Batemau, 215 DiasD.,432, a09 V. Foster, 564 V. Howe, 388 Nixon v., 647 Prescott v., 561, 562 V. Eosher, 648 V. Smith, 120, 122, 146, 353 Voorhis v., 53, 143 Frees, Hammer v., 120, 199 Fretton v. Karcher, 78, 129, 130, 142, 146, 343, 354, 356, 357, 419, 649 Frey v. Leeper, 108, 142, 417, 484 Freytag v. Anderson, 157, 159 Evans v., 535 Frlck V. McClain, 638 V. Patton, 716, 719 Steel v., 26, 28 Vanhorn v., 278 Frisdjen, Mozart Building Association v., 223 317 Fritz', Sands «., 433 Fromberger, Bender v., 178, 496, 498 Frost V. Earnest, 223, 493, 650, 556 Fry, Bowman v., 279 v. Jones, 28, 103, 127, 140, 141, 143, 292 Fuller V. Little, 629 Long v.y 224 Scott v., 127, 298, 324 Fullerton v. Shaufrer, 316 Fulmer v. Cressman, 174 Moody v., 280 Funck, Wright v., 478, 483 Funk V. Voneida, 30, 223, 561 Furge, Lock v., 498,500 Fnrman, Hoey v., 238 Fumival v. Crew, 368, 566, 568, 569, 570 Furry, Chambers v., 353 Fury, Hare v., 286 Kennedy v., 260 Furze, Lock v., 497 Fussell V. Rhodes, 367 G. Gable & Hughes v. Perry & Randolph, 138 Gaflaeld v. Avery, 425 Gage, Lunn v., 632 Gamce, Pitt v., 197, 364 Galbraith v. Black, 299 Campbell v., 260, 276, 281 V. Elder, 266, 280 Murray v., 277 Gallaher v. Cohen, 378, 382 Gallagher v. Fayette R. R. Co., 739 V. McNutt, 275, 276 Scott v., 237 Gale V. Edwards, 662 Galley v. Davenport, 330 Galloway v. Ogle, 33 V. Pittman & Worbinger, 361 Gambell v. Falmouth, 642 Gamble v. Greaves, 440 Gandy, Gott & Farquharson v., 514 Gangwere's Appeal, 113, 114, 124 Gann, Cummings v., 430, 434, 444 Gansel, heev., 647 Ganster, Bustman v., 21, 31, 80, 174, 175 Gardner v. Bridge Co., 284 ■ Cunningham v., 292, 296, 297, 314 V. Dutch, 390 Gardner v. Keteltas, 491, 494 V. Humphreys, 438 V. Lane, 435 Musser v., 415 Newton v., 396 Garnet v. Lynn, 237 Garnett, Arnitt v., 601 Garratt, Baker v., 429 Garrett & Martin's Appeal, 119 V. Cummins, 221, 468, 492 V. Dewart, 316 V. Jackson, 41 Garrison, Glenn v., 375 V. Moore, 177, 221 V, Sanford, 561 Garven, Vanderslice v,, 274, 267 Garvin v. Dawson, 78 Gary, Gleasoni)., 736, 743 Gascoigne, Hodgson v., 600 Gaskarth, Clark v., 105, 452, 605 Getskins v. Gaskins, 37, 140 Gaslight & Coke Company v. Turner, 544 Gault V. Lowry, 156 V. Neal, 324 Gannett v. Albree, 576 Gauntlett v. King, 648 Gay, Bringle v., 262 Geiss, Hobbs v., 126, 189, 357, 647,771, 772 Geisenberg, Shaeflfer v., 173, 183 Geisenberger v. Cerf, 156, 157 Gelston «. Sigmund, 546 Gemeinder, Schroeder & Franklin v., 368, 369 German Reformed Society, Hohly i;., 127, 292, 298 Germantown Water Co., McCallum v., 44 Gerrish, Dutton v.: 513, 514 Gerzetek v. Lord & Redman, 524, 582, 584 Gessaman, Hower v., 353 Getz, Allen v., 237 Ghegan v. Young, 23, 32, 174 Gibbs V. Bartlett, 428 NeweU v., 269, 291, 297, 336 Rowley v., 447 Wilson i;., 220 Gibbons v. McGuigan, 329 Gibson v. Dolg, 537 Noe v., 393 Gifford, Jeffer v., 653 V. McDonald, 335 Gilbert, Cook v., 285 Walker v., 682 Gilbert's Lessee v. Probst, 279 Gildart, Tesseyman v., 434 Gilchrist v. Bale, 78 Gilder v. Mervin, 367, 739 Giles V. DugrOj 562 Doe d. Fisher v., 269 Gill V. Gill, 281 Grant v., 182 Gilleland v. Ehoads, 120, 122, 123 Gillespie v. Goddard, 387, 444 Gilmore, Black v., 486 Hall v., 416 Gilson V. Stewart, 183 Gilliam v. Arkwnght, 603 V. Tobias, 762 GilUs V. McKinney, 182 Gilman v. Elton, 760 Gimbart v. Pelah, 635 Ginn v. Hancock, 563 Ginrich, Walter v., 433 Ginther, Saeltzer v., 427 Ginzell, Parsons v., 761 V. Turnbull, 436 Girard, Sylvester v., 386, 382 Girardy v. Richardson, 182, 210, 214, 223 Gisbourn v. Hurst, 106, 761 Given v. Kelly, 377, 383 Givens v. Miller, 298, 308, 326 Glading, Bodine v., 367 TABLE OP CASES. XXXIU [The references are to the pages.] Glascott V. Day, 629 Gleason, Burk v., 121 Crowley «., 6b. V. Gary, 736, 743 Glendenning, Wright u, 332 Glenn, Brown «., 356, 451, 646 V. Garrison, 375 V. Thompson, 270, 294, 32S Glover v. Coles, 431, 432 V. Cope, 530 Humble v., 184 Penn v.. 493 Glynn v. Thomas, 625 Goohenauer v. Cooper, 187 Goddard, Gillespie «., 387, 444 Godley, Carson v., 613, 514 Goehring's Appeal, 546 GoifD.lBlts, 415, 421 Goldbeclc, Jones v., 420, 452, 627 Goldsmith v. Smith, 167, 297 Gonzalus v. Hoover, 237, 279 Good, Musser v., 478 Pugh v., 21 Tracy v., 385 Woodman v., 82, 91, 92 Goodall, Middlemore v., 531, 565 Goodlander, Kramer v., 655 Goodrich, Merchants' Savings, Loan & Trust Co. v., 392 Goodright dem Walter v, Davids, 214 Goodtitle v. Tombs, 286 Gordonier v. Billings, 281 Gordon v. Correy, 37 V. Harper, 376, 383 V. Jenney, 474 Gore V. Kinney, 258 Gorgas, Llvezey v., 735 Gorton v. Falkner, 106, 452, 453 Izon v., 513 Goslin, Harris v., 538 GoswUer's Estate, 295 Gott & Farquharson v. Gandy, 514 Gottsberger v. Radway, 580 Gould V. Bradstoek, 145, 356, 451, 645 Kenyon v., 124, 114 Lee v., 387, 421 V. Webster, 757 Goulding v. Hewitt, 496 Gouldsborough, Patton v., 277 Gourlay v. Somerset, 576 Gourley v. Kinley, 262 Gowen, Meyers v., 449, 458, 460 Gowthwalte, Hasselli)., 150 Grace v. Shirley, 102, 126, 127, 141, 143, 189, 191 Graff's Executors, Kemble v., 21'? Graff «. Shannon, 411, 422 Graffius v. Tottenham, 238 Graham v. Allsopp, 461 Baxter v,, 434 McMillan v., 299, 330, 333 V. Moore, 268, 297, 336 Thompson v., 278 Grannis v. Clark, 486 Grant v. Gill, 182 V. King, 382 V. Levan, 265, 280 & McLane's Appeal, 102, 125, 141, 143, 145, 188, 420, 453 V. Eodgers, 300, 331 Strohecker v., 176 Gratzt). Benner, 259, 274 Graver v. Fehr, 326, 328, 330, 331 V. Sholl, 45 Graves v. Bendan, 175 Gray, Brown v., 297, 313, 314 Hinde v., 537 V. Holdship, 105 Johnson v., 443 Greaves, Gamble v., 440 Greberu. Kleckner, 383, 355, 357, 358, 653, 654 Green v. Ashland Iron Co., 389, 422 Green, Cooke v., 479 Cornell v., 261, 264 Jimmersonv., 392,431 Kindy v., 392 Osgood v., 421, 453 V. Watrous, 280, 312 Greeabank, Wismore »., 737 Greene v. Cole, 90, 91 Greenleaf, Bartlett B., 552 Greenvault v. Davis, 551 Greenvelt v. Binwell, 159 Greenwood, WoodrufFn., 553 Gregg !). Gregg, 656, 712 v. Patterson, 261 Watson v., 237 Gregory, Chappell v., 613 Coward v., 582 ». Doidge, 449, 460 Muspratt v., 106, 381,761 Wootley B., 219 Greider's Appeal, 132, 175, 218, 219 Grenoble, Hoy v., 182 Gresham Life Ins. Society, Leete v., 466 Greville, Pimm «., 446 Grey v. Cuthbertson, 541 Hesketh v 546 Wilson v.,'m, 132, 138, 142, 390, 395, 413, 439, 442, 443, 448, 47S Grice ». Scarborough, 562 Grider's Appeal, 21 Grider v. Mclntyre, 167 ». McClay, 7 Gridley v. City of Bloomington, 587 Grier v. Cowan, 103, 127, 140, 143 Qriffln v. Fellows, 82 V. Scott, 198, 356, 381, 621, 622, 632 Griffith V. Marsh, 294 «. McCullum, 736 Pendred u., 575 Pugh v., 647 «. Stevens, 412 Stiles »., 388 Grist V. Hodges, 491, 550, 551 Groft B. Weakland, 238 Groenwelt v. Burwell, 171, 447 Gronoble, Hoy v., 183 Gross, Heiskell v., 740 Morrison v., 361 Grove, ex parte, 3o4, 762 Alden v., 257 & Kelsey, Ward v., 582 Ogden v., 41 Grubb V. Fox, 169, 299, 300, 330 Doe d. v., 269, 336 Peters v., laS,, 550, 554, 566 The Trustee »., 370 Grubbs, Sneathen v., 391 Guarantee Trust Co., De Coursey v., 159, 169, 300, 321, asO, 332, 643 Guffey V. Free, 360, 361 Guier, Wright v., 376, 382 Gullwell, Russell v., 519 Gundrim, Jones v., 23, 104, 126, 141, 142, 143, 151, 189, 446, 448, 468 Gundy, Eoland v., 395, 416, 422 Gunms ii. Kater, 218 Robinson v., 264 Guthrie v. Weaver, 393 Gutterbridge v. Munyard, B37 Guy's Hospital, Baynham v., 568, 569, 575 Guyon, Thompson v., 576, 577 Gwylllm V, Sholey, 434 Hackett, Singer Manufacturing Co. «., 440 Hafer, Winegardner ti., 388 Hagar v. Buck, 531 Hageman, Demott v., 391 Hagey v. Detweiler, 280 XXXIV TABLE OF OASES. [The references are to the pages.] Hagner, Brent v., 393 V. Heyberger, 82 Haight, Peterson v., 138 Peterson v., 413 Haines v. Levin, S23, 324 McGregor v., 323 Hainc, Payne v., 583 Hakewell, WoUaston v., 529, 530 Haldeman ii. Pennsylvania K. R. Co., 224 Vaughen v., 54 Hale, Connahu.,381 Hatch v., 628 V. Henrie, 315 Haley v. Philadelphia, 224 Hall V. Amos, 884 V. Center, 369 V. Draper, 416 V. Gilmore, 416 Lawry v., 390 V, McCaughey, 43 V. Powell, 239 V. Vandegrift, 237 Waldo v., 495 V. Wright, 545 Hallowell, Rosenherger v., 114, 122, 123, 124 Halstead v. Ahrams, 431 Hamherg, Thamin v., 271, 294 Hamertin v. Stead, 467 Hamill, Berry v., 193, 341 Hamilton v. Cutts, 491, 551 V. Elliott, 231 V, Marsden, 359 Hamilton v. Overaeer of the Poor of Whitely Township, 264 Hamley v. Hendon, 542 Hamm v, Beaver, 256 Hammer v. Freese, 120, 199 Kreiteri)., 127,638 and Danler v. McEldowney, 367 Hammond, Hawthorn v., 653 Ingraham v., 443 Kroontz v., 296, 297, 327, 359 I'. Webb, 93 Hampson, Cheetham v., 515, 516, 539 Hampton v. Henderson, 132, 164, 197, 356 Smith & Co. V. Henderson & John- ston, 133 Hance, McCoy v., 714 Hancoclc v. Austin, 647 Dent v., 616, 647 Guin OJ., 663 Steel & Iron Co., McGeorge v., 738 Handcoclc v. Balcer, 654 Handy, Bucltley v., 443, 470 Kirman v., 753 Hanlan, Irvine v., 183 HarUey v. O'Donald, 123 Hannay, Prentiss v., 384 Hanson, Jacltson v., 431, 699 Harbert v. Miller, 23, 24 Hardin i). Kennedy, 360 Harding, Kerby u., 595, 644 Hardy -v. Metzgar, 387 II. Watts, 529 Hare v. Burgess, 668, 569, 570 V. Fury, 286 Hargrave v. Sherwin, 466 Harger v. McMains, 385 Harker v. Addis, 128, 480 Harlan v. Harlan, 265, 387, 389, 416, 422 & Henderson, Lehigh Coal & Naviga- tion Co. v., 494 Lehigh Coal & Navigation Co. v., 513 Harligan, Ward v., 332 Harlow v. Thomas, 562, 563 Harman, Robinson v., 497, 498 Harmer v. Ilolton, 283 Harms v. Parsons, 537 Harmstad, Arrison v., 5 Wallace v., 5, 6, 10, 11, 13, 36, 524 Earner v. Fisher, 416 Harnish, Ream v., 27 Harper, Gordon v., 376,385 McMicliael w.,4;^l V. Taswell, 596, 619 Harrell, Postman v., 603 Harries, Thomas v., 630, 635 ■Harris, Alexander v., 460, 457 Darley v,, 452 De Wolf v., 443 V. Goslin, 638 i?. Mantle, 91 V. Smith, 387, 390, 416, 423 Harrisburg v. Crangle, 221, 280 ' Bank, Moore v., 220 Harrison v. Barnby, 448, 459, 607 V. Barry, 696 V. Bottomley, 384 V. Mcintosh, 443 V. Wardle, 431 Hart V. Evans, 45 v. Fitzgerald, 390, 392 Piloher v., 737 Linton v., 39, 222 Wilson v., 540 V. Windsor, 513 Hartley v. Bean, 478 Belli)., 238 Martz v., 714 Hartman, Koons v., 279 Hartopp, Simpson v., 106, 452, 453 Harrold, Lane u, 283 Harsford v. Webster, 762 Harvey's Case, 224 Harvey, Clark v., 52 V. Lantz, 730 Harvie v. Banks, 369 Haseler v. Lemoyne, 648 Haskie, Banks v., 571, 574 Haskill, Camden v., 282 Haslage v. Krugh, 38 Hassell v, Gowtnwaite, 150 Hasson, Stewart v., 166 Hastings v. Crunckleton, 82 Evans v., 211, 268, 259, 252, 268 Haswell, Hayward v., 449,459 Hatch V. Bartle, 120, 423 V. Hale, 628 Hatermehl v, Dickerson, 224 Haugh, Dill v., 141 Haughton, Brown v., 444 Haupt, Waldron v., 342, 353 Hausbarger, Maggort v., 579 Hansen v. Meyer, 541 Hauser, Benner v., 280 Haverstick v. Fergus, 391 Sanderson v., 375, 382, 381 Sipe, 45 Hawk V. Struch, 312, 314 V, Senseman, 237, 278 Hawke, Doe v., 537 Hawn V. Norris & Brown, 261 Hawthorn v. Hammond, 653 Haxton, Commonwealth v., 155 Hay V. Bruner, 55 Haydon v. Patterson, 316 Hayes v. N. Y. Gold Mining Company of Col- orado, 634, 539 Stanley i'., 222, 656 Hayley, Roe v., 632, 666 Hayne v. Cummings, 518 V. Maltby, 646 Hays V. Bickerstaife, 552 Henderson 1'., 261 V. Hinckleman, 735 V. Lusbv, 435, 436 V. The People, 201 Savery v., 422 & Black I'. MonUle & Co., 415 Hayward v, Haswell, 419, 459 Thomas ti., 540,541 Hazell, Doe dem Parry i'., 212 TABLE OF OASES. XXXV [The references are to the pages.] Hazen v. Culbertson, 168, 329 Hazlehurst v. Kendriek, 536 Hazlett V. Powell, 45, 464, 486, 493, 513, 514 Hearu, Beheeam t)., 869 Hearne, Shelby v., 638 Heath v. Page, 200 Heaton i;. Finlay, 419, 422 Heckart ». MoKee, 186, 259, 266, 297, 336 Hedges, Brown v., 384 Hef&ier v. Betz, 267, 265 V. Lewis, 55 V. Eeed, 425, 440 Yost i;.. Ill Hefford v. Alger, 609, «44 Heft and Hix v. McGiU, 261 Hegan v. Johnston, 146, 446, 459, 607 Heil V. Strong, 85, 150 Heilbrenner, Reist v., 410 Hele, Wotton v., 548, 553, 556 Heilman v. Union Canal Co., 740 Heiser v. Riehle, 238 Heister, Pennsylvania R. R. v., 295, 313 Helfenstein v. Leonard, 269, 266, 274, 27S Hellawell v. Eastwood, 452 Heller's Estate, 122 Hellings v. The Commonwealth, 203 V. Wright, 418, 422, 449, 456 Helmbold v. Mais, 220 Heiser & McGrath v. Pott & Shreiner, 465 Hemingway, Reinhelmer v., 390, 392, 457, 469 Hemphill v. Eckfeldt, 30, 486,491,494 V. Plynn, 270, 293 Henoh v. Metzer, 378 Hendon, Hamley v., 642 Henderson, Cooper v., 260 Hampton v., 132, 197, 366 V. Hays, 261 V. Lanek, 387, 421, 423 Henderson's Executors v. Boyer, 103 Henderson and Johnston, Hampton, Smith & Co. v., 133 Henohett v. Kimpson, 599, 600 Henlan, Miller v., 367, 368 Henshall, Ellsworth v., 424 Henniker, Taylor v., 465, 625 Hennis v. Streeper, 134 Henrie, Hale v., 315 Henry, Cox's Administrators v., 498, 499 V. Richardson, 719 Updike v., 393 Henwood D. Cheeseman, 151, 177, 181, 524, 525 526 Hepbume, Black v., 263, 264 Hepworth, Lambert v., 447 Herbangh v, Zentmyer, 534 Herdic, Young?)., 382, 387, 388, 410, 417, 421, 422, 470, 471, 474, 475, 476, 479 Heritage v. Wilfong, 296, 297, 327 Herlakenden's Case, 357 Herner & Gardner, Vatel »., 493 Herod, Knox v., 279 Herr, Shertzer w., 419 Herr's Executor's, Alexander v., 286 Herrick v. Moore, 663, 564 Herrigas v. McGill, 193 Herring w. Adams, 138 Heron, Logan v., 209, 211, 212, 258, 270, 291, 292, 293, 298, 824 Hersey, Wissler v., 41 Hertzog, v. Hertzog, 498 Sailor u., 239 Hess V. Beates, 111, 114, 120 Carter v., 163, 328 Thomas v., 394, 422 Hester v. Pott, 104 Hettrick v. Hettrick, 123 Hexter v. Knox, 587 Heyberger, Hagner v., 82 Hicks V. McBride, 436 Hlckson and Clemens, Uber v., 166 Hifiskell V. Gross, 740 Hildebrand's Appeal, 116, 121 Hildebum & Bro. v. Nathans, 389 Hill V. Barclay, 576 0. Canfleld, 385 V. Denis, 438 Buddy v., 169, 380, 332 V. Hill, 260, 276, 276 Hill's Administrator v., 114 V. Johnson & Parker, 119 Meyers v., 286, 286 V. Miller, 210, 297, 336, 445, 446, 449, 450, 464, 457, 468, 459, 461 Pierce v., 418 V. Robinson, 424 Scott v., 496 V. Sevrald, 53, 143 K.Wright, 450, 461 Hill's Administrator v. Hill, 114 Hillary v. Rose, 140 Hilson V. Blain, 419 Hinckle v. Eiffert, 262 Hinde v. Gray, 537 Hinkleman, Hayes v., 735 Hinman v. Cranmer, 237 Hinsdale, Powell v., 410, 478, 483 Hipps, Metz v,j 512 Hlreen, North Branch Canal Co. v., 264 Hitch ins v. Warner, 581 Hitchcock, Bridges v., 570 Lane v., 200 Hiscolbs, Colstone -u., 458 Hitner v. Ege, 30, 515, 616, 680 Hoare, Sells v., 626 Hobbs ». Geiss, 126, 189, 367, 647, 771, 772 Hobday, Wilson v., 418 Hooker v. Strieker, 413, 437 Hockenburg v. Snyder, 288, 258, 262, 338 Hockley, Hofiinan v., 296 Hodges V. Blagrave, 570 Grist v., 491, 650, 551 V, Lawrence, 637 Hodgson, Sherer v., 445, 785 V. Gascoigne, 600 Hodson V. Coppard, 537 Hoey V. Furman, 238 Hoeveler v. Fleming, 450, 465, 491, 492, 550, 685 Hofi; Filbert v., 358 Hoffman, Balsey v., 434, 437, 475, 476 V. Hockley, 296 V, McDermond, 119 Robinson v., 104, 451, 468 Hohly V. German Reformed Society, 127, 292, 298 Holben, Diehl v., 120 Holbert v. Blase, 23, 24 Holden v. Wiggins, 137, 139 Holder v. Tailor, 519 Hold.ship, Gray v., 106 Hole V. Rittenhouse, 237, 238 Holford, Clarke v., 381, 452 Holland v. Bird, 625 Hollingsworth, CaWcleugh »., 77, 129, 377, 378, 634,638 Hollis V. Carr, 519 Proud D., 840, 653 HoUinshead v. Nauman, 237 Hollopeter, Jonesv., 262 Hollo way, Barrow u., 389 Holmes, Scribner v., 664 WiUiams v., 760 Holt, Hoy v., 577, 579, 581 V. Martin, 26, 327 Helton tj. Brown, 629 Harmem., 283 Holzapple II. Phillibaum, 237 Homes, Chapman v., 561 Hood, Brolaskey ;'., 31 u. Hood, 237 Hooper v. Clark, 634, 639 Lindonu.,630 Hoops V. Crowley, 125, 188 XXX VI TABLE OP CASES. [The references are to the i)ages.] Hoops, Emlen v., 266, 277 Hoover, Gonzalus v., 237, 279 McOall v., 238 Hopcraft v. Keys, 449, 460 Hopetoun, Hunter v., S76 Hopkins v. De Robeck, 355 V. Hopkins, 355, 453, 455 Jenkins v., 561 «. Lee, 498 V. McClelland, 166, 167 V. Nightingale, 198 V. Robinson, 239 Hopper, Drummond v., 386 V. Miller, 416 Horan v. Barrett, 638 Hornish, WeUs v., 96, 98, 103, 127, 128, 129, 139, 140, 143, 146, 343, 624, 649, 746 Horseman, Ireland v., 375 Horsford v. Webster & Deacon, 108, 144, 354, 763 Horton V. Cook, 187 Hosach Ji. Weaver, 387, 421 Hoskins v. Houston, 110, 130, 132,135, 144, 420, 453, 766 V. Knight, 601 Hotchkiss, Dickensheets v., 327 Hotham v. The East India Company, 522 Houghton, Whitaker v., 384 Houk, Lyon v., 103 , 174 House u. Metcalf, 753 House & Burr v. Spencer, 566, 568 Houser v. Tully, 653 Houston, Clegg v., 123 Hoskins v., 110, 130, 132, 135, 144, 420, 453, 766 Saltoun v., 519 V. Sims, 94, 361 Houtz, Bellas v., 273 Howard, Austen v., 610 Hower v, Gesseaman, 353 Howard v. Johnson, 441, 472, 641 Stockett v., 633, 541 Howe, Freeman v., 388 Johnson v., 470 Howe Sewing Machine Co. v. Sloan, 354, 420, 452, 760 HoweU, Baker v., 183, 376 V. McCoy, 44, 45 Wharf »., 260 Hower v. Krider, 295 Howes V. Brushfleld, 557 Howeth V. Anderson, 579 Hoy V. Gronoble, 182, 183 ti. Holt, 577, 579,581 Hubbard, Curtis v., 647 Short-!;., 436,606 Huber, Shearick d., 387, 388, 415, 423 Hubley v. Van Home, 7, 8 Huckenstine's Appeal, 753 Hudd V. Ravenor, 620, 644 Hudson, Binns v., 133, 134 Hudson River Iron & Machine Co., Hunter v., 470 Buddy V. Fisher, 488 V. Sproule, 121 Huebshmann v. McHenry, 417 Huey's Appeal, 122, 123 Huffnagle, Shoemaker v., 265 Hughes, Barr v., 445, 446, 447, 457, 466 V. Pickering, 288 . V. Stevens, 78, 95, 353, 357, 360, 361, 362 Huling, Peterman v., 236, 250, 256 Hulings, Peterson v., 241 Hull V. Dean, 561 V. Russell, 314 Hulsehart, Johnson v., 456 Humble V. Glover, 184 Humfrey v. RR. Co., 359 Humphreys, Brooks v., 496 Pearce v., 387, 891, 410, 413, 428, 434, 436, 437, 438 Humphreys v. Reed, 385 Hungerford v. Burr, 457 Hunley v. Wyatt, 760 Hunsicker, Lair v., 278 Peter v., 42 Stoner v., 713, 714 Hunt V. Cope, 177, 460 V. Crawford, 260, 265 V, Dowman, 340, 653 V. McFarland, 271, 280 V. Strew, 415 Trent v., 595 Hunter v. Cope, 463 Hunter, Dunl v., 446. 449, 459, 607 V, Hopetoun, 576 V. Hudson River Iron & Machine Co., 470 Hutchinson v., 391 V. Jones, 758, 51, 52 Lawrence v.. 237, 260, 262 V. Leconte, 450, 451, 463 V. Osterhoudt, 216 Rutgers v., 646, 666, 568, 573 Warren v., 44 Huntingdon Bank, Burns v., 431 Huntley, Foltz v., 570 Hurd V. Fletcher, 552 Hurry v. Riceman, 648 Hurst, Gisbourn v., 106, 761 Hurt V. Rodney, 534 Husse V. Burr, 676 Huston V, Springer, .577 V. Wickersham, 286 V. Wilson, 472, 480 Hutchins v. Chambers, 354, 357, 419, 624, 626, 642, 643 V. Martin, 218 Hutchinson, Beeson v,, 279 V, Commonwealth, 388, 422 ' v: Hunter, 391 V. Merchants' & Mechanics* Bank of Wheeling, 377 V. Potter, 270, 295, 324 V. Vansciver, 169, 332 Huxham v. Smith, 629 Hyde, Bannister v., 644 PhUips v., 471 V. Skinner, 368, 532, 572 Hylton's Lessee v. Brown, 268 I. Iggulden V. May, 519, 569, 571 Ihrie, Bamet v., 44, 735 Illig, Moyer v., 362 Ilsely V. Nichols, 647 Imber, Fortz v., 406, 447, 463, 607 Imhoff, Kieifem., 43 Inchiquin v. Burnell, 572 Ingersoll v. Lewis, 237, 239 Naglee v., 8,186,276,450,451,463,465, 496 V. Sargeant, 7, 10, 32, 36 Ingles V. Bringhurst, 49 Ingraham v. Hammond, 443 Reed v., 1S8 Inkop V. Morchurch, 603. Insurance Co., Passmore v., 385 Insurance Co. of N. A., Norris v., 496 Ireland v. Horseman, J75 Irons, Ferris v., 312 Irish V. Johnston, 176 V. Scovil, 272 Irvine v. Hanlan, 183 Sim's Lessee v., 268 Irvin's Executor, McCuUough »., 82 Irving V. Motley, 394 Irwin, Covert v., 257 V. Covode, 86 Johnston v., 236, 237 TABLE OF CASES. xxxvu [The references are to the pages.] Irwin V. Lelbert, 184 V. ShiUtz, 183 Torrence v., 358, 653, 654 Isaack v. Clark, 384 Isaacs, SutcUfifjj., 49 Ives V. Leet, 236 Izon V. Gorton, 513 J. Jack, Dougherty v., 210, 220, 257 Jackson v. Allen, 216 Brashier v., 487 Commonwealth v., 155, 339 Garrett v., 41 Hanson v , 431, 609 Joule v., 106, 381, 761 Martin v., 260 V. McGinness, 282 V. Pesked, 91 Jacob V. King, 412, 419, 420 Jacobs, Kline v., 30, 175, 182, 515, 516, 580 V. Worrell, 45, 762 Jacoby v. Laussatt. 384 Jacques v. Withy & Reid, 545 Jaggers, McCloud v., 166 James, Carter v., 356, 372 V. Johnson, 419 Osbaston v., 760 Jameson, Alexander v., 23 Jamleson v. Trevelyan, 478 Jane, Paradine v., 547, 577 Janson, Kellam v., 155, 209, 211, 229 January v. Goodman, 183 Jaques v. Sanderson, 424 Jasper v. Eadowes, 643, 644 Jeftfer V. GifFord, 653 ' Jeifrey v. Bastard, 433 Jeffries, Bromley v., 546 Jenkins v. Fowler, 713 V. Hopkins, 561 John v., 603 Neave v., 178, 496 V. Turner, 199 Wort v., 360 Jenks V. Edwards, 491 Smith v., 280 Jenner v. Clegg, 639 ii.Jolilfe, 383 Jenney, Gordon v., 474 Jennings v. McKay, 475 Jenny, Eyder v., 568, 572 Jermyn v. Dickson, 53 Jessup V. Loucks, 224 Jimison v. Keiisnyder, 624 Jimmerson v. Green, 392, 431 Job V. Banister, 576, 577 JoddreU, Dodd v., 479 John V. Jenkins, 603 Johnson, Agnew v., 377, 383 t). Black, 419, 640 V. Camley, 469 V. Camley, 443 V. Churchwardens, 524 Commonwealth v., 2S5 V. Courts, 360 Doe dem. Holcomb v., 213 Elliott v., 529 Essler «., 166, 172, 173 V. Gray, 443 Hegan v., 146, 446, 607 Howard v., 441, 472 V. Howe, 470 V. Hulsehart, 456 James v., 419 V. Leigh, 617 McCanna u., 259 V. Packer, 360, 362 Smith v., 713 Tesmond v., 384 Johnson v. Upham, 630, 631 Johnston, Hegan v., 459 Irish v., 176 V. Irwin, 236, 237 Kline v., 210, 258, 336 McCanna v., 211, 268 & Parker, Hill v., 119 Presbyterian Congregation v., 263 V, Wollyer, 457 Joliffe, Jenner v., 383 Jones V. Barkley, 621, 522 Bedford v., 140 Cannock v., 519 V. Carter, 176 Cowperthwaite v., 426 V. Crow, 42 Dennett v.y 578 Diffendorfer v., 418, 759 V. Dodge, 390 Doe d. Jones v., 269 Fry v., 28, 103, 127, 140, 141, 143, 292 V. Goldbeck, 420, 452, 627, 761 V. Gundrim, 23. 102, 104, 126, 141, 142, 143, 151, 189, 446, 448, 468 V. HoUopeter, 262 Hunter v., 51, 52, 766, 758 King v., 565 V. Kitchen, 455 Lewis v., 03, 83, 363 V. MoiTet, 261 V. Morris, 460, 461, 462 V. Park. 44, 197, 365, 735 Pennsylvania Railroad Co, v., 43 V. Roberts, 369 Small v.. 278 V. Whitehead, 83, 84, 85, 86, 87 V. Williams, 737 Jordan v. Twells, 177 Wicks v., 758 Joule V. Jackson, 106, 381, 761 Jourdain v. Wilson, 533 Joyce, Fowkes ti., 420, 453 Willingham v., 575 Juhel, Bloomer v , 449, 450, 451, 458, 461 Jumpar, Dunbar v., 535 Justice, Barrington v,, 83 Smith v., 496 Juvenal v. Patterson, 8 K. Kahle v. Sneed, 396 Kaim, St. Louis v., 588 Kaine, Meason v., 367 Karcher, Fretton v., 78, 129, 130, 142, 146, 343, 354,356,357,419,649 Karns v. McKinney, 105, 141, 354, 420, 452, 455, 624, 760, 761, 763 V. Tanner, 259, 732 Kater, Gunnis v., 218 Kaufman v. Schilling, 391, 421, 423 Kane v. Sanger, 496 Kay V. Stallman, 43 Kearney, Curtis v., 440 Post v., 634, 636 Keates v. Cadogan, 513 Keating v, Condon, 210 Kee, Brunot v., 199 Keeler v. Bricker, 120 Keeling, Mason v., 721 Keemle, Shetzhne v., 127, 141 Keenan, Oakland Railway Co. v., 312, 813, 314 Keenbartz, Reinhard v., 281 Keeper of the Prison, Commonwealth v., 154, 338 Kelser, Union Canal Co. v., 299, 330, 333 Keite v. Boyd, 387, 410, 418 Keith, Barney v., 486, 496 Clark v., 476, 478, 483 Proctor v., 580 XXXVllI TABLE OF CASES. [The references are to the pages ] Kellam v. Janson, 165, 209, 211, 229 Keller, Fitzgibbons v., 228 Witherow v., 732 Kellerman, Lehman v., 391, 422, 655 Kelley v. Stevens, 718 KeUogg V. Malin, 561 V. Robinson, 539 Kelly, Bedford v., 26, 172, 299, 828, 330, 333 Given v., Sn, 383 V. Loch, 294 Stewart v., 183 Kelsey v. Remer, 562 Kemble v. Graff's Executors, 217 Kemp, Loader v., 584, 588 V. Derrett, 213 Kendall, May v., 292, 298 Kenderline, Hazlehurst v., 536 Phelin v., 199 Kendrict, City «., 172,332 V. Bartland, 736 Kenege v. Elliott, 8, 264 Kennedy v. Ferris, 183 V. Ford, 572 V. Fury, 266 Hardin v., 360 Mulvanyu. 739,740 V. Pettinger, 730 V. Philipy, 861, 362 V. Skeer, 257 Trout v., 360, 376 V. Ware, 367 Warrington v., 643 Kenrlck v. Smich, 35, 215 Kensei v. Chambers, 447 Kensey, Commonwealth v., 155, 211 Kent V. Welch, 648 Kenyon v. Gould, 114, 124 Kepner, Moore v., 476 Keppell V. Bailey, 542 Kerby v. Harding, 695, 644 Kerley v. Hume, 391 Kern v. Potter, 458 Kerr v. Day, 369, 531 Marseilles v., 182 V. O'Connor, 720 V. Sharp, 78, 129, 142, 198, 357, 590,691 Smith «., 428 Kershaw v. Supplee, 210, 524, 532 Kessler v. McConachy, 105, 137, 141, 177, 221, 447, 450, 457, 465, 473, 481, 639 Kesley, Kimball v., 315 Keteltas, Gardner v,, 491 Kettletas, Robinson v., 369 Keys, Hopcraft v., 449, 460 Keyser, D' Arras v., 261, 369 Rich v., 155, 209, 211, 324, 325 Kidwelly v. Brande, 151 Kie V, Peterson, 376 Kieffer v. ImhofT, 43 Kier v. Peterson, 383 Kiester v. Miller, 21, 219 KUle, Ege v., 601 Laniganjj.,486, 498, 499, 500, 501, 649, 550 Kilts, Goff v., 415, 421 Kilday, Mead v., 387, 414, 416, 418 Kimball v. Adams, 451, 457, 465 Chapman u., 562 V. Kesley, 315 V. Thompson, 392 Young v., 387, 414, 415 Kimmel v. Kint, 441, 641 Kimpson, Henchett v., 599, 600 Kimpton v. Walker, 177 Kindy v. Green, 392 King, Baker v., 353 V. Blackmore. 130, 431 Congham v., 523, 580 V. England, 619 V. Fitch, 90 Gauntlett v., 648 King, Grant v., 382 Jacob v., 412, 419, 420 V. Jones, 565 V. Kline, 720 V. Large, 45 V. McCully, 739, 740 McKeon v., 166, 168 V. Pyle, 498 Rex v., 636 Rice v., 362 11. Richards. 385 & Schoenberger v. Baker, 353 Van Dressor v., 146, 198, 363, 750 Wallace v., 378 V. Wilson, 201 Kingdon v. Nottle, 531 Kingsley, Prentiss v., 8, 40 Kingston v. Preston, 521, 622 Kinley, Gourley v., 262 V. McFUlen, 323 Kinnev, Gore v., 268 Kint, Kimmel v., 441, 641 Kirkman v. Handy, '753 Kirkland v. Thompson, 259,264, 276 Kirkpatrick & Menough, Pennsylvania v., 303 V. Vanhorn, 283 V. White, 114, 124 Kitchen, Brewster v., 645 Kitchen, Jones v., 455 Robins v., 336, 449, 457, 469 Kitchenman, McCarty v.^ 42, 43 Kitchinham, Sale v., 537 Kittaning, Mechling v., 737 Kleckner, Greber v., 353, 355, 357, 358, 653, 654 V. Lehigh County, 272 Kline v. Bowman, 219 Craig & Blanehard v., 387, 474, 475 King v., 720 V. Jacobs, 175, 182, 515, 516, 680 V. Johnston, 210, 258, 836 Knaut V. Esseck, 260 Knapp V. Marlboro, 550 Kneas v. Fitler, 415, 425, 435 Knepper v. Kurtz, 223, 660 • Knight V. Albert, 666 V. Beenken, 49 V. Bennett, 446, 459, 467 V. Egerton, 626 Hoskins v., 601 Knowles v. Lord, 389, 394, 444, 457, 471 Knox, Anderson v„ 661 V. Herod, 279 Hexter v., 587 Koehler, Schnable v., 653 Koenig v. Bauer, 170, 294, 329, 333 Koons V. Hartman, 279 Parrish v., 367 V. Steele, 220 Koontz V. Hammond, 327, 329 Kosier, Strauser v., 714, 715, 716 Krafti;. Wolf, 324, 328 Kramer v. Cook, 667 V. Goodlander, 655 Kraunt's Appeal, 42 Kreiter v. Hammer, 127, 688 Kreitzer, Shnefer v., 279 Kreutz, McKnight v., 173, 210, 214, 215, 232, 266, 519 Kribbs v. Downing, 265 Krider, Hower v., 295 Kroontz v. Hammond, 296, 297 Krush, Haslage v., 38 Kuhn, Bosler v., 8 Cuthbert v., 8 Kunckle v. Wynick, 33, 174, 184 Kunckleman, Snyder v., 37, 127, 141 Kurtz, Knepper v., 223, 660 V. McCune, 562 Kuns^ig, Elliott D., 437 Kyle & Dunlap's Appeal, 119 TABLE OF OASES. XXXIX [The references are to the pages.] L. Laoomb, Adams v., 126, 145, 189, 199, 355, 420, 453, 446, 635, 741 Lacy, Thompson v., 653 V. Weaver, SiiO, 891 Ladd, Prentice v,j 395 V. Thomas, 630 Ladley v. Creighton, 32 Laffan v. Naglee, 532 Laguerenne v. Dougherty, 211, 214 Lair V. Hunsicker, 278 Laird, Boyle v., 546 Lake Shore & Michigan Southern Railway Co. V. Ellsey, 392, 414, 469 Lake, Whiting i;., 640 Lamb, Cornell v., IS, 14 V. Danforth, 563 Lambard, Stevenson v., 523, 630 Lambert, Beles v., 567 V. Hepworth, 447 Magraw v., 82, 174, 175, 210, 222, 465, 492, 581, 585 Lametti v. Anderson, 533, 541 Laming v. Laming, 550 Lancaster Bank, Sewell v., 382, 383 Lance's Appeal, 224 Landell, De Haven v., 267 Landis v. Lyon, HI Lane, Gardner v., 435 V. Harrold, 283 V. Hitchcock, 200 McArthur «., 390 Pattersons., 367 V. Revnard, 257 Woods a,- 257 Langley v. Norris, 735 Lanigan v. Kille, 486, 498, 499, .500, 549, 550 Lansing, Western Transportation Co. v., 545 Lanssatt, Jacoby i;., 384 Lant V. Norris, 519 Lantz, Harvey v., 730 Lanyon, Taylor v., 599 Lapsley, Chambers v., 286 Simpson v., 139 Large, Briggs v., 79, 106, 129, 144, 357, 378, 381, 420, 452. 634, 760, 763 King v., 45 Larick, Fisher v., 271 Larrison's Appeal, 116 Lathrop, Magaw v., 238 Lathrope, NeUis v., 336 Lauchner v. Rex, 9u Lauck's Appeal, 114 Lauck, Henderson v., 387, 421, 423 Law V. Patterson, 260 Lawford & Kelly, Samuda v., 586 Lawler, Strong v., 444, 438, 466 Laurence, Ex parte, 426 Lawrence, Hoages v., 637 V. Hunter, 237, 260, 262 Weaver v., 887, 410, 412, 414, 418, 419, 420, 424, 436 Whltcomb v., 103, 128, 4X2 Lawson v. Story, 598 Layman v. Kellei'man, 422 Lazaretto Road, 43 Leach, Pennsylvania v., 151 Stephens v., 238 Leech, Swire v., 761, 763 Leadbitter, Wood v., 519 League Island, In re, 224 Leaming's Appeal, 133 Lear v. Caldecott, 68, 642 V. Edmonds, 620, 644 Leather & Clough, Mellor v., S86 Leatherdale & Simpson, Dye v., 356 Leavitt v. Fisher, 583 V. Fletcher, 578, 588 Lechmore v. Toplady, 383 Leoky v. McDermott, 387, 394, 416, 422, 441 Leckv V. Smith, 387 Le Conte & Ellis, Hunter v., 463 Hunter II., 450 Leeds v. Cheatham. 581 Dysart v.t 712 Lee, Alden v., 259 Bishop v., 238 V. Cook, 643 V. Dean, 499 V. Gansel, 647 V. Gould, 387, 421 Hopkins v. ,4:98 & Euggles, Lytle v. ,455 Thompson v., 889 Leedom, Young v., 734 Leeper, Frey v., 108, 142, 417, 484 Leet, Ivisf.,236 Leete v. Gresham Life Ins. Society, 455 Legg V. Robinson, 496 Leggath, Seward v., 455 Legh V. Hewitt, 516 Owen v., 620 Lehigh Coal & Navigation Co. v. Harlan, 494, 513 County, Kleckner v., 272 Leigh, Coxi;.,600 Johnson v., 647 ■ V. Leigh, 90 V. Sheppard, 448 Lehman v. Kellerman, 391, 655 Rosenthal v., 402, 484, 641 Lehr v. Taylor, 383 Lelar, Commonwealth v., 107, 144, 145, 748 Lemar u. Miles, 53 Lemmon, Pennsylvania v., 154 Lemoyne, Haseler v., 648 Lenhart, FrantztJ., 341 Lennett, McGowen v., 293 Leonard, Helfensteln v., 259, 266, 274, 276 Warner & Hitchins v., 579 Lenox, Parley v., 238 V. McCall, 171, 173, 260, 269, 304, 331 Le Ray De Chaumont v. Forsythe, 531 Lesher, Pott v., 182 Lester v. McDowell, 387, 414 Lesley v. Randolph, 209, 212, 258, 270, 324 Leslie v. Pounds, 753 Lessee of Crunkerlton v. Evert, 260 Duncan, Cluggagi v., 238 Gallovvay v. Ogle, 258, 297, 336 Hamilton v. Marsden, 336 Mathers v. Akenwrlght, 284 Minsker v. Morrison, 262 Simpsons v. Ammons, 260 Willis V. Rew, 262 Lethbridge, Concanen v., 610 Lettsom & Whittom, Colllson v., 532 Levan, Grant v., 265, 280 Selbert v., 51 Strohl v., 193, 341 Levers v. Van Busklrk, 279 Levy, North American Ins. Co. v., 373 Robei-ts v., 563 Shaw !)., 388, 389, 394 Levin, Haines v., 323, 324 Levltzky v. Canning, 549, 554, 655 Lewis's Appeal, 104, 640 Lewis, Allen 7!., 134 Campbell v., 554, 630, 531 V. Carsaw, 353 ' Corblt v., 896, 422 Efflnger v., 209, 569, 570 Fisher's Executors v., 524, 537 Heffner-y., 55 Ingersoll v., 237, 239 V. Jones, 53, 83, 353 Overdeer v., 155, 211, 293, 358 V. Payn, 449, 450, 460, 463 V. Read, 648 V. Ridge, 530 V. Ringo, 269 xl TABLE OF CASES. [The references are to the pages.] Lewis V. Robinson, 183 Lewsey, "Williams v., 601 Libly V. Tolford, 680 Liclitenthaler v, Thompson, 134 Lightner, Wike v., 203 Lilfens, Donaldson v., 294 Lindall, McDonald v., 41 Linderman v. Berg, 236, 266, 277 V. Lindsay, 43, 45, 197, 365, 735 Lindon v. Collins, 606, 608 V. Hooper, 630 Lindsay, Lindermann v., 43, 197, 365, 735 Lindsey v. Perry, 393 Wakeman v,, 595 Line's Appeal, 119 Line v. Stephenson, 487, 548 Lineberger, Steele v., 361 Lingham v. Warren, 642, 644 Linton v. Hart, 39, 222 Lippineott's Estate, 123 Lippincott v. Low, 521 Lisset, Cornell v., 186 Litehman v. Potter, 424 Lithehye, Coryton v., 415 Little, Fuller v., 629 Little Schuylkill Navigation Co. v. Eichards, 354 Liverpool Docks, Statham v., 577 Livezey v. Gorgas, 735 Livingstone, Decker v., 390, 448 Loader v. Kemp. 584, 588 Loch, Kelly v., 294 Lock V. Furge, 497, 498, 500 Lodge, Pipher v., 237 Logan V. Herron, 209, 211, 212, 258, 270, 291, 292, 293 298 324 V. Stoiitenburgh, 259, 276, 386 London v. Nash, 586, 589 Long V. Buckeridge, 413 V. Cochran & Kussell, 367 V. Fitzimmons, 30, 515, 516, 517, 580 V. Fuller, 224 V. Mast, 237 V. Ramsey, 23 Waldo v., 561 V. Wood. 151 Longstreth, Amer v., 362 Longtine v. Piper 241 Longueville, Pooler., 90, 761 Lonsdale v. Nelson, 737 Loomis V. Terry, 721 V. Bedel, 551 Loos V. Caldwell, 277 Lord Banbury v. Wood, 426 Lord, Gerzebext)., 582, 684 Lord Grey, Rex v., 426 Lord, Knowles v., 389, 394, 444, 457, 471 & Redman, Gerzebek v,, 524 Lord Vaux's Case, 226 Lorman v. Donahugh, 508 Losee v. McFarland and Wife, 266, 272 Loucks, Jessup v., 224 Loudenslager v. Benton, 144 Louis V. Reutter, 681 Lovat V. Ranelagh, 576 Lovejoy, Mann v., 449, 459, 467 Loveiand, Wilbur v., 719 Low, Lippincott v., 521 Low, Pattee v„ 442 Low, Society for Establishing Usefal Manu- factures v., 369 Lowden, Caldwell v., 260 Lowry, Gault v., 156 V. Hall, 390 United States v., 202 Youngblood v., 761 Lloyd V. Cozzens, 636, SO, 212, 324, 270 V. Crispe, 217 V. Nourse and Wife, 286 Powell v., 368 Koper v„ 177 Lloyd V. Tomkies, 551, 552, 553, 557 V. Yost, 109, 114 L. 8. & M. S. Railway Co. v. Ellsey, 387 Lucas, Barnes v., 435 Nash v., 647 V. Tarleton, 595, 621, 627 Ludford v. Barber, 210, 644 Ludwell V. Newman, 491 Lukens, United States v., 202 Lum V. Gage, 682 Lumley, Cowell v., 584 Lungridge, Richardson «., 269 Lusby, Hays v., 435, 436 Lutz: V. Neely, 378 Lykens Valley Coal Co. v. Dock, 385 Lyle, Commonwealth v., 748 V. Richards, 8, 89, 733, 736 Lyman's Administrator v. Byman and Wife, 121 Lynch v. Cox, 260, 286 & Bowman i;, Welsh, 444, 469 Randall v., 519 Lynd v. Benjamin, 438 Lynn's Appeal, 82 Lynne ». Moody, 198, 624, 626, 627 Lyon, Eaton »., 674, 575 V. Houk, 103, 174 Landis, v.. Ill Smith v., 386 V. Tomkies, 697 Lyons v. Martin, 648 V. Miller, 271 Lytle D. Crum, 391 V. Lee & Ruggles, 455 Shepley v., 237 Mo. McAfee i>. Bunrni, 30, 503 MoAlpine v. Swift, 674, 575 McArthur v. Lane, 390 McAuley's Appeal, 113, 114 McAvoy, Bariy v., 370 McBride, Hicks v., 436 McBrier, Miller v., 268, 262, 336 McCabe v. Moorhead, 476, 480 McCaffrey v. Fisher, 238 McCall V. Coover, 237 McCalln. Hoover, 238 Lenox v., 171, 173, 260, 269, 304, 331 McHenry w., 278 V. Neely, 7, 8, 239 McCallister, Price i',, 106 MoCallum v. Germantown Water Co., 44 McCanna v. Johnston, 211, 259, 268 McCarthy's Appeal, 111, 114, 118, 123,124 McCarty v. Kitchenman, 42, 43 McCarthy, Ritchman ?■., 42 Wilson «!., 120 McCarty v, Blevins, 393 McCaughey, Hall v., 43 McCauley v. McCauley, 232 Richie II., 134 McClain, Brolaskey v., 260 Frick 11., 638 McClay v. Benedict, 230, 265, 276 Criderv., 7 McClelland, Hopkins v., 166, 167 McClintock v. Pittsburg, Fort Wayne and Chicago RR. Co., 224, 263 McCloud «. Jaggers, 166 McClowry v. Croglmn's Administrator 488 489, 493, 499, 500, 520 ' McClure, Stroup v„ 295 V. White, 299 McClure's Executors v. Gamble, 499 McClurgji. Price, 177, 222 V. Price & Sims, 464, 465 McClurken, Blume v., 183, 184 McCombs, Boyd v., 37,38, 316 TABLE OF OASES. Xli [The references are to the pages.] McCombs & Howden's Appeal, 132, 133, 144 McConachy, Kessler v., 105, 137, 141, 177, 221, 447, 450, 457, 465, 473, 481, 639 McCormiek v. McConnell, 35, 37, 160, 151, 267 Schulte v., 827 McCoy, Commonwealth v., 748 V, Danlcy, 45 V. Hance, 714 Howell v., 44, 45 V. Trustees of Dickinson College, 236, 237 Mccreary's Appeal, 122 McCreary, McMuUinii., 210, 334, 335 McCreight, Rangier v., 713 McCrelish v. Churchman, 519, 521 McCue, Burford v., 267 McCune, Kurtz v., 662 McCuUoch V. Cowher, 257 McCullough, Dickey v., 34 V. Irvine s Executor, 82 Purdy v., 376 McCuUum, Grifath v., 736 McCuUy, King v., 739, 740 McCurdy u. Randolph & Greer, 446 McCutcheon & Collins, Steamboat Co. v., 25 McDaniels v. Train, 456 McDermond, Hottman v., 119 McDermott, Lecky v., 387, 394, 416, 441, 422 V. Mcllwain, 166 McDevitt, Cook v., 291 McDonald v. Bromley, 45 Gifford v., 335 V. Lindall, 41 V. Scaife, 474, 475, 478 V. Scarfe, 386 Trout v., 24 McDonough v. Bullock, 390, 395 McDougali, Pennybecker v., 391 McDowd, Sexton v., 386 McDowell fj. Addams, 88, 52 Lester u, 387,441 V. Oyer, 499 V. Simpson, 21, 26 McElderry v. Flannagan, 395 McEldowney. Hammer & Dauler v., 367 McElherron, Bedford v., 211, 268, 270 McElroy v. Dice, 98, 128, 198, 455, 623, 624, 649, 746 Wilson v., 120, 146, 353 McEwen, Scott v., 765 McFadden, Poor Directors v., 176 McFarland, Baldridge v., 287 Hunt j;., 280 Simpson v., 443, 386 Speigel v., 328 and Wife, Losee v., 266, 272 McPate V. Shallcross, 433 McFerren v. Mont Alto Iron Co., 44 McFillen, Kinley v., 323 McGaritz, Shumate v., 121 McGee v. Fessler, 126, 127, 291, 298, 300,'331 McLaughlin v., 282 McGeorge v, Hancock Steel & Iron Co., 738 McGill, Ash v., 284, 356 Dawson v., 286 Heft and Hix v., 261 Herrigas v., 193 McGinn, Taggart v., 176 McGinnis, Porter ti., 288 V. Vernon, 298, 326, 328 McGinniss, Jackson v., 282 McGowen v. Sennett, 293, 325 MeGrath v. Donally, 328 McGreary v. Mellor, 119 McGregor v, Haines, 323 McKmley v., 269, 270, 389, 394, 457, 443 V. Montgomery, 136, 137 • McGuigan, Gibbons v., 329 McGunnagle v. Thornton, 26, 182 McHenry, Huebshmann v., 417 McHenry v. McCall, 278 Seibert v., 387, 444, 467 Mcintosh, Belcher v., 638 Harrison v., 448 Mclntyre, Grider ii., 157 Mcllvaine, Brindle v., 279 Mcllwain, McDermott v., 166 McKay, Jennings v., 475 McKean, Wagenblast v., 384 McKee, Creighton v., 646, 668, 673 Crown v., 734 Heckart v., 186, 269, 266, 297, 336 V. Perchment, 42 McKeehan v. Commonwealth, 236 MoKenney, Bunker ii., 421 McKensie, Neale v., 221, 492 McKeon v. King, 166. 168 McKesson, Adams v.^ 28, 63, 292, 316, 817 McKesson's Executrix, Adams v., 269 McKim's Estate, 110, 132 McKinley, Barlow v., 563 V. McGregor, 394 McKinney, Adams v., 656, 711 Brown v., 237, 714 Farmers' Bank v., 193 Gillis v., 182 Karns v., 105, 141, 854, 420, 452, 455, 624,760,761,763 V. Reader, 21, 97, 127, 128, 129, 180, 142, 145, 198, 210, 218, 219, 854, 367, 381, 455, 622, 624, 633 McKisson, Clark v., 361, 362, 385 McKnight, Kreutz v., 35, 178, 210, 214, 215 ,232, 266, 519 5). 'Morgan, 414 11. Ratcliife, 360 McLanahan, Cumberland Valley R. R. Co. v., 260 McLaren, Wallace v., 104 McLaughlin v. McGee, 282 McLennan, McNair v., 188 McMahan v. McMahan, 260 McMahon v. Sloan, 889, 394, 895, 416, 422, 423 McMains, Harger v., 385 McManes, Wister v., 739 McManus & Henry v. Cassidy, 173, 183 McMichael v. Harper, 431 McMillan v. Graham, 299, 830, 333 McMuUen v. Orr, 295, 296, 313 V. Mooley, 662 McMuUin v. McCreary, 210, 384, 385 McNail v. Ziegler, 391 McNair v. McLennan, 183 V. Rempublicam, 339 McNamee v. Cresson, 140 McNeile, Commonwealth v., 31, 158, 155 McNeish v. Stewart, 496 McNutt, Gallagher v., 275, 276 McPherson & Crane v, Melhinch, 448 McStray, Commonwealth v., 202 McShatfery, Castor v., 376 McSheffery v. Sheron, 522 MoVay, Patterson v., 388, 718 M. Mable, The Mayor of New York City v., 486 MacGreger v. Rawle, 209, 268, 294 Mack V. Patchin, 499 Mackentile v. Savory, 237 Mackenzie, Claridge v., 460 Macl^ey v. Robinson, 184 Mackinley v. McGregor, 389, 443, 467, 469, 470 Macky v. DiUinger, 387 Macnamara, Drury i;.,487 Madison, Marburv v., 893 Maffet, Jones v., 261 Magaw V. Lambert, 82, 174, 175, 210, 222, 465, 492, 681, 585 V. Lathrop xlii TABLE OF CASKS.. [The references are to the pages.] Maggort V. Hansbarger, 579 JIaeuire, Frank v., 29, 174 Manon, Edwards v., 114, 124 Maine, Watson v., 603 Mais, Helmbold v., 220 Malbon, Ryder v., 466 Malm, Kellogg v., 561 Maltby, Hayne v., 545 Man, Drexelu., 236 Manderson, Taylor v., 130, 354, 637, 638 Mann v. Bower, 193 u. Lovejoy, 449, 459, 467 Mantle, Harris v., 91 Manuel v. Reath, 104, 449 Marbury v. Madison, 393 Maris V. Parry, 735 Mark, Saving Fund v., 1G7 Mark's Appeal, 120, 121 Executors, 295 Markin v. Wilkinson, 582, 584 Marks, Sanderson v., 440 Marlboro, Knapp v., 550 Marlin v. Wliitlink, 261 Marlow, Wadham y., 607 Marple v. Myei's, 2j7 V. Scott, 561 Marr v. Drexel, 286 Weitjel v., 342, 353, 357 Marrable, Sraitli v., 514 Marriott v. Shaw, 388 Spencer v., 558 Marrow v. Turpin, 186 Marsden, Hamilton v., 259 Lessee of Hamilton v., 336 Marseilles v. Kerr, 182 Marsh v. Brace, 186 Flint v., 388 Griffith v., 294 II. Pier, 412, 436, 442, 443, 444, 457, 469. 471, 479 V. Weckerlv, 237 Marshall v. Ford, 279 Martin's Appeal, lU Martin, Burginhofen v., 330 Culbertson v., 312 V. Day, 444 Dubasse v., 210, 334, 335 Holt v., 26, 327 Hutchins v., 218 V. Jackson, 260 Lyons v., 648 V. Martin, 280, 550 Stewart v., 296, 300, 330 Martyn v. Clue, 537, 538, 539 V. Williams, 530 Martz; v. Hartley, 714 Marys v. Anderson, 27, 37, 102, 325 Masniler, Thompson v., 761 Mason, Piggott v., 532, 566, 568, 572 V. Keeling, 721 Skilton v., 328 Massey v. Thomas. 285 Maason & Be^anson's Appeal, 49 Mast, Long v., '237 Masteller v. Trimbly, 363 Masters v. Farris, 599 Masury v. South worth. 536 Mateer, Dietrick v., 274 Mather v. Trinity Church, 257, 353, 375, 376, 391 Mathewson, Saterlee v., 259, 336 Maton, Wansborough v,, 382 • Mattain, Burn v., 4'25 Matteson, Waterman v., 417 Matthews, Witty v., .579 Matthias v. Mesnard, 761 V. Sellers, 444, 457, 469, 471 Matures v. Westwood, 538 Maule V. Ashmead, 30 222, 364, 486, 487, 490, 494, 499, 518 t). Weaver, 17 Maus V. Maus, 361 V. Montgomeiy, 280 Mawby, Bagge v., 642, 643 Maxham v. Day, 389, 419 Maxwell v. Ware, 576 May, Eovse v., 456 Iggulden v., 519, 559, 571 V. Kendall, 292, 298 Mellon v., 217 Troutman v., 267 Maybee, Brizee v., 476 Mayfield v. White, 141, 142, 143, 145, 147, 198, 205, 342, 353, 356, 3)9, 380, 418, 451 Mayno v. Buckhurst, 542 Maynard v. Esher, 46 Mayo, Duppa v., 104, 150, 215, 267, 447 Mavor, etc., of Alleghany, Craig v., 224 of Congletou v. Pattison, 489, 537, 542, 543, 644 of London, Brown v., 545 of New York Citv v. Mabie, 486 of Plymouth, Blatchford !)., 559 Mays V. Dwight, 297, 33(i Mead V. Kilday, 387, 414, 416, 418 Meaner, Smith o,, 78, 98, 142, 146, 198, 354, 356 380, 625, 627 Means v. Presbyterian Church, 287 Meason v. Kaine, 367 Mechanics' and Tradesmen's Insurance Co. ■»- Spang, 342 Mechling v. Kittaning Bridge Co., 737 Medlar. Ege v., 276, 279 Meeker v.\an Rensselaer, 736 Meekley, Worley v., 133 Megarge v. Tanner, 133 Megargel v. Saul, 263 Meigs's Appeal, 53 Meitzler's Appeal, 122 Melhinch, McPherson & Crane v., 448 Meller v. Leather & Clough, 386 Mellon V. May, 217 Mellor, McGreary v., 119 Menough's Appeal, 316 Mercer v. Watson, 236, 237 Merchants' Ins. Co. v. Alger & Co., 176 and Mechanics' Bank of Wheel- ing, Hutchinson v., 377 Savings, Loan, and Trust Co. v. Goodrich, 392 Merriam, Nelson v., 378 MerriU, Clarke »,, 567 V. Frame, 222, 487, 548, 549, 556 Pettlngill v., 393 Merwin, Gilden v., 367, 739 Mesnard, Matthias v., 761 Messent v. Reynolds, 518 Metealf, House v., 753 Metz, Brown v., 263 V. Hipps, 512 Metzer, Hench v., 378 Metzgar, Hardy v., 387 Meyers v. Clark, 428, 429 V. Gowen, 449 V. Hill, 236, 286 Meyer, Hauseu v., 541 V. White, 104, 353 Mickey v. Eyster, 133 Miokle V. Miles, 28, 36, 199, 420, 453. 488, 767 Mickle's Administrator v. Miles, 110, 144, 765 Middlebury College v. Cheney, 565 Middlekauf v. Smith, 587 Middlemore v. Goodall, 631, 565 Middleton, Snyder v., 177 Mifflin, Workman v., 210, 1'Jl Miles V. Cook, 26 Miles, Doe dem Waithman v., 268 Lemar v., 53 Mickle v., 28, 36, 199, 420, 453, 488, 767 Mickle's Administrator v., 110. 144 768 St. Mary's Church «., 37 ^"> ^**' ">» Milford, Thompson v., 238 TABLE OF CASES. xliii [The references are to the pages.] Miller's Appeal, 121, 122 Miller, Astor v., 523, 534 Beach v., 563 V. Casselberry, 280 City of Indianapolis v., 73" V. Clement, 52, 759 Dumars v., 498 V. Foutz, 413, 418, 436, 437 Giveus v., 298, 326, 328 Harbert v., 23, 24 V. Henlan, 367, 368 Hill v., 210, 297, 336, 445, 446, 449, 450, 454, 457, 458, 459, 461 Hopper v., 416 Kiester j;., 21, 219 Lyons v., 271 V. McBrier,2o8, 262, 336 V. Miller, 92 V. Munhall, 423 Schall v., 278 V. Shaw, 237, 238 11. Smith, 384 Stoever v., 167 Milligan v. Welhinger, 656, 713 Milliken, Fisher v., 32, 174, 222 Milling, Ancaster v., 3d5 Mills, Dawson v., 281 Milne's Appeal, 46 Milne V. Cummings, 260 Miltenherg, Bailey v., 223 Miltenberger, Commonwealth v., 236 V. Croyle, 137 Miner v. Walter, 122, 123 Mining and Manufacturing Co., Philips v., 367 ■ Minnig's Appeal, 730 Minshull i). Oakea, 525, 538 Mitchell, Bratton v., 262, 263, 276, 279 Boults v., 242, 357 V. Commonwealth, 22 V. De Boche, 261 Field v., 626 Freedly v., Tel, 282, 286 Pillsbury v., 564 V. Smith, 544 Mitchell D. Warner, 562, 563 V. Wolf, 715 Mitchell's Administrator v. Stewart, 134 Mitford, City of London v., 576 Kyder v., 576 Mittower, Zentmeyer v., 264 Mobler v. Bruner, 278 Mohr V. Parmelee, 564 Moifatt «. Smith, 534, 580 Moffett V. Brewer, 737 ■D. State, 737 Moile, Ewer v., 90 Moir V. Mundy, 627 Monger, Dod v., 205 Monges, Phillips v., 138, 211, 214, 270 Monk V. Cooper, 581 Monnell v. Colden, 200 Montague, Bishop v., 418 Moutalto Iron Co., MoFarren v., 44 Montgomery, McGregor v., 136, 137 Mausi;., 280 White v., 514 Moody, Brooks v., 562 V. Fulmer, 280 Hynnei;.,198 Lynne v., 624, 626, 627 Morganti., 132, 133 V. Vandyke, 261 Wells v., 626 Moore v. Bowmaker, 430, 432 V. Clipsam, 425 V. Creamer, 170 V. Drinkwater, 648 t). Foley, 568, 569, 571 Garrison v., m, 221 Graham v., 258, 297, 336 Moore v. Harrisburg B.mk, 220 Herrick v., 568, 564 V. Kepner, 476 V. Shenk, 436, 470, 474, 475, 477, 479 V. Small, 21 Vicary v., 178, 182, 494 V. Vail, 551 Walker I)., 498 V. Watts, 427 V. Weber, 30, 487, 490, 491, 494, 513, 514, 515, 580 Moorehead, Shamburg v., 376, 384 Shrewsbury v., 377 Morchurch, Inkop v., 603 Morehead, McCabe v., 476, 480 Moreland, Commonwealth v., 645 Morford v. Cook, 241 Morgan, McKnight v., 414 V. Moody, 132, 133 Negiej; v., 23, 276, 282, 283 V. Neville, 12.3 V. Reakirt, 426 Rees v., 473 V. Smith, 563 Taylor u., 885 Wi'nterbourne v., 70, 385, 419, 632 Morland v. Cook, 525 Morley v. Pincombe, 106, 198, 452 Morris v. Billings, 132 Devitt v., 435 V. Edgington, 492 Fisher v., 360 Jonesu, 450,461,462 Murphy v., 78 V. Parker, 125, 188 Ruch v., 439 V. Vanderen, 237 Morris's Lessee v. Vanderen, 4, 235 Morrison v. Gross, 361 Lessee of Minsker v., 262 Swift v., 396, 416 Morse v. O'Reilly, 83 Mortimer v. O'Reagan, 326 Moss's Appeal, 102, 133, 141, 142, 143, 216, 458, 640 Moss, Davis v., 54, 215, 232 Stainertt, 146 Motley, Irving v., 394 Mott V. Clark, 279 Motzer, Culler v., 237 Mouille & Co., Hays & Black v., 415 Moiilson's Estate, 123 Mounsey v. Daw.son, 430 Mounsen v. Redshaw, 608, 610 Mount Pleasant & Broad Ford R. R. Co., Pittsburgh & Connellsville R. R. Co. v., 217 Mowry, Casebeer v., 45, 199, 654, 736, 741 Moyer v. Commonwealth, 94 V. Illis, 362 Seabrook v., 221, 465 Moyers, Tiley v., 177, 221 Mozart Building Association v. Frlsdjen, 223, 317 Muck V. Folkroad, 439 Mulholm V. Cheney, 387 MulUson, Nagle v., 199, 364, 360, 362 Mulvany, Corson v., 235, 264, 367, 369 V. Kennedy, 739, 740 Mumford v. Brown, 679 Mund 11. Vanfleet, 156, 157 Mundell, Weir v., 739 Mundorf, Shenk v., 353 Munhall, Miller v., 423 MUushower v. Fatten, 237 Murdock v. Will, 428 Murcott, St. John's College v., 600 Murphy, Borland v., 103 V, Morris, 78 Pottstown Gas Co. v., 45 Riddle v., 277 Murray, Bateman v., 676 xliv TABLE OP CASE8. [The references are to the pages.] Murray v. Galbraith, 277 Reed & Murray v., 260 V. Paisley, 471 Musgrave v. Sherwood, 664 Muspratt v. Gregory, 106, 381, 761 Musser v. Grardner, 415 V. Good, 478 Myers's Appeal, 111 Myers v. Bmns, 6S2, 587 D.Clark, 434 V. Commonwealth, 434 V. Gowen, 458, 400 u. Hill, 256 Marple v., 237 Welch v., 603 V. White, 104, 353 Winemiller v., 193 V. Winters, 734 N. Nagle V. Mullison, 199, 354, 360, 362 Naglee v. Ingersoll, 8, 186, 276, 450, 451, 463, 465, 496 Laflan u., 532 Nangle, Smith v., 572 Napier v. Darlington, 369, 532 Narewood v. Wilhelm, 263, 856, 372 Nargan, Shrider's Lessee v., 277 Nash, Allen v., 172 London v., 686, 589 V. Lncas, 647 V. Palmer, 553, 556 V. Winpenny, 452 Nathan, Townsend v., 721 Nathans, Hildeburn & Bro. v., 389 Pott u, 431 National Oil Co., Bush v., 223, 269, 293, 317 Naumann, Hollinshead v., 237 Naylor, Partridge v., 636 Wharton v., 199, 600, 601 Neal, Gault v., 324 Neale v. Clantice, 349 V. MoKenzie, 221, 492 Neare v. Jenkins, 178, 496 Needham, Andrews v., 547 NeelD.Neel, 82,86 Neely, Lutz v., 378 McCall v., 7, 8, 239 Neff's Appeal, 114 Negley, Morgan v., 23. 376, 382 Morgrave v., 383 Neilson, Cooke v., 212, 294 Nellis V. Lathrope, 336 Nelson, Burrage v., 386 Lonsdale v., 737 V. Merriam, 378 Nepeau v. Doe, 155 Nesbit, Shoemaker v., 95, 361, 478 Neumoyer v. Andreas. 296, 299 Nevill, Clark v., 389, 390 Neville, Morgan v., 125 V. Williams, 428, 429, 432, 436 Nevin, Bard v., 287 Newbold v. Comfort, 151 Newell V. Gibbs, 259, 291, 297, 336 Newkirk, Buster v., 390 Newman v. Anderson, 60S Ludwell v., 491 V. Rutter, 145, 157, 210, 216 Newson v. Smythies, 522 Newton v. Gardner, 396 N. Y. Gold Mining Company of Colorado, Hayesi;.. 634, 539 Niagara, The People v., 443, 480 Nibbs, West v., 381, 631 Niblet V. Smith, 452 Nichols, Ilsely v., 647 Obermeyer v., 37, 140, 522, 585 Nicholson, Dickinson v., 86 Nicholson, Sleeper v., 121 Nightingale, Hopkins v., 198 Wilson v., 595 Nixon V. Freeman, 647 Woods v., 373, 374, 387, 416 Noble V. Epperby, 474 V. Warren, 210, 221, 464, 493 Noe V. Gibson, 393 Noke's Case, 487, 548 Noke V. Awder, 531 Nolan V, Sweeny, 280 Norman v. Wells, 496, 523, 533 Norris, Delavergne v., 561 Hawn v., 261 V. Insurance Co. of N. A,, 496 North V. Turner, 342, 353 North American Ins. Co. v. Levy, 373 North Branch Canal Co. v, Hireen, 264 Norris, Langley v., 735 Lant v., 519 Northern Central Railway, Seal v., 263 Northern Transportation Co. v. Chicago, 734 Norton, Barker v., 442 Notters' Appeal, 115, 121 Nottle, Kingdon v., 531 Novinger, Armstrong u, 128 Ayres v„ 286, 295, 299, 313, 814 Nourse and Wife, Lloyd v., 286 Nugent dem Atkins v. Sealy & Mullins, 544 Nurse, Paul v., 535 Nyman's Appeal, 120, 121 O. Oakes, MinshuU v., 525, 538 Oakland Railway Company v. Keenan, 312, 313, 314 Oakley, Shaw v., 132 Gates, Welsh v., 24 Obermyer v. Nichols, 37, 140, 522, 585 O'Brien, Brown i;., 236, 239, 266, 276, 277 O'Conner, Building Association r., 114 O'Connor, Kerr v., 720 Wain v., 83 Odes V. Wood, 285 Odiome's Appeal, 123 O'Donald, Hanley v., 123 O'Donneli v. Seybert, 105, 126, 130, 627, 628, 770 Ogden, Bruen v., 386 Duf^ v., 293, 295, 325 V, Grove, 41 V. Stock, 417 Ogle, Galloway v., 33 Lessee of Galloway v.^ 2-58, 336 O'Hanlen, Thompson v,, 718 O'Hanlin, Byrd v., 386 O'Hara v. Richardson, 238 Watson v., 616 O'Hern, Watson v., 26, 175 Ohio & Pa. R.R. Co., Bell v.. 46 Oil Creek R.R. Co. v. Atlantic & Great West- ern R. R. Co., 367 Okeson v. Patterson, 41, 42, 44, 197, 365, 735 O'Keson v. Silverthorn, 2S0 Oland V. Burdwick, 758 Gland's Case, 757 Oldwine, Pott v., 388 Oliphant v. Smith, 203 Oliver, CommonwcEilth v., 154 Dixon 11., 281 Doe v., 13 Olmstead, Brooks v., 199. 3.'J4 OUis, Wistar v., 299, 330, 333 Olwine, Rinehart v., 27, 28, 127, 141 O'Neill V. Cahill, 172, 290 Campbell v., .53 Onslow, Bedingford v., 653 Opperman v. Smith, 603 OTteagan, Mortimer v., 326 O'Reilly, Morse v., 83 TABLE OF CASES. xlv [The references are to the pages.] O'ReiUy v. Shadle, 94, 95, 355, 357, 361, 382, 654, 655 Ormsby v. Dearborn, 392 Orr, McMuUen v., 295, 296, 313 Osbastin v. James, 7C0 Osborne v. Wickenden, 104 Osbouru V. Osbourn, 285 Osgood, Colby v., 531, 565 V. Green, 421, 453 Osterhoudt, Hunter v., 216 Otterstatter, Prescott v., 478, 522, 585 Overdeer v. Lewis, 155, 211, 293, 358 Overfleld v. Christie, 238 Overseers of the Poor of Whitely Township, Hamilton v., 264 Overton v. williston, 54, 376, 383 Owen V. De Beauvoir, 457 V. Legh, 620 Taylor v., 541, 542 Owens V. Wynne, 642 Oxenbridge, Skeat v., 90 Oxford jj. Perritt, 431 Oxley V. Cowperthwaite, 428, 434 Oyer, McDowell v., 499 Oystead v. Shed, 358, 359, 360 P. Packer. Johnson v., 360, 362 Paff «. Stark, 720 Page V. Church, 466 V, Earner, 430 V. Esty, 571 Heath v., 200 Shutter v., 444 Painter v, Reece, 712 Paisley, Murray v., 471 Palgrave v. Windham, 601 Palmer, Nash v., 553, 556 Pullen'!;., 445,448, 607 Eapp v., 387, 394, 416 St. John u, 491 V. Stabick, 643 V. Stanage, 643 V. Silverthorn, 711, 712 Pangburn v. Patridge, 386 Paradine v. Jane, 517, 577 Paradise, Andrews v., 492, 555 Park, Commonwealth v., 754 Jones v., 44, 197, 865, 735 Parker v. Browning, 393 & Keller's Appeal, 133, 134 Morrisi;.,126,188 Rogers v., 597, 621 V. South wick, 238 V. Webb, 534 Parish, Tate v., 744 Parmelee, Mohr v., 564 Parmenter v. Weller, 418 Parrish, Dikeman v., 237 V. Koons, 367 Sleeper v., 105, 126, 145, 189, 355, 420, 453, 635, 765 Parry v. Duncan, 603 Parry, Doe dem, v. Hazell, 212 Parry, Maris v., 735 Parson, Bickford v., 526, 529 Parsons v. Gingell, 761 Harms v., 637 Partridge v. Emson, 636 V. Naylor, 636 Passmore v. Ins. Co., 885 Williamson's Case, 426 Tyson v., 280 Patchin, Mack v., 499 Patridge, Pangburn v., 386 Pattee, Cunningham v., 646, 568, 574 V. Low, 442 Patterson v. Brindle, 276 V. Arthurs, 664 Patterson, Clark v., 299, 331 Gregg i"., 261 Haydon v., 316 Juvenal v., 8 V. Lane, 867 Law v.. 260 V. McVay, 388, 718 Okeson v., 41, 42, 44, 197, 365, 735 V. Scott, 185 V. Stevenson, 414 V. Sweet, 663 Trimbath v., 166 V. Wilson, 281 Pattison v. Adams, 438 Mayor of Congleton v., 489, 543, 544 Patton, Bradford v., 576 Cunningham v., 238 Frick v., 716, 719 V. Gouldsborough, 277 Munshower v., 237 Smith's Lessee v., 262 Patton's Estate, 150 Paul V, Nurse, 635 Payn, Lewis v., 449, 450, 460, 463 , ' Payne v. Davis, 385 1 V. Eodgers, 753 V, Haine, 583 Peacock v. Purvis, 620 Doe dem, v. Raffan, 213 Doe dem, v. Ruffin, 270 Whittont).,530, 544 People V. Townsend, 754 Aldenburgh v., 102, 145, 147, 356, 451 Pearce v. Humphrey, 387, 410, 413, 434, 436, 437 V, Humphries, 428 V. Dart, 736, 737 PearsoU v. Chapin, 394, 416, 423 Pederick v. Searle, 237, 238 Pedley, Rex v., 753, 754 Peebles v. Reading, 235, 261 Peirce v. Hill, 418 Pelah, Gimbart v., 635 PeU, Brackenbury v., 432 Pendleton v. Dyett, 221 Pendred v. Grimths, 575 Penington v. Coats, 220 Penn, Campbell v., 330 John, Lessee of,i;. Divellin and Musser, 262 V. Glover, 493 V. Preston, 363, 519 Pennsylvania v. Leach, 154 V, Lemmon, 154 Canal Company ^.Central Iron Works, 277 Lead Co.'s Appeal, 741 R. R. Co.,'Haldeman v., 224 Railroad v. Heister, 295, 313 Railroad Co. v. Jones, 43 V. Kirkpatrick and Menough, 303 R.R. Co., Sellers v., 752, 753 V. Robinson, 154 V. Waddle, 154 Pennybecker v. McDougall, 391 Penruddock's Case, 741 People, Aldenburg v., 141, 143 Hays v., 201 V. Niagara, 443, 480 V. Rickert, 338 Peppard v. Deal, 237 Pepper's Estate, 115 Perchment, McKee v., 42 Percy's Case, 340 Percy and L Amoraux, Tibbits v., 521 Perdriaux, Bank v., 272 Perkins v. Brown, 736 Perley v, Foster, 414 Perreau v. Bevan, 609 Perrett, Oxford v., 609 Perrin v. Bevan, 431 xlvi TABLE OP CASES. [The references are to the pages.] Perritt v. Dupr6, 514 Oxford u., 431 Perry v, Davis, 216 Lindsey v., 393 Eobinsonii.,368, 369 & Randolph, Gable & Hughes * 138 Pesked, Jackson v., 91 Peter v. Hunsicker, 42 V. Schlosser, 137 Petermau v. HuUng, 236, 250, 256 Peters v. Grubb, 223, 660, 554, 556 Peterson v. Haight, 138, 413 Kier v., 383 V. Hulings, 241 Kle «.,376 Pettigru II. Sanders, 383 Pettiuger v. Kennedy, 730 Pettingill v. Merrill, 393 Pettit, Seeger v., 53 Thomas v., 357 Peyton v. Robertson, 424 Philad'a, Commonwealth v., 42 Flanigan v., 738 Flanigen v., 271, 285 Haley v., 224 Wheeler v., 738 Windrum v., 739 "Wolbert v., 738 Philin V. Kenderdine, 199 PhUips, Coulter J)., 237 V. Mining & Mannfacturlng Co., 367 Philipy, Kennedy v., 361, 362 Philles, Beckwith v., 393 Phillibaum, Holzapple v., 237 PhiUips V. Berryman, 413, 627 V. Bonsall, 521 V. Boyd, 466 Chaworth v., 215 Chatworth MUes v., 530 V. Hyde, 471 V. Moneo, 138, 211, 214, 270 V. Phillips, 43 V. Price, 430, 433, 609 Seal D., 610 Shumway v., 257, 263 Springer v., 534 Phlpps V. Boyd, 414, 445, 447 Phinney, Badger v., 33 Physick, Walker v., 29, 32 Piokard, Twynam v., 529, 530 Pickering, Hughes v., 238 V. Kudd, 199 Pickle, Albright v., 441, 446, 472, 473, 475, 481, 483, 041, 644 Pier V. Carr, 219, 464 Marsh v., 412, 436, 442, 443, 444, 457, 469, 471,479 Pierce v, Benjamin, 375 V. Cloud, 41 V. Dart, 743 V. Scott, 107, 141, 144, 145, 199, 637, 763 Pierson, Foster v., 495,556 V. Post, 390 Piggott V. Birtles, 627 V. Mason, 632, 566, 572 Bigot's Case, 436 Pilcher v. HaH, 736 Pllkington's Casc, 451, 628, 629 Pillsburv V. Mitchell, 5G4 Pimm V. GreviU, 451, 463 Plncombe, Morley v., 452, 198, 106 Pindard v. Ainsley & Rutter, 581, 585 Pine, Trevillian v., 451, 468 Piper, Chestnut Hill . Twembow, 620 Pugh V. Griffith, 647 V. Good, 21 Pullen, Arden v., 579 V. Palmer, 445, 448, 607 Pultney, Cavan v., 552 Purdy's Appeal, 182 Purdy V. McCullough, 376 Purfel V. Sands, 102, 126, 140, 143 Pursley, Forth v., 876 Purvis, Firth v., 147, 205, 598, 630 Peacock v., 620 Put V. Rawsteme, 375 Putt V. Roster, 383 Pyle, King v., 498 Quain's Appeal, 222, 488, 489 Quick, Susquehanna & Wyoming Valley R.R. & Coal Co. v., 259 Quigg, Walker v., 281 Quilter, Brown v., 559, 581 Quin V. Brady, 279 V. Davis, 387, 423 Quinn v. Wallace, 128, 129, 140, 142, 198, 357, 380, 881, 419, 449, 451, 452, 458, 461, 462, 463, 632 Quirk, Wright v. 431 R. Race V. Snyder, 656, 711 Radcliffe: Abeel & Abeel v., 545 Raddisli, Evelyn v.y 6:-3 Radford, Evans v., 168 Radway, Gottsberger v., 580 RafFan, Doe dem Peacock v., 213 Railroad Co., Covey v., 144 Humphrey v., 359 Titus v., 520 V. Thornton, 168 V. Wilt, 841, 354 Ralston v. Black, 416 Ramage, Plank Road Co. v., 712 Rambler v, Tryon, 261, 282 Ramsey, Fleming v., 712 Long u.,. 23 Rand v. Vaughan, 603 Randall v. Alburtis, 493 !). Lynch, 519 Randolph, Lesley v., 209, 212, 258, 270, 324 Randolph & Greer, McCurdy v., 446 Ranelagh, Lovatv., 576 Rangier v. McCreieht, 713 Rankin, Blair v., 495 Boyle v., 387 V. Lay, 368 V, Simpson. 367 ti. Tenbrook, 237, 258, 297, 336 Rapp V. Palmer, 387, Sgi, 416 Rappalo, Stoughtont)., 878, 387, 4U Rasleigh v. Williams, 553 Ratledge. Yates v., 601 Ratcliif, McKnight v., 360, 553 Raub V. Tamany, 753 Raulet V. Cook, 573 Ravenor, Hudd ii., 620, 644 Rawle, MacGregor v., 209, 268, 294 Rawsterne, Put v., 375 Rawstone v. Bentley, 575, 576, 577 Raymond, Curry v., 266, 274 V. Fitch, 544 Winrow v., 272 Raynal v. Stone, 309, 370 Read v. Bias, 199 Brett J)., 179 V. Burley, 760 V, Erington, 214 Lewis v., 648 Reader, McKinney v., 21, 97,127, 128, 129, 130, 142, 145, 198, 210, 218, 219, 854, 357, 381, 455, 622, 624, 638 Reading, Peebles v., 235, 264 Ream v. Harnish, 27 Zell v., 353 Reath, Manuel v., 104, 449 Reakirt, Morgan v., 426 Restor v. Chevalier, 386 Redshaw, Mounson v., 608, 610 Reece, Painter v., 712 Reed, Burnett v., 200 Bell v., 784 Bishop v., 257 V. Dickey, 280 Heffner v., 425, 440 Humphreys v., 385 V. Ingraham. 138 V. Reed, 210 V. St. John, 574, 576 V. Thoyts, 600 II. Ward, 89, 222 Reed & Murray v. Murray, 260 Rees, Commonwealth v., 154, 428, 429, 430, 434 V. Emeriok, 78, 146, 148, 198, 843, 354, 356, 381, 418, 591, 652 V. Morgan, 473 Reeves, City of Philadelphia v., 520, 521 Regnart v. Porter, 607 Rehm, Bradfleld v., 327, 828 Reid V. Christy, 167 Reiff D. Reiff, 512, 759 Reifsnyder, Jimison v., 624 Reigart, Franciscus v., 142, 411, 446, 450, 451, 468 Reimer v. Stuber, 41 Reinhard v. Keenbartz, 281 Reinhart, Cooke v., 171, 800, 313, 314, 380 V. Ov/line, 28 Reinheimer v. Hemingway, 390, 392, 457, 469 Reist v. Heilbrenner, 410 Reiter, Commonwealth v., 271 Remer, Kelsey v., 562 Rcmpublicam, McNair v., 839 Remben, Dyer v., 894 Rennyson's Appeal, 46 Renoud v. Daskam, 566 Renshaw, Woodburne v., 495 Replogle, Fluck v., 260 Respublica v. Campbell, 155 V. De Longchamps, 108,144, 768 V. Devore, 153, 154, 368 Reutter. Louis v., 581 Rex V. Clark, 636 1'. Cotton, 637, 638 V. King, 636 V. Pedfey, 753, 754 Lauchner v., 95 V. Lord Grey, 426 Reynard, Lane v., 257 Reynell, De La Bastide v., 4Sla, 427 Reynolds, Anderson v., 413, 449, 460, 462 D xlviii TABLE OF CASKS. [The references are to the pages.] Eeynolds v. Barford, 601 Boulton v., 628 V. Clarke, 45, 199 Messent v., 618 Turner v., 260, 277 Ehea v. Forsyth, 42, 740 Ehinehart v. Olwine, 27, 127, 141 Ehines v. Clark, 652 Ehoada, Gilleland »., 120, 122, 123 Worrall v., 656, 41 Ehodes v. Dunbar, 87, 752, 753 FusselD.,367 Walzu, 30, 677,579 & Eider d. Brunts, 471 Eiee, Wheeler v., 739 Eiceman, Hurry v., 648 Eich V. Basterfield, 754 V. Keyser, 155, 209, 211, 324, 325 V. Eyder, 395 Eiee v. King, 362 Eichard, Barron v., 537, 751 Eichards's Appeal, 87 Eichards's Jewelry Store, Pratt & Eeath v., 218, 219 Eichards v. Ayres, 219 King v., 385 Little SchuylkiU Navigation Co.t)., 354 Lyle?)., 89, 736 V. Scott, 734 Eichardson, Ardesco Oil Co. v., 537, 577 V. GilTord, 214 Giraidy v., 182, 210, 225 Henry v.j 719 V. Lungndge, 269 O'Harra v., 238 Sterling v., 327 V. Sydenham, 565 Walker 5)., 219 Eichie v. McCauley, 134 Eickert, People v., 338 Eickner v. Dixon, 428 Eicroft, Pomfort v., 579 Eiddle v. Murphy, 277 V. Welden, 106, 144, 420, 452, 627, 761, 763 Eidge, Lewis v., 530 Eidgway, Seitzinger v., 236, 256 Eiehle, Heiser v., 238 Eifener v. Bowman, 353 Eiffert, Hincklei;., 262 Eigge, Doe dem, v.. Bell, 214 Eight dem Flower v. Darhy & Bristow, 213 EHand v. Eckert, 276 Eiley, Dannaker v., 49 Eingo, Lewis v., 269 Ripka V. Sergeant, 197, 365, 653, 735 Eiseley v. Eyle, 600, 601 Eishell V. Rishell, 115 Eistine, Robert v., 150 Eitchman v. McCarthy, 42 Eittenhouse, Atkinson v,, 238, 261 Hole v., 237 Eoad Commissioners, Zimmerly v., 171 Robb, Sample v., 279 V. Beaver, 9 Eohert v. Eistine, 158 Eoberts, Bergman v., 166 V. Brett, 522 V. Dauphin Deposit Bank, 198, 387, 389, 414 Diller v., 127, 145, 211, 214 Jones v., 309 V. Levy, 663 Savileu, 475 Williams v., 189 Eobertson, Peyton v., 424 Eobbins, Daggett v., 386 Eobins v. Kitchen, 336, 449, 467, 459 Eobinfon v. Atlantic & Great Western Rail- way Co., 393 Bobinsou, Catlin v., 319 Robinson, Cooper «., 463 Durmond v., 278 Elder v., 370 Feetor v., 383 V. Gunnis, 264 V. Harman, 497, 498 Hill v.. 424 V. Hofflnan, 104, 451, 468 Hopkins v., 239 Kellogg ^.,539 V. Kettletas, 369 Lewis v., 183 Lege v., 496 Mackey v., 184 Pennsylvania v., 154 V. Perry, 368, 369 Story v., 107, 198 V. Vaughan, 341 v., Waddington, 596, 619 Waterman v., 414 Western University v., 46 Eobison v. Eupert, 360 Eockey v. Burkhalter, 376, 437 Eoden V. Eyton, 596 Eoderick, Stewart v., 266 Eodgers v. Arnold, 442, 443 Buck v., 587 Commonwealth v., 154, 337 Grant v., 300, 331 V. Parker, 621 V. Pitcher, 449, 460 Eodney, Hurst «., 534 Eoe V. Archibishop of York, 219 V, Davis, 151 V. Hayley, 532, 566 .Sharp, 416 V. Thomas, 219 V. Wiggs, 294 Eogers v. Arnold, 395 V. Brewster, 200 V. Parker, 597 Payne v., 753 Elliott v., 181 Wilkinson v., 537 V. Waterman, 120 Eohrer v, Rohrer, 712 Roland v. Gundy, 395 Tiernan v., 237 Eolph V. Crouch, 500 Eooti). Woodruff; 439 Eoper V, Lloyd, 177 Rose V. Cash, 414 HUlary v., 140 Thompson v., 525, 533, 541 V. Story, 362 Welsh v., 762 Eoseberry. Weidel v., 105, 441, 446,473,481, 484 Rosenberger v. Hallowell, 114, 122, 123, 124 Rosenthal v. Lehman, 402, 484, 641 Rosher, Freeman v., 648 Eoswell V. Prior, 736, 753, 754 Ross V. Barker, 280, 260 V. Dysart, 30, 222, 223, 487, 490, 491 Foust v., 297 V. Pleasants, 261, 282 Prestly v., 137, 163 Rossell V. Cotton, 711, 712 Roster, Putt v., 333 Eoth, Bauer v., 186 Roulston V. Clarke, 606 Row, Lessee of Willis v., 262 Rowan v. Rowan, 183 Rowland v. Gundy, 416, 422 Rowley v. Gibbs, 447 Royal, Fredericks v., 446, 465 Saxon, Tavlor v., 437, 423 Royer v. Ake, 37, 174. 267, 634 V. Benlow, 239 Weakly v., 361 Royse v. May, 456 Eoyston v. Cordrye, 186 TABLE OF CASES. xlix [The references are to the pages.] Euhioum v. WiUiams, 168, 169, 171, 172, 300, 332 Euch V. Morris, 439 Ruchman, Alwood n., 390 Rudd, Pickering v., 199 EuiBn, Doe d. Peacock i/., 270 Eugeley, Anglesea v., 545 RuElman v. Commonwealth, 153 Eumbal, Walter ik, 377, 635 Eupert, Eobison v., 360 Rush V. Barr, 237 V. Fllckwire, 450 Eussell 11., 30, 516 Eussel, Webb v., 175 Eussell V. Baughman, 235, 264 V. Gulwell, 519 Hull^.,3U V. Eush, 30, 516 V. Smith, 474, 600, 601 V. Schenley, 137 Webbi;., 527,529, 530 Eutgei-s V. Hunter, 546, 566, 568, 573 Rutherford's Case, 51 Rutter, Newman v., 145, 210, 216 The Chestnut Hill & Spring House Turnpike Co. v., 182 Ryan v. Shiloch, 647 Eyder v. Jenny, 668, 572 ' V. Malbon, 466 V. Milford, 576 Rich v., 395 Eyle, Risely v., 600, 601 Eynd, Watson v., 94, 357, 362, 655 S. Sadler, Erb v., 452 Sager v. Blaiu, 392, 470 Saeger v. Petit, 143 Sealtzer v. Ginther, 427 Sailor v. Hertzog, 239 Saint Andrew's Lutheran Church Appeal, 537 Helen Smelting Co. v. Tippins, 751 John V, Palmer, 491 Eeed v., 574, 576 Strangs v., 487 John's College v. Murcott, 600 Louis V. Kaim, 588 Mary's Church v. Miles, 37 Saire, Wallis v., 357 Sale V. Kitchingham, 537 Salmon v. Bradshaw, 495 V. Smith, 175, 231 Salmond, Shubnck u, 519 Saltoun V. Houston, 519 Sample J). Eobb, 279 Sampson, Easterby v., 537, 538, 579, 588 Wiswall v., 393 Samuda v. Lawford & Kelly, 586 Samuel, Doe dem Castleton ii., 213 Sanders, Beale v., 214 Pettingru v., 383 Sanderson v. Haverstick, 375, 382, 384 Jaques v., 424 V. Marks, 440 Sandham, Ellis & Medwin v., 581 Sands, Child v., 197, 364 V. Fritz, 433 Purfel v., 102, 106, 140, 143 Sandwith v. Silver, 32, 534 Sandford, Garrison v., 561 Sanger, Kane v., 496 Sangston, ChaiTel v., 436, 477, 479 Sapsford v. Fletcher, 450, 461, 628 Sarch v. Blackburne, 721 Sargeant v. Blunt, 200 V. Currier, 390 Sassaman, Tranger v., 356 Sassman v. Brisbane, 77, 79, 378, 411, 634 Satterlee v. Matthewson, 259, 336 Saul, Megargel v., 263 Saunders v. Darling, 434 Sausser v. Steinmetz, 508 Savage v. Stapleton, 213 Savery v. Hays, 422 Savlle V. Roberts, 475 Saville, Willis v., 641, 642 Saving Fund v. Mark, 167 Savory, Mackentile v., 237 Sax, Brown v., 892 Speckels v., 580, 585 Saxby, Dod v., 601 Sayce, Brown v., 447, 460, 466, 607 Scaife, McDonald v., 385, 474, 475, 476 Scarborough, Grice v., 562 Schall V. Miller, 278 Schaum, Gate v., 646, 647, 648 Behcet's Appeal, 730 Scheever i). Dickson, 581 ■Schenck, Van Brunt v., 341 Schenley, Russell v., 137 Schilling, Kauffman t'., 391, 421, 423 Schlosser, Peter v., 137 Schmack, Schuylkill Co. v., 210 Schmoele, Schuylkill & Dauphin Improve- ment & Railroad Co. v., 224, 487, 490, 493, 495 Sehnable v. Koehler, 653 Schofield V. Terrors, 437, 474, 475, 476, 479 Schoneman v. Fegley, 1S3 School Trustees of Trenton v. Bennett, 578 District v. Danchy, 578 Schrack v. Zutler, 257 ScroederA Franklin v. Gemeinder, 368, 369 Schulte V. McCormiok, 327 Schurer v. Dickson, 515, 616, 517 Schuylkill Co. v. Schwack, 210 SchuylkUl & Dauphin Improvement & Rail- road Co. V. Schmoele, 224, 487, 490, 493, 496 Navigation Co. v. Farr, 260 Navigation Co. Shrunk v. 47 Scott V. Buckley, 046 Doe dem Campbell v., 212 V. Elliott, 393 V, Ewen, 145 V. Fuller, 127, 291, 292, 298, 324 V. Gallagher,^237 V. Griffen, 237, 356, 381, 621, 622, 682 Griffln v., 198 V. Hill, 496 Marple v,, 564 B. McEwen, 765 Patterson v., 185 Pierce v., 637, 199. 107, 141, 144, 145, 762, 763 Pittsburg v., 224 Richart v., 734 V. Simons, 513, 514, 515 V. Waithman, 610 V, Wartman, 434 V. Watson, 112 Scovil, Irish v., 272 Scoville, Babcock v., 523 Scribner v. Holmes, 564 Scudder & Scudder, Talmage v., 353 Seabourne v. Powell, 665 Seabrook v. Moyer, 221, 465 Seal V. Northampton Central Railway, 263 V. Phillips, 610 Sealy & MuUins, Nugent dem Atkins v., 544 Searle, Pederick v., 237, 238 Searles, Swan v., 493 Seaton, Doe dem Stroude v., 543 Seaver v. Dingley, 386 Seegerw. Pettit, 53 Seechrist, Baskin v., 336 Seegnett, Vallolin v., 368 Seibert's Appeal, 119 Seibert, Irwm v., 184 V. Levan, 51 V. McHenry, 387, 444, 457 TABLE OF CASES. [The references are to the pages.] Seidenbender u. Charles's Administrators, 544 Seignett, Valloton v., 686 Seilor, Porter v., 360 Seitzinger v. Ridgway, 256 V. Steinberger, 132, 193, 199, 236, 747 V. Weaver, 563 Seldon d. Senate, 550 Selden's Lessee. Sheets v., 176 Selby V. Crutchley, 478 Sellers's Estate, 122 Sellers, Matthias v., 444, 457, 469, 471 V. Penna. R,R. Co., 762, 763 Sells V. Hoarse, 625 Selly V. Cruohley, 41S Semayne's Case, 646 Senate. Selden v., 550 Sennett v. Bucher, 259 McGowen v., 325 Senseman, Hawk v., 237, 278 Sergeant, IngersoU v., 7, 10, 32, 36, 152 Ripka tt, 197, 365, 653, 735 Sewell V. Lancaster Bank, 382, 383 Sewald,Hilli'.,53,143 Sexton V. McDowd, 886 Seybert v. Bean, 26 O'Donnell v., 105, 126, 627, 628, 770 Shaafer, Pollard v., 31, 82, 83, 92, 515, 617, 624, 538, 577, 578, 579 Shadle. O'ReiUy v., 94, 95, 355, 357, 361, 362, 654, 655 Shaefer v. Kreitzer, 279 V. Geisenberg, 173, 183 Shaffer v. Sutton, 127, 141, 291, 292, 298 Shaflfery, Castor v., 383 Shallcross, McFate v,, 433 Shatto, Creigh v., 257 Shauffer, Pullerton v., 816 Sharp, Kerr v., 78, 142, 198, 357, 690, 591 Roe v., 416 Shaw V. Bard, 284 V. Bowman, 159 Commonwealth u, 47 V. Levy, 388, 389, 394 Marriott v., 388 Miller v., 237. 238 V. Oakley, 132 V. Stenton, 552, 553, 555. V. Tobias, 436 Shamburg v. Moorehead, 376, 384 Shannon v. Bradstreet, 868 Graff i;., 411, 422 Sharon Iron Co. v. City of Erie, 210, 214 Sheaffer v. SheafTer, 36, 232 Sheape v. Culpeper, 473 Shearick v. Huber, 387, 388, 416, 423 Shearon, Cheatham v., 752 Shed, Oystead v., 368, 369, 360 Sheets v. Selden's Lessee, 176 Sheetz v. Fitzwater, 238 Shelby v. Hearne, 638 Shenk, Moore v., 436, 470, 474, 475, 477, 479 V. Mundorf, 353 Shepherd, Smith v., 380 Sheplar, Thompson v., 499 Shepey t>. Lytle, 237 Sheppard, Commonwealth v., 128, 746 Leigh v., 448 Sherer v. Hodgson, 445, 735 Sheriff v. Prince, 415 Sherman, Weber v., 448 Sheron, McSheffery v., 622 Sherrard v. Smith, 451 Sherry v. Forseman & Earl, 432 Shertzer v. Herr, 419 Sherwin, Coleman v., 486, 489 Hargrave v., 466 Sherwood, Musgrave v., 664 Shetsline v. Keemle, 127, 141 Shevill, Brown v., 760, 761 Shew, Pitt v., 462, 632, 640 Ward v., 648 Shiloct, Ryan v., 647 Ship-pen v. Anghenbough, 280 Shipwiek v. Blanchard. 375, 378 Shively, Grace v., 102, 126, 127, 141. 143, 189, 191 Shoefield, Thompson v., 437 Shoemaker, Davis u, 37 , 185 V. Huffnagle, 265 V. Neabit, 96, 361, 478 Shoenfelt, Graham v., 21S Sholey, Givyllim v., 434 Sholl,Beisselli)., 44 Graver i;., 46 ShoUy V. Stahl, 238 Shore, Anacomb v., 629, 630 Short K. Hubbard, 436, 606 Shotwell V. Boehm, 286 Fitler v., 353, 355 ShoufHer v. Cooven, 103, 127 Shoup V. Shoup, 138 Shewsbury v. Moorehead, 377 V, Wilson, 96 Shrider's Lessee v. Nargan, 277 Shriver, Stephens v., 713 Shroder v. Benneman, 43, 44 Shroud D. Way, 326 Shrunk v. Schuylkill Navigation Co., 47 Shubrick v. Salmond, 619 Shuler, Smith v., 260 Shult V. Barker, 82, 83, 91, 92, 382 Shultz, Irwin v., 183 Shumate v. McGarity, 121 Shumway v. Phillips, 267, 263 Shute V. Barnes, 663 Shutter v. Page, 444 Sigmund, Gilston v., 546 Silliman, Cowan v., 651 Silver, Depuy v., 138 Silverthorn, O'Keson v., 280 Palmer v., 711, 712 Simons v. Van Ingen, 495 Simonds v. Turner, 534 Simons, Scott v., 513, 514, 515 Simpson, Buckworth v., 629 Doe dem v. Butcher, 225 V. Clayton, 632 1). Hartopp, 106, 108, 462, 463 V. Lapsley, 139 McDowell ^.,21, 26 V. McFarland, 386, 443 Rankin v., 367 V. Thornton, 269, 318, 228 Wien v., 613 Sims.'Brown v., 143, 420, 462, 763, 760 Houston v., 94, 361 Sim's Lessee v. Irvine, 268 Singer Manufacturing Co. v, Hackett, 440 Sink, West J)., 133, 749 West's Administrator v., 134 Sipe, Haverstick v,, 45 Sipes V. Mann, 117 Six Carpenters' Case, 103, 355, 419, 461, 452, 591,629,653 Skeat V. Oxenbridge, 90 Skeer, Kennedy v., 267 Skidmore v. Taylor- 422 Skilton V. Mason, 328 V. Webster, 739 Skinner, Hyde v., 368, ,532, 572 Skurro, Soprani & Barnard v., 545 Slaymaker, Eisenhart y., 294 Sleeper v. Nicholson, 121 V. Parrish, 105, 126, 145, 189, 355, 420, 453, 6:!5, 705 Sloan, Howe Sewing Machine Co. v., 354, 420, 452, 760 , McMahoni)., 389, 396, 416, 422,423 Slocum u, Clark, 104 Small, Moorei)., 21 Smart v. AUegaert, 465, 498, 499 Fenndem Matthews v., 214 Smeich v. The County of York, 136, 137 TABLE OF CASES. li [The references are to the pages.] Smick, Kenriok v., 35, 215 Smiley, Bowman v., 120, 122 Smith V. Arnold, 537 V. Ankrim, 174, 176, 680 i;. Ashforth, 626 V. Aurand, 446, 473, 475 Bantleon v., 98, 140 Baynes v., 106, 107, 198 Baxter v., 23, 24 Boyeri).,236, 265, 266 V. Bradley, 361 Bridges v., 357, 451 V. Brooke, 112 1). Brotherline, 280 Brown v., 478, 483 Burns!;., 239 Churchwardens, etc., i?., 524 V. Clark, 37, 358 V. Commonwealth, 747 Conover u., 640 Cooper v., 33, 285, 238, 263, 274, 336 V. Cummmgs, 752 Donaldson v., 87, 102 V. Eggington, 529 Elliott v., 186, 258, 297, 336 Emerson v., 122,123 Goldsmith))., 167, 297 & Fleck's Appeal, 88 Freeman v., 120, 122, 146, 353 Harris v., 387, 390,416, 423 Huxham v., 629 V. Jenks, 280 V. Johnson, 713 V. Jones, 278 V. Justice, 496 V. Kerr, 428 Leckyj)., 387 V. Lyon, 386 V. Marrable, 514 V. Meaner, 78, 98, 142, 146, 138, 354,356, 380, 625, 627 Middlekauf «,, 687 Miller tr., 384 Mitchell «)., 644 Moffatt v., 534, 580 Morgan v., 563 V. Nangle, 572 Niblets., 452 Oliphant v., 203 Opperman v., 603 Potts v., 668 Powell v., 376, 390, 422 V. Russell, 474, 600, 601 Salmon v., 375, 221 V. Shepard, 380 Sherrar. Lambard, 523, 530 Patterson v., 416, 475 V. Stewart, 43 V. Taylor, 414 Steward v. Winter, 369 Stewart's Appeal, 730 Stewart v. Doughty, 356, 372 V. Drake, 561 Eckels v., 260 Gilson v., 183 V. Hasson, 166 V. Kelly, 183 V. Martin, 296, 300, 330 McNelsh7j.,496 Mitchell's Administrator v., 134 V. Roderick, 266 V. Shoenfelt, 278 V. Speer, 280 Stevenson v., 43 Wilkinson, Carter & Co. v., 422 Stickler v. Todd, 7a5 Stichter, Ebner v., 43 Stiles V. Griffith, 388 StiUe, Duffleld u, 286 Fenn v., 286 Stitler, Carlisle v., 268 Carlisle v., 237 Stivln, WUliams j;., 639 Stock, Ogden v., ill Stockett V. Howard, 633, 641 Stockdale v. BUery, 12, 89, 738, 739 Stockton's Appeal, 181, 227 Stoever, Commonwealth v., 153 ti. Miller,, 167 V. Whitman, 151 Stofflet n. Troxell, 258, 262, 268 Stokely, Alexander v., 426 V. Trout, 278 Stoker it. Crane, 438 Stokes, Farley v., 367, 368, 369 Stone, Raynal v., 369 Raynerti.,370 V. Wimmill, 327 Stoner v. Hunsieker,713, 714 Story, Lawson v., 698 V. Robinson, 107, 198 Rose v., 362 Stouch, Hawk v.; 312. 314 Stout, Cresson v., 422 V. Fitzwater, 716, 718 Stoutenburgh, Logan v., 386 Stoughton V. Eappalo„378,387, 414 Strangs v. St. John, 487 Strauser v. Kosier, 714, 715, 716 Strasburg R.R. Co. v. Echternaoht, 739 Stratton, Doe d. Tilt v., '269 Streaper v. Fisher, 151 Streeper, Hennis v., 134 Strew, Hunt v., 415 Strieker, Hooker v., 413, 437 Strickland v. Strickland, 284 Strickler v. Todd, 44, 45, 197, 365 Strohecker v. Grant, 176 Strohl V. Levan, 193, 341 Strong, Heil v., 85, 160 Strong V. Lawler, 438, 444, 466 Strode, Ulsh v., 275. 276 Stroup V. McClure, 295 Struse's Executor v. Becker, 122, 123 Stubbs, Portland Bank v., 416, 423 Stuber, Reimer v., 41 Stultz V. Dickey, 62, 197, 266, 342, 372, 373, 375, 418, 654, 759 Sturges, Bachelder v,, 562 Sturtevant's Appeal, 22 Suber v. Willing, 238 Sullivan, Wolcott v., 582 Sumner v. Williams, 548 Sunderland v. Whitesides, 730 Supplee, Kershaw v., 210, 524, 632 Surplice v. Farnsworth, fj8-j Susquehanna Boom Co. v. Finney, 444 & Wyoming Valley R.R. & Coal Co. V. Quick, 259 SutcUff V. Isaacs, 49 Sutton, Blore ii., 368 Shafler v., 127, 141, 291, 292, 298 V. Temple, 513, 585 Swan V. Searles, 493 V. Falmouth, (>44 Sweeny, Nolan v., 280 Sweet, Patterson v., 563 Swetnam, Porter v., 534 Swift, McAlpine v., 574, 575 V. Morrison, 396, 417 Swinnerton, Butler v., 552 Swire v. Leach, 761. 763 Sylvester v. Gu-ard, 382, 385 T. Taggart v. McGinn, 176 TaUor, Holder v., 619 Tallman, Bower v., S87, 412, 414,416 Talmage v. Scudder & Scudder, 353 Tamany, Raub v., 753 Tammany v. Whittaker, 95, 355, 358, 361, 655 Tanner, Karns v.. 259, 732 Megarge v., ISIJ Tarbet v. Dassigney. 426 Tarleton, Lucas v., 595, 621, 627 Taswell, Harper v., 596, 619 Tate.D. Parrish, 744 Tatem v. Chaplin, 587 Taunton v. Costar, 414 Taylor v. The Adams Express Company, 410, 426,428,429 Comfort v., 129 V. Debar, 665 Ellis v., 630 V. Henniker, 455, 625 V. Lanyon, 599 LehrB.,383 V. Manderson, 130, 364, 637, 638 V. Morgan, 385 V. Owen, 541, 542 Potter u., 661 V. Preston, 519 V. Royal Saxon. 423, 437 Skidmore v.,422 Stevenson v., 414 Ward v., 853, 357, 388, 415, 420, 423 V. WeUs, 439 Willard v., 531 ti. Zamira,450, 461, 462 & Collins. Bohun v., 360 Teetor v. Robinson, 383 Temple, Sutton v., 513, 585 Templeman v. Case, 390 Tenbrook, Rankin r., 237, 258, 297, 336 Tennant v. Field, 630 Terry, Loomis v., 721 Terry's Appeal, 123 Executors v. Drabenstadt, 498 Tesmoud v. Johnson, 384 TABLE OF CASES. liii [The references are to the pages.] Tesseyman v. Gildart, 434 Thamm v. Hamburg, 244, 271 Thayer v. Society of [Inited Brethren, 258,335 The King v. J. Wilson, 338 Lessee of Brown, Cosby v., 262 Thiebaud v. First National Bank of Vevay, S67, 568 Thomas's Administrators v. Vonkapff 's Exec- utors, 536 Thomas's Appeal, 119 Thomas v. Gulp, 271 Delashmutt v., 645 V. Evans, 629 Glynn v., 625 Harlow v., 562, 563 V. Harries, 630, 635 V. Hayward, 540, 541 V. Hess, 394, 422 Ladd v., 630 Massey v., 285 V. Pettit, 357 Roe v., 219 V. Wright, 212, 260, 261, 270 Thompson v. Adams, 241, 263 Briggs »i.,210, 221, 355,464,465,492, 494 Glenn v., 270, 294, 325 V. Graham, 278 V. Guyon, 576, 577 KimbaUt;.,392 Kirkland v., 259, 274, 276 V. Lacy, 653 V. Lee, 889 Lichtenthaler v., 134 V, Mashiter. 761 V. Milford, 238 V. O'Hanlon, 718 V. Rose, 526, 533, 541 V. Sheplar, 499 V. Shoefleld, 437 V. Smith, 237 Stell v., 291, 298, 324, 628 Woodcroft v., 454, 635 Thoresly v. Sparrow, 178 Thornton v. Adams, 603 McGunnagle v., 26, 182 Railroad Co. v., 168 Simpson v., 228, 269, 318 Thoyts, Reed v., 600 Thre'r v. Barton, 630 Thropp's Appeal, 54 Thursby v. Plant, 524, 625, 526, 530 Tibbal v. Gaboon, 410, 429, 434, 437, 476, 478 Tlbbits V. Percy & L'Amoraux, 521 Tiernan v. Roland, 237 Tighe, Brown v., 572 Tiley V. Movers, 177, 221 Tilford V. Fleming, 326 Tilt V. Stratton, 269 Tindall, Cadwalader v., 106, 144, 354, 420, 452, 453, 760, 761, 763 Tinioum Fishing Co. v. Carter, 47 Tipping, St. Helen Smelting Co. v., 751 Tisdale v. Essex, 566 Titus V. The Railroad, 520 Tobias, Gillian v., 762 Shaw v., 436 Todd, Strickler v., 44, 45, 197, 365, 735 Tolford, Libby v., 580 Tomb, Cambria Iron Co. v., 283 Tombs, Goodtitle v., 286 Tomkies, Lloyd v., 551, 552, 553, 557 Lyon v., 697 Toplady, Lechmore v., 383 Toram, Commonwealth v., 154, 337, 338 Torr, Smith v., 643 Torrance v. Irwine, 358 Torrence, Brown v., 741 V. The Commonwealth, 165, 231, 338, 839 V. Irwin, 653, 654 Towns V. Boarman, 414 Townsend, Davis v., 519 V. Nathan, 721 People v., 754 Tottenham, Graffins v., 238 Tracy v. Albany Exchange Company, 546,571 V. Good, 385 Train, IMcDaniols v., 456 Tranger v. Sassaman, 356 Transportation Co. v. Chicago, 734 Trask, Flynn v., 5»i, 583, 588 Treaster v. Fleisher, 236 Treblecock's Case, 426 Trefts V. Pitts, 2.'j6 Treport s Case, 175, 335 Treut V. Hunt, 595 Trevellian v. Pine, 451, 468 Trevelyon, Jamieson v., 478 Trevil, Arundel v., 421 Tricker, Black v., 415 Black ])., 276 Trimbath v. Patterson, 166 Trimble's Appeal, 106 Trimble, Cook v., 264 Trunbly, Masteller v., 362 Trindle, Clark v., 277 Trinity Church, Clark »., 257, 278, 353, 375,375, 391 Tripner v. Abrahams, 282 Tritton v. Foot, 668, 671 Trout V. Kennedy, 360, 376 V. McDonald, 24 Stokely v., 278 Troutman v. May, 267 Troxell, Stofflet v., 258, 262, 268 Troxell V. Wheatley, 636 Trustees v. Grubb, 370 of Dickinson College, McCoy v., 236, 237 Tryon v. Carlin, 271 Rambler v., 261, 282 Tyson v. Passmore, 280 Tucker, BilUngs v., 282 TuUer, Scott v., 291, 292 Tully, Houser v., 653 TurnbuU, Gingell v., 436 Turner, Gaslight & Coke Co. v., 544 Jenkins v., 199 North v., 342, 353 V. Reynolds, 260, 377 Simonds v., 534 Turnpike Co., Breckbill v., 182 Turpm, Marrow v., 186 Tuton, Franklin v., 589 Twells, Jordan v., 177 Twembo, Broudlove v., 620 Twynam v. Pickard, 529, 630 U. Tiber v. Hickson & Clemens, 156 UUery, Stockdale v., 89, 738, 739 Ulrich, Beck v., 282 V. Berger, 138 V. Forney, 283 Ulsh II. Strode, 275, 276 Umstead, Bland's Administrator v., 713 Union Canal Co., Heilman v., 740 V. Keiser, 299, 330, 333 Petroleum Co. v., Bliven Petroleum. Co., 44, 197, 365, 735 United States, Darlington and Wife v., 224 V. Lowry, 202 V. Lukens, 202 University of Vermont, 551 Updike V. Henry, 393 Upham, Bemis v., 737 Johnson v., 630, 631 Upton V. Wetherwiok, 758 Uton, Atkins v., 565 Uxbridge v. Staveland, 542 liv TABLE OF CASES. [The references are to the pages,] Vail, Moore v., 551 ValloUn V. Seeguett, 868 Valloton V. Seignett, 586 Vanarsdall, Ewing v., 446, 446, 448, 449, 456, 458, 467 Vanatsdalen, Cornell v., 516, 682, 587 Van Brunt v., Schenok, 341 Van Buskirk, Burr v., 445 Levers v., 279 Vance, Ward v., 633 Vandamagen v. Wood, 716, 718 Vanderburgh v. Van Valkenhurgh, 439 Vandegrift, HaU v., 237 Vanderen, Morris v., 4, 237, 236 Vanderslice v. Garven, 267, 274 Van Dressor v. King, 146, 198, 358, 750 Vandyke, Commonwealth u., 428 Moody v., 261 Vanfleet, Muud v., 156, 157 Vanhorn, Brown v., 270 V. Frick, 278 Kirkpatrick v., 283 Van Home v. Grain, 624, 631, 560 Hubley v., 7, 8 Van Ingen, Simens v., 495 Van Nustrand, Van Wagner v., 562 Vanpool V. Commonwealth, 338, 339 Van Rensselaer v. Dennison, 14 Meeker v., 736 Vansciver, Hutchinson v,, 169, 332 Van Sickle, Commonwealth v.^ 752 Van Swarker's Case, 652 Van Valkenburgh, Vanderhurgh v., 439 Van Wagner v. Van Nostrand, 562 Varley v. Coppard, 636 Vasper v. Eddowes, 643, 644 V. Edwards, 643, 644 Vastbinder v, Wagner, 279 Vatel V. Herner & Gardner, 493 Vaughan v. Blanchard, 221, 468, 492 Evans v., 652 Eand v., 603 Vaughen v. Haldeman, 64 Vaughton, Robinson v., 341 Vaux, Snyder i;., 387, 388, 389, 390, 392, 410, 414, 421. 422 Vedder v. Vedder, 764 Vere v. Cawdor, 721 Vernon, MoGinnis v., 326, 328, 298 V. Smith, 634, 536 Vertue v. Beasley, 366 Vezia v. Viench, 107 Vicary v. Moore, 178, 182, 494 Vickery, Alford v., 639 Viench, Vezia v., 107 Vine, Forte v., 663 Vogelsong v. Beltzhooven, 123 VoUmer's Appeal, 49 Voorhis v. Freeman, 53, 143 Voneida, Funk v., 80, 223 Vonkapff's Executors, Thomas's Adminis- trators v., 636 Vose, Bills v., 455, 467 Vyvyan v, Arthur, 534, 535, 642 *. Wah Lee & Co., Warwick v., 746, 753 Waldo V. Hall, 496 V. Long, 561 Waldron v. Haupt, 842, 363 Walker's Case, 186 Walker, Bayne v., 681 V. Bush, 312, 315 V. Bute, 368 Erie Canal Co. v., 740 V. Gilbert, 682 Kimpton v., 177 Walker v. Moore, 498 V. Physick, 29, 32 Fowley v., 516 V. Quigg, 281 V. Richardson, 219 Smith v., 477 Wallace, Bagley v., 236, 260, 280 V. Blair, 419 Carr v., 46 V. Harmstad, 6, 6, 10, 11 , 13, 36, 524 V. King, 878 V. McLaren, 104 Quinn v., 128, 129, 140, 142, 357, 380, 381, 419, 449, 461, 452, 468, 461, 463, 632, 641, 643 Yeager v., 384 Wallack, Dermott v., 443 Waddington, Robinson v., 596, 619 Waddle, Pennsylvania v., 164 Wadham v. Marlow, 607 Wagenhlast v. McKean, 884 Wager v. Duke, 133 Vastbinder v., 279 Wagner, Brown v., 534 Enavely ii. 812 Waitman, Scott v., 610 Doe dem v. Miles, 268 Waitt V. Ewing, 128, 142, 856, 452, 590, 623, 632 Waller, Bennett v., 665, 631 Wallingtord, Dunlap v., 734 Wallis V. Saire, 357 V. Savllle, 641, 642 Wain V. O'Connor, 83 Walsh V. Commonwealth, 662 Watson v., bSJ Walter v. Ginrich, 433 Miner v., 122, 123 V. Eumhal, 377, 635 Walters, Erisman v.^ 342 Doe d. Mann v., 270, 865 Waitman v. Allison, 445 Beltzhoover v., 854, 199, 420, 453, 762 Walworth v. Abel, 376, 383 Walton V. Waterhouse, 678 Walz V. Rhodes, 30, 677, 579 Wandell, Ward v.. 167, 159 Wanshorough v Maton, 382 Ward V. Comly, 419, 433 V. Everard, 415 V. Harligan, 332 Maxwell v., 576 Reed)).. 39, 222 V. Shew, 648 V. Smith, 494 V. Taylor, 363, 357, 388, 415, 420, 423 V. Vance, 533 V. Wandell, 167, 159, & Grove v. Kelsey, 682 Ware, Kennedy v., 367 Warden v. Fosdick & Davis, 200 Wardle, Harrison v., 431 Warnig v. Dewberry, 601 Warneri). Aughenbaugh, 439, 440,441, 471,4'(9 ■184 Warner v. Caulk, 450 Mitchell v., 562, 563 & Hitchins v. Leonard, 579,581 Warren v. Brown, 212 V. Forney, 127, 140, 143 V, Hunter, 44 Lingham v.,G4i Noble v., 210, 221, 464, 49S Wehster v., 496 Yerger v., 341 Warrington v. Kennedy, 643 Warthman, Scott ii., 484 Warwick v. Wah Lee & Co., 745, 753 Water Street, 224 Waterhouse, Walton v., 578 Waterman v. Matteson, 411 V. Robinson, 414 TABLE OF CASES. Iv [The references are to the pages.] Waterman, Rogers v., 120 Waters, Weigall v., 581 Watrous, Green v., 280, 312 Watson, Churchill v., 360 V. Gregg, 237 V. Maine, 603 Mercer v., 236, 237 V. O'Hara, 516 V. O'Hern, 26, 175 V. Eynd, 94, 357, 862, 655 ScoUi;.,112 V. Walsh, 637 Watts, Hardy n. 329 V. Hornish, 128 Doe dem Martin v., 225 Moore v., 427 V. Welman, 564 & Parker v. Fox, 295 Wah Lee& Co., Warwicli v., 745, 753 Wakefield v. Binguley, 638 "Wakeman v. Linascy, 595 Washabaugh v. Entriken, 237 Way, Addleman v., 353 Shroud v., 326 Weakland, G-roft v.. 238 Weakly v. Eoyer, 301 Weaver's Appeal, 122 Weaver, Guthiio v., 393 Hossack v., 387, 421 Laoy v., 890, 891 V. Lawience, 887, 410, 412, 414, 418, 419, 420, 424, 486 Maulc v., 176 Seitzinger v., 663 V. Springer, 273 V. Wood, 20, 210 Webb V. Alexander, 496 Hammond v., 93 Parkeri'., 634 V. Russel, 175, 527 Weber, Moore v., 30, 487, 490, 491, 494, 513, 514, 615 V. Sherman, 448 Webster, Gould u,757 Hereford v.. 108, 144, 354, 762, 763 Skilton v., 739 V. Warren, 496 V. Webster, 261 Weckerly, Marsh v., 237 Weedon, Whitefleld v., 515, 639 Weeks ti. Speed, 440 Webinger, Milligaii v., 656, 71 3 Weidel v. Roseberry, 105, 441, 446, 473, 481, 484 Weigall V. Waters, r81 Weight, Evans v., 5'J7 Weiler v. Coleman, 469 Weiuer, Wolf u., 177, 465 Weir V. Mundell, 739 Weir's Appeal, 752 Weiser v. Zeisingcr, 382 Weisner, Wolf v., 221 Weitzel v. Marr, 342, 353, 357 Welch, Ellis v., 549, 650, 557 Kent v., 548 V. Myers, 603 Williams tt, 466 Welden, Riddle v.. 106, 144, 420, 452, 627, 761 Welker v. Welker, 300,330 Weiler. Doe dem CoUins v., 225 Parmenter v., 418 Welles, Camp v., 271 Wells, Bally v., 540 Forsyth v., 382 V. Fox, 235 V. Hornish, 746 Taylor D.. 439 Whetwell v., 443, 444 Wellsboro & Tioga Plaukroad Co., Com- monwealth v., 367 Welman, Watts v., 561 Wells V. Hornish, 96, 98, 103, 127, 129, 139, 140. 146, 343, 624, 649 Wells V. Moody, 626 Norman v., 4'J6, 523, 533 Welsh V. Anthony, 95, 148, 357, 361, 655 Darnes v., 265, 263 Fowler v., 553 V. Rose, 702 Lynch & Bowman v., 444, 469 V. Gates, 21 Welson V. Ellis, 68 Weltner's Appeal, 39, 1"! Wendell, Belknap v., 4:>5 Wenlock, Campbell v., 614 Wentroth's Appeal, 118 Wentworth, Commonwealth v., 752 Wertz, Dennibon v., 219 Wetherill v. Curry, 812 Wetherwick, Upton v., 758 West V. Dobb, 535, 536 V. Nibbs, 381, 631 V. Sink, 133 West's Administrator v. Sink, 134 Western Transportation Company v. Lan> sing, 615 Western University v. Robinson, 46 Weston, Ames v., 4i2 Belfour v., 581, 585 Westwood V. Ciowne, t; S Matures v., 538 Wetherwick, Due d. Upiou v., 758 Whalley 's Case, 4C3 Wharfs). Howell, 2G0 Wharton v. Blackwell, 609 V. Bothum, 265, 266 V. Naylor, 199, COO, 601 Wheatley v. Christman, 44 Troxell v., 536 Wheeler v. Crawford, 175, 580 Curtis v., 4.'<5, 457 V. Philadelphia, 738 V. Rice, 739 V. Winn, 237 Whetstone v. Davis, 546 Whetwell V. Wells, 444 Whildiu, Smith v., 747 Whilldin, Collins v , 37 Whisler, Bear v., 284 Whitaker v. Houghton, 384 Whitcomb v. Lawrence, 103, 128. 412 White V. Arndt, 876, 383 Barbour v,, 425 Biscop v., 653 Cliftt)., 419 V. DolUver, 417 Dolph v., 542 Kirkpatrick v., 114, 124 Mayfleldti., 141, 142, 143. 145, 147,198, 205, 842, 853, 356, 359, 380, 418, 451 Meyers v., 104, 353 V. Montgomery, 514 McClureu., 299 Prescottf., 663 Whitehead, Jones v., 83, 84, 85, 86, 87 Wilgus v., 580 Whitefleld v. Weedon, 615, 639 Whitehill, Christian ii., 520 Whitesides v. Collier, 395 Whitesides, Sunderland v., 730 Whitewell V.Welles, 443 Whiting V. Lake, 640 Whitliiilc, Marlin v.. 261 Whitlock. in re, 663 Whitman, Stoever v., 151 Whittaker. Tammany v., 95, 355, 858, 361, 655 Whittem, Dalton v., 381, 452 Whittick, Doe d, Jefl'eries v., 269 Whitton J). Peacock, 630, 544 WhoUery, Fisher v., 410, 4.;7, 470, 471, 474, 479 Wickenden, Ooborne v., 104 Wlckersham, Huston v„ 286 Ivi TABLE OP CASES. [The references are to the pages.] Wickey v. Eystcr, 30 Wicks V. Jordau, 768 Wien V. Simpson, /il3 Wiggins, Holden v., 137, 139 Wiggs, Roe v., 2i4 Wightmann, Dyer v., 210, 493 Wike V. Liglitner, 78, 203 Wilbraham v. Snow, 375, 383 Wilbur V. Loveland, 719 Wiley's Estate, 174 Wiley, Braddee i^., 316 Wilfong, Heritage v., 296, 297 Wilgus V. Whitehead, 680 Wilhelm, Narewood v., 243, 356, 872 Wilkesharre, etc.. Coal Co. v. Elliott, 730 Wilkins, Fletcher v., 412 f . Wingate, 186 Wilkinson, Carter & Co. v. Stewart, 388, 387, 422 Wilkinson, Markin v., 582, 684 V. Eogers, 537 Will, Murdock v., 428 Willard, Damarest v., 634, 538 V. Taylor, 531 V. Tillman, 534 Willet, Brooke v., 479 V. 'WiWet, 183, 382 Williams, Baitley v., 876 V. Burrell, 488, 489, 490, 493, 500, 519, 520, 631 V. Dougherty, 358 V. Earle, 535,536, 589, 543 Esling v., 41 V. Holmes, 760 Jones v., 737 V. Lewsey, 601 Martyn v., 530 NeTiUe v., 428, 429, 432, 436 Prescott v., 663, 564 Rashleigh v., 553 V. Eoberts, 189 Kubicum v., 168, 169, 171, 172, SOO, 832 ^1. Stivin, 6C9 Sumner v., biS V. Welch, 466 Wright v., 446, 447 Williamson, bmith»., 416, 446, 449, 450, 461,472, 473, 476, 481, 482, 484, 485, 641 Williard v. Tilgham, 534 V. Williard, 82 Willing, Sorber v., 238 Suber v., 2,S8 Willingham v. Jovce, 575 Willis V. Astor, 568, 573 Williston, Oyerton v., 54, 876, 383 Willoughby v. Backhouse, 625 Cle-ves v., 613 Fouldsi;., 375 Wilson V. Abbott, 213 V. Ames, 448, 449 V. Belinda, 426, 468 V. Bigger, 282 Brisben v., 103, 128, 129, 142, 198, 356, 367, 381 , 412, 419, 451 , 465, 591 V. Cochran, 494, 561, 662, 668, 664 Du£fD., 30,486,490,494 V. Ellis, 120, 146, 353 Farmers' and Mechanics' Bank v., 289 V. Finch, 614 V. Gibbs, 220 V. Gray, 132, 138, 142, 890, 395, 396, 413, 489, 442, 443, 444, 448, 476 V. Hobday, 418 V. Hart, 510 Huston v., 472, 480 Jourdain v., 533 The King v., 201, 338 V. McCarthy, 120 V. McElroy, 120, 146, 353 V. Nightingale, 595 Patterson d„ 281 Wilson, Shrewsbury v., 9S Wilt, E.E. Co. v., 341, 354 Sommeri)., 193, 200, 341 Wiltbank, Eretz v., 166, 167 Windham, Palgraye v., 601 Windrim v. Philadelphia, 739 Windsor, Hart v., 613 Winebrenner v. Colder, 370 Winegardner v. Hafer, 888 Winemiller r. Myers, 193 Wingate, Wilkins v., 186 Winn, Wheeler v., 237 Winpenny, Biegenwald v., 452 Nash v., 452 V. Winpenny, 256 Winrow v. Raymond, 272 Winsmore v. Greenback, 737 Winter's Appeal, 367 Winter, Steward v., 369 Winterbourne v Morgan, 70, 419, 632 Winters, Myers v., 734 Wireman v. Ditson, 119 Wise, Bank of Pa. v., :!8, 177, 316 Wiseman, Bragg v., 620 Wisner, Commonwealth v., 153, 155, 363 WisslerTJ. Hersey, 41 Wistar v. Ollis, 330, 333, 393 Wister v. McManes, 739 Wiswell V. Sampson, C93 Witherow v. Keller, 732 Withers, Clerk v., 637 Withy & Eeid, Jacques v., 545 Witmer's Appeal, 83, 89 Witty V. Matthews, 679 Woglam V. Cowperthwaite, 79, 108, 128, 141 142, 143, 147, 206, 484 Wolbert, Crow v., 43 V. Philadelphia, 738 Wolcott V. Sullivan, .^82 Wolf, Ameut's Executor v., 238 Kraff V. 324, 828 Mitchell v., 715 V. Weiner, 177, 405 V. Weisner, 221 Wollaston v. Hakewell, .'!29, 530 ii. Stafford, 643 WoUyer, Johnston v.. 4.57 Wood, Beaumont v., 449, 459, 461, 463 Buckley v., 200 V. Clarke, 106, 761 V. Leadbitter, 519 Long v., 161 Lord Banbury v. 426 Odes v., 286 Vandaraagen ?'., 716, 718 Weaver v., 20, 210 Woodbridge, Doe v., 216 Woodburn, Poor v., 476, 478, 483 Woodbume v. Eenshaw, 495 Woodcroft V. Thompson, 454, 635 Woodford, Allen v., 428 Woodman v. Good, 82, 91, 92 WoodrutTv. Greenwood, 553 Root v., 439 Woods, Atwater v., 734 V, Lane, 257 V.Nixon, 873, 374,887, 416 Woodward, Smitli v., 407 Wouley, McMuUen v., 662 Wootley V. Gregory, 219 Workman v. Mifflin, 210, 224 Worley v, Meekley, 1.^3 Worrell, Jacobs v,, 45 Worrall v. Ehoads, 41, 636 Wort V. Jenkins, 360 Worthington, Easton r . 387, 410, 421, 436, 472. 474,476, 479, 4S0, 483, -IS-I Wotton V, Hele, 548, fj6:', 656, 557 Wright V. Armstrong, o86 Blythe v., 163 Bristow v., 607 TABLE OF CASES. Ivii [The references are to the pages.] Wright, Bristow v., 466 Clement d.,376, 889, 422 V. Clendenning, 300 V. Deacon, 426 V. Funck, 478, 483 V. Glendenning, 332 V. Gnier, 376, 382 Hall v., 545 Hellings v., 418, 422, 449, 456 HiU v., 450, 461 Prescott v., 375 Price v., 390 V. Quirk, 431 Smith v., 598 Thomas ti., 212, 260, 261, 270 V. Williams, 446, 417 Wyant v. Dieflendafer, 91 Wyatt, Francis v., 760 Hajiley v., 760 WyckoflF, Dunham v., 414 Wyman v. Ballard, 561 Wynick, Kunckle v., 32, 174, 184 Wynkoop v. Wynkoop, 393 Wynn, Owens v., 642 Wyoming Coal and Transportation Co. v. Price, 224 Yates V. Cole, 530 V. Eastwood, 597 ti. Ratledge,601 Yeager v. Wallace, 384 Yeaney. Cratt «., 357 Yeat, Clark v., 171, 173, 299, 331 Yelverton v. Burton, 114, 118, 124 Yerger v. Warren, 341 Yost V. Heffner, 111 Lloyd v., 109, 114 Young V. Alges, 284, 312 Crosse v., 551, 552, 557 Ghegan v., 23, 32, 174 V. Leedom, 734 Herdic v., 382, 887, 888, 410, 417, 421, 422, 470, 471, 474, 475, 476, 479 V. Kimball, 387, 414, 415 Yonngblood v. Lowry, 761 Youngman, Clement v., 271 Z. Zamira, Taylor v., 450, 461, 462 Zeidler, Ferris v., 295 Zeigler v. Fisher's Heirs, 276 V. Sprenkle, 432 Zeisinger, Weiser v., 382 ZeUt). Arnold, 193 V. Ream, 353 Zeutmyer, Herbaugh v., 534 «. Mlttower, 264 Ziegler, McNail v., 391 Zimmerly v. Road Commissioners, 171 Zouch V. Willingate, 216 Zubler, Sohraok v., 257 TABLE CONSTITUTIONAL AND STATUTE LAW. I. CONSTITUTION OF PENNSYLVANIA. [the EEFEKENCES ABE TO THE PAGES.] Art. V, Sec. 3. Certiorari, 299, 330 Injunctions, 738 Sec. 10. Certiorari, 169, 299, 330 Sec. 12. Magistrates, 166, 323 Art. V, Sec. 20. Equity, 367 Injunctions, 83, 88, 738 Art. XVI, Sec. 8. Taking private property, 224 II. BRITISH STATUTES. [the EETEBENCES AEB to the pages. — BLACK FIGimES EEFEE TO TEXT OP statute] 62 Hen. Ill (Marlebridge),' c. 3. Waste, 80 c. 4. Distress, 65, 97, 146, 194, 198, 592, 624, 625, 626, 635 c. 15. Distress off premises or on higliway, 64, 194, 197, 454, 468, 593, 637 c. 23. Waste, 89, 93 6 Ewd. I (Gloucester), 0. 1. Costs in ejectment, trespass, and replevin, 243, 342, 397, 477 C. 5. Waste, 80, 89, 90, 93 c. 13. Waste, 80, 89, 93 13 Ewd. I {2d Westminster), c. 2. Replevin, 397 c. 14. Waste, 81, 89 c. 24. Trespass on the ease, 91, 178, 192, 194, 375, 379, 397, 731 732 18 EdW. I (Quia Emptares), c. 1. 2, 7, 8, 11, 13, 96 5 Rio. II, c. 7. Forcible entry, 152, 338 15 Eic. II, c. 2. Forcible entry, 152, 338 8 Hen. VI, c. 9. Forcible entry, 152, 333 11 Hen. VI, 5, Waste, 81 7 Hen. VIII, o. 4. Replevin, 399, 477, 484 23 Hen. VIII, c. 15. Costs in trespass, 342 32 Hen. VIII, c. 32. Action of debt, 68 c. 34. Assignee of reversion, 151, 176, 216, 524, 526, 527, 528, 530 c. 37. Action of debt by execu- tors and administra- tors, 185 1 & 2 Phil. & Mary, c. 12. Impounding of dis- tress, 68, 69, 97, 146, 194, 454, 593, 635. 636 31 Elia., c. 11. Forcible entry and detainer, 152, 338 4 Jas. I, c. 3. Costs in trespass, 342 Costs in replevin, 400, 477 21 Jas. I, c. 16. Forcible entry and detainer, 152 338 17 Chas. II, c. 7. Distress, 98, 400, 401, 641, 644 Replevin, 97, 400, 401, 441, 473, 477, 481, 482, 593, 644 19 Chas. II, c. 6. When absentees considered dead, 226 22 & 23 Chas. II, e. 9. Costs in trespass, 342, 361 29 Chas. II, c, 3. Frauds, 55 32 Chas. II, 0. 2. Habeas corpus, 426 2 Wm. & M., c. 5. Distress, 692,694, 595, 597, 598, 6ia, 619, 620, 621, 630, 640 8 & 9 Wm. Ill, c. 12. Costs in ejectment, 283 8 Anne, c. 14 or 18. Rent out of proceeds of sheriff's sale, 107, 592, 594, 599, 600 Distress, 611, 612, 613 U Geo. II, 0. 19. Use and occupation, 179 Apportionment of rent, 226 Trespasser a5 iniiio, 690, 691, 694 Fraudulent removal, 602 Distress, 604, 60.'i, 606 Replevin bond, 608 lyectment, 611, 612 Distress and replevin, 613, 614, 619,621,631,633 3 & 4 Wm. IV, c. 42. Wager of lavf , 373, 631 (lix) Ix TABLE OF CONSTITUTIONAL AND STATUTE LAW. III. ACTS OF CONGRESS. [the references are to the pages.] 1776, July i. Declaration of Independence, 2, 10 1790, April 30. Foreign ambassadors, 77, 108, 141, 738, 769 1828, May 19. Rules of court, 109 1867, Bankruptcy, 112 1872, June 1. i;iectment, 235 IV. REVISED STATUTES OF THE UNITED STATES. [the references are to the pages.] Sections 4063 and 4064. Foreign ambassadors, 761 V. ACTS OF ASSEMBLY. [the references are to the pages. — BLACK FIGURES REFER TO TEXT OP ACT.] 211, 212, 214, 235, 236, sections 8 and 9, 244, 268, 273, section 12, 287, section 13, 289, 290, 291, 292, 296, 298, 299, 300, 301, 321, 323, 324, 326, 332, 342, 34.5, 377, 378, 381, 388, 403, 411, 412, 418, 419. 427, 429, 430, 431, 446, 4,t4, 475, 477, 478, 592, 594, section 1, 59.5, section 2, 597, section 8, 598, section 4, 599, section 6, 602, section 6, 604, section 7, 605, section 10, 606. section 11, 608, section 14, 610, 611, 619, 620, 623, 630, 638, 639, 649, 600, 652, 746, 749, 734, 766, 771 1772 March 21st, Northumberland County constituted, 6J8 1773 February 26th, Westmoreland County constituted, 6u8 1775 March 18th, recording act, 19, 21 1777 January 28th, confirming certain acts prior to Revolution, 4 1779 April 3d, replevin, exceptions to, 404, 477, 478 November 27th, divesting act, 3, 7, 9, 10, 11, 13 1781 March 28th, Washington County con- stituted, 658 April 9th, land office, 7, 11, 12, 152 1782 April loth, fences in Philadelphia, 672 1783 September 26th, Fayette County con- stituted, 658 1784 March 27th, fence law, Northumber- land and Westmoreland counties, 50, 657, 663, 664, 665, 666, 669, 670, 671, 072, 673, 674, 680, 632, 6M, 693, 694, 714 September 9th, Franlilin County con- stituted, 6.58 September 10th, Montgomery County constituted, 658 September 29th, act on escheats, 12 1785 February 13th, act supplying habeas corpus, 426 February 18th, penal law, 203 March 26th, statute of limitations, 236, 244, 245, 258, 286 1786 March 4th, Dauphin County consti- tuted, 658 September 2.5th, Luzerne County con- stituted, 6.59, 664 1787 September 11th, right of common in Pittsburg, 46 September 20th, Huntingdon County constituted, 659 September 29th, intestate act, 4 1788 September 24t.h, Allegheny County constituted, 6.59 1789 September 19th, MilBiu County con- stituted, 669, 664 1700 Estate of intestate decedent reverts when, 4, 8 Real estate made liable to sale on ex- ecution, 302 Forcible entry, 153, 338 Swine act (repealed), 662 Fences, five feet high, 6G2, 663, 664, 665, 666, 667, 693, 694, 711, 712 1701 Confirming prior acts, 4 1705 An act for the better settling of intes- tate estates, 8 Execution, 302 Replevin, original act on, 402, 428 Swine law, 103, 667, 668, 672, 673, 674, 680, 714, 715, 716 1713 March 27th, disclaimer in trespass, 345, 360 1713 March 27th, limitations, 37, 182, 186, 195, 342, 345, 377, 379, 389, 402, 411 1715 March 28th, assignability of claim- property bond, 437 1721 February 24th, party walls and fences in Philadelphia, 48, 49, 670, 672 1722 May 22d, party applying for a writ of error must make oath or affirmation, 160 1729 May 22d, distress for poor tax, 98 May 10th, Swine, 103, 665, 669, 671, 672, 673, 714 May loth, Lancaster County constitu- ted, 658 May lOth, fences, 663, 664, 665, 666, 667, 670, 674, 675, 678, 683, 693, 711 1749 August 19th, York County constituted, 658 1750 January 27th , Cumberland County con- stituted, 658 1752 March 11th, Berks County constituted, 658 March Uth, Northampton County con- stituted, 658 1763 March 4th, relative to trespassing cat- tle and horses, 664, 665, 666, 607, 671, 672, 673, 674, 675, 678, 680, 683, 693, 694 1770 February 24th, Acknowledgment act, 24 Distress obsolete, 98 1771 March9th, Bedford County constituted, 658 1772 March 21st, statute of frauds, 19, 55, 218 March 21st, landlord and tenant act, 5, 13, 14,21, 22, 25, 36, 69, 60, 65, 69, 77,78, 79, 85, 96, 97, 98, sections 1, 2, 3, 6, 6, 7, 14, 99, 100, 102, 103, 105, 107, 108, 125, 126, 127, 129, section 4, 130, 131, 132, 133, 139, 147, 152, 171, 188, 190, 191, 195, 197, 198, 20.1, 205, 206, 207, 208, ACTS OP ASSEMBLY. Ixi [The references are to the pages.— Black figures refer to text of act.] 1789 September 26th, Delaware County con- stituted , 659 1791 April IStli, abatement of actions, 405, 410 1794 April 19th, decedents, 10, 766 1795 April 13th, Lycoming County consti- tuted, 659, 664 April 17th, Somerset County consti- tuted, 659 1796 February 9th, Greene County consti- tuted, 669 1798 March Jlst, Wayne County constituted, 659 1799 March 1st, justices of the peace, 685 1800 January 23d, Adams County consti- tuted, 659 February 13th, Centre County consti- tuted, 659, 664 March 7th, relative to Northumberland County, 673 March 7th, fences in certain counties, 50 ■ March 7th, repeal of an act of, 664 March 11th, repeal act of limitation in part of Luzerne County, 245 March 12th, Beaver County constitu- ted, 659 March 12th, Butler County constituted, 659 March 12th, Warren County consti- tuted, 669 March 12th, Crawford County consti- tuted, 659 March 12th, Erie County constituted, 659 March 12th,Mercer County constituted, 669 March 12th, Armstrong County consti- tuted, 660 March 12th, Venango County consti- tuted, 660 March 20th, reviving swine act of May 10th, 1729, in certain counties, 669 1802 April 6th, road taxes, 30, 38, 103, 135, 137, 462, 503 April 6th, proceedings of purchaser at sheriffs sale to obtain possession 303 312 1803 March 28th, sheriff (failure to pay over), 747 March 30th, Indiana County consti- tuted, 660 April 2d, estrepement for waste or tres- pass, 81, 86, 239, 245 1804 March 25th, McKean County consti- tuted, 660 March 26th, Clearfield County consti- tuted, 660 March 20th, Jefferson County consti- tuted, 660 March 26th, Potter County constituted, 660 March 26th, Cambria County consti- tuted, 660 March 26th, Tioga County constituted, 660 April 3d, taxes, 30, 38, 103, 135, 137, 184, 462, 503 1805 March 25th, fences protruding in river Schuylkill, 673, 674 April 1st, as to Luzerne County, 664, 673, 674 April let, swine in certain counties, 669 1806 March 2]st, ejectment, 106. 203,204, 207, 230, 233, 234, 239, 246, 272, 274, 275, 285, 359, 591, 651, 634 1807 April 7th, fences in borough of Somer- set, 664, 673 April 7th, Fayette County (part of), 669 Act appointing judges to report on British statutes in force, 4 1809 1810 1811 1814 1815 1816 1817 April 13th, ejectment, 234, 239, 240, 246. 255, 259, 266, 273, 274, 276 April 13th, stray law, 103, 388, 394, 405, 406, 665, 666, 667, 671, 672, 674, 675, 682, 685, 694, 716, 719 March 28th, fences in Washington and Allegheny counties, 50, 665, 667, 670, 673, 679. 716 March 11th, relative to writs of error, 160, 300 March 23d, trespass by dogs in certain counties, 700 February 6th, extends stray law to Montgomery and York counties, 680 February 6th, as to part of Fayette County, 665, 669, 673, 680 February 21st, Susquehanna County constituted, 660 February 21st, Bradford County con- stituted, 660 March 10th, certiorari, 171, 331, 332 March 20th, hundred dollar act, 137, 138, 153, 169, 406, 671,685 March 20th, fence-viewers, 680 March 20th, stray law extended to Montgomery and York counties, 665, 678, 680, 694 March 1st, SchuylkiU County consti- tuted, 660 March 6th, Lehigh County constituted, 660 March 27th, rams at large, 681 March 31st, joint tenancy, 15 February 16th, Lebanon County con- stituted, 660 March 22d, Columbia County consti- tuted, 660 March 22d, Union County constituted, 660 March 25th, repealing act March 11th 1800, 245 March 27th, limitation, 182 March 29th, trespass by rams in cer- tain counties, 681, 682, 719,720 March 29th, trespass by dogs, 706 April 26th, extending stray law to most of State, 665, 671, 672, 682, 694 February 26th, fence law in certain counties, 50, 660, 673 March 14th, extending act of March 29th, 1813, as to rams, 682, 719 March 14th, tenant in possession enti- tled to benefits of 2d section of act 1802, 303, 304 March 15th, repealed act 1784 in Fay- ette County, 682 March 22d, supplement to act 1772, 60, 290 March 22d, as to powers of aldermen in trespass and trover, and limits ju- risdiction of justices of the peace, 139, 343, 345, 346, 362, 379, 406 March 26th, Pike County constituted, 660 March 25th, revived fence law in Fay- ette County, 666, 673 March 26th. exemption act, 109 March 26th, relative to referees, 343, 347, 379 March 11th, as to limitation act, 245 March 13th, tax sales^ 512 January 25th, extending act of March 29th, 1813 (as to rams), 682 February 13th, as to referees, 343, 347, 379 Febmary 17th, repeals act of March, 1784, as to Mercer County, 666, 669, 673, 682 March 2M, race-horses, replevin, 388, 304, -406. 407 Ixii ACTS OF ASSEMBLY. [The references are to the pages.— Black figures refer to text of act.] 1818 March 24th , fences in Greene and West- morelancl counliea, 666, 669, 682 1819 March 6th, extending stray law, 103, 666, 671,072,078, 682, 683, 694, 716 1820 March 20th,trespas3and fencesinFay- ette County, 666, 684 March 22d, Perry Co. constituted, 661 March 28tn, as to constables, 747 March 28th, as to swine in Fayette County, 666, 667, 670, 679, 684, 716 1821 March 21st, exemption, 109 March 29th, exemption, 109 March 31st, exemption, 109 April 2d, trespass and fences in Cum- berland and Ferry counties, 666, 667, 670, 679, 684, 716 1822 March 20th, party walls and fences in Philadelphia, 670, 685 March 29th, estrepement in waste and trespass, 81, 83, 84, 86 March 30th, as to swine in Philadel- phia, 685, 714, 716 1823 March 31st, ejectment, 240, 247 1824 March 29th, ejectment, 240, 248 March 29th, trespass and trover, 94, 343, 347, 360, 861, 379, 661, 654, 665 1825 March 25th, landlord and tenant law In Philadelphia, 5, 13 14, 36, 40, 68, 60^ 97, section 1, 101, 102, 125, 126, 141, 143, 145. 162, 155, 156,169,160, 171, 189, 190, 191, 206, 210, 218, 228, 232, 235, 301, 764 1828 April r2th, exemption, 109 1830 April 3d, landlord and tenant, 35, 58, 60, 152, 159, 160, 166, 170, 171, 173, 210, 228, 235, 302, 328, 329, 332 1831 March 2d, Juniata County constituted, 661 March 29th, when orphans' court may decree sale of decedent's land, 227 April 4th, trespass; t,y dogs, 70'/, 720 1832 January 10th, extends stray law, 666, 671, 672, 678, 685, 694 March 29th, dower, 103 1833 March 27th, appeal from judgment of justice, loii March 27th, estrepement in waste, 81, 86 April 8th, intestate act, 38 April 8th, trespass and trover, 94, 343, 348, 379, 654 1834 February 1st, ejectment, 240, 248, 284 February 2-)th, executors and adminis- trators, 39, 104, 109, 110, 180, 181, 182, 185, 196, 226, 227, 405,410,414, 766 April 1.0th, elections, 683 April IRth, abatement of actions, 410 April 1.5th, ta.\ation, 30, 38, 103,136, 184, 402, 503 April 35th, assessors, 511 April 15th, extending stray law, 666, 071,072,678, 685,094 June loth, execution, 210 1836 April Ist, Monroe County constituted, 001 April 22d, ejectment, 273 June 6th , equity powers of courts, 82, 86 June ll!th, road law, 712 June 13th, actions of waste, 92 June 13th, service of writ in trespass, 343, 348, 438 June 13th, domestic attachment, 111, 114 June 13th, amicable actions, 285 June 13th, service of writs, 270, 273, 295, 348 June 10th, insolvent act, 111, 343 June 16th, executions, 66, 60, 108, 112, 131, 132, 133, 223, 226, 227,230,269,300, 301, 302, 304, 311, 812, 318, 348, 638, 749 1836 June 16th, jurisdiction and powers ol courts, 83, 88 1839 March 11th, Clarion County consti- tuted, 601 .^ ^ J June 21st, Clinton County constituted, 1840 April 1st, trespass and trover, 94, 95, 343,349,379,664 „^„ „^^ 1841 May 5th, ejectment, 240, 241, 248. 256 1842 March 11th, fence-viewers and fences, 49, 686, 712 April 4th, Wyoming County consti- tuted, 661 1843 February 15th, Carbon County consti- tuted, 661 April 18th, Elk County constituted, 661 1844 May 0th, bond in Injunction and es- trepement, 81, 86, 88, 242, 738 1845 March 20th, bail and attachment, 163, 108, 169, 170 March 20th, appeal from judgments of justices, 163 April 12th, abatement of action, 407 April 15th, exemption of wages, 112, 125 1846 February 26th, Blair County consti- tuted, 661 April 8th, injunction, 738 April 20th, trespass, 344, 349, 655 April 21st, ejectment, 240, 249, 256,283 April 22d, exemption, 112 1847 March 3d, fence-viewers, 687 March 15th, Sullivan County consti- tuted, 661 1848 April 10th, estrepement In waste, 81, 87 April 10th, Forest County constituted, 661 April 11th, decedents' estates, 433 April 11th, married woman's act, 220, 415 1849 March 9th, sale of landlord's reversion by order of orphans' court, 6 March 20th, Lawrence County consti- tuted, 661 April 5th, swine in Philadelphia, 687, 714, 716 April 9th, exemption act, 35, 106, 107, 108, 109, 111, 112, 113, 114, 115, 116, 119, 121, 123, 141, 144, 168, 163, 210, 389 638, 750 April 9th, ejectment, 240, 249 April 9th, orphans' court, 227, 230, 269, 317, 319 April 9th, abatement of actions, 407 April 9th, bail and attachment, 163, 170 April 10th, party walls pass by convey- ance, 49 1850 April 19th, Fulton County constituted, 661 April 21st, ejectment, 240, 249 April 22d, estrepement in waste, 81, 86, 87, 395, 403, 417 April 25th, action of covenant, 14, 92, 173, 176 April 25th, taxes, redemption from sale ifor, 512 April 25th, married women, 415 April 25tli, right of way through wood- land, 41 April 26th, exemption, widows, 110, 114, 115, 120, 121, 1J3, 760 April 26th, ejectment, 241, 249, 265, 266 April 80th, ejectment, 241, 250, 266 May Sd, Montour County constituted, 661 May 8th, ejectment, 240, 211, 249, 250 1851 April 14th, as to dogs, 344, 349, 707. 720 April 14th, fence-breaking, 688, 695 ACTS OF ASSEMBLY. Ixiii [The references are to the pages.— Black figures refer to text of act,] 1851 April 14th, exemption (widows), 110, 114, 115, 123, 760 Aprill4th, service of writof ejectment, 241, 250, 273 April 15th, actions at law, abatement of, 196 1862 March 27th, damages Clarion River, 652 May 4th, dissolution of injunction, 81 1853 March 17th, State not subject to in- junction, 738 April 18th, ejectment, 241, 251 April 18th, service of writ of eject- ment, 273 April 18th, extends swine act of 1705 to Tioga and Potter counties, 669, 688 1855 March 2d, Snyder County constituted, 661 March 13th, taxes, redemption from sale tor, 512 April 21st, party walls in Philadelphia, 48 April 26th, animals at large in Warren and Crawford counties, 670, 679, 688, 716 April 26th, as to referees in actions of trespass, 344, 350, 380 April 26th, disabling corporations, 25 April 26th, as to actions for injuries, 196, 197 April 26th, strays in Warren and Craw- ford counties, 688, 689, 719 AprU 27th, Chester Couuty, 679, 689 April 27th, mortgage of leasehold, 21 May 7th, building inspectors and walls, 49 May 8th, estrepement in waste, 81, 87 1856 March 22d, limitation, 245 April 11th, party walls, 49 April nth, acknowledgments, 24 April 22d, index in ejectment, 241, 242, 251, 265, 272, 275 November 6tdi, bond in injunction, ex- tends act of March 17th, 1853, 738 December 5th, ejectment, failure of defendant to appear, 275 December 10th, supplement to act of April 26th. 1855, 197 1857 February 14th, courts, equity powers of, 82, 83, 88 March 24th, cattle and swine in Lan- caster County, 670, 679, 689, 716, 719 April 8th, exemption, 115, 750 AprU 15th, swine in Erie County, 670, 679, 689, 716, 719 1857 April 18th, costs in distress, 149 April 24th, fences in Erie County, 50, 667, 690 1858 March 6th, stray act of 1807 extend- ed to mules, 103, 678, 690 April 13th, ejectment, 241, 251, 273 1859 February 26th, Venango County, 679, 690, 716, 719 April 8th, exemption decedent's estate, 116 April 13th, act of limitation in eject- ment, 237 1860 February 15th, as to rams at large, 719 February 15th, sheep in Clarion County, 690 February 22d, Swine act of 1705. in Delaware County, 670, 679, 690, 716, 719 March 29th, Cameron County consti- tuted, 661 March 30th, trespass, 344, 350, 651 March 31st, penal act, right of way, 44. Nuisance, 45. Forcible entry, 62. Indictment, 63, 85. Trespass, 93. Tres- , pass, 71. Forcible entry, 153. Forc- ible entry, 155. Indictment, 201, 203. Bawdy-house, 225. Forcible entry. 230. Forcible entry, 337, 338, 340, 344. Trespass, 350 1860 March 31st, Trespass, 351. Forcible detention, 363. Nuisance, 366, 379. Gambling, 388. Gambling instru- ments, 394. Gambling, 408. As to remedies, 651. Landmarks, 714. Tres- pass, 723. Trespass, 726. Nuisance, 737, ^4 April 3d, lien on real estate of sheriff, 748 December 5th, plea in ejectment, 242, 251 December 5th, pleading, 274 1861 March 22d, supplement to act April 3d, 1830, 60, 163 April 17th, trespass, 344, 351, 651, 726 May 1st, trespass, 344, 351, 726 May 1st, aliens, 25 May 1st, supplement to Act of 1830 (Appeal), 163 1862 January 31st, tax sales, 511 March 11th, building inspectors, 50, 667, 670, 671, 672 March 22d, Canada thistles, 72, 742 April 2d, rams, etc., 670 April 8th, trespass by dogs, 707 April lOtn, as to marking logs, 469 April nth, swine and fences in Alle- ghany and other counties, 50, 665, 670, 671, 672, 679. 69:-;, 716, 719 April nth. estrepement in waste, 81,85, 87, 212, 252 1863 April 2d, estrepement in waste and trespass, 81, 242, 252 April 4th, drainage, 50 April nth, animals at large in Phila- delphia, 705 April 14th, animals at large in part of Montgomery County, 704 April 15th, swine in Susquehanna County, 679, 694 April 22d, ejectment, 242, 251, 252, 265, 272 December 14th, ejectment, 242, 252, 256 Decemberl4th, landlord andtenantact, 60, 159, 171, 211, 214, 235, 291, 296, 319, 323, 324, 325, 330, 332, 335 1864 March 4th, supplement to act of April 3d, 1830, 164 March 23d, animals at large in part of Luzerne County, 704 April 9th, animaLs at large in Bradford County, 679, 694, 719 April 18th, drainage, 50 April 27th, costs in partition, 242, 253 May 7th, animals at large m part of JSforthampton County, 705 1865 February 3d, fees, 160, 162 February 28th, lost lease in Philadel- ■ phia, 60, 228, 333,334 March 4th, swine in Franklin County, 691 March 14th, landlord and tenant, 320 March 21st, animals at large in part of Lancaster County, 703 March 21st, animals at large in part of Bucks County, 703 March 22d, fence-viewers, 60, 694 March 23d, aliens, 25 March 23d, animals at large in part of Union County, 705 March 23d, animals at large in part of Northumberland County, 705 March 23d, fence-breaking, 50, 72, 695 March 24th, supplement to act Decem- ber 14th, 1863, 60 March 24th, certiorari, 159, 165, 168^ 171, 172, 173, 300. 3 U, 330, 331,-332. March 27th, appeals, affidavit in, 328 £ Ixiv ACTS OF ASSEMBLY. [The references are to the pages. — Black figures refer to text of act,] 1865 March 27th, evidence in ejectment, 266 March 31st, costs in distress, 148 April 10th. animals at large in part of Mercer County, 704 April 10th, evidence, 277 November 27thj exemption, 116,750 1866 February 14, injunction appeals, 739 March 27th, repeal of act of March 4th, 1865, 091 April 3d, costs of distress, 148, 160 April 3d, costs under act Apnl 3d, 1830, 162 April 10th, extends a stray act to Leb- anon County, 691 April 11th. supplement to act, Dec. 14, 1863, 60, 321, 326 April 11th, animals at large in part of Blair County, 703 April 11th, animals at large in part of Northampton County, 705 April 11th, animals at large in part of Berks County, 703 April 11th, animals at large In part of Adams County, 702 April 30th, repealing part of act Decem- ber, 1863, in Crawford County, 322 June 26th, animals at large in part of Union County, 705 June 26th, animals at large in part of Northumberland County, 705 June 26th, animals at large in part of Luzerne County, 704 October 31st, Forest County constituted, 661 1867 February 14th, injunction, appeal from, 739 February 20th, supplement to act De- cember 14, 1863, 6U, 322 Mferch 13th, indictment, Philadelphia County, 203 March 26th, limitation of powers of corporations, 25 April 2d, animals at large In part of Montgomery County, 704 April 3d, animals at large in part of Blair County, 703 April 3d, trespass by dogs, 707 April Sd, animals at large in part of Lancaster County, 704 April 3d, extending swine act to Craw- ford and Erie counties, 691 April 8th, animals at large in part of Northampton County, 705 April 8th, trespass in certain counties, 727 April 10th, extending a stray act to Lebanon County, 691 April 10th, animals at large in part of Beaver County, 703 April 10th, animals at large in part of Erie County, 703 April 10th, animals at large in part of Mifflin County, 704 April 10th, animals at large in part of Lawrence County, 704 April 10th, animals at large in part of Wyoming County, 705 April 10th, animals at large In part of Susquehanna County, 705 April 10th, ejectment costs In Erie County, 212, 253 April 10th, relates to trespass in part of Lawrence County, 701 April 13, animals at large in part of Northumberland County, 704, 705 April 13th, animals at large in part of Northumberland County, 705 1868 February 28th, fence-viewers, 687 March 12th, animals at large in part of Luzerne County, 704 March 12th, animals at large in part of Northumberland County, 705 March 18th, animals at large in part of Lycoming County, 704 March 22d, appeal, 328 March 23d, fences by railroad company in Erie County, 695 March 24th, animals at large in part of Warren County, 705 March 25th, appeal, 328 March 28th, fences by railroad company in Warren County, 696 April 1st, line fences in Erie Co , 697 April 1st, fees, act of 1830, 162 April 1st, cattle and swine at large in Chester County, 679, 698, 719 April 1st, repeals Chester County act of 1855, 688 April 2d, costs in distre-ss, 149 April 2d, animals atlarge in partof Sus- quehanna County, 705 April 4th, animals at large in part of Northampton County, 706 April 4th, animals at large in part of Montgomery County, 704 April 4th, animals at large in part of Montgomery County, 704 April 8tn, fences by railroad companies m Centre County, 698 April 11th, animals at large in part of Luzerne County, 704 April 13th, limits actions on sheriff's bonds, 748 April 13th, fences by railroad compa- nies in Erie County, 699 April 1-tth, animals at large in part of Lawrence County, 704 April 14th, animals at large in part of Lycoming County, 704 April 26th, repeal of 1st section of act of March 14th , 1865, which was a sup- plement to act of December 14tn, 1865, 321 February 18th, costs in distress, 149 February 25th, repeal of part of act of December 14th, 1863, 322 March 17th, animals at large in part of Luzerne County, 704 March 17th, animals at large in part of Montgomery County, 704 March 18th, drainage, 50 March 22d, costs in distress, 149 March 27th, animals atlarge in part of Warren County, 705 March 27th, animals at large In part of Venango County, 705 April 2d, animals at large in part of Butler County, 703 April 2d, animals at large in part of Dauphin County, 703 April 6th, action of trespass after two actions in ejectment, 242, 253, 344. 351 April eth, evidence, 168, 277 March 12th, tuxes, 512 April 9th, firing lands in Union County 72, 728 April9th,Tepealof stray act of April 3d, 1867, 691 April 9th, animals at large in part of Lancaster County, 704 April 10th, animals at large in part of Venango County, 705 April 10th, animals at large in part of Venango County, 705 April lOtn, animals at large in part of Venango County, 7a5 April 12th, trespass, mesne profits, 243, 253, 287, 344, 352, 862 April 13th, animals at large in part of Dauphin County, 703 ACTS OF ASSEMBLY. Ixv [The references are to the pages.— Black figures refer to text of act.] 1869 April 15th, repeal of act of May 4th, 1864, as to Lawrence County, 164 April 15th, evidence, 165, 266, 433 April 16th, animals at large in part of Lawrence County, 704 April 17th, supplement to act of May 4th, 1864, Mercer and Lawrence coun- ties, 164 April 17th, exempting sewing ma- chines, 117, 750 April 17th, animals at large in part of Berks County, 703 April 17th, animals at large in part of Dauphin County, 703 April 17th, extends act of March 28th, 1868, to Bradford, McKean, and Ve- nango counties, 699 April '2Qth, estrepement in waste, 81, 87 April 26th, aliens, 25 May 4th , estrepement in waste and tres- pass, 81, 87, 393,396 June 20th, repeal of part of act of De- cember 13th, 1863, as to Philadelphia, 60, 322, 330, 329 June 25th, supplement to act of Decem- ber 14th, 1863, 60 1870 January 20th, repeal of supplementary act of February 25th, 1869, 322 February 10th, animals at large In part ofBlair County, 703 February 18th, drainage, 50 February 23d, appeals, 328 February 24th, cattle at large in Erie and Crawford counties, 679, 700, 719 March 4th, exempting sewing ma- chines, 117, 141, 144, 760 March 11th, appeal, Dauphin County, 328 March 15th, animals at large in part of Warren County, 705 March 15th, animals at large in part of Wayne County, 705 March 15th, animals at large in part of Bucks County, 703 March 15th, animals at large in part of BuUer County, 703 March 24th, taxes, 30, 38, 103, 136, 503, 504, 609 March 28th, repeal of supplementary act of April 30th, 1866, 322 March 28th, animals at large In part of Sullivan County, 705 March 28th, animals at large in part of Lawrence County, 704 March 28th, animals at large in part of Warren County, 705 March 28th, animals at large in part of Indiana County, 703 March 29th, distress under act of 1825, extended to Pittsburg and Alle- ghany, 14, 59, 97, 101, 141, 189 April 1st, animals at large in part of Montgomery County, 705 April 1st, animals at large in part of Montgomery County, 705 April 4tn, animals at large in part of Lancaster County, 704 April 4th, animals at large in part of Venango County, 705 April 4th. animals at large in part of Union County, 705 April 5th, animals at large in part of Lehigh County, 704 April 5th, animals at large in part of Crawford County, 703 April 6th, appeal, Venango County, 328 April 13th, aniiuals at large in part of Bucks County, 703 April 13th, animals at large in part of Morthumbeiland County, 705 1870 1871 April 13th, fence-viewers, 687 April 14th, animals at large in part of Berks County,, 703 May 6th, fence-viewers in Philadel- phia, 50. 701 June 2d, hring lauds in certain coun- ties, 728 February 18th, animals at large m part of Luzerne County, 704 February 18th, animals at large in part of Butler County, 703 March 9th, animals at large in part of . Carbon County, 703 March 9th, animals at large in part of Carbon County, 703 March 9th, animals at large in part of Monroe County, 704 March 10th, drainage, 50 March 17th, fences m Mercer County, 701 ' April 5th, animals at large in part of Luzerne County, 704 May 6th, animals at large in part of Dauphin County, 703 May 6th, animals at large in part of Warren County, 704 May 6th, animals at large in part of Warren County, 705 May 6th, animals at large in part of Lehigh County, 704 May 9th, drainage, 51 May 10th, amendments in actions of re- plevin, 456 May 13th, Schuylkill County, obtaining possession, by purchaser at sheriff's sale, 308, 318 May 15th, action of replevin, plaintiff" may recover, 409, 417,423, 6o5 May 18th, appeal, Alleghany County, 328 May 19th, drainage, 50 May 19th, replevin bonds in Alleghany County, 409, 428 May 19th, exempts Lycoming County from act of June 2d, 1870, 728 May 20th, animals at large in part of Northampton County, 705 May 20th, anlhials at large in part of Wayne County 705 May 24th, animals at large in part of Sulliva,n County, 705 May 25th. animals at large in Lock Township, Juniata County, 667, 701 May 26th, animals at large in part of Crawford County, 703 May 29th, animals at large In part of Berks County, 703 May 29th, fences in Susquehanna County, 702 June 2d, animals at large in part of Berks County. 703 June 2d, animals at large in part of Berks County, 703 June 2d, estrepement will Issue in fa- vor of mortgagee, 82. 87 February 21st, animals at large in part of Wayne County, 705 March 6tb, limits use of act of Decem- ber 14th, 1863, 322. 324, 330 March 9tli, drainage, 50 March yth, Canadian thistles, 743 March 9th, animals at large in part of Montgomery County, 705 March 9th, animals at large in part of Butler County, 703 March 13th, animals at large in part of Crawford County, 703 March 19th, animals at large in part of Lawrence County, 704 March 21st, animals at large in part of Wayne County, 705 Ixvi ACTS OF ASSEMBLY. [The references are to the pages.— Black figures refer to text of act.] 1872 March 23d, costs in distress, 162, 148 March 23d, appeal, Erie and Golumbia counties, 328 March 23d, animals at large in part of Columbia County, 703 April 3d, ejectment, 243, 253, 266 April 3d, costs in distress, 148, 150 April 3d, animals at large in part of Wyoming County, 703 April 3d, animals at large in part of Butler County, 703 April 8th, party walls in Pittsburg, 49 April 9th, wages act, 117 April 9th, animals at large in part of McKean County, 704 1873 February 18th, estrepement, dissolu- tion of, 243, 254 February 19th. animals at large in part of Montgomery County, 705 February (19th, animals at large in part of Lawrence County, 7D4 February 27th, animals at large in part of Wayne County, 705 February 28th, animals at large in part of Lawrence County, 703. 704 February 28th, animals at large in part of Montgomery County, 705 February 28th, animals at large in part of Warren County, 705 March 12th, animals at large in part of Lawrence County, 704 March 18th, animals at large in Mercer County, 679, 702 March 18th, animals at large In part of Dauphin County, 703 March 18th, Mercei- County extends to it act of April 10th, 1867, 701 March 27th, animals at large In part of Lancaster County, 706 March 28th, animals at large in part of Dauphin County, 703 March 28th, animals at large in part of Montgomery County, 705 March 28th, animals at large in part of Warren County, 705 April 8th, animals at large in part of Westmoreland County, 705 April 10th, animals at large in part of Columbia County, 703 April 10th, animals at large in part of Bedford County, 703 April 10th, animals at large in part of Pilce County, 705 April 10th, animals at large in part of Lawrence County, 704 April 10th, animals at large in part of Butler County, 703 April 10th, animals at large in part of Lebanon County, 704 April 10th, animals at large in part of Wyoming County, 705 April 10th, bond in replevin in Phila- delphia, 409, 428, 434 April 10th, ram's act, March, 1784, in Huntingdon County, 693 April 12th, taxation in Philadelphia, 511 April 18th, animals at large in part of Lycoming County, 704 1874 January 20th, assessors in cities of 3d, 4th, and 5th classes, 511 February 13th, assessors in cities of 3d, 4th, and 5th classes, 511 April 1st, assessors in cities of 3d, 4th, and .5th classes, 704 May 8th, distress on chattels of a non- resident, 114, 118, 124, 142 May 11th, animals at large in part of Bedford County, 703 May 14th, releases a surety in certain cases, 140 1875 February 5th, jurisdiction of magis- trates in Philadelphia, 60, 156, 165, 290, 317, 318, 32 -i February 18th, authorizes writ of estrepement to be dissolved, 82, 8-5 March 6th, supplementto act of 14th of December, 1863, 60 1876 April 11th, asse.ssors in cities of 3d, 4th, and 5th classes, 511 May 2d, practice in action of trespass, 360 May 5th, assessors in cities of 2d class, 511 May 8th, trespass by raining, 344, 352, 380, 651 May 13th, exemption of certain musical instruments, 118, 141, 144, 750 1878 May 16th, animals at large in part of Crawford County, 703 May 22d, animals at large in part of Luzerne County, 704 May 22d, animals at large in part of McKean County, 704 May 22d, animals at large in part of Potter County, 705 May 24th, purchaser, at sheriff's sale of real estate, provision to obtain pos- session, 223,227, .302, 304, 307, 312, 318 June 3d, fish law, 47 June 12th, wages act, 118 June 12th, trespass by dogs, 707, 721 August 21st, Lackawanna County con- stituted, 662 1879 April 16th, tax collection in Philadel- phia, 30, 137, 462, 505, 609 June 11th manner of fixing tax rate in Philadelphia, 508, 609 June 11th, ejectment in certain cases, 243, 254 June 11th, trespass as to mesne profits, 72, 287 June 11th, evidence, 337, 341 June 11th, firing lands within the commonwealth, 729 July 7th^ gives aldermen and magis- trates jurisdiction in actions of tres- pass and trover except in cities of the 1st class, 344, 352, 362, 380, 430 1881 February 14th, tax law in PhUadel- phia, 507 P. L. 79, relating to game and fish, 47 May 24th, animals at large in part of Dauphin County, 703 June 8th, trespass on orchards, etc, 71, 72, 729 June 10th, taxing dogs, 710, 711 THE LAW OF PENNSYLVANIA, CONCEKNING THE RELATIOI^ OF LANDLORD AND TENANT. INTRODUCTION. 1. Real estate tenancies in Pennsylvania are derived from Eng- land, where the full rigor of the feudal system was introduced in the Xlth century, by "William of Normandy, commonly styled William the Conqueror. This monarch seized not only the crown-lands of England, but also the land of many of the Saxon chiefs who had opposed him on his invasion, or who subsequently engaged in rebellion against his authority. A large part of the land thus seized was granted by him to his partisans, as tenants or holders in capite, or in chief. These tenants in capite sub-granted to others for various consid- erations and on various conditions, some of which became so onerous and oppressive as to create general discontent and incite the people of England to frequent resistance to the crown, cul- minating, in the time of Charles I, with the dethronement and execution of that monarch, and in the suspension, during Crom- well's time, of all the military tenures and their appendages. On the restoration of the monarchy, in the person of Charles IT, all tenures held of the king or others were, with the exceptions of frankalmoigne, grand serjeanty, and copyhold, reduced to free and common socage, which means a tenure under certain and de- terminate service. 2. The theory of the English feudal system is, that all lands are held either immediately or mediately of the king, to whom they 1 (1) Z INTRODUCTION. must revert or escheat in cases of forfeiture or default of heirs or devisees. Under this theory, the kings of England claimed the right to appropriate and dispose of the lands discovered by their subjects, regardless of the rights of the aborigines. Under a commission from Henry VII, Cabot took possession, for the crown of England, of a large part of the continent of North America, and the sovereigns of England granted and dis- posed of the soil thereof at their will and pleasure. Their title was, however, not unimpeached, as the Dutch and the Swedes had already planted colonies along the banks of the Dela- ware, living together in peace and amity. The Dutch remained for years in possession of New York, the Spaniards of Florida, and the French of Canada and of the vast province of Louisiana, which stretched from the great lakes to the Gulf of Mexico, and from the Mississippi River to the Pacific Ocean. 3. King Charles II, by a charter made in 1 681, granted the prov- ince of Pennsylvania to William Penn and his heirs in free and common socage — ^the annual service of the grant being two beaver skins, to be delivered at the castle of Windsor, England — and the king reserving to himself and his successors the sovereignty of the province and one-fifth of all the gold and silver ore which might from time to time be discovered within its boundaries. By the seventeenth section of the charter, Penn and his heirs were authorized to parcel out the lands among purchasers, to be holden of himself and his heirs by such services, customs, and rents as to him or them should seem fit, and not immediately of the crown. 4. The statute of 18 Edward I, known as Quia Emptores terror- rum, which was made for the purpose of securing escheats to the lords paramount instead of to the immediate grantors of the fee, and to that end provided that in sales of land the grantee shall hold not of his immediate grantor, but of the chief lord of the fee of whom the grantor himself held, was, from the express wording of the charter to Penn, not applicable to Pennsylvania. The grantees of William Penn and his heirs, therefore, held immediately of him and them and of his and their successors. 5. By the Declaration of Independence of July 4th, 1776, the INTRODUCTION. 3 sovereignty of the British crown was transferred to the Common- wealth of Pennsylvania, and thereby the Penn family became its feudatories — still remaining, however, the owners of the unsold soil of the State, and in regard to their grantees still remaining the chief lords of the fee. It was soon evident that the possession by that family of such power and property was incompatible with the public good, and was inconsistent with the liberty and happiness of the people. The General Assembly, therefore, on the 27th of November, 1779, passed an act appropriating to the Penn family the sum of one hundred and thirty thousand pounds sterling, in consideration of their expectations, as well as in remembrance of the enterpris- ing spirit which distinguished their ancestor, and divesting them of their right to all the unsold soil of the State, excepting certain tracts known as manors. The Penns accepted the consideration, and by so doing made valid an act of questionable justness. On that acceptance by the Penns, their lordship merged in the Commonwealth with that formerly of the crown of England, and since then the unsold soil is held by the State, to be disposed of for the general good. 6. Independent of the title thus acquired by William Penn, he and his successors, and also the Commonwealth by purchases made at various times between 1681 and 1789, obtained the title of the Indians. The title to the connty of Erie was not obtained froiji either the Penn family or from the Indians, but was purchased from the Federal Government in 1789. 7. In regard to the laws regulating the control and title to prop- erty in Pennsylvania, the charter to Penn contained a provision, "that the laws regulating and governing property within the said province, as well as for the descent and enjoyment of lands, as likewise for the succession of goods and chattels, shall continue the same as they shall be for the time being by the general course of the laws of England, until the said laws shall be altered by the said William Penn, his heirs or assigns, and by the freemen of the said province, their delegates or deputies, or the greater part of them. 8. In 1682 Penn called a convention of the settlers, and a code of laws was framed, which was by various acts amended from 4 INTRODUCTION. time to time until 1700, and bj an act passed in October, 1701, most of the acts passed prior to 1700 were confirmed. Yet, as this act of 1701 was repealed by Queen Anne on February 7th, 1705, it is generally understood that all acts passed before the year 1700 are obsolete; in 1700 an act was passed providing that in case of intestate decedents leaving no kindred, their lands should go to their immediate landlords. This act was supplied by the act of September 29th, 1787. 9. The Eevolution of 1776 effected a political change in the gov- ernment, substituting the sovereignty of the people of the State for the sovereignty of the Crown of England, but it in no wise abol- ished tenures : nor did the State Constitution, adopted the same year. The act of Assembly of January 28th, 1777, revived the acts of Assembly in force before the Revolution, and declared that the common law, and such of the statute laws of England as had been in force, should be binding after the 10th day of February, 1777 (excepting, however, such laws as acknowledged any allegiance due to the Crown of England, or any authority as existing in the heirs of William Penn, etc.). 10. The settlers under Penn brought with them the common law of England and such of the statute laws of that country, made prior to the settlement, as were applicable to their condition as colonists; but none of the statute laws of that country, made after the settlement, were ever held to be in force excepting those in which the colonies were particularly named.' As there existed some doubts as to what British statutes were in force in Pennsylvania, the legislature, in 1807, enacted a law requiring the justicas of the Supreme Court to report them to the next legislature, and to designate which should be incorporated into the statute laws of the State of Pennsylvania.^ 11. In writing on the subject of landlord and tenant in Penn- sylvania, the query naturally arises as to whether the titles to our estates be feudal or allodial, or whether some be feudal and some allodial. ' Morris's Lessee v. Vanderen, 1 Dallas, ' The report so made can be found in the Appendix to the third volume of Binney's Reports, and also in Eoberts's Digest of British Statutes in force in Pennsylvania. INTRODUCTION. 5 If feudal, rents reserved in conveyances in fee, and in leases for life or years are rents-service, and the right to distrain, independent of any clause in the lease, exists as an incident of the tenancy. If allodial, all rents must be either in the nature of rents- charge, when the right to distrain is expressed in the lease, or of rents-seek, when such right is not expressed, and in the case of such rents the only statutory right to distrain is that given by the 7th section of the act of 21st March, 1772,^ and the 1st section of the act of 25th March, 1825.'' That feudal tenures exist, and have always existed in Penn- sylvania, is contended by Mr. Justice Sharswood in his notes to Blackstone's Commentaries,^ and in his Lectures on the Common and Feudal Law,* wherein he refers to the dicta of several emi- nent judges and jurists, and treats most learnedly of the subject. That our titles are allodial is positively decided by Mr. Justice Woodward in Wallace v. Harmstad,^ a case which, with those of Arrison v. Harmstad,'' and Wallace v. Harmstad,'' arose from the following circumstances: In 1838 Arrison, by four original and four counterpart deeds of ground-rent, conveyed separately to four brothers Harmstad four lots of ground, situated in Philadelphia, on Sixteenth Street below Walnut Street. When the deeds came to be executed one of the brothers Harmstad discovered unfilled blanks in all of the eight deeds, and inquiring thereabout, was told by the magistrate before whom the acknowledgments were to be taken, that it meant that there was no limit to the time within which the rents could be extinguished. This being in accord- ance with the understanding, the deeds were executed and deliv- ered; the Harmstads took their original deeds, and Arrison took away the four counterparts. Some time afterwards Arrison's agent procured from the Harmstad brothers their four deeds for the al- leged purpose of recording. While in the possession of ArrLson's agent, the blanks in these deeds and in Arrison's counterparts were filled up with the words, "within ten years from the date thereof." Afterwards, the deeds were recorded by Arrison's agent, and the recorder's receipt given to the Harmstads. On ob- taining the deeds from the recorder's office, the latter discovered 1 1 Smith's Laws, 370; see post, page 100. " 8 Ibid. 411; see post, page 101. ' Book II, page 77. • Sharswood's Lectures Introductory to the Study of the Law, 178 etseq. * 8 Wright, 492. ^ 2 Barr, 191. '3 Harris, 462. 6 INTRODUCTION. the insertions in the deeds, and refused to pay the ground-rent reserved. In 1844 an action of debt for the rent was brought by Arrisoh against .Oliver Harmstad/ which was, however, decided against the plaintiff on account of the alteration in the deed. In 1850 Wallace, an innocent grantee of Arrison, brought an action of covenant to recover rent against Joseph Harmstad,' and it was also decided against the plaintiff on account of the fraudulent in- sertion in the deed. Subsequently to this, Wallace distrained for rent on the premises of Edwin Harmstad (another of the brothers), who brought an action of replevin against Wallace, and replevied the goods. The case was brought before the Supreme Court (A. D. 1863),' and was decided against Wallace on the ground that, in Pennsylvania, titles are allodial and not feudal. In this case the counsel for Wallace contended, inter alia, " that a ground- rent reserved in a deed by a grantor is an estate which vests in him the instant the fee simple in the land vests in the grantee ; that that estate is a rent-service ; that it continues to exist though the in- strument reserving it be destroyed ; and that a right of distress is one of the necessary legal incidents of the estate." In delivering the opinion of the Supreme Court, Mr. Justice Woodward says :* "I see no way of solving this question, except by determining whether our Pennsylvania titles are allodial or feudal." He then proceeds to give his reasons for coming to the conclusion that they are allodial. As a negative to the theory that titles in Pennsylvania are feudal, he quotes from Wright's Law of Ten- ures,^ as follows : " Fealty, the essential feudal bond, is so neces- sary to the very notion of a feud, that it is a downright contradic- tion to suppose the most improper feud to subsist without it ; but the other properties or obligations of an original feud may be qual- ified or varied by the tenor of express terms of the feudal dona- tion." After stating that the question is narrowed down to whether fealty is any part of our land tenures, he erroneously states the oath of fealty to be what was the ceremony of homage.* In homage no oath is required, in fealty it is, or rather was, as in England this oath is generally dispensed with.' Continuing, the learned justice admits that "^'the charter to Penn was in free and ' 2Barr, 191. ' SHarris, 462. ' 8 Wright, 492. * 2Ibid.499. « Page35. * Thomas's Coke upon Littleton, titles Fealty and Homage. ' Ibid. : see also Sullivan s Lectures, 128. INTRODUCTION. 7 common socage, to which feudal tenures had at that time been re- duced in England, and that the oath of fealty belonged to socage tenures as much as to the original feuds, and was expressly recog- nized in the charter." He then sets forth that the Eevolution (1776), the divesting act of 27th November, 1779,' and the act of 9th April, 1781,^ es- tablishing the land office, emancipated every acre of the soil of Pennsylvania from the grand characteristics of the feudal system. In alluding to the case under consideration he says : " Here was a conveyance in fee simple of an allodial estate, without any re- version remaining in the grantor, and therefore all his remedies for rent rest on his contract. If the estate were feudal, the ab- sence of the statute (Quia Emptores) would lead to a different con- clusion ; but with great deference to all counter opinions, I hold that the estate was strictly allodial, and that Arrison retained only •what was expressed in the deed." The conclusion at which Mr. Justice Woodward arrived is sup- ported by the opinions expressed upon various occasions by some of our most learned and eminent judges and jurists. Among them we may mention. Chief Justices Gibson' and Tilghman,* and Jus- tices Brackenridge," Huston," and Cooper.' In opposition to the opinion of Mr. Justice Woodward, the most prominent authority is our present Chief Justice, who, as we have already stated, has discussed the subject of tenures with profound scholarship and pre-eminent ability in his lectures on the common and feudal law, delivered before the University of Pennsylvania while Professor of the Institutes of Law in that institution. In those lectures Professor Sharswood contends that feudal tenures exist in Pennsylvania; and in the lecture on the common law, in support of the position that Pennsylvania was originally a feud or seignory, he refers to the charter of Cliarles II to William Penn^ (third, seventeenth, eighteenth, and nine- teenth sections), relative to which he says :° 1 1 Smith's Laws, iSO, post, page 9. 2 2 Ibid. 532. ' Desilver's Case, 5 Kawle, 111 ; MeCall v. Neely, 3 Watts, 69; Hubley v.. Vanhorne, 7 Sergeant & Eawle, 188. * Grider v. McClay, 11 Sergeant &Rawle, 224. 5 Law Miscellanies, 424. ^ Huston on Land Laws, 374. ' Cooper's Justinian's Institutes, 440; see aho Scott on the Intestate Laws,, 60; Gordon's Decedents, 427. » 1 Colonial Records, 17. ' Lectures Introductory to the Study of the Law, 179 et seq. 5 INTRODUCTION. "They settle, as far as language can settle anything, that Penn held of the Crown, in free and common socage, as tenant in capite, of a par- ticular honor, ' as of the Castle of Windsor, in the county of Berks ;' and that his grantees were tenants under him in like socage ; and that such grantees or tenants mi^ht also make grants and feoffments to be holden of them : the statute of quia emptores terrarum (18 lidward-I, c. 1), which forbade subinfeudation in England, being expressly declared not to extend to the province." Farther on he holds that the ease of Ingersoll v. Sergeant' not only established that the statute of quia emptores was not in force in re- gard to any lands in the colony, but, also, that the relation of tenure exists, and has always existed, in Pennsylvania. He then continues : " That up to the period of the Eevolution, the tenants of land, whether in fee simple or for any lesser estate, were either mediate or immediate feudatories of the Penn family, and that m this condition the Bevolution found them, will appear from the consideration of certain consequences and incidents properly belonging to and flowing from feudal tenures alone, and which prevailed in "their full force among us. "Thus: 1. The forms and language of our conveyances " 2. Escheat. The a'lt of 1700, ' An act for ascertaining the descent of lands, and better disposition of the estates of persons intestate ' (Mil- ler's Ed., Laws Ap., 11), enacts, ' that iu case such intestate should leave no known kindred, then all his lands, tenements, and hereditaments shall descend and go to the immediate landlord, of whom such lands are held, his heirs and assigns, and if held immediately of the proprietary, then to the proprietary, his heii's and assigns. ' The same provision is repeated totidem verbis in the act of 1705, ' An act for the better settling of intestates' estates' (Ibid. 27), and it continued to be the law down to the Revolution. ' ' 3. Forfeiture. The feudal doctrine of the corruption of blood by at- tainder of treason or felony was part of our law. ' Its express exclu- sion,' says Mr. Eawle (Address before the Law Academy, 21), 'in the Constitution, proves that without this humane provision it would have continued in full force.' .... '* 4. Descents Our doctrine of descents is still founded on the feudal seisin. It is the tenant thus seized who is the propositus in the line. Seisinafaeit stipitem — not actual, to be sure, but legal seisin. In all instances not within the express scope of the Acts of Assembly, in re- gard to the distribution of the estates of intestates, the courts recm-red to the heir at Common Law." The conclusions of Professor Sharswood appear to have been held, in whole or in part, at various times, by Chief Justice Gib- son,' Justices Kennedy," Duncan,* Sergeant/ Bell," Rogers,' Brack- I 1 Wharton, 337, per Kennedy, J. * CutlibRi-tv. Kuhn, 3 Wharton, 357; Bosleru Kuhn, 8 Watts & Sergeant, 183; McCall t,. Neely, 3 Watts, 69; Hubley v. Vanhorne, 7 Sergeant & Kuwle, 185. ' Ingersoll v. Sergeant, I Wharton, 337. * Lyle V. Kichards, 9 Sergeant & Kawle, 353. ^ Kenege v Elliott, 9 Watts, 258. * Naglee v. Ingersoll, 7 Barr, 185; Prentiss v. Kingsley, 10 Ibid. 120. ' Juvenal v. Patterson, Ibid. 282. INTRODUCTION. 9 enriilge,' President Judge Grier/ Judge Joel Jones/ and William Rawle.* In his work on Land Office Titles,'' Judge Jones, when refer- ring,to the effect of the divesting act of 1779, says: " It may be remarked, however, in general terms, that the phraseology of the fifth, and especially the seventh, sections of the act for vesting the estates, &c., of the proprietaries in the Commonwealth, of which they stood seized, for the use and benefit of the citizens thereof, and confirming the estates already derived from the proprietaries, &o., as well as the title of the act itself, seem intended to preserve, in some form, and to some extent, the principle or the fiction of the law of tenures." From the perusal of sections 5, 6, and 7 of the Divesting Act, the reader may judge as to the force of Judge Jones's remarks. To our minds they do not and cannot support the fiction so far as relates to the then unsold land divested of the Penns. The sec- tions are as follows :^ " "V. Be it enacted, and it is hereby enacted, That all and every the estate, right, title, interest, properly, claim and demand of the heirs and devisees, grantees or . others claiming as proprietaries of Pennsyl- vania, whereof they or either of them stood seized, or to which they or any of them were entitled, or which to them were deemed to belong, on the fourth day of July, in the year of our Lord one thousand seven hun- dred and seventy-six, of, in or to the soil and land contained within the limits of the said late province, now State of Pennsylvania, or any part thereof, together with the royalties, franchises, lordships, and all other the hereditanients and premises comprised, mentioned and granted in the same charter, or letters-patent of the said King Charles the Second (except as is hereinafter excepted) shall be and they are hereby vested in the Commonwealth of Pennsylvania, for the use and benefit of the citi- zens thereof ; freed and discharged, and absolutely acquitted, exempted and indemnified, of, from, and against all estates, uses, trusts, entails, reversions, remainders, limitations, charges, incumbrances, titles, claims and demands whatsoever, from, by or under the said charter, or letters- patent or otherwise, as fully, clearly, and entirely, as if the said charter or letters-patent, and the estates, interests, hereditaments and premises, therein comprised, mentioned and granted, and all other the estate, right and title of the said proprietaries, of, in, and to the same premises, were herein transcribed and repealed. " VI. And be it further enacted. That the said soil and lands, heredi- taments and premises, and every part and parcel thereof (except as is herein excepted) from and after the date hereof, shall be subject to such disposal, alienation, conveyance, division, and appropriation, as to this or any future legislature of this Commonwealth shall from time to time seem fit and expedient, in pursuance of such law or laws as shall for that purpose hereafter be made and provided. " VII. Provided always, and be itenacted. That all and every the rights, titles, estates, claims and demands, which were granted by or derived from the said proprietaries, their officers or others by them duly com- ' Law Miscellany, 140. ^ Robb v. Beaver, 8 Watts & Sergeant, 107. 8 Land Office Titles, 91. * LecturebeforePhiladelphiaLaw Academy, 124, * I'Bge 5, « 1 Smith's Laws, 480. 10 INTRODUCTION. missioned, authorized and appointed, or otherwise, or to which any per- son or persons, other than the said proprietaries, were or are entitled, either in law or equity, by virtue of any deed, patent, warrant, or sur- vey, of, in or to any part or portion of the lands comprised and contained within the limits of this State, or by virtue of any location filed in the Land Office, at any time or times before the said fourth day of July in the year of our Lord one thousand seven hundred and seventy-six, shall be, and they are hereby confirmed, ratified and established forever, ac- cording to such estate or estates, rights or interests, and under such limitations and uses, as in and by the several and respective grants and conveyances thereof are directed and appointed." The opinions advanced on either side are in almost all cases mere dicta, and the remarks of some of the judges doubtful and inconsistent, so as to leave a cloud of uncertainty hanging over the minds of the bar as to whether estates in Pennsylvania are feudal or allodial, or as to whether some are feudal and some allodial. It is reasonable to admit from what is written on the subject that all titles in Pennsylvania were feudal in their nature. Certainly until the Declaration of Independence on the 4th of July, 1776, and probably until the passage of the Divesting Act on the 27th of November, 1779. In fact there seem to be only two opinions dissenting from the existence of feudal tenures here ; the one that of Mr. Justice Brackenridge in his Law Miscellanies,' where he expresses his views in Latin verses; the other that of Mr. Justice "Woodward, in the case of Wallace v. Harnistad," where he queries : "Is fealty any part of our land tenures?" and then proceeds to argue that it is not, by erroneously giving as the oath of fealty what was the jmere ceremony of homage, and yet in the same case the learned justice acknowledges the force of the decision in IngersoU v. Sergeant,' in which ground-rents in Phila- delphia were held to be rents-service, and consequently might be apportioned and distrained for. As to the poetical appeal of Mr. Justice Brackenridge it merits little discussion, as he contradicts himself in his own work on page 140, where in referring to the intestate act of 1794,Mie says : "This act cannot be understood as having given a final blow to the feudal system, but it has gone a great way towards it." The opinion of Mr. Justice "Woodward, in the case of "Wallace V. Harmstad,^ suggests the importance of a decision as to whether our titles are feudal or allodial ; for after referring to the fact that ' Page 424. ' 8 Wright, 49'J. » 1 Wharton, 337. * Act of April 19tb, 3 Smith's Laws, 143. ^ 8 Wright, 492. INTBODUCTION. 11 the statute of Quia Emptores was never in force in Pennsylvania, says : " Can it (a rent-service) exist then independently of the deed ? It certainly can, in the absence of the statute Quia Emp- tores, if our titles be feudal ; it as certainly cannot, if our titles be allodial." He then proceeds to give his reasons for concluding that tenures are allodial, and it is to be remembered that the prem- ises conveyed to the Harmstads were situated in the city of Phil- adelphia, under a title derived from the Penn family. Not one of the authorities cited appears to admit of the proba- bility that titles in Pennsylvania are allodial in some cases and feudal in others, although Professor Sharswood does not overlook such a possibility, as in his lecture on the Common Law,' he says : "As to the operation of the Divesting Act, it has been already ad- verted to. Of itself, it produced no cliange in tenures. If it operated la conjunction with the Act of 1781, it could only be oa titles which originated under and subsequent to that act; and the logical conclusion would be, that one-half of the lands in the State would be feudal and the other half allodial It would require something more than argumenta- tive inference from general legislative language to warrant a doctrine which would lead to such results." Notwithstanding the great weight to be ascribed to the opinion of Professor Sharswood, who has become so eminent a jurist, it is permissible to differ from him, and to hold that the Divesting Act, did of itself, with the acceptance of the consideration by the Penn family, produce a change in tenures. Did it not merge iu the State the mesnalty of the Penns, with the paramouncy of the State, acquired from the Crown of England by the devolution, and so far as relates to the land unsold by the Penns? Did not the title to the same become allodial when the fee simple of the Penn family became, by the Divesting Act, merged and lost in the par- amouncy of the Commonwealth ? In Wallace v. Harmstad,^ Mr. Justice Woodward appears to admit that titles in Pennsylvania were feudal prior to the Revolution and the Divesting Act. Ad- mitting such to have been the case, what was the effect of the Revolution ? It transferred the paramouncy of the Crown of England to the Commonwealth of Pennsylvania, but it did not change or merge the tenure of property. What was the effect of the Divesting Act? In section 5 it vested the proprietary title in the Commonwealth, thereby merging the paramouncy (formerly of the Crown) with the mesne tenancy of the Penn family. In sec- 1 Page 189. 2 8 Wright, 492. 12 INTRODUCTION. tioa 6 it subjected the soil of the State to future legislative dis- position. Section 5 did not change the tenure under which the grantees of William Penn and family held. Such tenure remained still feudal in its nature, and so to this day remains, though modi- fied by legislation subsequent to the Divesting Act, such as the act on escheats of 29th September, 1784,' and sequents and the intestate acts; and were it not for these acts, on the demise of a tenant in fee simple his real estate would revert to his nejit grantor in case of default of heirs. But as regards the title to the land in the State not sold by the Penn family, surely the title to it be- came allodial when vested in the State, nor did the nature of such title change when land was sold by the State under the provisions of future acts. Any reservation provided for by the State in any act relating to the sale of this land would hardly extend to re-estab- lishing a feudal title to lands strictly allodial while in the State. Professor Sharswood in his lecture On the Feudal Law,^ in reasoning on the eflFect of the act of 1 781,' speaks as follows : " It maybe well, briefly, to notice this Act of Assembly, which is Judge Huston's argument against the existence of the feud, reproduced and relied on in Wallace v. Harmstad. It is entitled ' An act for establish- ing a Land Office, and for other purposes therein mentioned.' After providing in the 10th section for the form of a patent by Deed-Poll, to be signed by the President in Council, for lands granted by the Common- wealth, ' to have and to hold (here insert the tenure and reservation) ' it then enacts that ' all and every, the land or lands granted in pursuance of the Act shall be free and clear of all reservations and restrictions as to mines, royalties, quit-rents, or otherwise, so that the owners thereof respectively, shall be entited to hold the same in absolute and uncondi- tional property, to all intents and purposes whatsoever.' " Professor Sharswood by italicizing the words in parenthesis {here insert the tenure and reservation), appears to suggest that the words infer the existence of a feudal tenure, but surely the lan- guage of the 11th section, supra, more forcibly implies that the purchaser took the land under an allodial title. It is undesirable and may seem improbable that the tenure of land in Pennsylvania should be feudal in certain titles and allodial in others ; but a little consideration will show that there is nothing novel in this. The feudal system was not introduced all through England at once ; it was by gradual advances, and was not uni- versal until the reign of Henry the Second.* Even down to the Revolution of 1789, parts of the land in France were held in 1 2 Smith's Laws, 425. = Page 221. » 1 Smith's Laws, 529. ♦ 1 Thomas's Coke on Littleton, 284, note. IjrTKODUCTIOW. 13 franc alien (allodial) and part on feudal tenure/ In our sister State, New York, some estates are feudal and some allodial.' If it be contended that in the case of no feudal tenure existing no fealty would be due by the tenant to his lessor, and hence no reason would exist why he should not deny the latter's title, the answer would be that the tenant would be prohibited by estoppel from the commission of the same under penalty of the loss of his term.^ Mr. Justice Woodward in Wallace v. Harmstad* says : " Es- cheat, with us, depends on positive statute, which makes the State the heir of property on defect of known kindred of the decedent." Query ? Had no statutes been passed on the subject, and our es- tates held to be allodial, where would the property of an intestate decedent without known kindred go ? The answer would have to be that it would go to the State as the political representative of the community. Moreover, as by the Divesting Act and the ac- ceptance by the Penns of the appropriation to them therein made, the State acquired all rights the Penns had, and when intestacy occurred without known kindred the estate of the decedent would naturally revert to the original grantor, there being under such allodial estate no feudal tenure or possible reversion to the im- mediate grantor, as would be the case were the estate held under feudal tenure and the statute of Quia Emptores not in force. It may be alleged that it matters nothing with regard to estates less than freehold, whether the titles to land in Pennsylvania be feudal or allodial, since, whether the one or the other, the customary remedy of distress for the collection of rent exists, either by adop- tion from the common law of England, or by the custom of Penn- sylvania, or by inference from the act of 21st March, 1772,° and this may be so. However, the act of 1772 gives no right to dis- train, except in the"7th section,* which empowers a lessor to dis- train on cattle and growing crops, and in the 14th section,' which authorizes a distress after the determination of the lease. Other sections of the act regulate the manner in which the dis- tress and sale shall be conducted. The act of 25th March, 1825, in section 1 extends the right of the landlord to distrain in Phila- 1 Thomas's Coke on Littleton, 282. 2 Hoffman's Legal Outlines, ch. 10; Cornells. Lamb, 2 Cowen (N. T.), 652. 8 Notes to Doe v. Oliver, 2 Smith's Leading Oases, *569. * 8 Wright, 492, 501. ' Post, page 99. « Ibid. 100. ' Ibid. 14 INTRODUCTION. delphia where the tenant fraudulently removes the chattels to avoid distress, and the act of 29th March, 1870, extends the right to the cities of Pittsburg and Allegheny.' In the State of New Yorlt, where the titles to some estates are allodial and to others feudal, cases (prior to the act of 1846, abol- ishing the right of distress) testing the right to distrain arose, in which the remarks of the judges would lead one to conclude that when the title to land in that State is allodial, the right to distrain, even in tenancies for years, does not exist unless the right be given in the lease. Thus, in Cornell v. Lamb," Chief Justice Savage says : " In all cases, therefore, where the tenure in this State is not allodial, and where the landlord is entitled to the reversion and to a rent, he is authorized to distrain for such rent, without any authority for that pur- pose in the lease or contract." From this language inference may be drawn that it was the judge's opinion that in cases where the tenure was allodial, such right to distrain did not exist. Where tenure of land is allodial there can be no rents-services, because these rents are creatures of the feudal system. To no other rents, unless by statutory pro- vision, is distress (which under feudal tenures took the place of the forfeiture of the feud) an incident. Hence does it not seem probable that if our tenures be allodial no right to distrain exists unless the same is given in the lease, excepting the right conferred by the 7th section of the act of 1772, by the act of 1825, and by the act of 1870. From the remarks of Mr. Justice Woodward, in the case of Wallace v. Harmstad, it may be inferred that his opinion was that, though our tenures in tenancies not conveying the fee sim- ple, wherein a reversionary interest remained in the lessor, the right to distrain exists, even when not expressed in the lease. But, unless by agreement, statutory enactment, or custom, how can the incident of a mere creature (rent-service) of the feudal system esist where the tenure is not feudal ? If the tenure were allodial, with- out statutory provisions analogous to those contained in the 8th section of the act of 25th April, 1850,' it is doubtful to what ex- lent the assignee of a ground-rent tenant would be liable, and we might have litigation on the subject equal to that which occurred in New York in the Van Rensselaer estate.* ' See post, Chapter V, page 101. « 2 Cowen (N. Y.), 659. ' Pamphlet Laws, 57. * See Van Rensselaer v. Dennison, 35 New York, 393. CHAP. I.j TENANCIES IN PENNSYLVANIA. 15 CHAPTER I. Tenancies in Pennsylvania. SECTION I. Number and Connections of Tenants, and the Time of Enjoyment. 13. Real estate tenancies in Pennsylvania, as regards the num- ber and connections of their tenants, may be classified as follows : 1. Estates in Severalty. 2. Estates in Joint-Tenancy. 3. Estates in Coparcenary. 4. Estates in Common. 1st. An estate in severalty is where there is but one tenant. 2d. An estate in joint tenancy is where there are two or more ten- ants, having one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. In consequence of an act of the State of Pennsylvania, of 31st March, A.D. 1812,' joint tenancy exists in Pennsylvania only in cases of trust estates, and when expressly so made by will or grant. 3d. An estate in coparcenary is where lands descend from the ancestor to two or more persons. 4th. An estate in common is where two or more persons hold to- gether by unity of possession, whether by the same title or not. For example, one tenant may derive his title by descent, the other by purchase, so that there is no unity of title. The estate of the one may have been vested fifty years, that of the other but one day, so that there is no unity of time. 14. Besides the tenancies before mentioned, there exist those inci- dental to estates upon condition, to wit, those which depend upon » 5 Smitli's Laws, 395. 16 TENANCIES IN PENNSYLVANIA. [CHAP. I. the happening or not happening of some uncertain event, being as follows : 1. Upon condition implied. 2. Upon condition expressed. 3. Upon pledge either live or dead, i. e., mortgage. 4. Upon statute merchant and statute staple. 5. Elegit. 1st. An estate upon condition implied is where a grant is made of an estate with a condition annexed to it, derived from its essence and constitution, though not expressed in words, such as the con- dition annexed to a public office, or a franchise, that the grantee shall duly execute it. 2d. An estate upon condition expressed is where an estate is granted with an express qualification annexed, whereby the estate shall commence, or be enlarged, or defeated, upon the perform- ance or breach of the condition ; such as where an estate is granted to Adam conditioned upon his marriage to Eve, or where A grants an estate to B, reserving rent upon a day or term certain, with condition that if such rent be not paid A may re-enter. 3d. Estates held in pledge are of two kinds : a. In vivum vadium, or living pledge. Of this little may be said, as it is not in common use in Penn- sylvania, except in assignments in trust. b. In mortuum vadium, dead pledge, or mortgage. This is where a person borrows a specific sum and grants to the lender an estate upon condition that the conveyance shall be void when the sum borrowed is returned. The estate here held by the lender or mortgagee is now regarded as a chattel interest in the estate or land. 4th. An estate in statute merchant or statute staple is similar to an estate in vivum vadium, being where lands are delivered to a creditor until the debt due him be paid out of the rents and profits. This estate is not customary in Pennsylvania. 5th. An estate by elegit in England is where a person's property is by virtue of a writ of elegit, transferred to a creditor until the debt due him is settled ; but this estate is not known in Penn- sylvania, the statute by which it was created not having been adopted by the colonists. 15. Thereisjhowever, an estate similar in its nature, to wit: when SEC. II.J TENANCIES IN PENNSYLVANIA. 17 upon judgment a writ of fieri facias issues, upon which, in case there be no goods or chattels, the sheriff levies on the land of the defendant, and on such levy being made, he summons a jury who may decide that the lands so levied on will yield a rent or profit sufficient to pay oiF the debt and all charges incidental thereto within seven years. In such case the plaintiff is put into pos- session of the land and holds until his claim is satisfied. 1 6. There are also estates in use or trust, which is where the legal title to an estate is vested in one person, but another is beneficially interested, and is to receive the profits. The common law of England did not recognize the estate of the latter, but in the course of time the courts of equity assumed jurisdiction of the subject, and compelled the execution of the trust, and so the matter remains to the present time, being a con- sequence of the statute of uses made in the time of Henry VIII, and which was adopted by the colonists under Penn. 17. As to estates with reference to the time of enjoyment, when the actual occupancy or receipt of the profits takes place. They are either in possession, or expectancy. As to the first, no remarks need be added ; as to the second, they are either in remainder or reversion. 1. An estate in remainder is one created by the act of the par- ties, and is limited to take effect after another estate is determined. 2. An estate in reversion is one created by act of law, and is either the residue of an estate left in the grantor, which is to commence in possession after the termination of the particular estate con- veyed, or is the residue of an estate, which descends to heirs, sub- ject to some particular demise or interest created by act of law. SECTIOlSr II. The Quantity of Interest in the Estate. 18. Tenancies in Pennsylvania, as regards the quantity of inter- est in the estate, may be classified primarily into those oi freehold, and of those less than freehold. Those of freehold are: 1. In fee simple. 2. In tail. 3. For life. 4. By curtesy. 5. In dower. 18 TENANCIES IN PENNSYLVANIA. [CHAP. I. Those of less than freehold are : a. For years, including from year to year. b. At will. c. At sufferance. 19. It is of the latter tenancies that this work will treat. 1. A tenant for years is one who is in possession, of premises by virtue of a lease, either written or by parol, for some determinate period, be that period either of a week, month, year, or- years. 2. A tenant from year to year is one who, having leased premises for a determinate period, or at will, holds over with the consent of the landlord, without any positive period being agreed upon as the end of his term, or he may be one who is in possession of the premises by virtue of a lease without any limitation in it of a definite period. 3. A tenant at will is one who occupies premises at the will of the owner thereof. 4. A tenant at sufferance is one who occupies premises whereon he has entered lawfully, but remains in possession wrongfully, as where a tenant for years retains possession of demised premises, after the end of his term, without the grant of the owner, or as where a tenant remains in possession after the landlord's reversion has been sold under execution or by order of the Orphans' Court, for claims antedating the lease. 20. Tenancies less than freehold may arise either by implication or be created by express contract. 1. A tenancy by implication will in general arise when the own- ership of premises is in one person and the occupation is in another, while there has been no distinct agreement, or when for some cause an agreement made has ceased to be operative. As where land descends to a minor, with respect to whom the tenant in pos- session is a trespasser, and who compromises with the minor's attorney under an agreement to pay rent to the minor, and as where a married woman living apart from her husband receives the rental of certain houses, it is presumed that she does so with the authority of her husband, and as where a debtor owner of a house agrees with his mortgage creditor that the mortgagee shall occupy the house for a term until the mortgage be paid ; and as where one enters premises under an agreement to sign the lease. SEC. II.] TENANCIES IN PENNSYLVANIA. 18 but refuses to do so. But if a man enter on premises without the will and permission of the owner, he is no tenant, but a tres- passer, nor will the relation of landlord and tenant be inferred between a vendor and vendee of land when the vendee is to re- main in possession until tlie agreement to purchase be completed ; if the agreement be rescinded and the vendee remain in posfeession he becomes a tenant at will ; nor does the relation exist between a trustee and his cestui que trust, the latter being the real owner of the premises. 2. Tenancy by express contract is either by oral or by written lease. a. Oral leases for a term of more than three years, by act of 21st March, 1772,^ create only a tenancy at will. b. Written or printed leases for over twenty-one years, if not re- corded, when made within the State, within six months, or with- out the State, within twelve months, are void against subsequent lessees.^ 1 1 Smith's Laws, 389. ' See act of 18th March, 1775, 1 Smith's Laws, 422. 20 THE LEASE. [CHAP. II. CHAPTER 11. The Lease. SECTION I. Its Requisites and Execution. 21. A LEASE is the written or oral agreement by which the re- lation of landlord and tenant is created. 22. The grantor or giver of a lease is called the landlord or lessor; the grantee or recipient is called the tenant or lessee. Any one to whom a lessee transfers all his interest in the lease is called the assignee, but he to whom a lessee grants the premises leased for a term less than his own, or only a part of the leased premises, even for the whole term,* is called a sub-tenant.' 23. Somewhat resembling a lease is an agreement to lease, which, however, vests no legal estate in the premises in the would-be tenant, but operates as a license to him to enter thereon, and gives him also the right to maintain an action for damages.^ The distinctive difference between a lease and an agreement to lease, is that in the former are words of present demise, or else it is expressed that possession is to be taken on a certain date, al- ways provided there be no contrary expression, nor any prior duty to be performed. 24. The requisites which should accompany the making of a valid lease are : 1st. A lessor capable of making a demise. 2d. A lessee capable of accepting one. 1 Ijloyd V. Cozens, 2 Ashmead, 131. 2 Weaver v. Wood, 9 Barr, 220. * Is ho not an assignee pro tanio 1 See Blencowe v. Bugby, 3 Wilson, 234, Oomyn's Landlord and Tenant, *52. SEC. I.] THE LEASE. 21 3d. A thing which is demisable. 4th. If the thing be not demisable, unless by writing, or the lessor be unable to let unless in writing, the lease must be a writ- ten one, and contain a sufficient description of the lessor, lessee, and the premises demised, and all circumstances, such as sealing, delivering, etc., must be observed. 5th. The lease, when for years, should have a certain commence- ment and a certain determination.' 6tli. The lessee should accept the premises demised, 7th. If the term be for over three years it must be in writing, otherwise it will be a tenancy at will.'' If, however, possession be taken and held under the lease for more than a year and rent is paid and received according to its terms, a tenancy from year to year is created.^ 8th. If for over twenty-one years, it must be in writing and recorded in the office of the Recorder of Deeds, in the county in which the premises are situated, or will be void as to subsequent grantees.^ 25. In cases of assignment of leases, the same should be in writing;' but in regard to surrenders it has been decided that a surrender of a lease for a term less than three years might be made by word of mouth, or even by the tenant's abandonment of the premises.^ 26. Certain tenants may mortgage their lease, and their property on the leased premises, by virtue of the act of 27th April, 1855, which made it lawful for a lessee for a term of years of any col- liery, mining lands, manufactories, or other premises, to mortgage the lease or term and appurtenances with the same effect as if the same were a freehold, but the lease must be recorded with the ' Bussman v. Ganster, 22 P. P. Smith, 285. 2 Act of 21st March, 1772, 1 Smith's Laws, 389. 3 McDowell V. Simpson, 3 Watts, 129, 136 ; Pugh v. Good, 3 Watts & Ser- geant, 56. But see Moore v. Small, 7 Harris, 461, 467. See, also, Clayton v. Blakey, 2 Smith's Leading Cases, *180. See Note, page 55. * Act of 18th March, 1775, 1 Smith's Laws, 422. 5 Act of 21st March, 1772, supra. See cases cited in Note 3, supra and, also, Note at the end of the chapter, page 55. 6 McKinney v. Eeader, 7 Watts, 123 ; Grider's Ap'l., 5 Barr, 422; Kiester V. Miller, 1 Casey, 481. 22 THE LEASE. [CHAP. II. mortgage, or the same will be postponed to the claim of a judg- ment creditor.' 27. 1. Leases are generally made in duplicate, one copy for the lessor and one for the lessee; the copy of the lease which is re- tained by the lessor is called the counterpart, and that which is delivered to the tenant is called the original. 2. A written or printed lease must be on parchment or paper, and not on leather, linen, or other substances. 3. A written lease is valid without a date, but must have a de- livery, from which, if no date be mentioned, as such, the terra will be considered to commence. 4. The omission in a lease of the middle name or letter of a party is immaterial, as is an error in spelling, or a variance in the name of a corporation, but the entire omission of the lessee's name would render the lease invalid. 5. Rent, reserved in money, is not an essential,^ but there should be some consideration expressed or implied, either -one of favor or affection, or a valuable one, such as personal service, grain, ani- mals, iron, or any other produce; and even if the amount of rent be not agreed on, it will be presumed that the tenant agreed to pay as much as the premises are reasonably worth. But, in order that the landlord may avail himself of the provi- sions of the act of 21st March, 1772, and acts supplementary thereto, a certain rental must have been agreed upon. 6. The rent must be reserved to the lessor, and not to a stranger. On the death of the lessor, the rent coming due next pay-day will go to his heirs, if he be the owner of the premises,^ or if merely a tenant, who has let to a sub-tenant, it will go to his administrators. 7. An accurate description of the premises leased is important, for if they be not described with reasonable certainty, the lease is void ; nor will an indorsement on the back of a lease under seal, be valid unless also under seal, because a deed is incapable of modification, except by an instrument of as high a nature as itself. » Pamph. L., 369; Sturtevant's Ap'l., 10 Casey, 149 ; Ladley d. Creighton, 20 P. P. Smith, 490. 2 Mitchell V. Commonwealth, 1 Wright, 187. 8 Cobel V. Oobel, 8 Barr, 342. SEC. I.] THE LEASE. 23 8. In regard to the execution and delivery of a lease the seal may be either wax or wafer, or a mere scroll of a pen.' 9. It may be delivered either to the lessee in person, or to any one on his behalf, or it may be delivered in escrow to a third person, to be held until the lessee be prepared and entitled to ac- cept and receive it, by fulfilling the conditions precedent to its delivery. 10. It is desirable, but not necessary, to have a lease witnessed, and the same may be said of the assignment of a lease. n. A lease made by a married woman must be acknowledged by her, separately and apart from her husband,^ before a judge of the court, commissioner of the State of Pennsylvania, notary pub- lic, justice of the peace, or other officer designated under the ac- knowledgment acts, and her husband must join in it.^ 28. An assignee is bound by arid liable upon the express cove- nants, such as to pay rent, or to repair, rebuild, or insure, and also the penalties running with the premises leased as contained in the first lease,* but the first tenant is not by the assignment of his lease freed therefrom,* nor can the latter, if he has assigned his whole term, issue a landlord's warrant to distrain for the rent coming to him from his assignee,^ unless the lease provide other- wise, because he has no reversion in the demised premises; he can, however, provide for this by conditions in the lease to his imme- diate tenant for the right to distrain. 29. A sub-tenant — that is to say, one to whom a lessee lets a por- tion of the premises demised, or all of them for a term shorter than his own — is not liable to an action from the original lessor as there is no privity of estate. His goods, however, are liable to dis- tress for rent unpaid by his own landlord, and he is liable to evic- tion from the land on the ejectment of him from whom he rents. He is also liable to distress by his own landlord, provided the ' Alexander v, Jameson, 5 Binney, 238; Long v. Eamsey, 1 Sergeant &, Eawle, 71. 2 Harbert v. Miller, 4 "Weekly Notes, 325. 3 Baxter v. Smith, 6 Binney, 427 ; Holbert v. Blase, 2 Weekly Notes, 290. " Negley u. Morgan, 10 "Wright, 281 ; Jones v. Q-undrim, 3 "Watts & Ser- geant, 581, 583. " Ghegan v. Toung, 11 Harris, 18. 6 Ege V. Ege, 5 "Watts, 134. 24 TUB LEASE. [CHAP. II. landlord has not demised to liim the full extent of his own term' or has stipulated in the lease for the right to distrain. SECTION II. The Contracting Parties. 30. 1. In Pennsylvania all persons except lunatics, aliens, mar- ried women, minors, persons extremely intoxicated, and corpora- tions, have full power to give and accept a valid lease, provided always that in giving a lease the lessor be in possession of the premises, for if he be not, but have a mere right to tlie possession, he cannot grant a valid lease. Any document purporting to be such would be construed to be an agreement to lease, and, in fact, the relation of landlord and tenant is not complete nntil the tenant is in possession. 2. Leases made to or by lunatics, minors, and extremely in- toxicated persons are voidable, but a lease made by a married woman without the consent and joining in the lease of her hus- band is void.^ It may, however, be made valid by the woman when becoming a widow accepting rent under it from the tenant. A lease by a married woman must be acknowledged by her, separate and apart from her husband,^ before a judge of the court, commissioner of the State of Pennsylvania, notary public, justice of the peace, or other officer designated under the acknowledg- ment acts.* 3. A lease to a married woman is valid,^ though after her hus- band's death she may disagree to it, and be thence free from any liability under it. 4. Leases made by a corporation are binding and valid, provid- ed that the corporation be acting within the scope of the legitimate Egew, Ege, 5 Watts, 134. 2 Buxtor V. Smith, 6 Binney, 'i'i' ; Holbert v. Blase, 2 Weekly Notes, 290. 3 Hiirbertu. Miller, 4 Weekly Notes, 325. * Act of 24th Feb., 1770, 1 Smith's Laws, 307; Act of 11th April, 1856, Pamph. Laws, 316. 5 Baxter v. Smith, 6 Binney, 427 ; Bortz jj. Bortz, 12 Wright, 382. See, also, Welsh v. Gates, 9 Philadelphia, 154 ; Trout v. McDonald, 2 Norris, 144. SEC. II. j THE LEASE. 25 object of its creation, and the lease be in writing and under seal.^ It must also be remembered that corporations in Pennsylvania are limited in their powers to hold real estate, foreign corporations being absolutely disabled by act of 26th April, 1855,^ and home corporations created by the courts being, by act of 2Gth March, 1867,* limited to hold real estate producing not more than a net annual income of $20,000. 5. An alien in time of peace can grant or accept a valid lease, but during a war with the nation of which he is a subject or citi- zen, he is incapable of making a valid contract, and even in time of peace he is limited in his right to hold in Pennsylvania more than five thousand acres of land or land of any quantity produc- ing a net annual income of more than $20,000." 6. Leases made by an executor are voidable if objected to by a specific legatee, but not otherwise, and if there be more than one executor the act of one binds all. 7. Administrators can lease only under an order from the court which has appointed them. 8. A mortgagee, unless in possession and authorized by the mortgage, cannot lease. 9. Trustees of l^nd may lease if so empowered in the trust deed. If there be several trustees, all must act. One cannot act sepa- rately unless empowered by the deed of trust. A lease made by trustees should in every case be for a reasonable period, as a sus- picion of mismanagement would attend a lease for a long term of years on a set rent. 10. Guardians of infants have authority to lease, and are ac- countable for default in so doing. 11. The committee of a lunatic has power to lease, as has the receiver of estates pending a litigation, but in these cases the rules and orders of the court constitute the law regulating them, they being simply officers of the court which appointed them. 12. An agent may lease,* but the following conditions should be observed : 1 Steamboat Company v. McCutcheon & Collins, 1 Harris, 13. 2 Pamph. Laws, 329. s Parapli. Laws, 44. ^ Act of 1st May, 1861, Pamph. Laws, 433 ; Act of 28d March, 1865, Pamph. Laws, 631 ; Act of 26th April, 1869, Pamph. Laws, 96. 6 Act of 21st March, 1772, 1 Smith's Laws, 389. 26 THE LEASE. [CHAP. II. 1st. That the authority be sufficient. 2d. That the agent pursue the authority strictly. 3d. That he act in the name of his principal, and not in his own.' 13. As to who may be an agent with authority to lease or sell, there is small restriction. A married woman, however, cannot act as attorney for her husband in the grant of her own realty. 14. An agent may grant an oral lease witliout written au- thority,^ but to grant a sealed lease the authority should be in writing and under seal.^ 15. An agent cannot delegate his authority to another unless expressly authorized. SECTION in. The Formal Parts. 31. Although no particular form of words is necessary to con- stitute the relation of landlord and tenant, provided it appear that such was the intention of the parties, it is .yet much better to have their mutual agreements plainly and clearly expressed in writing.* 32. The formal parts of a written lease are : • 1st. The " Premises." 2d. The " Habendum." 3d. The " Eeddendum." 4th. The " Covenants." 5th. The " Conditions." 6th. The " Conclusion." 33. The " Premises," which comprises that part of the lease which contains the recitals, if there be any, names the lessor and 1 Seybert v. Bean, 2 Norris, 450; Bedford v. Kelly, 11 P. F. Smith, 491 ; Holt V. Martin, 1 P. P. Smith, 499. 2 Miles V. Cook, 1 Grant, 58. See MoGunnagle v. Thornton, 10 Sergeant «fe Rawle, 251. 3 McDowell V. Simpson, 3 Watts, 129. ^ Watson V. O'Hern, 6 Watts, 362 ; Steel v. Friok, 6 P. F. Smith, 172. SBC. III.] THE LEASE. 27 lessee, and by describing the property leased, specifies the subject- matter of the demise. 34. 1. The "Habendum," which expresses and defines the period of time for which the lease is intended to exist, and generally commences with the words " To have and to hold," or " For the term." 2. In construing the exact hour and day when a lease be- gins and ends, some queries have arisen and a doubt existed as to whether the term of a lease made for one year from the day of the date thereof, that date being, say, the 1st day of January, expired at midnight of the 1st of January next following, or at midnight of the 31st of December next following; but in Penn- sylvania the general understanding being that when a lease is thus made the tenant has a right to enter on the premises on the day of the making of the lease, therefore that day is computed as forming part of the year, and hence the term ends at midnight of the 31st of December following.' 3. Leases are also often made computing the term from a date anterior or posterior to the day of the date of the lease. In such cases the interest of the tenants in the leases dates from the day of the making, but the duration of the term counts from the date designated.^ 35. 1. The " Reddendum," in which is contained the words de- fining the amount of rent or compensation to be received by the lessor. Formerly the rent had to be something different in its nature from the thing let, as otherwise it was presumed to be an exception in the grant and not a return /or it. Thus a reserva- tion to the lessor of the herbage of the soil was held not to be good. But in Pennsylvania leases of farms are often made where the rent reserved consists of a certain quantum of the product of the farm.' 2. What is called "Leasing on Shares" is also customary, in which case the owner of the farm puts the worker of it into pos- session under an agreement to receive as compensation or rent a certain portion of the actual annual crop. In these cases the 1 Marys v. Anderson, 12 Harris, 272. ' Commonwealth v. Conlner, 9 Harris, 266. 2 Khinehart i>. Olwine, 5 Watts & Sergeant, 167; Beam v. Harnish, 9 Wright, 376. 28 IHB LEASE. [chap. II. farms are not leased, but the owner occupies a dual position, being a tenant in common with the worker as to the crop, and remain- ing virtually in possession, as the worker is his laborer.' There- fore, the owner cannot distrain,^ nor can the whole crop be sold for a debt of either owner or worker.' If the worker, however, has bargained to return to the land-owner a certain number of bushels of grain or other produce, he, of course, is a tenant, and the landlord lias no interest in the crop other than the collection of his reservation, and for this he may distrain.'' 3. Rent, technically speaking, can only be reserved out of actual corporeal jjremises, on which the power to distrain may be exer- cised ; thus rent cannot issue out of another rent, and it has been even decided in the case of the Commonwealth v. Cantner/ that rent must issue out of land, and that where personal property is mixed with it, there can be no distress. This decision was, how- ever, overruled, it being held that the technical definition of rent was too narrow.^ In the renting of a furnished house, or of a stocked farm, or a factory and its plant, the movable chattels are to be considered as appurtenant to the realty, therefore the right to distrain can be exercised for all the rent due and un- paid. Franchises, commons, ways, fixtures, annuities, and chat- tels are subjects of demise, and an action for rent in arrears may be maintained against a lessee, but distress will not lie. In leas- ing a stocked farm, furnished house, or a factory with its plant, including live stock, it is usual to introduce in the lease a cove- nant from the lessee to redeliver the chattels at the end of the term. In such cases any progeny of the live stock born during the term becomes the absolute property of the tenant as part of his profits. Nor is the tenant liable to his lessor (unless specially provided) for any of the live stock that may die naturally or by ' One hired to work land, receiving as compensation a certain share of the produce, is a cropper, not a tenant. Adams v. McKesson, 3 P. F. Smith, 81. 2 Fry V. Jones, 2 Rawle, 11, 12. » See Adams v. McKesson, 3 P. P. Smith, 81. * IVy V. Jones, 2 Kawle, 11 ; Steel v. Prick, 6 P. P. Smith, 172, ITG ; Rein- hart V. Olwine, 6 Watts & Sergeant, 157. " 6 Harris, 439. " In Mickle V. Miles, 7 Casey, 20, it was held that rent may issue out of lands and tenements corporeal, and also out of them and their furniture. SEC. III.] THE LEASE. 29 the act of God during the term, nor for the destruction of the chattels by the elements. 4. The covenant to redeliver the chattels and stock is also a personal covenant and does not bind a sub-tenant or assig- nee. 36. The "Covenants.!." 1. These are divided into (a), implied, or covenants in law, being those deduced by the law either from the relation of the parties to each other, or from the use of the terms establishing that relation. (b.) Expressed covenants, being those which are written in the lease. 2. Covenants are, also, first, real, which continue or run with the premises, and with the reversion, or, in other words, bind oi avail the grantee of either lessor or lessee. Second, personal, which do not run with the premises or reversion, and only bind the original parties to the lease. 3. All covenants implied by law run with the land and the re- version. No implied covenant can exist without a consideration, nor can one extend to a thing not in being at the time of the leasing. Moreover, an implied covenant will not be inferred where the lease contains an express one — thus, where in a lease the tenant expressly covenants to repair, a covenant to use the leased premises in a tenant-like manner will not be implied — the express covenant excludes the implied. 4. It is important to landlords that some covenants in the lease should be express, as, for example, in the case of an assignment by a lessee of his term, and of the recognition of the assignee by the landlord and the acceptance of rent from him.^ If the cove- nant to pay rent be not express, the lessee is liable only for the rent-that has accrued during the time of his holding, as by assign- ing, even to an insolvent, the tenant, where there is no express contract, can relieve himself from future liability, and if the as- signee also assigns, his liability is limited to the rent accrued during his holding.^ 6. Although all Implied covenants are real and run with the 1 For a full discussion see post, Chapters XVI and XVII, page 486 ei seq. 2 See Frank v. Magulre, 6 Wright, 77. 8 See Walker v. Physick, 5 Barr, 193. 30 THE liKASB. [chap. II. land and the reversion, it does not follow that real covenants are limited to those which are implied. 6. The covenant for quiet enjoyment is both implied and real.^ It binds the assignee of the lessor and avails the assignee of the lessee. 7. The covenant against incumbrances is express and personal, and if this covenant be broken by a mortgage previously given by the lessor, or by one under whom he claims, it is broken the moment the lease is signed.^ Therefore, in letting mortgaged premises, it is prudent for the landlord to make mention of the mortgage in the lease. 8. The covenant for further assurance is also express and real. It is not usual to make this covenant an express one in drawing a lease. 9. The covenant to pay taxes and assessments is also both im- plied and real, and although the acts of Assembly of 6th April, 1802,3 3d April, 1804,^ and 15th April, 1834,= make the goods of the tenant liable for such taxes as were assessed during his occupation, he is authorized to pay the same and set the amount off against his rent. These acts are in force in all parts of the State, except Philadelphia, where they have been superseded by the acts of 24th March, 1870,^ and 16th April, 1879,^ which the writers have discussed in a subsequent chapter. 10. The covenant to repair must be express in order to bear upon the lessor,' but so far as it relates to the lessee it is implied.' He is bound to keep the premises wind and water-tight, and to treat them in such a manner as to return them to his landlord at • Eoss v.- Dysart, 9 Casey, 452 ; Hemphill v. Eokfeldt, 5 Wharton, 274 ; Duff w. "Wilson, 19 P. P. Smith, 316 ; Moore v. Weber, 21 P. P. Smith, 429. In a lease for years, even by parol, a contract for quiet enjoyment is implied. Maule V. Ashmead, 8 Harris, 482. 2 See Funk v. Voneida, 11 Sergeant & Kawie, 109; see also post, p. 564, f 1021. 8 3 Smith's Laws, 516. * 4 Smith's Laws, 203. 5 Pamph. Laws, 518. See pnst. page 503. See post, pages 503 (4), 609, f 95'{. ' Ibid. 505, 509, 1[ 953. 8 Moore v. Weber, 21 P. i\ Smith, 429; Walz v. Rhodes, 1 Weekly TSTotes, 49. " Long V. Pitzimraons, 1 Watts & Sergeant, 530; Hitner ». Ege, 11 Harris, 305 ; Eussell v. Eush, 2 Pittsburg, 134 ; Kline v. Jacobs, 18 P. P. Smith, 57. SEC. III.'J THE LEASE. 31 the end of tlie term unimpaired by any wilful or negligent con- duct on his part, but he is not liable for the ordinary wear and tear, nor for their destruction by the elements or by the act of God, or of a public enemy. The tenant is, nevertheless, liable for the rent, until the expiration of the term.' 11. The covenant to renew the lease must also, from the nature of it, be an express one. It is, however, a real covenant, and binds the assignee of the lessor and avails the assignee of the lessee.^ The tenant's conviction of felony will release the landlord from the fulfilment of this covenant. 12. The covenant not to assign the lease nor underlet the leased premises is also frequently inserted in a lease, and is, of course, an express covenant as well as a real one, but if a license to do so be once given, the condition protecting the covenant is dis- charged.^ This covenant will be strictly construed by the courts in order to prevent the restraint from going beyond the express stipulation. Thus, if the covenant be merely not to assign, it will not prevent the lessee from subletting, nor if it be to not sublet will it prevent him from assigning. An assignment by act of law will not be a breach of this covenant, unless the same be fraudu- lently procured by the tenant.* A bare covenant to insure is also express and real, and, therefore, not only binds the original cove- nantor and his personal representatives, but his assignee also.* 13. A covenant to reside upon the premises is express and real, and "will bind an assignee of the lessee. It will be broken not only by the tenant abandoning the premises personally, but by his doing any act whereby his residence may become impossible. 14. A covenant against carrying on some particular trade on the demised premises is express and real, and, therefore, runs with the land. This covenant is not favored by the law as being con- trary to the public good; but in some cases there may be good reasons for such a restraint, and in these this covenant will be enforced. 15. Covenants are usually introduced into farming leases as to how the farm shall be managed. When so inserted they are ex- 1 See Pollard v. Shaffer, 1 Dallas, 210; Bussman v. Ganster, 22 P. F. Smith, 285. 2 Barclay v. Steamship Co., G Philadelphia, 558 ; Commonwealth v. MoNeile, 8 Philadelphia, 438. 3 See Brolaakey v. Hood, 6 Philadelphia, 193. ♦ See post, page 586 (9). * See post, page 56, note a. 32 THE LEASE. [CHAP. II. press, and are real. This covenant is, however, not broken unless by the wilful act or neglect of the tenant ; thus, if a tenant have covenanted not to carry off hay from the farm, and the hay be attached and sold on execution, and removed, it is no breach of the covenant. 16. A covenant to redeliver fixtures is a personal covenant. 17. The covenant to pay rent is both implied and real, runs with the land and binds the assignee of the tenant, and avails the assignee of the lessor.' This covenant must be an express one in England, and in such of the United States as adopted the statute of quia emptores. The subject will be treated of more fully in a following section. 18. It is not within the scope of this chapter to enter into the many nice distinctions relating to covenants in a lease, and the reader is referred to subsequent portions of the work where the authors have discussed the subject." 19. It must also be remembered that covenants that run with, the land and the reversion, must not only concern the land, but a privity of estate must exist between the lessor and the lessee. Therefore a sub-tenant is not bound to the paramount lessor, as he has no privity of estate with him. 20. We will suppose a lease to be made containing, on the part of the lessee, the following covenants : 1st. To pay the rent. 2d. To pay the taxes. 3d. To occupy a dwelling-house only as such. 4th. To keep the same insured. 5th. To neither assign the lease nor underlet the demised premises. 6th. To pay rent to a stranger. Now the first five covenants are real and bind the assignee of the tenant, but the sixth is personal, and does not affect him unless there be a condition in the lease enabling the lessor to re- enter on the breach. Moreover, we will suppose that the tenant has, in the lease, covenanted to pay the lessor $100 as a bonus. ' Sandwith v. DoSilver, 1 Browne, 221. 2 Chapters XVI and XVII, posi, p. 486 ei seq. See Kuncklo tJ. Wynick, I Dallas, 305 ; Dewoy v. Dupuy, 2 Watts & Sergeant, 553 ; Ghegan v. Young, II Harris, 18; Ingersoll v- Sergeant, 1 Wharton, 336; Walker v Phyaick, 5 Barr, 193; Fisher v. Milliken, 8 Barr, 111. SBC. III.] THE LEASE. 33 Such a covenant is a personal one, and would not bind the tenant's assignee, nor in the case of the death of the lessor, would the claim for the f 100 go to the heir, but would go to the executor or ad- ministrator. 37. The " Conditions." 1. These generally follow the covenants, and are qualifications annexed by the lessor, whereby the estate granted may be en- larged, diminished, created, or defeated upon the happening or not happening of some contingent event. 2. They are either precedent or subsequent, and like covenants, are either implied or express. 3. A condition precedent is one that is to be performed before the estate is to commence. 4. A condition subsequent is one to come into effect after the estate is commenced. 5. Implied, or conditions in law, in a lease, are not numerous. One bearing on a landlord is, that the tenant shall have the quiet enjoyment of the premises, which means that the lessor is bound to protect the lessee against all persons in any way claiming title to the same, but not against eviction by a mere stranger. If a covenant for quiet enjoyment, however, be expressed in the lease against disturbance by the lessor, his heirs, successor, or assigns, this limits the condition, and does not protect the tenant against one claiming the premises under a title adverse to the lessor. In the case of an unjustifiable eviction' by the lessor, or those privy to him, the tenant may recover damages by an action on the case. The implied conditions in a lease bearing on a tenant are that he will not combat or defeat his lessor's title during the term,^ and that he will use the demised premises in a husband-like manner. 6. The express conditions in a lease are those written in it, or in some deed sealed and delivered at the time of the delivery of the lease. 7. Conditions that are cither repugnant to the nature of the ' Any interference with the tenant's beneficial enjoyment of the demised premises will amount to an eviction in law. Doran v. Chase, 2 Weekly Notes, 609. 2 Galloway v. Ogle, 2 Binney, 468 ; Cooper v. Smith, 8 Watts, 536. 8 84 THE LEASE. [CHAP. II. estate, or immoral, or against the policy of the law, such as would be an unreasonable restraint upon trade, or on marriage, are void ; but if the restriction on the tenant in regard to the occupatiou of the house be not highly injurious to the public interest, it will be enforced in such a manner as the circumstances may require. The non-performance of a condition is likewise excused when occa- sioned by the act of the lessor or of the law, or when the same becomes impossible by the act of God. Conditions are construed strictly. Thus, if the lease contain a condition that the tenant shall not do some particular thing without the consent of the lessor, and the lessor once consents, the condition as regards the future is gone forever, being satisfied by the one license.' But though the condition be gone, an action will lie on the covenant.^ Conditions will also be relieved against in many cases if the matter be brought to the attention of the court before the ouster of the tenant. 8. If a lessor or lessee wish to avail or defend himself of or from any condition in the lease made for the purpose of enforcing the collection of rent, whereby a forfeiture of the term might ensue, the demand or tender must be made in the daytime of the day on which the rent is coming due. 9. Covenants may be apportioned, but conditions cannot; for example, if a landowner give a lease of two farms to a tenant, and subsequently sells one of the farms to another party, the covenants are apportioned, and the purchaser may proceed against the tenant for the breach of any covenant in the lease relating to the farm he has purchased, but neither the original lessor nor the purchaser can avail himself of any condition in the lease. Therefore, if the condition be the right to re-enter on a breach of covenant, neither can profit by it. 10. In cases where a lessor may wish to avail himself of the breach of a condition to pay rent, by making a re-entry on the premises, the proceedings are troublesome, as he must make an actual demand for the exact amount of rent, on the premises leased, or at the place specified in the lease, and that during day- 1 See Dumpor's Case, 1 Smith's Leading Cases, *85, 89, also Judge Hare's Notes to the same. 2 Dickey v. McCuUough, 2 Watts & Sergeant, 88, 100. SBC. III.] THE LEASE. 35 light of the day on which the rent becomes due.^ Re-entry for non-payment of i-ent is, therefore, but seldom resorted to in Pennsylvania, except under the provisions of act of 3d April, 1830,^ or in Philadelphia under the same act, or that of 25th March, 1825.= 11. In Pennsylvania, when a lease for years contains a proviso, that if the rent be in arrear, and remain unpaid for three months, the lease shall become null and void, after ten days' notice, the interest of the lessee is determined by a breach without any re- entry.^ 12. Connected with the conditions or covenants in a lease, it is customary in Philadelphia to insert a waiver on the part of the tenant of the provisions contained in the exemption act of 9th April, 1849," and in all other acts exempting property froQi dis- tress for rent. The subject of exemption will be treated hereafter. After this is frequently inserted a warrant of attorney from the tenant, providing that in case of the violation of any of the cove- nants and agreements contained in the lease, a writ of habere facias possessionem in an amicable action of ejectment may, at the option of the lessor, issue. Of this writ and action mention will be made hereafter. 37, a. The "conclusion," which either specifies the executiorj and date of the lease, or refers to the date as written in the prem- ises, and also contains the signatures (and seals if wished), be- sides such other collateral agreements relative to the continuation of the tenancy as the parties to tiie lease may deem fit to include. ' McCormick v. Connell, 6 Sergeant & Eawle, 151. 2 Pamphlet Laws, 187. 3 8 Smith's Laws, 411. * See Kenrick v. Smick, 7 Watts & Sergeant, 41 ; Sheaffer v. Sheaffer. 1 Wright, 525 ; McKnight v. Kreutz, 1 P. P. Smith, 232. ' Pamph. Laws, 533. 36 THE LEASE. [OHAP. II. SECTIOX IV. Rent. 38. Rent is the compensation, either in money, provisions, chat- tels, or labor, receivable by the owner of the soil from the occu- pant thereof. According to Blackstone^ it could only be reserved out of land, but the Supreme Court of Pennsylvania allows a wider definition.^ 89. By English law there are three different kinds of rent, viz, : 1st. Eent-S&rvioe, so called, because, besides the payment of rent, there is some corporeal service incident to it. Of this nature is the ground rent of Pennsylvania,^ which is, however, a freehold estate, and therefore not a subject of consideration in this treatise. But of this nature are also the rents reserved on leases for years. 2d. Rent-Charge, when the recipient of the rent has no further interest or reversion expectant in the land, as when one conveys the fee simple, reserving a certain amount of rent, and inserts in the deed a covenant of distress, or when a lessee sublets the prem- ises leased, reserving in the lease the right to distrain. The tenant in such cases is liable to distress, not of common right, but by virtue of the covenant in the deed or the right reserved in the lease. 3d. Rent-Seek, when the rent is reserved by the deed, but with- out containing any covenant of distress. These distinctions in rent have now become of little conse- quence, distress being, by virtue of the English statute of George II, chapter 28, made incidental to all rents, and though the 14th and 15th sections of this statute are not in force in Pennsylvania, yet the act of Assembly of 21st March, 1772,* makes a provision far distress equally effectual. 40. Rent, unless otherwise provided in the lease, falls due at midnight of the last day of the term; that is to say, if a house be ' 2 Blackstone's Commentaries, *41. ' In Mickle v. Miles, 7 Casey, 20, the doctrine was laid down that "a rent may issue out of lands and tenements corporeal, anrfako out of them and their furniture." The lease in that case was of a dairy-farm with its stock of cattle and utensils at a certain annual rent; there being arrears due thereon, such rent was held distrainahle. " IngersoU u. Sergeant, 1 Wharton, 337 ; Wallace v. Harmstad, 8 Wright, 492. * 1 Smith's Laws, 370. SBC. IV.] THE LEASE. 37 rented for one month on, say the fifth day of the month, without the rent being made payable in any specific manner, the rent be- comes due at midnight of the fourth day of the succeeding month ;' but if it be expressed in the lease that, in order to make a condition available, the rent is to be demanded by the lessor, he must demand the same before sunset of the day on which the rent falls due, and if it be expressed that the lessee is to make the tender, in order to avoid the penalty, he must make the tender on that day before sunset.^ 41. 1. As to the mode of payment of rent, it is governed by usage or agreement between the parties, and it may be paid by draft, note, or bill of exchange. It is, however, to be remarked, if these be not met at maturity, the rent is still unpaid, and the right to claim it is not suspended, as it would be in the case of a common debt, and the landlord's right to distrain still continues, nor is this right even suspended during the time, and a landlord may take from his tenant, on account of rent, a note payable at a future day, and yet immediately distrain for the rent, unless the parties agree otherwise.' 2. Interest accrues on rent from the time it is due, though the same cannot be included in a distress.* 3. The only rent which is affected by the Statute of Limita- tions of 27th March, 1713,* is that reserved on leases by parol;" the statute providing that the action of debt therefor must be brought within six years after the cause of such suit. But arrears of rent beyond twenty years are presumed to have been paid.' 42. A sub-tenant is justified in paying his rent to the landlord of his lessor,* but not to the mortgagee of the premises demised, even 1 Marys v. Anderson, 12 Harris, 272 ; Donaldson v. Smith, 1 Ashmead, 197 ; Boyd V. McCombs, 4 Barr, 146. ^ See McCormick e. Connell, 6 Sergeant & Kawle, 151 ; Eoyer v. Ako, 3 Penrose & Watts, 461. ' Snyder v. ICunkleman,,3 Penrose & "Watts, 487; Gordon v. Correy, 5 Binney, 552. ^ Obermyer v. Nichols, 6 Binney, 159; Gaskins ti. Gaskins, 17 Sergeant & Kawle, 390. ^ 1 Smith's Laws, 76. * Davis c. Shoemaker, 1 Eawle, 135. ' IToulk V. Brown, 2 Watts, 209; see St. Mary's Church v. Miles, 1 Whar- ton, 228. « Collins V. Whilldin, 3 Philadelphia, 102 ; see Smith v. Clark, 1 Weekly Notes, 445. 38 THE LEASE. [CHAP. II. if it be to avoid the foreclosure of the mortgage, which might oust him from possession and which his immediate landlord was re- quired to pay. 43. In all parts of the State, including Philadelphia, the tenant is justified in paying any taxes that have been assessed, during his tenancy, on the demised premises, and may set oif the amount so paid against his rent.' 44. In cases where a landlord dies intestate during the term of a lease, the question arises as to whom the rent should be paid. The rent already due and in arrear goes to his administrator, and that which has accrued from the last pay-day to the date of the death goes to the heir with the subsequent rent under the Intes- tate Act of 8th April, 1833.^ 45. In the same way, if a tenant die intestate his administrator is to pay the rent already due and in arrear, and the personal estate of the intestate is liable for the rent coming due subsequently during the term, of which one year's rent prior to the death of the decedent is preferred after the funeral expenses, medicine, medi- cal attendance, and servants' wages. The other rent is only pay- able one year after the granting of the letters of administration, and unless action be commenced or a statement thereof be filed, within five years, the same will cease to be a lien on the real estate of the decedent as against a purchaser, mortgagee, or judg- ment creditor of the decedent.* 46. In cases where the leased property of a landowner is sold by the sheriff under a lien later in date than the lease, or by order of an Orphans' Court, the rent already past due before the sale be- longs to the landowner, but the rent that is computable from the last pay-day, not due at time of sale, goes to the purchaser, and may be distrained for by him jointly with the rent coming due subsequently, for rent does not accrue day by day as interest does, but by terms fixed and certain.* Therefore, if a lessor claim a I See act of 6th April, 1802, 3 Smith's Laws, SIC; Act of 3d April, 1804, 4 Smith's Laws, 203,- Act of 15th April, 1834, Pamph. Laws, 518; Act of 24th March, 1870, Pam. Laws, S44; Act of 16th April, 1879, ibid. L>4 post, p. 503. ^ Pamph, Laws, 318; McDowell v. Addams, 9 Wright, 430; Haslage v. Krugh, 1 Casey, 97; Cobel v. Cobel, 8 B;irr, 342. ' See Act of 24th February, 1834, Paraph. Laws, 77. < Bank of Pa. v. Wise, 3 Watts, 304; Boyd v. McCombs, 4 Barr, 14G; . Burna v. Cooper, 7 Casey 426. SEC. IV.J THE LEASE. 39 forfeiture and evict his tenant in the middle of a quarter, or ac- cept a surrender from him, or if the lease become void iu conse- quence of any condition tiierein contained, the lessor loses the rent corresponding to the period since the last pay-day. 47. Rent is, however, apportionable iu many cases : 1st. If a landlord be possessed of two farms or houses and leases both to the same tenant, for a set rent, and one be taken in execu- tion and sold by the sheriff, the purchaser is entitled to a fair pro- portion of the rent. 2d. Incases where the landlord sells and grants a part of leased premises, he may agree with his vendee as to what proportionate part of the rent each shall be entitled ; and in case of non-pay- ment by the lessee each may distrain for his proportionate part of the rent."- 3d. In case of the death of a landowner leaving more than one heir, the rent is apportioned, and part goes to one heir and part to another, and if there be a widow, part to her. 4th. In the case of the death of a tenant for life, who having leased the premises, dies during a quarter, his personal represen- tatives can claim, but cannot distrain for, the rent computable to the day of the death, while that which comes due afterwards goes to the reversioner." 5th. In cases where a tenant is evicted of part of the demised premises by a stranger under a title adverse to his lessor, the lease containing an express covenant for quiet enjoyment, limited to the acts of the lessor and those under whom he claims, or who may claim under him, the lessor can claim a proportionate part of the. rent ; but if there be no limitation in the covenant for quiet enjoy- ment, the lessor not only loses all the rent due since last pay-day,, but is liable to a claim for damages by his tenant. 6th. In cases of a judicial sale of the tenant's chattels, the rent is apportioned ; and the lessor may claim out of the sale one year's rent up to the day of the last levy.^ In case, however, the ten- ant's interest in the lease be sold and the lessor purchase it, the lease merges and the lessor loses the rent accrued since last pay-day., i Eeed v. Ward, 10 Harris, 144 ; Linton v. Hart, 1 Casey, 193. » See Act of 24tli February, 1834, Pamph. Laws, 77. 3 Weltner's Appeal, 13 P. P. Smith, 302 ; "Wickey t>. Eyster, 8 P. P. Smith,,, 601. 40 THE LEASE. [CHAP. II. 7th. In case of the fraudulent removal by a tenant, in Philadel- phia, of his goods, the landlord is authorized by act of 25th March, 1825,' to consider the rent as apportioned up to the day of the removal, and can claim the same, and may, follow the goods and distrain upon them wherever found. 8th. In case of the bankruptcy of a tenant the landlord can claim the rent up to the time of bankruptcy, i. e., the time when the petition was filed.^ If the assignee of the bankrupt occupy the premises after that day, he is personally liable for the rent accruing during his occupancy, and not the estate. But if the occupancy be for the good of the estate, he may credit himself for the rent paid. SECTION V. The Incidents : Easements, Emblements, and Fixtures. 48. Incident to a lease is the right which the tenant has during the tenancy to the easements, emblements, and fixtures, appurte- nant and belonging to the land. I. Easements. 49. Easements are privileges without profits which the public or occupants of land have in the property of a neighbor. The principal ones are — 1. Right of way. 2. Eight of watercourse. 3. Eight of light. 4. Common of estovers. 5. Common of pasture. 6. Common of turbary. 7. Common of piscary. 8. Eight of support of neighboring soil, building, or wall. 9. Eight of drain. (1.) Hiffht of Way. 50. A right of way is the privilege of passing over another's land, and may arise or be gained — 1st. By necessity. 2d. By prescription. 3d. By grant. ' 8 Smith's Laws, 411. Extended to Pittsburg and Allegheny, see p. 189. 2 See Barnes's Apl., 26 P. P. Smith, 50 ; Prentisf. K.ingsley, 10 Barr, 120. SEC. V.J THE LEASE. 41 51. First By necessity, it arises when one man sells or leases to another land which is wholly surrounded by land of the grantor, the right of way in such case is implied, and becomes appurtenant to the land granted.' 1. It extends only to a single way, nor does it exist when the grantee or those claiming under him can reach the property over the property granted.^ The right does not exist by necessity through an alley when the claimant has an entrance through his own property.' 2. The right of locating it belongs to the owner of the outer land, but it must be a convenient way; and after it has been once marked out, the grantee has no right to deviate, although the way may become impassable. 3. The lessee of a wharf has no right to place structures on the wharf which will interfere with its use by the public for purposes connected with navigation. 52. Second. When by prescri-ption, it arises from an uninter- rupted adverse user of the right of way for twenty-one years, and an original grant is presumed.* 1. An adverse user is the enjoyment, without license, of a way over the land of another, and its continuance for twenty-one years raises the presumption of a grant, and casts the burden of show- ing the contrary on the owner of the land.^ 2. This presumption is not rebutted by equivocal and incon- sistent declarations on the part of the landowner. 3. It has been held that twenty-one years' uninterrupted enjoy- ment raised the presumption whether the land was inclosed or uninclosed, cleared or woodland.' But this is now modified by the act of 25th April, 1850,' which enacts, in Section 21, as fol- lows 1 Wissler v. Hersey, 11 Harris, 333 ; Plitt ». Cox, 7 Wright, 486. 2 McDonald v. Lindall, 3 Kawle, 492. ' Ogden V. Grove, 2 Wright, 487. * In Esling v. Williams, 10 Barr, 126, Rogers, J., said, though the evi- dence was that the right of way was enjoyed twenty-one years, that twenty years was suflScient. ' Garrett v. Jackson, 8 Harris, 331 ; Okeson v. Patterson, 5 Casey, 22. 8 Pierces. Cloud, 6 Wright, 102; Plitt s. Cox, 7 Wright, 486. ' Worrall v. Ehoads, 2 Wharton, 427; Keimer v. Stuber, 8 Harris, 464. 8 Pamph. Laws, 6^2. 42 THE LEASE. [CHAP. II. " No right of way shall hereafter be acquired by user, when "such way passes through uninclosed woodland, but on clearing "such woodland the owner or owners thereof shall be at liberty to " inclose the same, as if no such way had been used through the same " before such claims or inclosure ; Provided, That t!ie provisions " of this section shall in no way aifect any suit or suits now pend- " ing in any of the courts of this Commonwealth in relation to any " right of way or any other matter embraced in this section." This act does not apply to a right of way which was perfect before its passage.' 4. Long-continued use does not give a title to a franchise which is an encroachment on a public right.^ 5. An easement acquired by prescription is to be measured by the enjoyment of it, and cannot subsequently be used in a differ- ent and more extensive manner.^ 53. Tliird. When by grant, it can only arise from express words in a deed, or from the implication therein contained, or from some oral agreement, accompanied by a specific performance. 1. It concedes only a right of passing in a particular line, and not to vary at pleasure, and when granted for a specific purpose, a subsequent fixing of the location is binding on both parties/ 2. "When owners of adjacent laud dedicate (even by parol) an alley to the use of the several lots, and erect buildings iu reference thereto, the right of way over it becomes appurtenant to each lot ;' and when the alley is laid out for the use of lotholders bounding thereon, it can only be abandoned by the consent of all.^ When land subject to an alley-way is sold and the portion entitled to the easement is retained, a purchaser of the latter will be entitled to the enjoyment of the right of way.' ' 3. The grant of a right of way does not necessarily imply that the grantor may not maintain a gate at its place of connection with the highway.^ ' Fisher v. Parley, 11 Harris, 501; Peter u. Hunsicker, 4 Casey, 202; Okeson V. Patterson, 5 Casey, 22. ^ Commonwealth v. Philadelphia, 4 Harris, 79. 3 Jones V. Crow, 8 Casey, 398. * Kraiint's Appeal, 21 P. P. Smith, 64. 6 Rhea?). Forsyth,! Wright, 503; McCurty w. Kitohenman, 11 Wright, 239. 6 MoKee v. Perehment, 19 P. F. Smith, 842. ' Eitchman v. McCarthy, 5 Philadi^lphin, 189. » Connery v. Brooke, 23 P. F. Smith, 80. SBO, v.] THE LEASE. 43 4. The owner of a property, subject to a right of way, has a right to build over the alley or passage-way so that he does not obstruct the passage.^ 5. Where a private way is reserved, one claiming under the party reserving, has no right to use it for other purposes than those de- signed, to the injury of the occupant of the land.^ 6. A right of way granted in consideration of another cannot be revoked in consequence of an interruption of the latter, and an action for a disturbance of the right will lie.' 7. An express grant of a right of way does not exclude another easement annexed to the premises by implication;^ and where in a grant of land the same is described as bounded by a certain street, a right of way over the street is implied, though the street be not open to public use.'' 8. As to the non-user of a right of way, where the right was created by contract, if there be no actual denial of the right, accompanied by an adverse enjoyment for twenty-one years, the mere non-user does not bar the right;" and though a right of way will be suspended by the union in the same person of the titles to the property subject to the right and to that to the property bene- fited by it, yet, if those properties be sold at sheriff's sale to dif- ferent parties, the right of way is revived and will continue as it existed before the union of the titles/ And where a property owner establishes a right of way over his own property, necessary for the convenient use thereof, tiie sanje will not be extinguished by a subsequent sale or incumbrance.* 9. The right may be appurtenant to land from which the way is divided by a navigable river.^ 10. As to the evidence admissible or requisite to establish a ^ Stevenson v. Stewart, 7 Philadelphia, 293. ^ Shroder v. Brenneman, 11 Harris, 348, and cases there cited; Carty's Ap'l., 5 Weekly Notes, 241. s Bbner v. Stichter, 7 Harris, 19. * Kay V. Stallman, 2 Weekly Notes, 613. 6 Crow V. Wolbert, 7 Philadelphia, 178. ^ Linderman v. Lindsaj', 19 P. F. Smith, 93 ; Bombaugh v Miller, 1 Nor- ris, 203; Hall v. MeCaughey, 1 P. F. Smith, 43. ' Kieffer v. Imhoff, 2 Casey, 438; McCarty v. Kitchenman, 11 Wright, 239; Phillips v. Phillips, 12 Wright, 178. 5 Pennsylvania Eailroad Company «. Jones, 14 Wright, 417. ^ Lazaretto Eoad, 1 Ashmead, 417. 44 THE LEASE. [CHAP. II, right of way, it may be either public user or private user for over twenty-one years, as well as contract.' 11. The proper remedy for the disturbance of a right of way is action of trespass on the case,^ and to this action a tenant is restricted, but the owner of the freehold may maintain an action of assize of nuisance, or of quod permittat prosternere. These actions are not usual, but it has been held by our Supreme Court that all common law actions not abolished by the legislature are in force here precisely as in England.^ 12. The obstruction of a right of way is a misdemeanor, and is punishable under act of 31st March, I860.'' (2.) Right of Watercourse. 54. 1. A right of watercourse is the right that every occupant of land through which flows a natural stream of water has to the advantages of the same, flowing in its natural course, to be used by him in a manner not inconsistent with the rights of other ripa- rian owners. 2. No riparian owner has a right to divert, overcharge, pol- lute, detain, or overflow the stream.^ 3. The right may be acquired by prescription or by grant. An uninterrupted, exclusive enjoyment for over twenty-one years affords a conclusive presumption of the right ;° and if an upper riparian owner claim the right by prescription to pollute the stream, he cannot do it to a greater extent than it was polluted at the commencement of the twenty-one years, and the right must be measured by the enjoyment.' 4. A man may acquire a right to abut his dam upon the land of another by an actual possession of it for that purpose for twenty-one years ; but no shorter time will give such a riglit.^ ' McFerren v. Mont Alto Iron Company, 26 P. F. Smith, 180; Arnold v. Cornraan, 14 Wright, 361. 2 Jonos V. Park, 31 Legal Intelligencer, 37'J (1874) ; Union Petroleum Com- pany V. Bliven Petroleum Company, 22 P. F. Smith, 173; OUescin v. Pat- terson, 5 Casey, 22; Shroder v. Brenneman, 11 Harris, 348. 2 Barnet v. Ihrie, 17 Sergeant & Kawle, 174, 211. ■■ Pamph. Laws, 71. ' Howell V. McCoy, 3 Rawle, 256; Beissell v. Sholl, 4 Dalla.», 211 s Strickler v. Todd, 10 Sergeant & Rawle, 63; Wheatley v. Chrisman, 12 Harris, 298; Warren «. Hunter, 1 Philadelphia, 414. ' Mc'CuUum V. Germantown Water Co., 4 P. F. Smith, 40. s Beidelman v. Foulk, 5 Watts, 308. SEC. yJ] THE LEASE. 45 5. The unreasonable obstruction of a stream is a nuisance/ as is a privy-well which leaks into a neighbor's premises," or a tan- yard, or gas works, the fluids of which percolate the soil and destroy a neighbor's spring, or corrupt or render unwholesome the water of a stream.^ For such nuisance an action of assize of nuisance will lie.'* 6. The proper remedy for disturbance of the right of water- course is action of trespass on the case.' The maintainer of a nuisance is also liable to indictment under act of 31st of March, 1860.'^ (3.) night of Light. 55. 1. A right of light exists in England when one's windows open on his neighbor's premises. 2. According to English law the owner of a house will be re- strained by injunction, and be liable to an action on the case if he make any erections so as to obstruct the ancient lights of an ad- joining house. Such, however, is not the law in Pennsylvania. The right to hold such lights cannot exist by prescription or occupancy, although it may by grant or reservation,' and it has been held that where a lessor demised a house in which there were sundry windows opening upon a vacant lot, owned by a third person, the erection of a party wall by such third person, whereby the windows were obstructed, was not an eviction.^ And where two houses belonging to the same owner were sold at public sale under a power in his will, and in the one last sold there were windows overlooking the other property, an easement for light and air was not created, and the property first sold did not be- 1 Eeynolds v. Clarke, 1 Pittsburg, 9. * Jacobs V. Worrell, 15 Legal Intelligencer, 139. 3 Pottstown Gas Co. v. Murphy, 3 Wright, 257 ; Howell v. McCoy, 3 Eawle, 256. * Sherer v. Hodgson, 3 Eawle, 211. 6 Linderman v. Lindsay, 19 P. F. Smith, 93; Strickler v. Todd, 10 Ser- geant & Eawle, 63 ; Hart v. Evans, 8 Barr, 13 ; Graver v. Shnll, 6 Wright, 58; Casebeer v. Mowry, 5 P. P. Smith, 419; McCoy v. Danley, 8 Harris, 85. * Pamph. Laws, 401. ' Haverstick v. Sipe, 9 Casey, 868; King v. Large, 7 Philadelphia, 282; McDonald v. Bromley, 6 Philadelphia, 302. 8 Hazlett V. Powell, 6 Casey, 293. 46 THE LEASE. [CHAP. 11. come a servient one thereto.' Nor can a party by twenty-one years' adverse usage acquire the right to maintain a window in a party wall.^ (4.) Common of Estovers. 56. A common of estovers is the right to take off the demised premises, as an incident to the lease, sufficient wood for the use or furniture of the house, or for burning therein, or repairing the same, or for repairing the out-buildings, fences, or instruments of husbandry. These estovers must be reasonable in amount. Very few cases in regard to the right of common have been litigated in our courts, but that of estovers exists in Pennsylvania, and there is nothing in the doctrine adverse to the spirit of our laws. (5.) Common of Pasture. 67. A common of pasture is the right of feeding one's beasts on the lands of another, on those open grounds in England called commons — the soil of which generally belonged to the lord of the manor. The right is not in common use in Pennsylvania. By act of 11th September, 1787,^ the State, in laying out the town of Allegheny, reserved one hundred acres as common of pasture for the lotholders. Since then part of the common was awarded by the State to the Western University of Pennsylvania, and also to the Penitentiary, and a railroad was built across it. Some of the lotholders sought for an injunction in the Supreme Court, which was, however, denied them by a divided court.* (6.) Common of Tiirbarij. 58. A common of turbary is the right of digging and consum- ing, for the use of the house, turf from the lands appurtenant to the freehold. Although turf is not in common use in Pennsyl- vania as a fuel, it is probable that a tenant has the right to use it, when it exists on the demised premises, and it is probable that he would have that right to the same extent in regard to coal on the premises. 1 Maynard v. Esher, 6 HariMs, 222. Sea Kennyson's Appeal, 8 Weekly Notes, 383. ^ Milne's Appeal, 81 P. F. Smith, 64, ' 2 Smith's Laws, 414. * "Western University v. Eobinson, 12 Sergeant & Kawle, 29; Carr v. Wallace, 7 Watts, 894; Bell v. Ohio & Pa. E. B. Co., 1 Grant, 105. SBC. v.] TIIH LEASE. 47 (7.) Common of Piscary, 59. 1. A common of piscary is the right of fishing in the water covering the soil of another, or in a stream running through the land of another.' 2. This right, so far as it relates to small streams or lakes in Pennsylvania, exists by the sufferance or grant of the owners of the soil on which the water lies, restricted, however, by various acts of the Legislature passed for the preservation offish. Most of these were local laws, and are now supplied by the act of 3d June, 1878,' entitled: "An act to amend and consolidate the several Acts relating to game and game fish," and its supplement of 1881 ? The privilege of fishing in the large rivers of the State, such as the Delaware and Susquehanna, is (subject to the provisions of the above act) open to all persons so far as angling goes, but the ripa- rian owners have alone the right to draw the seine and take the fish on their own lands, and if an island or rock in a river be private property, no one but the owner has the right to use it for fishing.* 3. The act of 3d June, 1878, provides as follows : In section 17 that there shall be no fishing (or hunting) on Sunday, under penalty of $25. In section 18, that no person shall catch speckled trout (save for purposes of propagation) except with rod, hook and line, under penalty of $25 for each offence. In section 19, that no person shall expose for sale or have un- lawfully in possession any salmon or speckled trout, save only during the months of April, May, June, and July, under penalty of $10 for each, except when any person catches trout with nets, in water owned by himself, to stock other waters. In section 20, that no person shall kill any lake trout during the months of October, November, and December, under penalty of 1 10 for each fish. In section 21, that any person trespassing on lands for the purpose of taking fish from any ponds, streams, or springs (used or improved by the owners or lessees for the propagation of fish), after public notice, on the part of the owner or occupant, posted ' 2 Blaokstono's Comra. 34 to 39. 2 Pamph. Laws, 160. a lb 79. * See Commonwealth v. Shaw, 14 Sergeant & Eawle, 9 ; Carson v. Blazer, 2 Binney, 475; Shrunk v. Schuylkill Navigation Company, 14 Sergeant. <& llawle, 71 ; Tinicum Fishing Company v. Carter, 11 P. P. Smith, 21. 48 THE LEASE. [CHAP. II. adjacent to such, shall be deemed guilty of trespass, and in addi- tion to danaages recoverable at law, shall be liable to said owner or occupant in a penalty of one hundred dollars. Section 22 prohibits, under a penalty of twenty -five dollars, the fishing with nets and baskets or any other permanently set means, excepting with gill nets in the river Delaware below Trenton Falls. In section 25, that no person, between the first of January and the first of June, shall catch or kill, save only with a hook and line, scroll or spear, any bass, pike or pickerel (Susquehanna sal- mon), under a penalty of $10 for each and every offence. Pro- vided this does not apply to the waters of Lake Erie, except in the ponds oc the island or peninsula forming the north and east shore of the harbor of Erie. Section 26 prohibits fishing by drawing off waters, and by placing explosives in a stream. See also sections 23, 24, 27, 28, 29, 30, and 31. 4. The second section of the act of 10th June, 1881,' amended the 25th section of the act of 1878 {supra), so that bass, pickerel, and salmon cannot be caught with scroll or spear. See also sec- tions 3 and 4 of act of 1881. (8.) Sight of Support of Neighboring Soil, Building, or Wall. 60. 1. A right of support is the right one neighbor has in the support existing either in the soil, building, or wall on his neigh- bor's ground. Thus no one has a right to excavate and remove the soil on his own premises in such a manner as to damage the laud of his neighbor. 2. As to party walls, they are regulated in Philadelphia by the following acts of Assembly : Act of 24th February, 1721,'' provides in section 2, that the regulators, i. e., surveyors elected by the qualified voters of the survey district for a term of five years, may enter on the land of any one to set out the foundations and regulate the walls to be built between party and party, and the foundation shall be laid equally upon each party's land, the first builder to be reimbursed half of the cost of the party wall by the second builder desirous > Pamphlet Laws, 80. 2 1 Smith's Laws, 125; see Act of 2l9t April, 1855, Pamph. Laws. 265. SEC. V.J THE LEASE. 49 of using the same before the latter shall use the same — the value of said wall to be fixed by the regulators. Act of 10th April, 1849,' iu sectiou 4, provides that in all con- veyances of houses the right to the party wall or the compensa- tion therefor shall pass to the purchaser, and the owners of the house have all the remedies. Act of 7th May, 1855,^ authorizes the appointment of building inspectors, and with the act of 11th April, 1856,^ relates to the thickness of the walls. 3. An act was passed 8th April, 1872,^ relative to party walls in Pittsburg. 4. The party wall, within the meaning of the act of 24th February, 1721, is a solid one. The erection of one with windows in it will be restrained by injunction, as will also the use of a party wall before payment of the proportionate cost;^ but no action will lie for this cost until the second house be actually begun. If a trench be made before payment, the first builder may maintain trespass, or he may waive the trespass and bring assumpsit.^ 5. The act of 10th April, 1849, makes the party wall real estate, and it passes by a conveyance of the land,^ but the act is not retrospective, and does not operate on deeds executed before its passage." 6. As to partition fences — they are regulated by numerous acts of Assembly running from the year 1700 to the year 1873, of which the following are in force: Act of 11th March, 1842,' which in section 1 provides that township auditors shall be fence-view- ers; section 3, that when any two persons shall improve lands adjacent to each other, or any person shall inclose land adjoining the fenced-in land of another, so that any part of the first person's farm becomes the partition fence between them, the charge of such division fence shall be borne by both; section 4, that the auditors shall view partition fences within five days after notice. I Pamph. Laws, 600. ' Id. 466. ^ Id. 319. * Id. 986. " Vollmer's Appeal, 11 P. ¥. Smith, 118; Slasson & Besanson's Appeal, 20 P. P. Smith, 26; Sutoliffi). Isaacs, 1 Parsons, 494. ^ Ingles V. Bringhursi, 1 Dallas, 341. ' Knight V. Beenken, 6 Casey, 372. 8 Dannaker v. Eiley, 2 Harris, 435 ; Bell v. Bronson, 5 Harris, 863. 9 Pamph. Laws, 62 4 50 THE LEASE. [CHAP. II. Act of llfch March, 1862,^ as amended by act of 6th May, 1870,^ makes the building inspectors of Philadelphia fence-view- ers, states their duties, and provides how fences shall be built and how the cost shall be divided. Act of 23d March, 1865,^ provides a punishment for breaking down fences within the Commonwealth, and act of 22d March, 1865,'' provides a remedy for the delinquency of any party in building or repairing a fence. For the regulation of fences in Washington and Allegheny counties, see act 28th March, 1808;^ in Erie County, see act 24th April, 1857.'= But for a full discussion of the law relating to fences, the reader is referred to a subsequent part of the work, where the writers have set out all the acts of Assembly.' (9.) Right of Drain. 61. 1. A right of drain is the right a man has of drainage through another's land, and where one man gives another a license to lay water-pipe on his land, it implies the right to enter thereon and dig the soil in order to repair the pipe. 2. It is not an uncommon thing for builders in erecting houses to lay drain-pipe "Connecting with the several houses and for the common use of the same. In such case it is illegal for the owner or occupant of one of these to break the pipe in his own ground and arrest the flow of water from his neighbor's premises. It is also illegal for the beneficiary of the right to exceed the easement by an increase of flow.* 3. For the good of agriculture, and to facilitate mining, the Assembly, by acts of 4th April, 1863,' and its supplements, 18th April, 1864;'° 4th May, 1864;" 18th March, 1869 j'^ 18th Feb- ruary, 1870;'3 10th March, 1871 ;" 19th May, 1871 ;" 9th March, 1872,'* provided how owners of lands or mines might extend 1 Pamph. Laws, 109. ' Id. 1303. » Id. 42. * Id. 538. 5 i Smith's Laws, 528. " Piimph. Laws, 309. ' Chapter XIX, section 2. s Chestnut Hill & Spring House Turnpike Co. -u. Piper, 27 P. F. Smith, 432. » Pamph. Laws, 293. «> Id. 459. " Id. 768. " Id. 401. >' Id. 197. " Id. 318. IS Id. 987. « id. 303. SEC. V.J THE LEASE. 51 their drains through the lands of others ; and by act of 9th May, 1871/ how swampy or wet lands might be redrained at the cost of the respective owners ; but the latter act was declared to be unconstitutional, as to the lands of several owners held dis- jointly.^ 62. Besides those before-mentioned, there exist several other easements, such as the right of watering cattle at another's spring, or taking water therefrom, right of drying cloths, burial rights, right of eavesdrop, etc., etc., in regard to which the reader is re- ferred to Washburne on Easements. 63. An easement created by deed cannot be extinguished by parol, nor by non-user, unless the same be accompanied by denial or some other act to quicken the beneficiary in the assertion of his rights.^ And when a landowner erects a mill with a dam and race, and afterwards sells that part of the land on which the dam and race are, the grantee takes subject to the easement.* II. Emblements. 64. 1. Emblements are those growing crops of annual growth to which at common law a tenant from year to year, or at will, or for life, is entitled after the ending of the tenancy. They are given to the tenant as a compensation for the labor and expense of sowing and tilling the lands, in those cases where the deter- mination of the tenancy hapf)ens either from the act of God, the operation of law, or the act of the lessor.' Thus, if the lessee of a tenant for life sow land and the tenant for life die, whereby the tenancy is extinguished, the lessee may, nevertheless, re-enter on the land to cultivate the crop and to reap it, or when a lease is made to husband and wife during coverture, and they be afterwards divorced, the tenancy being dissolved by operation of law, the hus- band is entitled to the emblements ; or when the landlord dissolves the tenancy of a tenant at will, or of a tenant from year to year, the tenant is also entitled to the emblements. 2. In Pennsylvania the right to emblements is by custom ex- tended to tenancies for years — that is to say, tenancies for a fixed 1 Pamph. Laws, 263. " Rutherford's Case, 22 P. P. Smith, 82. » Erb V. Brown, 19 P. F. Smith, 216. * Seibert v. Levan, 8 Barr, 383. 5 See Comfort v. Duncan, 1 Miles, 229 ; Hunter v. Jones, 2 Brewster, 870. 52 THE LEASE. [CHAP. II. and determinate period, so far as relates to a crop put in in the fall, when the term ends in the following spring, and in these cases the tenant has the right to re-enter after the expiration of his term to cultivate and remove the crop,' and the tenant has a right to the straw as well as to the grain ;^ but if a tenant put in a crop in the early spring, when his tenancy is to end the same spring or summer, before the crop can mature, he is not entitled to the crop, and the same goes to the lessor.^ 3. It would be difficult to enumerate what vegetable products are emblements, but the term includes all which produce their crop in the harvest following the tenancy, and which are within the year in which the labor is expended and which require the labor and industry of the tenant to produce them ; but such things as are not of annual growth, but are permanent, are not emble- ments : clover and grass, fruit and trees are not, even if sown or planted by the tenant." 4. Bad husbandry does not deprive the tenant of his right to the way-going crop,' nor does a sale of the lessor's reversionary interest under a judgment antedating the lease,' nor even a sale to a purchaser who has obtained possession of the premises by pro- ceedings in ejectment.' But when a tenant has been ejected for condition broken, he loses his rights to the emblements, both at common law and under the custom of Pennsylvania.* 5: When rent is reserved in a lease, payable in a part of the produce of the land, and the lessor dies before the crop is gathered, the same passes to his heir and not to his executor,' and in a sale of the premises by order of Orphans' Court, the same will pass to the purchaser.'" 1 Demi«. Bossier, 1 Penrose & "Watts, 224 ; StuUzti. Dickey, 5 Binney, 285. « Bank v. Bank, 5 Barr, 211 ; Craig v. Dale, 1 Watts & Sergeant, 509; Iddinga v. Nagle, 2 Watts & Sergeant, 22. 3 Demis v. Bossier, 1 Penrose & Watts, 224 ; Stultz v. Dickey, 5 Binney, 285 ; Carson v. Blazer, 2 Binney, 487 ; Biggs v. Brown, 2 Sergeant & Kawle, 14. 4 Eeiif t). EeifT, 14 P. P. Smith, 134. 6 Clark V. Harvey, 4 P. F. Smith, 142. 8 Bittinger v. Baker, 5 Casey, 66 ; Miller v. Clement, 4 Wright, 484 ; Bear V. Bltzer, 4 Harris, 175. ' Biggs '0. Brown, 2 Sergeant & Eawle, 14. " Hunter v. Jones, 2 Brewster, 370. 9 Cobel V. Cobel, 8 Barr, 342 ; McDowell v. Addams, 9 Wright, 430. "o Burns v. Cooper; 7 Casey, 426. SEC. V.J THE liKASE. 53 6. A mere cropper (that is, one employed to cultivate land, receiving as pay a part of the crop), not being considered a tenant, has no claim on the way -going crop on a sale of the land.' 7. If a lessor injure a way-going crop, after the ending of the tenancy, he is liable to an action of trespass by the ex-tenant.^ 8. No agricultural tenant has the right to remove the manure made upon the land, as good husbandry requires that the same shall be retained thereou.^ III. Fixtures. 65. 1. Fixtures are those personalties which, being neither chattels nor furniture, have been annexed to the freehold. As to what they are is a mixed question of law and fact.* 2. Fixtures may be divided into three classes, viz.; first, trade; second, agricultural ; third, domestic. Of these some are remov- able by the tenant. The ancient rule was that the landlord was entitled at the end of the tei-m to all the additions, improvements, or repairs made by the tenant, excepting such additions as could be removed by the tenant during his term without damage being done to the property. 3. The law has, however, of late years so favored the tenant, that it is difficult to recapitulate what fixtures may or may not be removed by him. It has been decided that it is not the charac- ter of the physical connection, but the intention of the party affixing, the nature and character of the act, and the policy of the law, which constitute the criterion of annexation.^ As a. general rule, all trade fixtures may be removed f and of domestic and agricultural, those affixed by the tenant solely for personal conve- > Adams v. McKesson, 3 P. F. Smith, 81. 2 Forsyth v. Price, 8 Watts, 282. ' Lewis V. Jones, 5 Harris, 262. * Campbell v. O'Neill, 14 P. F. Smith, 290. E Hill V. Sewald, 3 P. F. Smith, 271 ; Meigs's Appeal, 12 P. P. Smith, 28; Voorhees v. Freeman, 2 Watts & Sergeant, 116. ^ Lemar v. Miles, 4 Watts, 330. A trade fixture put in by a tenant may, however, become irremovable, if such appears to have been the intention of the parties to the contract. Jermyn v. Diclcson, 3 Luzerne Legal Kegister, 100. » Seeger v. Pettit, 27 P. P. Smith, 437. 54 THE LEASE. CHAP. II. 4. In regard to this matter there must be considered — 1st. The mode of affixion and the extent to which the same is limited. 2d. The nature and construction of the fixture and the object of annexing it, whether for a permanent addition or for a tempo- rary convenience. 3d. The effect upon the freehold of the removal of the fixture. 4th. The intention of the tenant at the time of affixing and also the adaptability of the fixture to the use of the freehold. Independent of the above there are erections made at times by tenants, so disconnected from the realty as to be considered as mere chattels, and not as fixtures, such as a building resting on blocks of wood not fixed in the ground. 5. In regard to the nature of a fixture, when it is so inti- mately connected with the freehold, that it is essential to its en- joyment, it is not removable; for instance, keys to locks, title- deeds and heirlooms, also flowers, fruit trees, and shrubs, unless where the tenant may be a nurseryman or gardener. 6. Gas fixtures, such as chandeliers and side brackets, are per- sonal property, and do not pass by a sale of the real estate.* 7. The right of the tenant to remove fixtures exists only during his term and occupancy, and is lost by the forfeiture or surrender of his lease.^ Moreover, even if a tenant continue in possession under a new agreement or lease, his right to remove the fixtures attached during his old tenure is lost, unless he shall have made some special agreement with his landlord to preserve the same. When one covenants to erect a sawmill on the lands of another, agree- ing that at the end of the tenancy the buildings shall belong to the lessor and the machinery to the tenant, the latter must exer- cise his right of removal before the expiration of the term.^ The lessee of a tenant for life must remove fixtures erected by him during his term. The remainderman is not bound by any agreement made between the tenant for life and the lessee, even when he has accepted rent from the lessee when it does not appear that he knew of such agreement.* I Vaughen v. Haldeman, 9 Casey, 5-2. ' Davis V. Moss, 2 Wright, 346 ; Tliropp's Appeal, 20 P. ¥. Smith., 395. ' Overton v. Williston, 7 Casey, 165. ° White V. Arndt, 1 Wharton, 91. SEC. v.] THE LEASE. 55 8. When fixtures are erected for trade purposes, they are per- sonal property of the tenant, and may be seized in execution for his debts.' NoTB.— See Chapter II, Sec. 1, yj 24, 7th, and f 25, page 21 ; and Sec. Ill, % 36, 12, page 31. In regard to the assignment of the estate and the interest of a lessor or a lessee under a lease, the same may be made — 1st. By the voluntary act of the parties ; and 2dly. By operation of law. I. By the voluntary act of the parties the same may be made — 1st. By the lessor, of his interest under the lease ; and 2dly. By the lessee, of his right of occupation under the lease. As to the manner in which this may be done. The act of 21st March, 1772, 1 Smith's Laws, 389, called the Statute of Frauds, provides in Section 2, as follows: " And moreover, no leases, estates, or interests, either of freehold, or terms " of years, or any uncertain interest of, in, to, or out of any messuages, manors, " lands, tenements, or hereditaments, shall at any time be assigned, granted, or " surrendered, unless it be by deed or note in writing, signed by the party so "assigning, granting, or surrendering the same, or their agents thereto, law- " fully authorized by. writing, or by act and operation of law." This act was taken from the English Statute of Frauds (29 Car. II, c. 3) not in force in Pennsylvania. The first section of the act provides that all leases not put in writing and signed by the parties, shall have the force and effect of estates at will, only " except nevertheless all leases, not exceeding the " term of three years from the making thereof." This exception is construed to extend also to the second section. See McKinney v. Eeader, 7 "Watts, 123. From the simple reading of the act, it would seem, 1st. That an oral lease for a term of over three years creates but a tenancy at will, which can be dissolved by the mere motion of the lessor or lessee. 2d. That an assignment of an oral lease, or the surrender of interest in an oral lease, or in a term, be it for more or less than three years, must bo in writing. And such would be the case did not equity intervene and decide that the- Statute of Frauds shall not be used to support and abet frauds. In regard to an oral lease for a term of more than three years creating but. a tenancy at will, it was decided in Clayton v. Blakey, 2 Smith's Leading Cases, *180, that an oral lease for over throe years, though not binding for' the term, creates, notwithstanding the statute, a tenancy from year to year, which will require legal notice to determine. And, moreover, it has been, frequently decided by our Supreme Court that an oral sale of lands, accom- panied by possession, is binding between the parties and against grantees of the grantor with notice (Milliken v. Dravo, 17 P. F. Smith, 232; McGibben». ' Heffner v. Lewis, 23 P. F. Smith, 302; Hay v. Bruner, 11 P. F. Smith, 87. 56 . THE LEASE. [CHAP. II. Burmaater, 3 P. F. Smith, 334 ; Tupp v. Bishop, 6 P. F. Smith, 429 ; Farley u. Stokes, 1 Parsons, 422) ; and wliere the rescinding such sale would work injustice. Moore v. Small, 7 Harris, 470; Butler's Appeal, 9 Wright, 172. The Supreme Court in eflFect held that though the lien of an unrecorded mortgage will not hold against the lien of a judgment, yet the estate con- veyed by the mortgage will prevail against a judgment creditor who had, prior to the creation of the debt, knowledge of the mortgage. Eeasoning on these decisions, it would seem that a lessor who makes an oral assignment, with delivery of the lease (for value) of his interest in either an oral or written lease, would be estopped in equity from contravening the assignment, as would also those, with notice, claiming under him. In regard to the assignment by a lessee of his terra when be gives posses- sion of the premises to his assignee, he would certainly be estopped, whether the term was for one year or ten. As to a surrender of leased premises under an oral lease of less than three years, it was decided in McKinney v. Eeader, 7 Watts, 123, that the same was implied by the abandonment of the premises. See also Grieder's Ap'l., 5 Barr, 422 ; Kiester v. Miller, 1 Casey, 481. II. In regard to assignments of interest under a lease by operation of law a. they are — ■ 1st. In case of marriage by a feme sole. 2d. When lands are extended under act of 16th June, 1836, Pamph. L., 769. 3d. When the reversionary interest of a landlord is sold under an execution by order of court. 4th. In cases of bankruptcy. 5th. In cases of death. In such cases the interest passes without any article in writing. u. Where the lessee covenants not to assign without a license, such a cove- nant applies only to voluntary assignments or sales by the act of the lessee, and not to those by mere act of law, or proceedings, in invitum. Thus cred- itors may seize and appropriate the value of the lease as in cases of insolvency, or bankruptcy, or in judgment and execution ; unless the judgment be con- fessed with a view to evade the covenant, or unless it be a part of the express agreement, that the lease shall not so pass by operation of law. See 4 Kent's Commentaries, 1124, where numerous authorities are cited, and also Comyn's Landlord and Tenant, *238-*241, and cases there cited. SEC. I.] WRONGS AND REMEDIES. 67 CHAPTER III. Weongs, and the Eemedies therefor, Incidental to the Eelation of Landlord and Tenant. SECTION I. AS TO THE LANDLORD. I. The Wrongs Against the Landlord. 66. The wrongs which a landlord may suffer from the action, neglect, or refusal of his tenant are : 1st. Waste or dilapidation of the freehold. 2d. Non-payment of rent. 3d. Fraudulent removal of the tenant's chattels to avoid a distress. 4th. Resistance to a distress, legally made. 5th. Rescue of chattels, legally distrained. 6th. Breach of the pound, in which the distress is impounded. 7th. Non-delivery of possession of the demised premises at the end of the term, or upon the happening of some contingency, which may authorize the determination of the tenancy. 8th. Setting up by the tenant of a title, in himself or another, adverse to that of his landlord. II. The Landlord's Remedies. 67. First. The landlord's remedies against his tenant for waste^ are: 1. Preventive.^ (1.) Writ of estrepement.* (2.) Injunction.* 1 See Chapter IV, post, page 80-95. 2 Ibid. 83, f 106. ' Ibid. 84, T[ 107. * Ibid. 87, f 108. 58 WKONQS AND REMEDIES. [CHA?. Ill, 2. Remedial.' (1.) Action of waste.' (2.) Action of trespass on the case in the nature of waste.' (3.) Action of covenant.'' (4.) Action of assumpsit.* (5.) Statutory remedies." 68. Second. For non-payment of renf the remedies are : 1. Those to which the landlord may resort by his own motion, or by that of his bailiif, to wit : (1.) Distress.' (2.) Re-entry where the landlord has the right of re-entry by the terms of the lease.' 2. Those to which he may resort by application to courts of law, to wit : (1.) Summary proceedings to obtain possession under sec- tion 2 of act of 25th March, 1825.'° (2.) Summary proceedings to obtain possession under act of 3d April, 1830." (3.) Action of covenant.'* (4.) Action of assumpsit." (5.) Action of debt at common law," or by statute 32 Henry VIII, chapter xxxii.'* (6.) Action of annuity.'" 69. Third. For the fraudulent removal'^ of the tenant's chat- tels to avoid a distress, the remedies are : 1. Seizure of the chattels off the premises, by virtue of the pro- ' See Chapter IV, post, page 89, f 109. 2 Ibid. 89, f 110. s Ibid. 90, 1[ 111. * Ibid. 92, 11 112. ^ Ibid. 93, T[ 113. « Ibid. 93, f 114. ' See Chapter V, post, page 96-187. 8 Ibid. 96-150. » Ibid. 150-155. '» Ibid. 155-160. " Ibid. 160-173. 12 Ibid. 173-178. 13 Ibid. 178-184. " Ibid. 184-186. ^ Ibid. IS Ibid. 187. " See Chapter VI, post, page 188-191. SEC. I.] WRONGS AND EBMEDIES. , 59 visions of section 5 of act of 21st March, 1772/ if same be made within thirty days after the removal. 2. In the cities of Philadelphia, Pittsburg, and Alleghany, seizure of the chattels off the premises, by virtue of provisions of first sections of acts of 25th March, 1825,' and 29th March, 1870. 70. Fourth. For resistance to a distress legally^ made the reme- dies are : 1. Action of trespass on the case.' 2. Indictment,' 71. Fifth. For rescue of chattels,'legally distrained the reme- dies are : 1. Action of rescous.' 2. Action of trespass on the case by provision of section 2 of act of 21st March, 1772.8 3. Eecapture of the chattels.^ 72. Sixth. For breach of the pound in which the distress is impounded'" the remedies are : 1. Action of pound breach." 2. Action of trespass on the case under provisions of section 2 of act of -2 1st March, 1772." 3. Recapture of the chattels." 73. Seventh. For non-delivery of possession of the demised premises at the end of the term, or on the happening of some contingency which may authorize the determination of the ten- ancy," the remedies are : 1. Re-entry on the demised premises, with not more than nec- essary force.'^ 2. Writ of entry ad terminum qui prceteriit.^" 3. Action of ejectment." I Post, page 188-189. 2 Ibid. 189-191. 3 See Chapter VII, post, page 192-203. * Ibid. 192-201. s ibid. 201-203. « See Chapter VIII, vosi, page 204-206. ' Ibid. 204-205. « Ibid. 205-206. 9 Ibid. 206. i» See Chapter IX, post, page 207-208. >" Ibid. 207. ^^ Ibid 208. i^ jbid. 208. '* See Chapter X, post, page 209-335. 15 Ibid. 209-232 »6 Ibid. 232-233. " Ibid. 233-287. 60 WRONGS AND REMEDIES. [CHAP. HI. 4. Action before justices of the peace under the provisions of sections 12 and 13 of act of 21st March, 1772/ supplemented by act of 22d March, 1814, and act of 5th February, 1875. 5. Action before justices of the peace (now a magistrate) in Philadelphia under the provisions of section 2 of act of 25th March, 1825, and act of 5th February, 1875.^ 6. Action before a justice of the peace or a magistrate under the provisions of the act of 3d April, 1830,' supplemented by act of 22d March, 1861, and act of 5th February, 1875. 7. Action before a justice of the peace or a magistrate under the provisions of the act of 16th June, 1836,* relative to pos- sessory proceedings after a sheriflf sale of a landlord's reversion. Supplemented by act of 5th February, 1875. 8. Action before a justice of the peace or a magistrate under the provisions of the act of 9th March, 1849,^ relative to pos- sessory proceedings after sale of the reversion, by order of the Orphans' Court. Supplemented by act of 5th February, 1875. 9. Action before a justice of the peace or a magistrate under the provisions of act of 14th December, 1863," supplemented by acts of 24th March, 1865, 11th April, 1866, 20th February, 1867, 25th June, 1869, and 6th March, 1875. 10. Action in Philadelphia under the provisions of act of 28th February, 1865,' when the lease is lost, or no proof of the demise can be given. 74. Eighth. For setting up by the tenant of a title, in himself or another, adverse to that of his landlord, for which the penalty is a forfeiture of the term,* the remedies are : 1. Indictment of forcible detainer.' 2. Action of ejectment.'" ' Post, page 287-301. » Ibid. 301-302. 3 Ibid. 302. * Ibid. 302-317. » Ibid. 317-319. 6 Ibid, 319-333. ' Ibid. 833-335. 8 See Chapter XI, post, page 336-339. " Ibid. 337-339. lo Ibid. 339. SEC. II,] WRONGS AND EEMEDIES. 61 SECTION II. AS TO THE TENANT. I. The Wrongs Against the Tenant. 75. The wrongs which a tenant may suffer from the action, neglect, or refusal of his landlord, or of his landlord's bailiff, are: 1st. Forcible entry or eviction. 2d. Forcible detainer. 3d. Detention or obstruction of an easement 4th. Detention or obstruction of an emblement. 5th. Failure to support the covenants implied in a lease. 6th. Failure to support the covenants expressed in a lease. 7th. Distress illegally made or conducted, viz. : 1. When the lessor has no reversionary interest in the demised premises. 2. When made off the demised premises, upon chattels not clandestinely removed, or on the highway. 3. When on Sunday or at night-time. 4. When by breaking through an outer door, or gate, or effect- ing an entrance through a window. 5. When no renf is due. 6. When for more rent than is due. 7. When made on more chattels than is necessary. 8. When made after tender of the rent and costs before the dis- tress, and afterwards the distress is sold. 9. When the distress is retained against the will of the tenant an unreasonable time on the premises after the sixth day from the making of the distress. 10. When after the distress is impounded tender is made of the rent due and costs of the levy, and the same is refused, and the distress is sold. 11. When made on fixtures, and the same are sold. 12. When made, on things of a perishable nature, and the same are sold. 13. When made on things in the actual use of the tenant. 62 WRONGS AND REMEDIES. [CHAP. III. 14. When made on things jerae, naturae, and the same are sold. 15. When made on implements of husbandry, when there is other sufficient distress on the premises. 16. When made on chattels, exempt by law and claimed as such, and the same are sold. 17. When a vexatious second distress is made. 18. When made and no notice thereof is served on the tenant, and the distress is sold. 19. When the chattels distrained are damaged by the dis- trainer. 20. When the distress is impounded in several places. 21. When the distress is removed and impounded out of the county, or at a place more than three miles distant from where taken. 22. When the distress is appraised within five days after the time when taken. 23. When the distress is not appraised in accordance with the provisions of the act of 21st March, 1772. 24. When the distress is sold, without having been appraised. 25. When the distress is sold, without having being adver- tised. 26. When the same is sold, within six days after the appraise- ment. 27. When the landlord has treated the tenant as a trespasser. II. The Tenant's Remedies. 76. First. The tenant's remedies against his landlord, or the landlord's bailiff for forcible entry or eviction,' are : 1. Indictment of forcible entry under section 21, of act of 31st March, I860.' 2. Action of trespass.' (1.) Trespass vi et armis. (2.) Trespass de bonis asportatis. (3.) Trespass quare davfinm /regit. 77. Second. For forcible detainer* the remedies are : 1. Indictment of forcible detainer under act of I860.'' > See Chapter XII, pos<, page 840-362 2 Ibid. 340-341. ' Ibid. 841-362. « See Chapter XIII, pust, paije 363-304. ' Ibid. 363. SEC. II.J WRONGS AND REMEDIES. 63 2. Action of trespass on the case.' 3. Action of ejectment.'' 4. Action of covenant,' 5. Action of assumpsit.* 78. Third. For detention or obstruction of an easement' the remedies are : 1. Action of trespass on the case.'' 2. Indictment under act of I860.' 3. Bill in equity for specific performance.' 4. Action of assumpsit.' 79. Fourth. For detention or obstruction of an emblement"' the remedies are; 1. Action of trespass quare clausum fregit.'^^ 2. Action of trespass on the case.'" 3. Action of detinue." 4. Action of trover and conversion." 5. Action of replevin.'^ 80. Fifth. For failure to support the covenants implied in a lease,'" the remedies are : 1. Action of covenant." 2. Action of trespass on the case." 3. Action of assumpsit." 4. Bill in equity for specific performance. '* 81. Sixth. For failure to support the covenants expressed" in a lease, the remedies are : 1. Action of covenant."" 2. Action of trespass on the case.™ 3. Action of assumpsit."" 4. Bill in equity for specific performance."" 82. Seventh. For distress illegally made or conducted"' — 1. When the lessor has no reversionary interest in the demised premises,"" the remedies are : ' Post, p. 364 ' Ibid. ' Ibid. « Ibid. » See Chapter XIV, post, p. 36&-371. » Ibid. 365. ' Ibid. 365-366. 8 Ibid. 366-370. ' Ibid. 371. >» See Chapter XV, post, p. 372-485. " Ibid. 372. 12 Ibid. " lb. 373-374. " lb. 374-385. 15 Ibid. 386-485. is SeeChapter XVI, pos<, p. 486-517. " lb. 494. 18 Ibid. 495. 19 See Chapter XVII, post, p. 618-589. 20 Ibid. 560, 564, 565, 574, 584, 588. 21 See Chapter XVIII, post, p. 690-650; see also note, post, p. 77. « Post, page 148, f 231 (2). 64 WRONGS AND REMEDIES. [chap. III. (1.) Action of trespass quare clausum fregiV (2.) Action of trespass on the case.' (3.) Action of trover and conversion.' (4.) Action of replevin.* (5.) Rescue.^ 2. When made off the demised premises, upon chattels not clandestinely removed, or on the highway,* the remedies are: (1.) Action of trespass de bonis asportaiis.'' (2.) Action on the case under statute 52 Henry III, chap. 15.' (3.) Action of replevin." (4.) Action of trover and conversion." (5.) Rescue." 3. When made on Sunday or at nighttime,'' the remedies are : (1.) Action of trespass quare clausum fregiV^ (2.) Action of trespass on the case." (3.) Action of replevin.'^ (4.) Action of trover and conversion." (5.) Rescue." 4. When by breaking through an outer door or gate, or effect- ing an entrance through a window," the remedies are : (1.) Action of trespass quare clausum fregit.^ (2.) Action of trespass on the case.^° (8.) Action of replevin." 1 Post, page 341, 356 (6). 2 Ibid. 192, 197 (7). » Ibid. 374, 880 (3). 4 Ibid. 386, 418, 1[ 778 (5). 6 Post, page 147, f 233 (8). « Ibid. 143, T[ 231 (3). ' Post, page 354, 1[ 660 (1). 8 Ibid. 197, 1[ 832 (8). 9 Ibid. 418, i 778 (6). i» Ibid. 380, if 727 (4). " Ibid. 147, If 233 (3). » Ibid. 143, If 231 (4) (631). " Ibid. 356, If 662 (7). " Ibid. 197, t 332 (9). " Ibid. 418, If 778 (7). 18 Ibid. 380, Tf 727 (5). " Ibid. 147, f 283 (4). " Ibid. 145, Tf,231 (32). 19 Ibid. 856, If 662 (8). s» Ibid. 198, If 332 (10). " Ibid. 418, If 778 (8). SEC. II.] WRONGS AND REMEDIES. 65 (4.) Action of trover and conversion.' (5.) Eescue.^ 5. When no rent is due' the remedies are : (1.) Action of trespass quare clausum fregit et de bonis asportatis* (2.) Action of trespass, or upon the case under the act of 1772, against the party distraining.' (3.) Action of trespass on the case at common law." (4.) Action of trover waiving the remedy under act of 1772.' (5.) Action of replevin.* (6.) Rescue.' 6. When for more rent than is due,'" the remedies are: (1.) Action of trespass on the case at common law." (2.) Action of trespass on the case under statute 52 Henry III.'^ (3.) Action of trover and conversion." (4.) Action of replevin.'* 7. When made on more chattels than is necessary,'^ the reme- dies are : (1.) Action of trespass quare clausum fregit (when gold and silver are levied on).'° (2.) Action of trespass on the case under statute 52 Henry III."' (3.) Action of replevin.'* 8. When made after tender of the rent and costs before the distress, and afterwards the distress is sold,'' the remedies are : (1.) Action of trespass quare clausum fregiV (2.) Action of trespass on the case." (3.) Action of trespass on the case under statute 52 Henry III.^^ ' Sieposi, page 380, Tf 727 (6). ^ Ibid. 147, f 233 (5). 3 Ibid. 143, T[ 231 (1). « Ibid. 356, Tf 662 (9) ; ib. 354, Tf 660 (2). Ibid. 99, 198, 1[ 332 (II). ^ ibja. 198, \ 332 (11). ' Ibid. 380, f 727 (7) ; see also, ibid. 625, T[ 1109. « Ibid. 418, T[ 778 (9). 9 Ibid. 147, i 233 (1). w Ibid. 624, Tf 1107, et seq. 11 Ibid. 198, f 332 (12) ; ibid. 625. Tf 1110. »2 i^id. 624, If 1107. 13 Ibid. 381, If 727 ; ibid. 625, If 1109. " Ibid. 418, \ 778 (10). 15 Ibid. 625, Tf 1111, et seq. « ibid. 627, f 1115. " Ibid. 626, If 1111 ; ibid. 198, TT 332 (13). '» Ibid. 419, Tf 778 (11). ■9 See joosi!, page 629, Tf 1121. s" Ibid. 356, \ 662 (11). n Ibid. 198, Tf 332 (14). » ibid. 6 66 WRONGS AND REMEDIES. [CHAP. III. (4.) Action of replevin.' (5.) Action of trover and conversion.' (6.) Action of detinue.' (7.) Rescue." 9. When the distress is retained for an unreasonable time on the premises after the sixth day from the making of the distress, against the will of the tenant/ the remedies are: (1.) Action of trespass quare clausum f regit." (2.) Action of trespass on the case.' (3.) Action of trover and conversion.' (4.) Action of replevin." (5.) Action of detinue." 10. When, after distress, tender is made of the rent due and costs of the levy, and the same is refused, and the distress sold, the remedies are : (1.) Action of trespass quare clausum fregit}^ (2.) Action of trespass on the case." (3.) Action of detinue." (4.) Action of trover and conversion." (5.) Action of replevin.'* 11. When made on fixtures, and the same are sold," the reme- dies are : (1.) Action of trespass quare clausum fregiiP (2.) Action of trespass on the case.'' (3.) Action of trover and conversion." (4.) Action of detinue.^" (5.) Action of replevin.'" (6.) Rescue.^' 1 Ibid. 419, 1[ 778 (12). » Ibid. 381, \ Tin (9). 3 Ibid. 374, \ 700. « Ibid. 147, \ 233 (6). 6 Ibid. 621, iy 1104. 6 Ibid. 856, \ 662 (12). ' Ibid. 198, \ 332 (15). ■• Ibid. 381, \ 727 (10). ° Ibid. 419, \ 778 (13). lo ibid. 374, If 700. " Ibid. 356, \ 1662 (13). " Ibid. 198, 332 (14). 's Ibid. 374, \ 700. » Ibid. 381, \ 727 (11). 16 Ibid. 419, i 778 (14). 's ibid. 105, { 128 (1). "' PoHt, page 357, \ 662 (14). '8 Ibid. 198, \ 332 (16). » Ibid. 381, If 727 (21). » Ibid. 374, \ 700. "' Ibid. 419, If 778 (15). m Ibid. 147, \ 233 (7). SEC. TI.j WRONGS AND REMEDIES. 67 12. When made on things of a perishable nature/ and the same are sold, the remedies are : (1.) Action of trespass quare dausum fregit.' (2.) Action of trespass on the case.' (3.) Action of trover and conversion.* (4.) Action of detinue.' (5.) Action of replevin.^ (6.) Rescue.' 13. When made on things in the actual use of the tenant' the remedies are: (1.) Action of trespass quare dausum JregiV (2.) Action of trespass vi et armis}" (3.) Action of trespass on the case." (4.) Action of trover and conversion." (5.) Action of detinue." (6.) Action of replevin.'* (7.) Rescue."' 14. When made on animals ferm naturce, and the same are sold,"" the remedies are : (1.) Action of trespass quare dausum fregit." (2.) Action of trover and conversion." (3.) Action of detinue." (4.) Action of replevin.^" (5.) Rescue.^" 15. When made on implements of husbandry, when there is other sufficient distress," the remedies are : (1.) Action of trespass quare dausum fregit.'^ (2.) Action of trespass on the case." (3.) Action of replevin."' 1 Ibid. 106, 1[ 128, 3. ' Ibid. 357, f 662 (15). s Ibid. 198, f 332 (17). * Ibid. 381, Tf 727 (13). 5 Ibid. 374 i 700. « Ibid. 419, ij 778 (16). ' Ibid. 147, % 233 (7). » Ibid. 107, f 128, 4. 9 Ibid. 357, 1[ 358 (16). " Ibid. 353, T[ 658 (1). 11 Ibid. 198, H 332 (18). " Ibid. 381, f 727 (14). " Ibid. 374, Tf 700. " Ibid. 419, If 778(17). 15 Ibid. 147, If 233 (7). ™ Ibid 107, 1 128, 5. " Ibid. 357, If 662 (17). '« Ibid. 881, If 727 (15). '9 Ibid. 374, If 700. 2° Ibid. 421, f '778 (38). 21 Ibid. 147, if 233 (7). " Ibid. 108, f 129, 1. S3 Ibid. 355, If 662. 2' Ibid. 198, f 332 (19). iS ibid. 418, f 778. 68 WRONGS AND REMEDIES. [CHAP. III. (4.) Action of trover and conversion.* (5.) Rescue.'' 16. Wlien made on chattels exempt by law and claimed as such,' and the same are sold, the remedies are : (1.) Action of trespass vi et armis against the distrainer.* (2.) Action of trespass on the case.^ 17. When a second vexatious distress is made,* the remedies are: (1.) Action of trespass quare clausum /regit.'' (2.) Action of trespass on the case.' (3.) Action of trover and conversion.' (4.) Action of replevin." 18. When made, and no notice thereof is served on the tenant, and the distress is sold," the remedies are : (1.) Action of trespass quare clausum /regit." (2.) Action of trespass on the case." (3.) Action of trover and conversion." (4.) Action of replevin.'^ 19. When the chattels distrained are damaged by the distrainer, the remedy is : Action of trespass.'^ 20. When the distress is impounded in several places," the remedies are : (1.) Action of trespass on the case under statute 1 and 2 Philip and Mary, ch. 17." (2.) Action of replevin." 21. When the same is removed and impounded out of the > Post, page 381, f 727 (20). 2 Ibid. 147, f 233 (7). « Ibid. 112, Tf 188. * Ibid. 353, If 658 (1). s Ibid. 198, f 832 (19). e Ibid. 641-645. ' Ibid. 357, f 662 (23) ; ibid. 644, 1[ 1154. " Lear v. Caldeoott, 4 Adolphus & Ellis, N. S., 123 (45 English Common Law Reports, 128). • Dawson v. Cropp, 1 Manning, Granger & Scott, 961 (50 English Common Law Keports, 959). '<> Ibid. 419, 1[ 778 (18). " Ibid. 633, % 1125-1128. " Ibid. Tf 1126; ibid. 357, T[ 662 (18). " Ibid. 198, f 3.32 (20). » Ibid. 381, If 727 (16). '» Ibid. 419, f 778 (19). " Hutchins v. Chambers, 1 Burrow, 590. " Post, p. 635, ]f ll-Sl-1133. '« Ibid. p. 593, If 1079 (3). " lb. 419, If 778 (20) ; 635, If 1131. BEG. II.] WRONGS AND REMEDIES. 69 county, or at a place more than three miles distant from where taken/ the remedies are : (1 .) Action of trespass on the case under statutes 52 Henry III, and 1 & 2 Philip and Mary.' (2.) Action of replevin.* 22. When the distress is appraised within five days after the time when taken, the remedies are : (1.) Action of trespass quare dausum Jregit.* (2.) Action of trespass on the case.' (3.) Action of trover and conversion.* (4.) Action of detinue.' (5.) Action of replevin." 23. When the distress is not appraised in accordance with the provisions of the act of 21st March, 1772, the remedies are: (1.) Action of trespass quare clausum JregiV (2. ) Action of trespass on the case.^° (3.) Action of trover and conversion." (4.) Action of replevin.'^ (5.) Action of detinue." 24. When the distress is sold without being appraised, the remedies are: (1.) Action of trespass quare dcuusum fregit.^* (2.) Action of trespass on the case.^* (3.) Action of trover and conversion.'* (4.) Action of detinue." (5.) Action of replevin.'* 25. When the distress is sold without being advertised, the remedies are : (1.) Action of trespass gttare clausum fregit.'^ (2.) Action of trespass on the case.'"' 1 See post, page 634. ' Ibid. 635, 1[ 1130. s Ibid. 419, f 778 (21). " Ibid. 357, T[ 662 (19). 6 Ibid. 198, li 332 (21). « Ibid. 381, % 727 (17). ' Ibid. 374, % 700. « Ibid. 419, f 778 (22). " Ibid. 357, i 662 (19). '» Ibid. 198, Tf 332 (21). " Ibid. 381, i 727 (17). " Ibid. 4W, f 778 (23). " Ibid. 374, T[ 700. '* Ibid. 357, T[ 662 (20). « Ibid. 198, H 332 (21). '« Ibid. 381, i 727 (17). " Ibid. 374, yi 700. « Ibid. 419, ][ 778 (24). '» Ibid. 357, i 663 (21). «> Ibid. 198, f 332 (22). 70 WRONGS AND REMEDIES. [CHAP. III. (3.) Action of trover and conversiou.' (4.) Action of detinue." (5.) Action of replevin.' 26. When the distress is sold within six days after the appraise- ment,* the remedies are : (1.) Action of trespass quare alauHum fregitJ' (2.) Action of trespass on the case." (3.) Action of trover and conversion.' (4.) Action of detinue." (5.) Action of replevin.' 27. When the landlord has treated the tenant as a trespasser, the remedy is : Action of trespass qaare dausum f regit}" SECTION III. AS TO THE LANDLOED OE TENANT. I. The Wrongs Against the Landlord or Tenant. 83. The wrongs which a landlord or tenant may suffer from the action of a stranger in regard to the demised premises, are : 1st. Trespass, which may arise — 1. From an illegal entry, and doing damage to the buildings, soil, or improvements. 2. From cutting down the timber trees. 3. From damaging the fruit trees and crops. 4. From breaking down the fences. 5. From stray cattle breaking down fences and injuring the crops. 6. From firing of woodlands or marshes. 7. From suffering Canada thistles to grow. 2d. Ouster. 3d. Disturbance of an easement. 1 Post, page 381, H 727 (18). « Ibid. 374, Tf 700. » Ibid. 419, f 778 (25). ' Ibid. 619, { 1093, ei seg. 6 Ibid. 357, i[ 662 (22). « See ibid. 198, % 332 (21). ' See ibid. 381, % 727 (17) (18.) » Ibid. 374, f 700. « Ibid, 420, IT 778 (26). '» Ibid. 357, i 662(27) ; see also Etherton v. Popplewell, 1 East, 139; 'Win- terbournc v. Morgan, 11 ibid. 395. SEC. III.] WRONGS AND REMEDIES. 71 4th. Nuisances near demised premises. 5th, Failure on the part of the officer (sheriff or constable) to pay over to the tenant the overplus money received from the sale of the distress. 6th. Refusal on the part of the officer to pay over to the land- lord one year's rent out of the proceeds of tenant's goods, sold on execution. 7th. Refusal by the sheriff or constable to allow the tenant the benefit of exemption laws. II. The Landlord's or Tenant's Remedies. 84. First. — The landlord's or tenant's remedies against a stranger for trespass^ are : 1. For damage to the buildings, soil, or improvements,^ the remedies are : (1.) Action of trespass on the case by the landlord.' (2.) Action of trespass quare clausum /regit by the tenant.* (3.) Statutory penalties under various acts of Assembly.^ 2. For cutting down timber trees on the demised premises," the remedies are : (1.) Indictment under act of 186G,' (2.) Actions of trespass on the case,° or of trover by the land- lord, under various acts of Assembly." (3.) Action of replevin." (4.) Action of trespass quai-e clausum /regit by tenant." 3. For damaging the fruit trees and crops, the remedies are : (1.) Action of trespass on the case by the landlord." (2.) Action of trespass quare clausum /regit by the tenant," (3.) Summary proceedings under act of 1881.'^ » See Chapter XIS, post, page 651-733. 2 Ibid. 651-654. » Ibid. 652. * Ibid. 652-654. ^ Ibid. 651, 721-730. » Ibid. 654^655. ' Ibid. 72, f 152. 8 Ibid. ' Ibid. 654, Tf 1170. '» Ibid. 655, If 1173. " Ibid. 654, i[ 1169. " Ibid. 652-654. ^ Ibid. 729, f 1331. 72 WRONGS AND REMEDIES. [CHAP. III. 4. For breaking down the fences' the remedies are : (1.) Action of trespass on the case by the landlord.^ (2.) Action of trespass qiuire clausum fregit by the tenant.' (3.) Summary proceedings under act of 23d March, 1865.* (4.) Summary proceedings under act of 8th June, 1881.* 5. For a stranger's stray cattle breaking down fences and in- juring the crops, the remedies are : (1.) A-ction of trespass on the case by the landlord." (2.) Action of trespass quare clausum fregit by the tenant.' (3.) Summary proceedings under various acts of Assembly.' 6. For maliciously firing of woods, lands, or marshes, the remedies are: (1.) Action of trespass on the case by the landlord.' (2.) Action of trespass quare clausum fregit by the tenant.'" (3.) Summary proceedings under act of 11th June, 1879." (4.) Summary proceedings under act of 9th April, 1869, appli- cable to Union, Schuylkill, Lehigh, Berks, Lycoming, Centre, and Snyder counties.'^ 7. For suffering Canada thistles to grow, the remedy is : Summary proceedings under act of 22d March, 1862." 85. Second. — For ouster," the remedies are: 1. Indictment for forcible entry and detainer by the tenant.'^ 2. Action of ejection by the tenant.'" 3. Action of trespass quare clausum fregit in the name of the tenant." 1 Post, page 656-721. a Ibid. 656-657. » Ibid. « Ibid. 695, If 1264. s Ibid. 729, f 1331. • Ibid. 652, Iff 1166, 1167. ' Ibid. 656-657. 8 Ibid. 656-721. » Ibid. 652, Iflf 1166, 1167. i» Ibid. 656-657. " Ibid. 728, If 1330. " Ibid. 728, If If 1327, 13 " Ibid, 742, If 1368. " See Chapter XX, post, page 731-783. 16 Ibid. 731. '6 Ibid. " Ibid. 357, f 662 (25). SBC. III.] WRONQS AND REMEDIES. 73 4. Action of entry sur novel disseisin by the landlord.' 86. Tliird. — For detention or obstruction of au easement,' the remedies are : 1. Action of trespass on the case.' 2. Action of assize of nuisance.* 3. Action of quod permittat prosternere.^ 4. Abatement." 5. Injunction.' 87. Fourth. — For nuisances near demised premises," the remedies are: 1. Abatement." 2. Action of trespass on the case.'" 3. Assize of nuisance." 4. Writ of quod permittat prosternere." 5. Indictment." 6. Injunction." 88. Fifth. — For failure on the part of the officer (sheriff or con- stable) to pay over to the tenant the overplus money received from the sale of the distress," the remedies are : 1. Action of trespass on the case.'° 2. Indictment." 3. Actions of debt or scire facias.'^' 88 a. Sixth. — For refusal to pay over to the landlord one year's ' Ibid. 732, Tf 1340. ■■^ See Chapter XXI, joos<, page 734-740. ' Ibid. 735, 1[ 1345. ♦ Ibid, f 1346, et seq. 6 Ibid. 736, 1[ 1349, ei seq. • Ibid. 1[T[ 1362-1356. ' Ibid. 737, 1[ 1357, e< seq. 8 See Chapter XXII, post, page 741-745. 9 Ibid. 743, f 1370. '» Ibid. 743, If 1371. " Ibid. 744, 1[ 1372. " Ibid. 1[ 1374. " Ibid. \ 1375. " Ibid. 745, f 1377. " See Chapter XXIII, ^os<, page 746-748. '» Ibid. 747, If 1381. " Ibid. If 1382. 18 Ibid, f 1384, etseq.^ 74 WRONGS AND REMEDIES. [CHAP. III. rent out of the proceeds of the sale of the tenant's chattels taken in execution/ the remedy is : 1. Action of trespass on the case.' 88 b. 8eventh.-^For refusal by the sheriflF or constable to allow the tenant the benefit of exemption,' the remedies are : 1 . Action of trespass vi et armis.* 2. Action on the case against sheriff or constable.* SECTION ly. AS TO A STRANGER. I. The Wrongs Against a Stranger. 89. The wrongs which a stranger may suffer from a landlord or his bailiff, or from a tenant, in regard to the demised premises, are : 1st. The maintaining of a nuisance on the demised premises. 2d. The illegal detention of an ex-tenant's emblements. 3d. The illegal distress and sale of a stranger's chattels on the premises, which may arise : 1. "When there in the way of trade, or as those of a lodger at an inn or boarding-house. 2. When there to be pastured. 3. When there by consent of the landlord. 4. When there, and formerly of the tenant, but sold by him to an innocent purchaser. 5. When of the tenant, but taken on execution or foreign at- tachment at the suit of a stranger. 4th. The following, distraining on, and selling chattels of a stranger, removed from the demised premises. 5th. The distraining on and selling chattels of the estate of a deceased tenant. 1 See Chapter XXIV, pos<,page 749. • Ibid, f 1390. ' See Chapter XXV, post, page 750. * Ibid. 1[ 1392. « Ibid. SEC. IV.] WRONGS AND REMEDIES. 75 6tli. The distraining on and selling the chattels of a foreign ambassador or official. 7th. The legal distress and sale of a stranger's chattels on the demised premises. 8th. The entry on a stranger's premises in search of chattels clandestinely removed, when the same are not found thereon. II. The Stranger's Remedies. 90. First. — For maintaining a nuisance on the demised premises,* the remedies are : 1. Abatement.' 2. Action of trespass on the case.' 3. Action of assize of nuisance.* 4. Writ of quod permittat prosternere.^ 5. Indictment.^ 6. Injunction.' 91. Second. — For the illegal detention of an ex-tenant's emble- ments,* the remedies are : 1. Action of trespass quare dausum fregit? 2. Action of trespass on the case.^° 3. Action of trover and conversion." 4. Action of replevin.^^ 92. Third. — For the illegal distress and sale of a stranger's chattels on the premises.'' 1. When there in the way of trade, or those of a lodger at an inn or boarding-house," the remedies are : (1.) Action of trespass de bonis asportatis}^ 1 See Chapter 'X.'X.Yl, post, page 751-754. 2 Ibid. 754, 1[ 140-4; 736, ^ 1352, et seq. ' Post, p. 754, Tf 1404; p. 199, ^ 332 (27). ' Ibid., 122; see also p. 735, f 1346, et seq. 5 Ibid. ; see also p. 736, ^ 1349, et seq. 6 Ibid. ; see also p. 744, f 1375; p. 201, et seq. ' Ibid. ; post, p. 745, f 1377 ; 737, f 1357, et seq. 8 See Chapter XXVII, p. 755-759. ' Ibid. 759, % 759; 356, 1[ 662 (3) 10 Ibid. 197, li 332 (6). " Ibid. 380, f 727(1). 12 Ibid. 418, If 778 (1). 1' See Chapter XXVIII, p 760-765. » Ibid. 760, f 1414. 15 Ibid. 763, f 1421 ; 354, Tf 660 (3). 76 WRONGS AND REMEDIES. [OHAP III. (2.) Action of trespass on the case.' (3,) Action of trover and conversion.' (4.) Action of replevin.' 2. Wlien there to be pastured/ the remedies are : (I.) Action of trespass de bonis asportatis.^ (2.) Action of trespass on the case.' (3.) Action of trover and conversion.' (4.) Action of replevin.' 3. When there by consent of the landlord,' the remedies are : (1.) Action of trespass de bonis asportatis}" (2.) Action of trespass on the case." (3.) Action of trover and conversion.'^ (4.) Action of replevin." 4. When there, and formerly of the tenant, but sold by him to an innocent purchaser," the remedies are: (1.) Action of trespass de bonis asportatis.^ (2.) Action of trespass on the case.'* (3.) Action of trover and conversion." (4.) Action of replevin.'* 5. When of tenant, but taken on execution or foreign attach- ment at the suit of a stranger," the remedies are : (1.) Action of trespass de bonis asportatis, by the officer against the distrainer.™ (2.) Action of trespass on the case by the officer against the distrainer.'' (3.) Action of trover and conversion." 93. Fourth. — For following, distraining on, and selling chattels 1 Post, page 199, f 332 (28). ^ Ibid. 380, f 727. 8 Ibid. 420, 1[ 778 (27), (28), (29), (SO). * Ibid. 761, \ 1416; 763, f 1421. 6 Ibid. 354, If 660 (4). « Ibid. 197, 1[ 332. ' Ibid. 380, 1[ 727. ' Ibid. 420, i 71S (31). » Post, 762, I 1417; 763, ^ 1421. ■» Ibid. 763, f 1421 ; 854, f 660 (5). " Ibid. 1[ 1421. '2 Ibid. 13 Ibid. 420, Tf 778 (32). " Ibid. 762, ][ 1418. 16 Ibid. 763, ^ 1421 ; 354, Tf 660 (6). »« Ibid. 763, i 1421. . " Ibid. 763,1[ 1421. 18 Ibid. 420, if 778 (33). i" Ibid. 762,f 1419. ™ Ibid. 763, If 1421 ; 354, If 660 (7). 21 Ibid. 763, Tf 1421 ; 199, If 832 (29). *> Ibid. 763, Tf 1421. 8E0. IV.] WRONGS AND REMEDIES. 77 of a stranger removed from the demised premises/ the remedies are: 1. Action of trespass de bonis asportatis? 2. Action of trespass on the case.' 3. Action of trover.^ 4. Action of replevin.' 94. Fifth. — For distraining on and selling chattels of the estate of a deceased tenant,' the remedies are : 1. Action of trespass quare clausum, f regit.* 2. Action of trespass on the case.* 3. Action of trover and conversion.* 4. Action of replevin.* 95. Sixth. — For distraining on and selling the chattels of a foreign ambassador or official/ the remedies are: 1. Action of trespass quare clausum /regit.' 2. Action of trespass on the case." 3. Action of trover and conversion.^ 4. Indictment under the act of Congress of 1790." 96. Seventh. — For the legal distress and sale of a stranger's chattels on the demised premises,' the remedy is : 1. Trespass on the case against the tenant.^ 97. Eighth. — For the entry on a stranger's premises in search of chattels clandestinely removed, when the same are not found thereon,' the remedies are : 1. Action of trespass quare claumm fregit}" 2. Action of trespass on the case.'" ' See Chapter XXIX, p. 764. 2 Ibid, f 1424. 3 See Chapter XXX, p. 766. * Ibid. 767, 1[ 1428. ' See Chapter XXXI, p. 768. « Ibid. 769, \ 1432. ' See Chapter XXXII, p. 770. 8 ibid. 1[ 1435. » See Chapter XXXIII, p. 770. '" Ibid. 771, H 1439. Note. — The common-law remedies of trespass, trover, detinue, and rescue have been given in the text as applicable to cases of an unlawful distress by a landlord on the chattels of a tenant, or chattels held by him in the way of his trade and therefore privileged from distress. But in the case of Sassman v. Brisbane & Griffith (7 Philadelphia, 159), the District Court held that in such cases, where the provisions of the act of 21st March, 1772, had been com- plied with, replevin was the only remedy. In delivering the opinion of the court, Judge Stroud fortified himself by citing Caldcleugh u. HoUingsworth 78 WRONSS AND REMEDIES, [CHAP. III. (8 Watts & Sergeant, 302), which was an action of trover by the owner of a chattel left with the tenant to be repaired, and therefore privileged from dis- tress. In the court's opinion in that case, Chief Justice Gibson stated that the requisitions of the act of 21st March, 1772, having been complied with, the owners of the chattel were bound to proceed by replevin or not at all. This decision was probably based on the interpretation that the act of 21st March, 1806 (4 Smith's Laws, 332), which in section 13 enacts that "in all oases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of Assembly of this Commonwealth, the directions of the said act shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into eflect," was applicable to the act of 21st March, 1772, in which replevin is mentioned as a remedy ; but in Eees v. Emerick (6 Sergeant & Kawle, 286), which was an action of trespass quare clausum f regit at common law for an unlawful dis- tress, Mr. Justice Duncan, in delivering the opinion of the court, said that it would be stretching the provision of the act of 21st March, 1806, far beyond its spirit to extend it to the act of 1772, holding that the act of 1806 applied only to penal actions and indictable offences. It is true that in Wike v. Lightner (1 Kawle, 289), which was an action of ejectment, Chief Justice Gibson intimated that the act of 1806 applies to civil proceedings as well as to penal actions, and the same is held by Judge Stroud in Murphy v. Morris (2 Miles, 60, 63), but we find that actions of trespass and trover have often been adjudicated by the Supreme Court in cases of unlawful distress. Thus in Garvin v. Dawson (13 Sergeant & Kawle, 246), where an action on the case at common law was brought for an unlawful distress, and also a special action under the act of 1772, the court held that the remedies were cumulative, but that the selection of one action was a waiver of the other. (See Gilchrist u. Bale, 8 Watts, 855, 359. ) In Kerr v. Sharp (14 Sergeant & Kawle, 399), an action of trespass quare clausum f regit at common law for an unlaw- ful distress was sustained, and in McDowells. Shotwell (2 Wharton, 25), an action of trespass vi et armis was brought for distraining on goods privileged from distress. In Smith v. Meaner (16 Sergeant & Kawle, 375), where an action of trover was brought for distraining when no rent was due, the court held that case, and trover would lie, though trover cannot be joined with a special action under the statute. Bevan u. Crooks (7 Watts & Sergeant, 452) was an action of trover for distraining on goods claimed to be privileged from distress, and in McElroy V. Dice (5 Harris, 163) trover was held to lie for distraining for more rent than was due. In Hughes v. Stevens (12 Casey, 320), which was an action of trespass quare clausum f regit, Mr. Justice Thompson held that "the statutory action was cumulative to the common law remedy, or was perhaps rather an optional or alternative remedy ; for a resort to either, would be a bar to the other. But If the statutory action be intended, the defendant should be ap- prised of it in the usual way, namely, in narr, so that he may shape his defence accordingly." In Tretton v. Karoher (27 P. F. Smith, 423), which was an action of trespass at common law, it was held that when a distress is made when no rent is due, the landlord is a trespasser ab initio. SBC. IV.] WRONGS AND KEMEDIES. 79 In Briggs v. Large (6 Casey, 287) trover was brought for distraining on goods privileged from distress, but in this case the provisions of the act of 1772 had not been complied with, as the goods were sold without appraisement and notice of sale. Independent of the act of 1806 it would seem unjust that a trespasser should be condoned his trespass, and the tenant or owner of chattels unlawfully dis- trained on be driven to the minor remedy of replevin, in which he has to give security in double the value of the goods wrongfully seized, and this security he may be unable to give. Moreover the remedy of replevin is only inciden- tally mentioned in the act of 1772, which does not create the remedy of dis- tress, but merely extends it and provides how it shall be conducted. The reasoning of Judge Stroud in Sassman v. Brisbane & Griffith, supra, may possibly be applicable to cases of pound breach or rescue, after a legal distress has been made. In such cases the act of 1772, in section 2, enacts 'upon any pound breach, or rescous of goods or chattels distrained for rent, the person or persons grieved thereby, shall, in a special action on the case for the wrong thereby sustained, recover his, her, or their treble damages and costs of suit, against the offender or offenders in such rescous or pound breach, any or either of them ; or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his, her, or their use or possession." Yet the case of Woglam v. Cowperthwaite (2 Dallas, 68), shows that the common-law right of recaption of a distress still exists. In that case the tenant removed the goods one day after they were distrained on, but the distrainer followed, recaptured, and had them appraised, and herein the court held his action to be justifiable. But cases may arise in which replevin or detinue would be a tenant's only remedy. Such, for instance, as when a legal distress and impounding having been made, the landlord refuses the tender by the tenant of the rent in arrear and the costs of the distress, and insists on retaining the distress, the tenant cannot bring trespass against the landlord, inasmuch as the original seizure was lawful, and trespass does not lie for a non-act. (See The Six Carpenters' Case, 1 Smith's Leading Cases. '^216.) 80 WASTE, [chap. IV. THE WRONGS AGAINST THE LANDLORD, AND THE REMEDIES THEREFOR. CHAPTER IV. "Waste. SECTION I. What is Waste f 98. The first wrong which a tenant may do to his landlord is that of waste or dilapidation. Waste is the committing of any spoil or destruction on houses, lands, etc., by tenants, to the damage of the heir or heirs in reversion or remainder. Whatsoever does an injury to the leased premises is waste, and this may be either voluntary or permissive. 99. Voluntary waste is an act of commission, as pulling down a house ; or it is where there is such alteration of the premises as changes the nature or description thereof from the state they were in when the tenant stipulated for them, even if the alteration should enhance the value of the property ; as for example, the change of a meadow into an orchard, or of a saw-mill into a grist- mill. 100. Permissive waste is where there is neglect on the part of the tenant to supply the defects arising during his tenancy. Di- lapidations, accidental or otherwise, must be made good by the tenant, excepting those inevitable in their nature, such as fire from lightning or destruction by tempest, and even in these cases, unless otherwise provided in the lease, rent will still accrue.^ 101. The British Statutes in force in Pennsylvania, relating to waste committed by a tenant to the prejudice of his landlord, are as follows :^ 1. Statute 52d Henry III, chapter 3, enacts that farmers during their term shall not commit waste. 2. Statute 6th Edward I, chapter 5, relates to tenants against whom an action of waste is maintainable. 3. Statute 6th Edward I, chapter 13, enacts that no waste shall be made pending a suit at law. ' See Bussman v. Ganster, 22 P. P. Smith, 286, and cases there cited. ' See Eoberts's Digest, pages *425 to *431. g-SlO. I.] WASTE. 81 4. statute 13th Edward I, chapter 1, section 14, provides the process in an action of waste. 5. Statute lltli Henry YI, chapter 5, provides the remedy where a tenant assigns his term and commits waste. 102. The acts of Assembly of Pennsylvania, relating to waste committed by a tenant to the prejudice of his landlord, are as fol- lows : 1. Act of 2d April, 1803,' enacts that writ of estrepement may issue pending an action in ejectment 2. Act of 29th March, 1822,^ enacts that estrepement may also issue where lands have been let for a term of years, after a notice to quit at the instance of either a judgment creditor, mortgagee, or purchaser a1 sheriff's sale. 3. Act of 27th March, 1833,' enacts that the writ may issue at the in- stance of a landlord to restrain waste by mining or quarrying. 4. Act of 6th May, 1844,'' enacts that the applicant for an injunction shall give a bond of indemnity. 5. Act of 10th April, 1848,1* enacts that the writ of estrepement may issue at the instance of a remainderman. 6. Act of 22d April, 1850,' also enacts that the writ may issue at the instance of a mortgagee, after judgment, or after proceedings commenced to obtain such, or at the instance of a creditor of a landlord. 7. Act of 4th May, 1852," enacts that a Court of Common Pleas may dissolve an injunction. 8. Act of 8th May, 1855,' enacts that writ of estrepement may issue at the instance of a plaintiff in a foreign attachment. 9. Act of 11th April, 1802.' enacts that writs of estrepement shall not issue without bonds of indemnity. 10. Act of 2d April, 1863, " enacts that in cases where an action of ejectment is to enforce specific performance of a contract for the sale and conveyance of lands, no bond of indemnity shall be requisite before issu- ing a writ of estrepement. 11. Act of 20th April, 1869," enacts that writs of estrepement may issue pending a writ of error, and also provides as to how the writ may issue and when it shall be dissolved. 12. Act of 4th May, 1869," enacts that an owner of an undivided interest in land or timber shall not cut or remove any timber trees without first obtaining the written consent of his co-tenants ; also, that any sales of timber so cut passes no title to the timber ; also, that in such cases writs of estrepement may issue. 1 4 Smith's Laws, 89. » 7 Id. 520. ' Pamph. Laws, 99. * Id. 564. 5 Id. 472. « Id. 549. ' Id. 584. s la. 533. 9 la. 430. 10 Id. 250. " Id. 76. » Id. 1251. 6 82 -WASTE. [chap. IV. 13. Act of 2d June, 1871,' enacts that estrepement may issue in pro- ceedings on a mortgage of leasehold. 14. Act of 18th February, 1875,^ enacts that the President Judges of Courts of Common Pleas may dissolve estrepements during vacation. 103. Waste being an act contrary to law is also within the powers of the courts specified in section 13, act of 6th June, 1836,' which defines the equity powers of the Supreme Court and Courts of Comniou Pleas.* It has been held, however, that this act gives these courts no power to restrain an equitable tenant for life, on complaint of the trustees, from the commission of waste ;^ and the case for relief must be contrary to law as well as to equity.* 104. The law of waste accommodates itself to the varying con- ditions of countries, and what would be Avaste of timber in a well- cleared country will not be so in a woodland country, so long as a sufficiency of timber be left, and the land cleared has a proper proportion to the balance of the tract/ It is not waste for the tenant to cut timber to repair the fences or houses.^ Nor is a tenant liable, unless expressly made so in the lease, for waste happening by the act of God or by a public enemy.' Nor is it waste for a tenant for life or years to work mines or quarries already opened." Nor is it waste to work mines even to exhaustion where the lease permits their opening." Nor is it waste for a tenant for life or in dower of wild land bought for its timber or assigned in dower, to cut the timber." Nor can a lessor maintain waste for trees blown down and cut or converted by the lessee: the proper remedy is an action of trover.'^ Nor will replevin lie where a purchaser at a treasurer's tax sale has cut Pamph. Laws, 29. ' Id. 35. ' Id. 785. Supplied by Act of 14th Feb. 1857, Pamph. Laws, 39. * Denny v. Brunson, 5 Casey, 382. « Woodman v. Good, 6 Watts & Sergeant, 169, 173. 8 Hagner v. Heyberger, 7 Watts & Sergeant, 104, 106. ' MoCullough V. Irvine's Exec, 1 Harris, 438; Hastings v. Crunckleton, 3 Teates, 261. e Neel v. Neel, 7 Harris, 323; Lynn's Apl., 7 Casey, 44. 8 Pollard V. Shaafer, 1 Dallas, 210 ; Magaw v. Lambert, 3 Barr, 444. «> Coleman's Apl., 12 P. P. Smith, 252. " Griffin v. Fellows, 5 Legal Gazette, 265. '2 Williard v. Williard, 6 P. F. Smith, 119. 18 Shult V. Barker, 12 Sergeant & Kawle, 272. SEC. II.] WASTE. 83 timber on the premises bought between the receipt of his deed and the redemption of the land by the owner/ Nor will an injunction against waste be granted when the title of the plaintifiF is denied by answer of the defendant.'' Nor is a tenant liable for waste in case of destruction of the premises by fire.^ 105. It is waste for a tenant to remove manure from the leased premises/ and an injunction to stop him will issue.^ It is waste to plough down sod to put in corn (under some circumstances).* It is waste for a debtor to fraudulently detach machinery from his freehold in order to preferentially enable one creditor to levy on it.'' Where a tenant commits waste by felling timber or demol- ishing houses, they still remain the property of the reversioner, as is the case even if the trees were blown down by the wind.^ SECTION II. THE LANDLOED's REMEDIES. I, Preventive. 106. The preventive remedies for waste being committed by a tenant to the injury of his landlord, are : 1. Writ of estrepement, which issues by virtue of the common- law authority of the courts, as well as by that of act of 29th March, 1822.' 2. Injunction, which issues from the Courts of Common Pleas, by virtue of the equity power vested in them by the 13th section of act of 16th June, 1836,'" act of 14th February, 1857," and con- firmed by section 20th of article v of the Constitution of 1874. • See Cromelien v. Brink, 5 Casey, 623. 2 Morse v. O'Eeilly, 4 Clark, 75. » Pollard V. Shaafer, 1 Dallas, 210. * Lewis V. Jones, 5 Harris, 262 ; Harrington ti. Justice, 2 Clark, 501. " Wain V. O'Connor, 1 Philadelphia, 353 ; S. C, 5 Clark, 164. 5 Jones V. Whitehead, 1 Parsons, 304; S. C, 4 Clark, 330. ' Witmer's Apl., 9 Wright, 455. « See Shult v. Barker, 12 Sergeant & Eawle, 272. » 7 Smith's Laws, 520. '» Pamph. Laws, 786. 1' Pamph. Laws, 39 ; see Denny v. Brunson, 5 Casey, 382. 84 -WASTE. [chap. IV. (1.) By Writ of Estrepement. 107. 1. The word estrepement is derived from the French word "estropier" or from the Latin word " extirpare" and has the same signification as our English word waste.' 2. As a preventive remedy, the writ of estrepement is ample in all cases wherein a tenant commits waste to the freehold, whether the same be irreparable in its nature or not. If, after tlie service of the writ on the tenant, he desist not from the commis- sion of waste, he becomes liable to arrest. 3. The act of 29th March, 1822,^ provides as follows : "Section 1. It shall be lawful for any owner or owners of any lands or tenements leased or let for years, or at will, at any time during the continuance, or after the expiration of such demise, and due notice given to the tenant or tenants to leave the same, according to the provisions of the act of Assembly in such case made and provided, or for any purchaser or purchasers at sheriff's or coroner's sale of lands or tenements, after he or they have been declared the highest bidder by the sheriff or coroner, or for any mortgagee or judgment-creditor or creditors, after the lands bound by such judgment or mortgages shall have been condemned by inquisition, or which may be subject to be sold by a writ of ven- ditioni exponas or levari facias, to apply to the Court of Common Pleas, or District Court of the proper county, while in session, or to any judge thereof, in vacation, by petition and affidavit made by him, her, or them, or some other credible person, setting forth such of the facts before mentioned as may be necessary to bring him, her, or them within the provisions of this act, and that the tenant or person in possession has committed waste to the free- hold (or allows it to be done by others), or threatens to do the same, and that such owner, mortgagee, or plaintiff, or some other person for him or them verily apprehends, in consequence of such threat, that such waste will be committed unless the same be re- strained by law, it shall and may be lawful for such court or judge, as the case may be, in their discretion, to order the prothonotary of such court to issue a writ of estrepement to stay waste, which 1 See Jones v. Whitehead, 1 Parsons, 304 ; S. C, 4 Clark, 330. » 7 Smith's Laws, 520. SEC. II.] WASTE. 85 said writ shall have the same effect, to all intents and purposes, as if the same had been issued after action of ejectment brought in cases where such action is the proper remedy. " Section 2. It shall and may be lawful for the tenant, or other person in possession, to apply to the court from which the writ may have been issued, at any time after the issuing thereof, when- ever such court may be in session, and the said court shall hear the parties in a summary manner, and may dissolve the said writ, or make such other order therein as to them may seem just and right." 4. The act provides that the writ may issue during the con- tinuance of the term of the tenancy, without notice to quit;' but not after the expiration of the term, unless the tenant has had due notice to quit in accordance with the provisions of the act of 21st March, 1772.^ Xotice to quit is, therefore, not requisite in a ten- ancy for years before the expiration of the term, but is necessary in a tenancy from year to year.^ 5. The act also provides that the writ may issue when the tenant threatens to commit waste, and that on the petition of the landlord or of any purchaser at a sale of the freehold by a sheriff or coroner, or of any mortgagee or judgment creditor after con- demnation by inquisition. But the writ will not issue when the estate of the tenant has ceased by a forfeiture of the term. Such a case seems not to have been provided for by any act of Assem- bly, nor will the writ issue when the waste is committed by a stranger. In such cases the preventive remedy must be injunction. 6. The writ of estrepement may be issued by the associate judge as well as by a president judge. It may be dissolved by the court which granted it while in ses- sion on application by the tenant or person in possession, or by the president judge thereof during vacation.^ 7. By act of 11th April, 1862,' it is provided that the pro- visions of the first section of the act of 6th May, 1844,* shall apply to the issuing of writs of estrepement. This section is as follows : "JSTo injunction shall be issued by any court or judge until the ' Heil ». Strong, 8 Wright, 2fi4 ' j Smith's Laws, 371. 3 See Jones v. Whitehead, 1 Tarsons, 304; S. C, 4 Clark, 330. * See act of 18th Tebruary, 1875, Pamph. Laws, 38. « Pamph. Laws, 430. « Id. 664. 86 WASTE [chap. IV party applying for the same shall have given bond with sufficient sureties to be approved by said court or judge, conditioned to indemnify the other party for all damages that may be sustained by reason of such injunction." Therefore, before he obtains the writ, the landlord must give thjs bond; but when the tenant applies for a dissolution of the writ, it will depend on the discretion of the court whether or not he will have to give a bond to indemnify the landlord.' 8. Before the act of 2d April, 1803, the writ of estrepement did not issue of course, but was grounded on an affidavit of actual waste done or permitted.^ 9. The writ of estrepement will issue : (1.) When an action of ejectment is pending.' (2.) At the instance of the landlord, when lands have been leased for years or at will.* (3.) At the instance of any purchaser at sheriff's or coroner's sale.^ (4.) At the instance of a mortgagee or judgment creditor after the lands have been levied on and condemned,^ or after proceed- ings have been commenced to collect the mortgage or judgment debt.' (5.) When new mines or quarries are opened pending a suit in ejectment, but not for the working of mines and quarries opened before the institution of the suit, until the term succeeding that to which the writ of ejectment was returnable, or until the plain- tiff has filed an affidavit that the title or right of possession is vested in him, and his attorney has certified his opinion that such is the case, and the court in which the case is pending may dis- solve the writ in such terms as to it may seem just.' (6.) At the instance of a remainderman, provided that five days' previous notice to desist from the waste be given, and pro- 1 Byrne v. Boyle, 1 "Wright, 260. ' Dickinson v. Nicholson, 2 Yeates, 281. 3 See act of 2d April, 1803, 4 Smith's Laws, 89 ; Jones v. Whitehead, 1 Parsons, 804; S. C, 4 Clark, 330. * See act of 29th March, 1822, 7 Smith's Laws, 520. s See Ihid. « See Ibid. ' See act of 22d April, 1850, Pamph. Laws, 549. 8 See act of 27th March, 1833, Pamph. Laws, 99; Neel v. Neel, 7 Harris, 162; Irwin v. Covode, 12 Id. 162. SEC. II.] WASTE. 87 vided that a tenant for life be not restrained from the reasonable use and enjoyment of the premises.' (7.) At the instance of a creditor of a decedent against the party in possession of decedent's land.^ (8.) At the instance of a plaintiff in foreign attachments.^ (9.) Pending a writ of error in certain cases.^ (10.) At the instance of an owner of an Undivided interest in land or timber, where his co-tenant has not obtained his consent to the catting of the timber.' (11.) At the instance of the mortgagee of household premises, after proceedings commenced to collect the debt.^ 10. It is to be particularly noticed, that when a landlord is desirous of obtaining a writ of estrepement, and the tenancy is one from year to year, he must, before applying for the writ, have given his tenant a notice to quit/ and he must also give a bond of indemnity in conformity to the act of 11th April, 1862.* 11. The writ of estrepement may be dissolved by the court on a hearing, with or without security.' [The forms of procedure in estrepement are given in the Ap- pendix.] (2.) By Injunction. 108. 1. The landlord may, however, prefer to proceed in equity, in order to stay the tenant from committing waste by getting an injunction, but he can only do this when the waste, being com- mitted, is of a lasting injury to the property, such as the con- version of a meadow into a corn-field, or the destruction and cutting down of the timber trees, it being elementary law that, in equity, a decree is never of right, as a judgment at law is, but of grace;'" nor will an injunction be granted unless the damage done be irreparable, nor if it be doubtful, eventual, or contingent." ' See act of 10th April, 1848, Pamph. Laws, 472. ' See act of 22d April, 1850, Id. 549. 3 See act of 8th May, 185r), Id. 33. « Ste act of 20th April, 1869, Id. 76. 6 See act of 4th May, 1869, Id. 1251. "> See act of 2d June, 1871, Id. 290. ' Jones V. Whitehead, 1 Parsons, 304, S. C, 4 Clark, 330. 8 Pamph. Laws, 430. ' See Byrne v. Boyle, 1 Wright, 260; 1° Kichards's Apl., 7 P. P. Smith, 105. " Ehodes v. Dunbar, 7 P. F. Smith, 274, 287. 88 WASTE. [chap. IV. 2. In such cases the court may, at its discretion, grant an injunction, in accordance with the rules of the Supreme Court, which provide, in section 14, that the bill shall be printed on white sized paper, of a convenient size (excepting where the at- torney shall certify to the court that his client is unable to pay for the same, or that there has not been time to print the same, in which latter case the printed bill must be substituted within twenty days, or the injunction will be withdrawn); and, more- over, where the injunction has been granted without notice having been served on the tenant, it will be dissolved, unless argued within five days. Before the writ of injunction issues the land- lord must, in accordance with the act of 6th May, 1844,' give such bond to indemnify the tenant as may be approved by the court. The solicitor should also have a written authority, called a warrant of attorney, from the client, before applying for the in- junction, and in drawing the bill should make it brief and succinct, and divide it into paragraphs, consecutively numbered, omitting the interrogatories, formerly put into bills, as also the subpoena; the prayer for relief is also to be divided and numbered, and on the bill must be indorsed a notice to the defendant, re- quiring him to enter an appearance within fourteen days, in default of which appearance he is liable to have the bill taken as confessed, and a decree may be made accordingly. 3. The power of the Courts of Common Pleas to issue injunc- tions to stay waste, is conferred by act of 16th June, 1836, sec- tion 13,^ and by act of 14th February, 1857,' confirmed by the Constitution of 1874, article v, section 20. 4. As a remedy injunction is more extensive and unbounded than estrepement, as the latter is limited in its operation to the specific cases mentioned in the foregoing acts of Assembly. Whereas, injunction is effectual in all cases where it acts for the "prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals."^ 5. The courts in granting injunctions are not restrained to " acts contrary to law," but may exercise this power to restrain 1 Pamph. Laws, 564. » Id. 790. » Id. 39. * See Smith & Fleek's Apl., 19 P. P. Smith, 474; Denny v. Brunson, 6 ■Casey, 382. SEC. II.] WASTE. 89 acts contrary to equity also ; equity being part of the law of Pennsylvania.' 6. It is, however, undecided in our courts whether or not a judgment creditor is entitled to an injunction to restrain waste by his judgment debtor, on the lands owned by that debtor.^ In Connecticut it was, however, decided that "where the land of an insolvent debtor has been attached in a suit at law, a court of chancery, during the pendency of such suit, will enjoin the debtor from committing waste."^ [For forms of procedure, see Appendix.] II. The Remedial. 109. The remedial actions to which a landlord may resort for waste committed by his tenant are : 1 . Action or writ of waste. 2. Action of trespass on the case in the nature of waste. 3. Action of covenant, under the express covenant in a lease under seal. 4. Action of assumpsit, where the lease is not under seal. (1.) Action or Writ of Waste. 110. 1. The action or writ of waste is seldom brought in Penn- sylvania,* and in England has been superseded by action on the case in the nature of waste. At common law this writ did not lie against a tenant for years; tenant in dower, tenant by the curtesy, and guardians being alone punishable. This, however, was supplied by statute 52 Henry III, ch. 23;' statute 6 Edward I, ch. 5 and 13;" and statute 13 Edward I, ch. 14;' the latter of which authorized the writ of waste : " So tliat he of whom " complaint is shall answer for waste done at any time, and if he "come not after the summons, he shall be attached, and after the "attachment he shall be distrained, and if he come not after the " distress, the sheriff shall be commanded that in proper person " he shall take with him twelve, etc., etc., and shall go to the 1 Stockdale V. UUery, 1 Wright, 486. * Witmer's Apl., 9 Wright, 455. 3 Camp V. Bates, 1 Connecticut, 51 * Lyle v. Eichards,9S. & R. 367. 6 Eoberts's Digest, *10. » Id. *417, *418. ' Id. *419, 90 -WASTE. [chap. IV. " place wasted, and shall inquire of the waste done, and shall re- " turn an inquest, and after the inquest returned, they shall pass "into judgment, like as it is contained in the statute of Glou- " cester (6 Edward I)." 2. This action can only be maintained by an immediate rever- sioner or remainderman,' but by it (under statute of Gloucester) he may recover the property on whicli the waste is committed as well as three times as much as the waste may be taxed at, but it seems that he shall recover only the spot wasted and not the whole freehold.^ This writ will lie only against him that com- mitted the waste and not against his grantee.^ 3. In this action the plaintiff must in his declaration show — 1st. How he is entitled to the premises wasted ;* 2dly. A demise by himself or his ancestor to the tenant ;° 3dly. Specify the nature and quantity of the waste, and a variance in the nature will be fatal f ' 4thly. Must state the waste to be to the disinheriting of the plaintiff.' 4. This action will not lie against a tenant at will f nor against an executor for waste committed by a testator,' and to justify the action the waste must not be for a trifling amount.'" [For forms of procedure see Appendix.] (2.) Action of Trespass on the Case in the Nature of Waste. 111. 1. An action of trespass on .the case in the nature of waste is more frequently resorted to than an action of waste. In this action it is not necessary for the landlord, whether he be the im- ' Coke upon Littleton, 54. ^ 2 Institutes, 303 and 305. 8 Fitzherbert's jSfatura Brevium. * Skeat V. Oxenbridge, Hobart's Reports, 81; Ewer jj. Moile, Telverton's Keports, 140 ; Greene v. Cole, 2 Saunders, 235 ; Leigh v. Leigh, 2 Lutwyche's Eeports, 1541. ^ See Ibid. ^ Leigh V. Leigh, Lutwyoho's Eeports, 1547; 2 Kolle's Abridgment, 832; Poole V. Longueville, 2 Saunders, 285. ' Pitzherbert's Natura Brevium, 55. 8 Countess of Salop v. Crompton, Cro. Elizabeth, 777, 784, S. C. Noy, 51. 8 2 Institutes, 302; 2 Kolle's Abridgment, 828. 'o Coke upon Littleton, 54 ; Bro. Abridgment, 133 ; 2 Institutes, 306 ; King V. Fitch, Croke (Oar.) Keports, 414. SEC. II.] WASTE. 91 mediate lessor, or heir, or assignee of the reversion, to set forth in his declaration the title of himself, nor that of the tenant. It is enough to merely state their relation to each other. He must, however, state the nature and kind of waste, nor can he after so doing give evidence of a diflferent sort of waste.' He must state that the waste is a damage to his reversion, or such injury as necessarily is a permanent injury to it, otherwise there will be cause for arresting the judgment.^ 2. This action will lie for permissive as well as for voluntary waste.' 3. Action of trespass on the case springs not from the common law but from the statute of 13 Edward I, chapter 24," and the wrongs it is used to redress are either those of malfeasance, or those of misfeasance in the performance of some act that miglit properly be done. It covers a multitude of cases, amongst others waste. It diifers from trespass; thus, when the damage done is active and coupled with force, trespass lies ; where supine, and without force or from negligence, action on the case lies. For example, if a stone be cast into the street and it hit a person, an action of trespass will lie; if it do not, but while lying in the street some one fall over it and is hurt, an action of case lies. 4. This action may be brought by a trustee in fee against an equitable tenant for life.' Also by a cestui que trust against his trustee.^ By an action on the case in the nature of waste, the reversioner does not recover the place wasted but does his damages and costs. This remedy is more expeditious and the pleadings less minute than in writ of waste; nor is it necessary in this, as in the latter action, to set forth the title of either plaintiff or de- fendant in the declaration, but merely to state their relation to each other.'^ "When the waste is committed by a stranger, to the damage of an owner of land in the possession thereof, the usual remedy in Pennsylvania is by action of trespass quare dausum fregit. An action on the case in the nature of waste may be ' Harris v. Mantle, 3 Term Reports, 307. 2 Jackson v. Pesked, 1 Maule & Selwyn, 234. 3 See Shult v. Barker, 12 Sergeant & Eawle, 272. 4 Roberts's Digest, *157. 5 "Woodman v. Good, 6 Watts & Sergeant, 169. « Wyanti;. Dieffendafer, 2 Grant, 3.34. ' Greene v. Cole, 2 Saunders's Reports, 252 ; Cruise on Real Property, 71. 92 WASTE. [chap. IV. maintained by a tenant for years against his sub-tenant, for felling trees, either fruit or timber/ but it cannot be maintained against a tenant for years for cutting and carrying away trees blown down by a tempest, as the proper remedy for the taking away would be trover and conversion.^ 5. The act of 13th June, 1836,^ provides that actions of waste shall be commenced in the county where the lands wasted are situate, and wlien the land lies in more counties than one the actions may be commenced in either one of them, and shall com- mence by summons. [For form of procedure in action of trespass on the case see Appendix.] (3.) Action of Covenant, under the Express Covenant in a Lease under Seal. 112. 1. The next and most usual remedy, an action of covenant, can only be resorted to by the landlord in cases where a written and sealed lease, containing a covenant relating to waste, exists. In cases of waste by a tenant under an oral lease, the action of as- sumpsit may be resorted to for the breach of the implied covenant to repair, or to do no waste. The act of 25th April, 1850,* ex- tended the remedy of covenant to leases not under seal so far as relates to the payment of rent, but it does not affect the remedy when used to obtain damages ft)r waste. 2. The action of covenant does npt therefore lie to enforce im- plied covenants in a lease, nor will it lie in this State to enforce an express covenant when the performance of such is rendered impossible by either the act of God or of a public enemy, unless some special provision to that effect is expressed in the lease.' It will not lie between a wife and her husband during coverture.^ 3. It may be maintained by or against either of the parties to the lease or their personal representatives, and where the covenant is one that runs with the land, by or against the assignees of either. When the waste is of an irreparable nature the action will lie ' Shult V. Barker, 12 Sergeant & Kawle, 272. ^ Ibid. ; Woodman v. Good, 6 Watts & Sergeant, 169. ' Pamphlet Laws, 687T * Pamphlet Laws, 671. ' Pollard V. Shaaffer, 1 Dallas, 210. Miller v. Miller, 8 Wright, 170. SEC. II.] WASTE. 93 during the term, but if otherwise it will not lie until the expira- tion thereof.' [For form of procedure in action of covenant see Appendix.J (4.) Action of Assumpsit, where the Lease is not under Seal. 113. 1. An action of assumpsit is the proper remedy where waste is committed by a tenant under an oral lease. The action is founded on the implied promise to treat the prem- ises demised in a husbandlike manner.^ 2. It lies against a tenant for years, or from year to year, or at will, or a tenant at sufferance, but not when the title is in dispute. 3. The declaration in assumpsit must disclose the consideration of the contract, and damages should be laid sufficient to cover the waste. 4. The general plea is non assumpsit, and the judgment in favor of the plaintiff is that he receive such specific sum as the jury may assess. [For form of procedure in action of assumpsit, see Appendix.J Statutory Penalties. 114. 1. The tenant who commits waste was moreover liable under statute 52 Henry III, chapter 23,' to fine and damages, and the statute extends not only to waste done, but to waste suffered to be done.* 2. He is also liable under statute 6 Edward I, chapter 5,° if he be attainted to lose the thing wasted, and moreover shall compen- sate three times so much as the waste shall be taxed at. As to the recovery of the place wasted, it is said that if waste be done in divers rooms of a house, the rooms only shall be recovered; but if the waste be done all through the house, the v/hole house shall be recovered. ° 3. The act of 31st March, 1860, section 152,' also provides that " if any person shall cut down or fell any timber, tree or trees, 1 Pitzherbert's Natura Brevium, 145. 2 See CMtty on Pleading, vol. i, «93. s Roberts's Digest, *9 and *416, * Hammond v. Webb, 5 Bacon's Abridgment, 456. 5 Roberts's Digest, *417. « 2 Institutes, 803. '' Pamphlet Laws, 418. 94 WASTE. [chap. IV. " knowing the same to be growing or standing upon the lands of "another person, without the consent of the owner; or if any per- "son shall purchase or receive any timber, tree or trees, knowing "the same to have been cut or removed from the lauds of another, "without the consent of the owner thereof, or who shall purchase "or receive any planks, boards, staves, shingles, or other lumber " made from such timber, tree or trees, so as aforesaid cut or re- " moved, knowing the same to have been so made ; the person so " offending shall be guilty of a misdemeanor, and being thereof " convicted, shall be sentenced to pay such fine, not exceeding one "thousand dollars, or to such imprisonment, not exceeding one " year, as the court in their discretion may think proper to im- "pose." The act extends to unseated as well as to seated lands.' 4. Moreover, the act of 29th March, 1824,^ makes the waster liable for the cutting of the timber trees to double the value thereof, and if he convert the trees to his own use to treble the value thereof, with costs of suit, and no prosecution by indictment shall be a bar to such action. 5. The act of 8th April, 1833,' provides the manner in which a suit for timber cutting, commenced before a justice of the peace, under the act of 29th March, 1824, may be removed to the Court of Common Pleas. 6. The act of 1st April, 1840,* is a supplement to the act of 29th March, 1824, and provides that when the defendant makes oath that the title to the land will come in question, the same course of proceeding shall be had as is provided for in the act of 8th April, 1833. An indictment under the acts of 1824 and 1833 requires no greater particularity in the description of the land than a narr. in actions of trespass or ejectment at common law.^ [For form of procedure by indictment see Appendix.] 7. Knowledge on the part of the defendant that the timber was growing on the lands of another is only requisite in a criminal prosecution, and the plaintiff may recover treble damages by proving that the timber was cut without the consent of the owner,^ but the action of trespass must be brought under the statute and 1 Houston V. Sims, 2 Jones, 195. ' 8 Smith's Laws, 283. s Pamphlet Laws, 224. * Id. 217. s Meyer v. The Commonwealth, 7 Barr, 439. 6 O'Reilly u. Shadle, 9 Casey, 489; Watson v. Byrd, 26 P. F. Smith, 59. SEC. II.] WASTE. 95 SO appear on the record.' Unless an affidavit be made that the title to the land will come in question the jurisdiction of the jus- tice still remains. And should it subsequently appear that it does, it is too late to make the objection after the case comes before the Common Pleas.^ 8. Under the act of 1840 a purchaser of timber cut by a tres- passer is not liable in treble damages, unless he had knowledge of the trespass.' Were the law otherwise it would put an end to the purchase of timber anywhere but from land whereof the purchaser was assured of the vendor's title, or where he had knowledge that previous consent to the cutting had been given by the last owner. The party injured may sue either in trespass or in trover; if he bring trover he waives the trespass as to the land." The action to recover treble damages under the act can be main- tained only by the owner of the land.' In England treble costs consist of single costs and the half of the same.^ Such, however, is not the practice in Pennsylvania.'' ' Hughes V. Stevens, 12 Casey, 320. " Lanchner v. Kex, 8 Harris, 464. s O'Keilly v. Shadle, 9 Casey, 489. * "Welsli w. Anthony, 4 Harris, 254. 5 Tammany v. Whittaker, 4 Watts, 221. « 2 Archibald's Precedents, 233. ' Shoemaker v. Nesbit, 2 Eawle, 201. 96 NON-PAYMENT OF RENT. [OHAP. V. CHAPTEE V. Non-payment op Rbht. SECTION I. DISTEESS. I. Defined, and How Made, 115. The second wrong which a landlord may suffer from his tenant is the failure to pay the rent reserved as the same becomes due. 116. For this wrong the law affords many remedies, which have been fully classified in a preceding chapter.' Of these reme- dies, that of distress is the most usual and effective. It is defined by Blackstone to be " the taking of a personal chattel out of the possession of a wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed."^ But a better definition in cases between landlord and tenant is the right to take personal chattels found on the demised premises for the purpose of obtaining the rent in arrear. 117. Distress is incident to every demise or lease of corporeal hereditaments where the rent is certain, and payable at specified times,' and it is independent of any stipulation in the lease, even a restrictive claure therein having been held to be inoperative.'' At common law distress was incident to rent-service, and by pro- vision in the deed to rent-charge, but not to rent-seek. Tenancies for years, or where rent is reserved at will, or from year to year, are in Pennsylvania, where the Statute of Quia Emptores is not in force, rents- service, and have always been subject to distress, but prior to the act of 21st March, 1772,° the chattels distrained were merely held in pledge by the landlord, and could not be sold. But this act hy authorizing a sale of the chattels and grow- i See Chapter III, page 57. = 3 Blackstone's Commentaries, *7. =■ Wells V. Hornish, 3 Penrose & Watts, 30. * Shrewsbury v. Wilson, 7 English Common Law Keports, 131, 142. » 1 Smith's Laws, 370. SEC. I.J DISTKESS. 97 ing crops, changed the nature of a distress from a pledge into something like an execution. 118. When and whence the right of distress arose is unknown; suffice it to say that it has existed from the earliest epochs of Eng- lish history, and is part of the common or unwritten law of England adopted, in all probability, from the civil law. This power in the hands of the English barons, was often exercised to the oppression of their serfs and tenants, and various statutes were passed with the object of mitigating this evil, until at last distress has become. " one of the most equitable and efficient remedies known to the English law." 119. The British statutes in force with us which relate to dis •tress are : 1. That of 52 Henry III,^ which in chapter iv, provides that a distress shall not be removed from the county, and also that it shall be reasonable. In case of the breach by a landlord of either of these provisions he becomes liable to an action on the case, founded on this statute, generally called the statute of Marlbridge.^ Chapter xv of the same statute, also provides that it shall not be lawful to make a distress off the premises, nor on the highway or streets, and if the landlord do so he becomes liable to an action of trespass at common law, or to an action on the case on the statute. But there are some exceptions to the rule thus laid down. 1st. If the distrainer sees the distress being removed he can fol- low it.3 2d. Our act of Assembly of 21st March, 1772,* in sec- tion 5, authorizes the goods or chattels of the tenant, clandestinely removed, to be followed for thirty days, and to be distrained on unless sold to an innocent purchaser, and our act of 25th March, 1825,^ in section 1, contains similar provisions in cases where, in the city of Philadelphia, the tenant fraudulently removes the chattels with the intent to deprive the landlord of his distress, and this even before the rent has become due. The provisions of this act were, by act of 29th March, 1870,^ extended to the cities of Pittsburgh and Allegheny. 2. Statute of 1 and 2, Philip and Mary,^ chapter xii, which 1 Eoberts's Digest, *170. ' McKinney v. Beader, 6 Watts, 34. ' Coke upon Littleton, 161 ; 2 Institutes, 232. * 1 Smith's Laws, 370. ' 8 Smith's Laws, 411. 6 Pamph. Laws, 669. ' Eoberts's Digest, *172. 7 98 NON-PAYMENT OF KENT. [CHAP. V. provides that the distress shall not be removed out of the (hun- dred, etc.) township wherein taken unless it be to an open pound within the same (shire) county, not above three miles from the place where taken, and it also provides that the chattels shall not be impounded in several places, under a penalty of one hundred shillings and treble damages. In cases of the breach of these provisions by the landlord, he is liable to an action on the case founded on the statute, and his agent is liable to an action of tres- pass at common law.^ 3. Statute of 17 Charles II," chapter vii, which relates, how- ever, more to replevin than it does to distress, in section 4 au- thorizes the landlord to distrain again from time to time for any balance of rent which he may have failed to secure by the first ' distress. 120. The first act passed in Pennsylvania in regard to distress was in 1729, in relation to the poor tax. In 1770 an act relating to landlord and tenant was passed, which, however, was soon re- pealed, and was well supplied by an act of 21st March, 1772,^ of whiclv sections 1, 2, 3, 5, 6, 7 and 14 relate to distress. Section 1 provides that if the distress be not replevied within five days, the same shall be appraised, and after six days' public notice shall be sold. Section 2 provides a penalty for any pound breach or rescue of the goods distrained. Section 3 provides a penalty for distraining when no rent is in arrear. Sections 5 and 6 authorize the landlord to follow goods and chattels clandestinely, removed by the tenant, for thirty days after removal, and (unless sold to a person not privy to the fraud) to distrain on and sell them. Section 7 authorizes landlords to distrain " any cattle or stock of their tenant or tenants, feeding or depasturing upon all or any part of the premises demised or holden, and also to take and seize all sorts of corn and grass, hops, roots, fruits, pulse or other pro- duct whatsoever, which shall be growing on any part of the estate ' Smith V. Meaner, 16 Sergeant & Eawle, 875 ; TUcElroy v. Dice, 5 Harris, 163; Wells u. Eornish, 3 Penrose & Watts, 80; Bantleon v. Smith, 2 Bin- ney, 146. ' Koberts's Digest, ^IVT. = 1 Smith's Laws, 370. SEC. I.j DISTRESS. 99 SO holden." It also authorizes him to appraise and sell the same, and the purchaser of the corn, grass, etc., shall have free egress and regress on the premises to mend the fences and to gather the crop. Section 14 authorizes the landlord to distrain after the determi- nation of the lease, provided the distress be made during the con- tinuance of such lessor's title or interest. The following are the sections in full : " Section 1. Where any goods or chattels shall be distrained for any rent reserved and due, upon any demise, lease or contract whatsoever, and the tenant or owner of the goods so distrained shall not, within five days next after such distress taken, and notice thereof, with the cause of such taking, left at the mansion house, or other most notorious place on the premises charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff, according to law, that then, and in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff, under-sheriff, or any constable in the city or county where such distress shall be taken (who are hereby required to be aiding and assisting therein ) , cause the goods and chattels so distrained to be appraised by two reputable freeholders, who shall have and receive for their trouble the sum of two shillings per diem each, and shall first take the following oath or aflBrmation: 'I, A. B., will well and truly, according to the best of my understanding, appraise the goods and chattels of C. D., distrained on for rent by E. P.,' which oath or affirmation such sheriff, under- sheriff or constable are hereby empowered and required to administer ; and after such appraisement, shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, for and towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus, if any, in the hands of the said sheriff, under-sheriff, or constable for the owner's use. " Sectiok 2. Upon any pound-breach or rescous of goods or chattels distrained for rent, the person or persons grieved thereby, shall, in a spe- cial action upon the case for the wrong thereby sustained, recover his, her, or their treble damages and costs of suit, against the offender or offenders in such rescous or pound-breach, any or either of them ; or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his or their use or possession. " Section 3. Provided, That in case any distress and sale be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them in whose name or names, or right, such distress shall be taken as aforesaid, that then the owner of such goods 100 NON-PAYMENT OF RENT. [OHAP. V. and chattels distrained and sold as aforesaid, his executors or adminis- trators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with 'full costs of suit. "Section 5. In case any lessee for life or lives, term of years, at will, or otherwise, of any messuages, lands or tenements upon the de- mise whereof any rents are or shall be reserved or made payable, shall, from and after the publication of this act, fraudulently or clandestinely convey or carry off or from such demised premises, his goods and chat- tels with intent to prevent the landlord or lessor from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any other person or per- sons, by him for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wher- ever the same may be found, as a distress for the said arrears of such rent, and the same to sell, or otherwise dispose of, in such manner, as if the said goods and chattels had actually been distrained by such lessor or landlord in and upon such demised premises, for such arrears of rent. "Section 6. Provided, That nothing herein contained shall extend, or be deemed or construed to extend, to empower such lessor or landlord to take or seize any such goods or chattels as a distress for arrears of rent, which shall be hondfide and for a valuable consideration, sold before such seizure made, to any person or persons not privy to such fraud as aforesaid, anything herein to the contrary notwithstanding. "Section?. It shall and maybe lawful to and for every lessor or landlord, lessors or landlords, or his, her or their bailiff, receiver, or other person or persons empowered by him, her, or them, to take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants, feeding or depasturing upon all or any part of the premises demised or holden ; and also to take and seize all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever, which shall be growing on any part of the estate or estates so demised or holden, as a distress for arrears of rent, and to appraise, sell, or otherwise dispose of the same, towards satisfaction of the rent for which such distress shall have been taken, and of the charges of such distress, appraisement and sale, in the same manner as other goods and chattels may be seized, dis- trained, and disposed of, and the purchaser of any such corn, grass, hops, roots, fruits, pulse or other product, shall have free egress and re- gress to and from the same where growing, to repair the fences from time to time, and when ripe to cut, gather, make, cure, and lay up and thresh, and after to carry the same away, in the same manner as the tenant might legally have done, had such distress never been made. " Section 14. It shall and may be lawful for any person or persons having any rent in arrear or due upon any lease for life or lives, or for EEC. I.J DISTKESS. 101 one or more years, or at will, ended or determined, to distrain for such, arrears after the determination of the said respective leases, in the same manner as they might have done, if such lease or leases had not been ended or determined. Provided, That such distress be made during the continuance of suck lessor's title or interest." 121. The act of 25th March, 1825/ applied only to the city of Philadelphia, but the provisions of its first section have, by act of 29th March, 1870,^ b^en extended to the cities of Pittsburgh and Allegheny. It provides, that in the case of a tenant's fraudu- lently removing his goods from the demised premises before the rent becomes due, with the intent to defraud his landlord of his remedy of distress, the landlord may consider the rent apportioned dovs^n to the date of the removal, and may for thirty days there- after follow the goods, and seize and take the same as a distress, and sell them in the same manner as if they had been still on the demised premises, provided the said goods and chattels have not been sold previous to their removal to an innocent purchaser. It is also provided that before seizing the goods the landlord shall make oath before a justice or alderman that he verily believes the goods were carried away for the purpose of defrauding as afore- said. Tlie following is the act in full : " Sectiok 1. In case any lessee for life or lives, term of years at will, or otherwise, of any messuages, lands or tenements, situate in the city or county of Philadelphia, upon the demise whereof any rents are or shall be reserved and made payable, shall from and after the first day of August next, before such rents as aforesaid shall become due and paya- ble, fraudulently convey away or carry off or from such demised premises, his goods and chattels, with intent to defraud the landlord or lessor of his remedy by distress, it shall and may be lawful to and for such land- lord or lessor, to consider his rents so reserved as aforesaid, as apportioned up to the time of such conveying away or carrying off, and for him, or any other person or persons, by him for that purpose lawfully authorized, within the space of thirty days next ensuing such conveying away or carrying off such goods and chattels as aforesaid, to take and seize such goods and chattels wherever the same may be found, as a distress for such rents so apportioned as aforesaid, and the same to sell or otherwise dispose of, in such manner as if the said goods and chattels had been distrained by such lessor or landlord, in and upon such demised prem- ises for rents actually due agreeably to the existing laws. Provided, that J 8 Smith's Laws, 411. « Pamph. Laws, 669. 102 NON-PAYMENT OP RENT. [CHAP. V. such landlord or lessor, before any sucli goods or chattels are seized as aforesaid, shall make oath or affirmation before some judge, alderman, or justice of the peace, that he verily believes that said goods or chattels were carried away for the purpose of defrauding as aforesaid. And pro- vided, that nothing herein contained shall extend or be deemed or con- strued to extend, to empower such lessor or landlord to take or seize any goods or chattels, or a distress for such rents so apportioned as aforesaid, which shall be bona fide and for a valuable consideration sold, before such seizure made, to any person or persons not privy to such fraud as aforesaid, anything herein to the contrary notwithstanding. And pro- vided also, that nothing herein contained shall be construed to apply to contracts made before the passage of this act." 122. 1. At common law distress could only be made during the term, but the act of 21st March, 1772, section 14,' provides that it may be made at. any time that the rent is in arrear, providing the title to the premises be still in the party authorizing or making the distress.^ 2. The distress must be made in the daytime, betv/een sunrise and sunset,^ after the rent is fully due, which is in general at the last minute of the last hour of the day on which the rent is pay- able,* excejjt in the case of a clandestine or fraudulent removal of the goods after the rent is due, in which ease the goods so re- moved may be distrained on, wherever found in the county, for thirty days after such removal,' provided the same have not been sold, for a valuable consideration, to an innocent purchaser, proving himself to be such.^ It may also be made in Philadelphia, Pitts- burg, and Allegheny by virtue of the act of 25th March, 182n,' even before the rent is due, in cases of a fraudulent removal, for thirty days thereafter. A removal like that referred to, if made at night, is fraudulent, but a simple removal in the daytime gives no presumption of fraud,* and the distraint must be made on the premises leased, unless in cases where the landlord, or his agent, 1 1 Smith's Laws, 370. « Moss's Appeal, 11 Casey, 1G2; Clifford v. Beems, 3 ^yatts, 246. 2 Aldenburgi). Peaple, 6 Carrington & Payne, 212. * Marys v. Anderson, 12 Harris, 272; Donaldson i. Smith, 1 Ashmead, 897. ^ Grace v. Shivoly, 12 Sergeant & Kawle, 217 ; Jones v. Gundrim, 3 Watts & Sergeant, 531. 6 Clifford V. Beems, 3 Watts, 24G. ' 8 Smith's Laws, 411, " Grant & McLane's Appeal, 8 Wright, 477 ; Purfel v. Sands, 1 Ashmead, 121. SEC. I.] DISTRESS, 103 sees the goods or cattle being removed, in which cases he may fol- low them off the premises/ 3. A warrant to distrain given on the day the rent is due is a good authority, and if by stipulation in the lease, the rent is made payable in advance, or on the day the tenant enters, the distress may be made the day following.^ 4. A distress cannot be made after tender of the rent, and a tender made even after the distress will make the same void,^ but a tender made after the impounding would be otherwise,* although replevin will lie until the day of sale.* 123. The principal cases wherein distress is in use in Pennsyl- vania are as follows : 1st. For non-payment of rent, and this is the most usual oase.° 2d. For non-payment of the annual interest charged on the estate of an intestate, awarded to his children or representatives, or sold under order of the Orphans' Court, in favor of the widow and in lieu of dower.' 3d. In particular cases of cattle doing damage, in cases of swine running at large, and of trespass committed by cattle, horses, and sheep.^ 4th. To enforce the payment of county taxes.' 124. To authorize a distress in cases of non-payment of rent there must be : 1st. An actual demise, and not a mere agreement to lease.'" 2d. A rent either certain or capable of being reduced to a cer- tainty by calculation." 1 Gilbert on Distress, 10; 2 Institutes, 131 1 Coke upon Littleton, 161. ' Bej'er v. Fenstermacher, 2 Wharton, 95 ; and see Anderson's Appeal, 3 Barr, 219. ^ See Lyon v. Houk, 9 Watts, 193. * The Six Carpenters' Case, 1 Smith's Leading Cases, *216. ^ See Brishen v. Wilson, 10 P. ¥. Smith, 454, 458; Whitcomhc. Lawrence, 11 Weekly Notes, — . « See act of 21st March, 1772, 1 Smith's Laws, 370. ' Act of 29th March, 1832, sections 41 and 43; Pamph. Laws, 202, 203; Shouffler v. Coover, 1 Watts & Sergeant, 400, 411 ; Henderson's Executors «. Bo3'er, 8 Wright, 220; Borland v. Murphy, 4 Weekly Notes, 472. 8 Act of 1705, 1 Smith's Laws, 70 ; 10th May, 1829, Ibid. 176 ; 13th March, 1807, 4 Ibid. 473; 5th March, 1819, 7 Ibid. 160; 5th March, 1858, Pamph. Laws, 78. 9 Acts of 6th April, 1802, 3 Smith's Laws, 516; 3d April, 1804, 4 Ibid.^ 203; 15th April, 1834, Pamph. Laws, 509; 24th March, 1870, Ibid. 544. " Coke upon Littleton, 96 ; Wells v. Hornish, 3 Penrose & Watts, 80. " Grier v. Cowan, 1 Addison, 347; Wells v. Hornish, 3 Penrose & Watts, 30; Fry v. Jones, 2 Kawie, 11, 12. 104 NON-PAYMENT OF KENT. [CHAP. V. 125. In Pennsylvania a distress maybe made for non-payment of rent by : (1.) A lessor who has not parted with his reversion.' (2.) An assignee of a lessor to whom is transferred the re- version.' (3.) A tenant for life.' (4.) Joint tenants together.* (5.) A joiiat tenant, who may appoint a bailiff to distrain with- out the assent of his fellow-tenant.* (6.) Copartners where they all join.° (7.) Tenants in common together.^ (8.) A tenant in common for his respective portion.' (9.) Surviving tenant in common for the whole rent.' (10.) A lessee who has under-let, but not a lessee who has as- signed, unless he has expressly so provided in the assignment."* (11.) The executor or administrator of a decedent lessor for rent accrued and due prior to the decease of the lessor." (12.) The heir or devisee of a lessor for rent which has ac- crued, due subsequent to the death of the lessor.'^ (13.) A guardian for an infant.'^ (14.) A receiver appointed by court." (15.) A husband, for rents accrued, due from his wife's land, during coverture, with the assent of the wife.'* (16.) The agent or bailiff of the lessor may distrain on parol authority.'* At common law a mortgagee could distrain, but such is not the case in Pennsylvania.'^ ' Helser v. Pott, 3 Barr, 179. ^ glocum v. Clark, 2 Hill (N. T.), 475. » Lewis's Ap'l, 16 P. P. Smith, 312. * Uobinson v. Hoffman, 4 Bingham, 562. ^ Ibid. « Steadman v. Clark, 1 Salkeld, 390. Coke upon Littleton, 197; Jones v. Gundrim, 3 Watts & Sergeant, 531. s Coke upon. Littleton, 317. 5 Wallace v. McLaren, 1 Manning & Eyland, 516. 1" Manuel v. Eeath, 5 Philadelphia, 11. " Act of 24th Pebruary, 1834, Pamph. Laws, 73. " Duppa V. Mayo, 1 Saunders. 287. " 1 Croke, 55-98. '* Pittc. Snowden, 3 Atkyn's Eeports, 750. '5 Osborne v. Wiokendeii, 2 Saunders, 19-5. ^^ Francisons v. Eeigart, 4 Watts, 98; Jones v. Gundrim, 3 Watts & Ser- .geant, 531, 533. " Myers v. White, 1 Kawle, 353, 355. SEC. I.] DISTRESS. 105 II. Things Privileged or Exempt from Distress. 126. In Pennsylvania, before the act of 21st March, 1772, all chattels on the demised premises, with the exceptions hereafter mentioned, were subject to the distress of the landlord for the rent in arrear. They could not be sold, but were held by the landlord only as a pledge until the tenant either redeemed them by paying the rent due, or regained them by an action of replevin, in which the landlord was made secure for any rent that might be coming to him. 127. The property which was thus privileged from distress may be classified as follows :' Fi7'st. Things absolutely privileged. Second. Things conditionally privileged. 128. Of property privileged from distress the first class com- prises : 1. Things annexed or pertaining to the freehold, which formerly included not only fixtures belonging to the tenant, but also grow- ing corn, grass and other products of the soil. Fixtures, such as windows, doors, chimney-pieces, furnaces, mirrors, gas fixtures, or anything of a similar nature and not permanently detached from the freehold, were and are privileged from distress,'' but as for growing corn, grass, and other products of the soil, though not distrainable at common law, they became so by the act of 21st March, 1772,' but the words "product of the soil" as used in the act will apply only to things similar in nature to those specified therein, to wit : " corn, grass, hops, roots, fruits, pulse," in fact such product as is in the process of riiaening, and is capable of being cut, gathered, and laid up.* Flowers, shrubs, and trees growing in the soil are not subject to distress,* nor is the product of them while unsevered, but flowers, shrubs, and trees pPanted in pots or tubs, and therefore not affixed, are subject to distress. In the case of the distraint and sale of the growing crops the pur- chaser is empowered, by the act of 1772, to enter on the premises, ■■ Kesslor v. McConachy, Kawle, 440; Earns v. McKinney, 24' P. P. Smith, 387 ; O'Donnell v. Seybert, 13 Sergeant & Kawle, 57 ; Weidel v. Eoseberry, 13 Sergeant & Eawle, 180; Sleeper v. Parrish, 7 Philada. 247. s Gray v. Holdship, 17 Sergeant & Kawle, 413 ; Co. Litt. 47. 8 1 Smith's Laws, 370. * Clark v. Garkarth, 8 Taunton, 431, 106 HON-PATMBST OF RENT. [CHAP. T. and when ripe, to cut, gather and carry away the crop. It is reasonable to believe that growing crops should not be distrained, provided sufficient distress be on the demised premises of a chattel nature distrainable at common law. 2. Things delivered to a person exercising a public trade to be carried, worked up, wrought, or managed in his trade or employ. These are privileged from distress for the beneiit of trade and commerce ;' and include, for example, a horse left at a blacksmith shop, or at an inn, or cloth at a tailor's to be made into clothing, corn sent to a mill to be ground or to a market-house, factor, commission merchant, or auctioneer, to be sold or stored, goods on a wharf or in the custody of a carrier.^ The privilege, in fact, extends to those things which the landlord may know are not the property of the tenant and are only in his possession, or bail in the course of his trade or business. It extends also to the goods of a boarder at an inn or boarding-house.^ The goods of a tenant's wife on the premises are, however, liable.^ And it has been decided in England that the privilege does not extend to the machinery or conveyance that Worked or carried the thing, such as a weaver's loom sent with wool,'' or a barge sent with salt,° or the casks of a brewer sent to a public house with ale or beer.' 3. Things of a perishable nature, such as fresh meat, milk, and perishable fruit, cocks and sheaves of grain or loose hay, grain or money that cannot be returned to the tenant in good plight, or otherwise incapable of identification.' Since the act of 9th April, 1849,^ it is probable that this exception only holds good in Pennsyl- vania in relation to such things as will perish between the day of distress and the day of sale. This act provides that " in lieu of the ' See Ciidwalader v. Tindall, 8 Harris, 422. 2 Gisbourn v. Hurst, Salkeld, 249; Gorton v. Falkner, 4 Term Reports, 565; Baynes v. Smith, 1 Espinasse, 206; Brown v. Sims, 17 Sergeant & Eawle, 138; Briggs v. Large, 6 Casey, 287; Simpson v. Hartopp, 1 Smith's Leading Cases, *527 ; Price v. McCallister, 3 Grant, 248; Bevan v. Croolvs, 7 Watts & Sergeant, 452; Darcy ». Allin, Noy, 173, 181. 8 Eiddle v. Welden, 5 Wharton, 9. * Blanche v. Bradford, 2 Wright, 844 ; Trimble's App'l., 5 Weekly Notes, 396. . * Wood V. Clarke, 1 Crompton & Jarvis, 484. ^ Muspratt v. Gregory, 3 Meeson & Wclsby, 677. ' Joule V. Jackson, 7 Meeson & Welsby, 450. 8 Morley t). Pincombe, 2 Exchequer, 101, ' Pamph. LawSj 533. SEC. I.j DISTRESS. 107 property now exempt by law from levy and sale on execution, issued upon any judgment obtained upon contract or distress for rent, property to the value of $300, exclusive of all wearing ap- parel of the defendant and his family, and all bibles and school books in use in his family (which shall remain exempted as here- tofore) and no more, owned by or ia posseasioo of any debtor, shall be exempt from levy and sale on execution or by distress for rent ;" and this provision makes the cocks and sheaves of grain and hay, or straw (which can be identified), liable to dis- tress. The act of 21st March, 1772,^ iu its provisions makes growing grain and other product of the soil liable, but does not refer to what is already cut. 4. Things in the actual use of the tenant, as an axe in his hand, or a horse he is riding, or a horse and carriage with which he is driving, or a loom in a weaver's hand, or wearing apparel, are held at common law to be privileged from distress, on the reason- ing that any attempt to distrain them might lead to a breach of the peace.^ And it is probable that this exception still holds good in Pennsylvania notwithstanding the limitation contained in the act of 9th April, 1849.' 5. Animals /erce naturce, which class includes dogs, cats, rabbits, and deer, in which it was supposed no property of value could exist. This exception still holds good, but does not include deer kept in a park or close for profit, or, from a parallel reasoning, any animal kept for gain, show, or merchandise, nor will it include valuable dogs, particularly those on which taxes are paid.* 6. Things iu the custody of the law, as for example, goods seized in execution, or foreign attachment,^ or on a writ of re- plevin, or in the hands of a receiver (unless when the receiver has taken possession of the leased premises). The statute of 8 Anne, chapter xiv, provided a remedy for this, by directing the sheriff to pay out of the proceeds of the sale one year's rent to the landlord, and though this statute be not in force in Pennsylvania, 1 1 Smith's Laws, 370. 2 Field V. Adames, 12 Adolphus & Ellis, 652; Story v. Eobinson, 6 Term Eeports, 138; Bissett j). Caldwell, 1 Peake, 50; BaynesB. Smith, 1 Espinasse, 206 ; Uarcy v. Allin, Noy, 173, 181. » Pampb. Laws, 533. * Co. Lift. 47; Davies v. Powell, Willes, 46. ' Pierce v. Scott, 4 Watts & Sergeant, 344; Vezia v. Viench, 1 Philada. 176; Commonwealths. Lelar, 1 Ibid. 173. 108 NON-PAYMENT OF RENT. [CHAP. V the act of 16th June, 1836/ contains similar provisions. But goods replevied may be distrained for subsequent arrears of rent.^ 129. Of property privileged from distress, the second class, viz., things conditionally privileged, comprises: 1. Beasts of the plough and implements of husbandry, which were not distrai-nable at common law provided there were other sufficient distress on the leased premises. The reason of this con- ditional privilege was, that a man should not (if possible) be de- prived of the means of making a living for his family, and also that husbandry should not be discouraged. The act of 21st March, 1772,^ however, provides that the landlord may distrain on " any cattle or stock of their respective tenant or tenants feed- ing or depasturing upon all or any part of the premises demised or holden," and the exemption act of 9th April, 1849,^ in exempt- ing chattels to the value of $300, allows the tenant to retain to that extent what he may deem most essential for his wellbeing. 2. Beasts which improve the soil, such as sheep and other do- mestic animals. This conditional exception does not now exist in Pennsylvania, being governed by the same reasoning applicable to the foregoing exception.^ 130. The chattels contained in the dwellings and offices of ambassadors and other public officials of a foreign state are neces- sarily privileged from distress, being by the law of nations con- sidered as out of the jurisdiction of the country they may be in. They are also protected by Act of Congress of 30th April, 1790, section 25 ;" but if these officials engage in business foreign to the purport of their appointment, such as merchandising, the privi- lege does not extend to the goods and chattels pertaining to such business. 131. Moreover if a landlord either impliedly or expressly con- sent that chattels placed on the premises by a stranger shall be privi- leged from distress, he will be a trespasser if he distrain on them.' ' Pamph. Laws, 777. ' Woglfim V. Cowperthwajte, 2 Dallas, 68 ; Frey v. Leeper, Ibid. 131 ; Gray v. Wilson, 4 Watts, 39. ' 1 Smith's Laws, 370. « Pamph. Laws, 533. ' These privileges are fully treated on in the case of Simpson v. Ilartopp, 1 Smith's Loading Cases, *527, and in the notes thereto by Judge Hare. ' 1 Stat. 117 ; Respublica v. De Longchamps, 1 Dallas, 111. ' Bridges v. Smyth, 5 Bingham, 410 j Horsford v. Webster, 5 Tyrwhitt, 314. SEC. I.] DISTRESS. 109 132. On 26th March, 1814/ an act was passed by the General Assembly exempting from levy and sale on execution or other legal process for debts (rent excepted), household utensils to the value of $13, the necessary tools of a workman to the value of $20, all wearing apparel, two beds and bedding, one cow and a spinning-wheel, and on the same day (P. L. 216) an act was passed for the relief of insolvents, limiting the claim of the landlord for rent to that of one year. On 29th March, 1821,^ an act was passed exempting from sale on execution or distress for rent one stove ; and on 31st March, 1821,^" an act was passed for the relief of the poor, exempting from levy or sale on execution, or other legal process (except for rent), any number of sheep not exceeding six, and on 10th April, 1828,* an act was passed for the relief of the poor, exempting from levy and sale on execution or distress for rent household utensils to the value of $20, tools of a tradesman, $20, all wearing apparel, two beds and the necessary bedding, one cow, two hogs, six sheep, with the wool thereof, and the yarn and cloth manufactured therefrom, and feed for the said cow, hogs and sheep, from the first of November to the last of May ; a stove and the pipe of the same and necessary fuel, a spinning-wheel and reel, and any quantity of meat not exceeding one hundred pounds, six bushels of potatoes, six bushels of grain and the meal made there- from, and any quantity of flax not exceeding ten pounds, the thread and linen made therefrom, and all bibles and school-booka in use in the family. This act repealed the foregoing acts of 1814 and 1821, and though repealed by act of 9th April, 1849, it is still in force in relation to judgments issuing out of any of the Federal courts in which no rule has been made, under the provisions of the act of Congress of 19th May, 1828, section 3,' which enacts as follows : " That it shall be in the power of the courts if they see fit, in their discretion, by rules of court, so far to alter final process in said courts, as to conform the same to any change which may be adopted by the legislatures of the respective States for the State courts."^ 133. The goods of a deceased tenant are exempt from distress by common law, but the act of 24th February, 1834,^ makes 1 6 Smith's Laws, 215. * 7 Smith's Laws, 426. » 7 Smith's Laws, 427. * Pamph. Laws, 285. ^ See 1 Brightly's United States Digest, 2G9. 6 Lloyd V. Tost, 4 Philada. 42. ' Pamph. Laws, 76. 110 NON-PAYMENT OF RENT. [cHAP. V. provision for the rent due by the tenant at the time of his death. See sections 21, 22, and 23, to wit: "All debts owing by any person within this State at the time of his decease shall be paid by his executors or administrators, so far as they have assets, in the manner and order following, viz. : 1. Funeral expenses, medi- cine furnished and medical attendance given during the last illness of the decedent, and servants' wages not exceeding one year. 2. Rents not exceeding one year. 3. All other debts without regard to the quality of the same, except debts due to the Commonwealth, which shall be last paid." " Sectioit 22. 5f executor or administrator shall be compelled to pay any debt of the decedent except such as are bylaw preferred in the order of payment to rents until one year be fully elapsed from the granting of the administration of the estate." " SECTiO]sr 23. Whenever the laws of the place in which was the dece- dent's domicile, at the time of his death, contain any provision whereby a preference may be given in the payment of debts due to the citizens or residents thereof, as such, over the citizens or residents of this State, the executor or administrator shall in the disposition of such of the assets as may come into his hands, observe the like rules of preference in favor of the citizens or residents of this Commonwealth, over the citizens or resi- dents of such place, in the same manner as if such rules were hereby expressly enacted." 134. The landlord can claim his rent in arrear from the execu- tor or administrator, but only has a preference next to funeral ex- penses, medicine and medical attendance, and partially servants' wages, for one year's rent, and even for this he has no preference if he have parted with the reversion ;' but the landlord may dis- train on the property of an assignee of the tenant or on that of a sub-tenant,^ and where the executor or administrator takes pos- session of the demised premises and continues on under the terms of the lease, the profits of the land are first liable for the payment of the rent, and only what remains over are assets of the estate, and the goods remaining on the premises are subject to the dis- tress of the landlord for rent accruing due subsequent to the death of the tenant, excepting, however, such as may be claimed and allotted to the widow or children by virtue of the acts of 26th April, 1850,^ and of 14th April, 1851,* hereinafter treated of. ' Hosldns V. Houston, 2 Clark's Cases, 489. ' Mickle's Administrator v. Miles, 1 Grant, 320. ' Pamph. Laws, 58. * Pamph. Laws, 613 ; McKim's Estate, 2 Clark's Cases, 224. SEC. I.] DISTRESS. Ill 135. In cases of domestic attachment, the act of 13th June, 1836,' in section 20, provides that the wife and family (if any) shall be entitled to retain for their own use such articles as may by law be exempted from levy and sale on execution; the amount in value of these is fixed by act of 9th April, 1849,^ at $300, and in claiming the exemption in such case it is not necessary to claim it from the officer serving the writ, but it is necessary that the claim be made at the term to which the writ is returnable.' 136. The right of the wife or family to claim the exemption is not affected by any waiver of the husband,* and if the claim be disregarded and the chattels sold, the money may be ruled into court, and be substituted for the chattels.^ The exemption in this case is limited to the articles claimed, and gives no right to the wife or family to claim $300 out of any sale.* 137. The insolvent act of 16th June, 1836,^ in section 28, pro- vides that "when any rent shall be due by such insolvent at the time of his discharge, no goods or chattels upon the premises, in respect to which such rent shall be due, liable to distress, shall be removed, or disposed of, without the consent of the landlord, or other person to whom such rent shall be due and payable, until the same, not exceeding one year's rent, be paid ; and such landlord, or other person, may proceed by distress, or otherwise, as he might have done before such discharge, to recover the same, not exceeding one year's rent as aforesaid." And the same act, in section 35, provides that " every insolvent shall be entitled to retain all such articles as may by law be exempted from levy and sale upon execution ;" and in section 38, that " every such debtor shall be entitled, notwithstanding his assignment, in conformity to this act to retain for the use of himself and family, all such arti- cles as are or may be by law exempted from levy and sale on any execution or from distress for rent, and the property in such articles shall not pass to his trustees." Notwithstanding the • Pamph. Laws, 606. ' Pamph. Laws, 533. ' Bittenger's Appeal, 26 P. P. Smith, 105; Landis v. Lyon, 21 P. F. Smith, 473; Tost «. Heffner, 19 P. F. Smith, 68. « Hess V. Beates, 28 P. F. Smith, 429. » Ibid. 429 ; Myers's Appeal, Ibid. 452. « See McCarthy's Appeal, 18 P. F. Smith, 217. ' Pamphlet Laws, 729. 112 NON-PAYMENT OF RENT. [CHAP, T. wording of section 28 is, that the goods shall not be removed until the year's rent is paid, the insolvent tenant is not debarred his privilege of claiming the exemption granted by the $300 act of 1849, and sections 35 and 38 authorize him to retain from his assignment to the trustees, chosen by his creditors, goods and chattels to the value of $300. This insolvent act, though not abrogated by the bankrupt laws of the United States, is superseded in all cases in ■which the bank- rupt laws attach to the property and person of the insolvent. The act of 1836 is still in force as far as it affects debts that will not be released by a discharge under the Bankrupt Act. A party im- prisoned under a judgment founded upon a fraudulent debt, may take the benefit of the act.' 138. On 16th June, 1836,' an act was passed relating to execu- tions, which exempted from levy and sale, on execution, certain ar- ticles therein mentioned, and these exemptions were further in- creased by the following acts : First. Act of 15th April, 1845^ (still in force), section 5 of which provides that "the wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer."* Second. Act of 22d April, 1846.* However, the exemption acts of 1828, 1836, and 1846, were repealed, and supplanted by the exemption act of 9th April, 1849,° which provides as follows : Section 1. In lieu of the property now exempt by law from levy and sale on execution, issued upon, any judgment obtained upon contract, and distress for rent, property to the value of three hundred dollars, exclusive of all wearing apparel of the defendant and his family, and all , bibles and school-books in use in the family (which shall remain ex- empted as heretofore), and no more, owned by or in possession of any debtor, shall be exempt from levy and sale on execution or by distress for rent. Section 2. The sheriff, constable, or other oflBcer charged with the execution of any warrant issued by competent authority, for the levying upon and selling the properly, either real or personal, of any debtor, shall, if requested by the debtor, summon three disinterested and com- petent persons, who shall be sworn or aflSrmed, to appraise the property ' 18 Pittsburg Law Journal, 61. 2 Pamphlet Laws, 761. 3 Ibid. 460. * Catlin V. Ensign, 5 Civsey, 264; Scott v. Watson, 12 Casey, 342; Smith v. Brooke, 13 Wright, 147. 6 Pamphlet Laws, 176. « Ibid. 533. SEC. I.] DISTRESS. 113 which the said debtor may elect to retain under the provisions of this act, for whicli servicfe tlio said appraisers sliall be entitled to receive fifty cents each, to be charged as part of the costs of the proceedings ; and property thus chosen and appraised to the value of three hundred dollars, shall be exempt from levy and sale on the said execution or warrant, excepting warrants for the collection of taxes. Section 3. In any case where the property levied upon, as aforesaid, shall consist of real estate of greater value than three hundred dollars, and the defendant in such (execution) shall elect to retain real estate amounting in value to the whole sum of three hundred dollars, or any less sum, the appraisers aforesaid shall determine whether, in their opinion, the said real estate can be divided without injury to or spoiling the whole ; and if the said appraisers shall determine that the said real estate can be divided as aforesaid, then they shall proceed to set apart so much thereof as in their opinion shall be of sufficient (value) to answer the requirement of the defendant in such case, designating the same by proper metes and bounds, all of which proceedings shall be cer- tified in writing by the said appraisers, or a majority of them, under their proper hands and seals, to the sheriff, under-sheriff, or coroner, charged with the execution of the writ in such case, who shall make return of the same to the proper court from which the writ issued, in connection with the said writ : Provided, That this section shall not be construed to affect or impair the liens of bonds, mortgages or other con- tracts, for the purchase-money of the real estate of insolvent debtors. Section 4. Upon return made of the writ aforesaid, with the proceed- ings thereon, the plaintiff in the cas§ shall be entitled to have his writ of venditioni exponas, as in other cases, to sell the residue of the real estate included in the levy aforesaid, if the appraisers aforesaid shall have determined upon a division of said real estate ; but if the said appraisers shall determine against a division of the said real estate, the plaintiff may have a writ of venditioni exponas to sell the whole of the real estate included in such levy, and it shall and may be lawful in the latter case for tiie- defendant in the execution to receive from the sheriff or other officer, of the proceeds of said sale, so much as he would have received at the appraised value, had the said real estate been divided. Section 5. The provisions of this act shall not take effect until the 4th day of July next, and shall apply only to debts contracted on and after that date. ISO. The privileges of the act of 9th April, 1849/ cannot be claimed, as follows : 1. Against a mortgage given for purchase-money of the land.^ 2. Against any mortgage on the land, however the debt arose.' 1 Pamphlet Laws, 533. ' Gangwere's Appeal, 12 Casey, 466. 8 Ibid. ; McAuley's Appeal, 11 Casey, 209. 8 114 NON-PAYMEHX 01 RENT. [OHAP. V. 3. Against any bond or contract whatever for the purchase- money.' 4. Against a mechanic's lien.' 5. Against a judgment on a foreign attachment.' 6. Against an execution issuing out of a Federal court, unless a rule of the said court so provides.'' 7. Against a warrant for taxes.* 8. Against a judgment against a constable, obtained for oiHcial misconduct or negligence.* 9. By a defendant in an action of tort.' 10. By a debtor in case of domestic attachment, but his wife or family may claim chattels by virtue of act of 13th June, 1836.8 11. By a non-resident of the State.' 12. By a tenant's assignee, or sub-tenant, who is in a worse position than the tenant, since he cannot claim the exemption, while the tenant can.'" 140. The next exemption act was that of 26th April, 1850," which, in section 25, enacted, where the estate was unable to pay the debts, that the widow and children of one dying within the State, if residing with him at the time of his death, shall be en- titled to retain property of the. estate to the value of §300, to be claimed and elected by them. This act only applies to the widow and children of an insolvent, who are entitled to claim this ex- emption against all debts not liens prior to the act." * Gangwere's Appeal, 12 Casey, 466 ; McAuley's Appeal, 11 Casey, 209. 2 Lauck's Appeal, 12 Harris, 426 ; Building Association v. O'Conner, 3 Philadelphia, 453. » Yelverton v. Burton, 2 Casey, 351 ; McCarthy's Appeal, 18 P. ¥. Smith, 217. « Lloyd V. Tost, 4 Philadelphia, 42. « Act of 9th April, 1849; Pamphlet Laws, 533. 8 Kirkpatrick v. White, 5 Casey, 176. ' Kenyon v. Gould, 11 P. P. Smith, 292 ; Edwards v. Mahon, 5 Philadel- phia, 531. 8 Hess V. Beates, 28 P. P. Smith, 429. 9 See act of 8th May, 1874; Pamphlet Laws, 118. 10 Kosenberger v. Hallowell, 11 Casey, 369, s. c. 3 Philadelphia, 330. 1' Pamphlet Laws, 581. " Neff's Appeal, 9 Harris, 243; Baldy's Appeal, 4 Wright, 328; Hill's Ad- ministrator V. Hill, 6 Wright, 198. SEC. I.] DISTRESS. 115 On the 14th of April, 1851/ an act was passed which, in sec- tion 5, provided as follows : "That hereafter, the widow or the children of any decedent dying within this Commonwealth, testate or intestate, may retain either real or personal property belonging to said estate to the value of $300, and the same shall not be Bold, but suffered to remain for the use of the widow and family ; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the act passed the 9th day of April, in the year 1849, entitled ' An act to exempt property to the value of $300 from levy and sale on execution and distress for rent,' provided that this section shall not affect or impair any liens for the purchase-money of such real estate; and the said appraisement upon being signed and certified by the ap- praisers and approved by the Orphans' Court, shall be filed among the records thereof." This act is not restricted, as is the exemption act of 9th April, 1849,' in regard to debts contracted at any particular period, its only restriction being as to the purchase-money of the land,' and it applies to the widow and children of any decedent dying within the State,* who may claim the exemption independent and exclu- sive of their share under the intestate laws.' They are entitled to the exemption whether the decedent has waived the benefit of the exemption laws or not,°and also against mechanics' liens,' butnotr against arrears of ground-rent which accrued after the death of the intestate.' This act is more general in its nature than the act of 1850, as it applies to the widow and children of any decedent, whereas the act of 1850 applies only to those of an insolvent who Were with him at his death. 141. An act passed 8th April, 1867,' supplementary to act of 9th April, 1849, enacts as follows : " That hereafter it shall be lawful for the sheriff, deputy sheriff, or con- stable of any county or township, to administer the oath or affirmation required to be administered to appraisers under the act to which this i§ a supplement." ' Pamphlet Laws, 613. 2 Ibid. 533. 5 Baldy's Appeal, 4 Wright, 328 ; see Nottes's Appeal, 9 Wright, 3C1. < Eishell V. Eishell, 12 Wright, 243 ; see Davis's Estate, 1 Philadelphia, 360. ' Bowermaster v. Bowermaster, Orphans' Court of Lancaster Co., 1849. ^ Spencer's Appeal, 3 Casey, 218. ' Hildebrand's Appeal, 3 Wright, 133. « Pepper's Estate, 1 Philadelphia, 562. » Pamphlet Laws, 170. 116 NON-PAYMENT OF RENT. [CHAP. V. 142. An act passed 8th April, 1859/ enacts that the widow or children of any decedent entitled to retain $300 out of such dece- dent's estate by the laws of this Commonwealth, and every person entitled to the exemption provided for in the act entitled "An act to exempt property to the value of $300 from levy and sale on execution or distress for rent," approved the 9th of April, 1849, " may elect to retain the same or any part thereof out of any bank notes, money, stocks, judgments, or other indebtedness to such person ; and that in all cases hereafter where property shall be set apart for the widow and children of any decedent, the same shall be appraised and set apart to said widow and children by the appraisers of the other personal estate of said decedent." In case the election be of money, there is no necessity for any appraisement.' 143. On 27th November, 1865,' an act was passed supplemen- tary to the act of 1851, which provides in section 1 that "when- ever any widow or children of any decedent shall claim the benefit of the act to which this is a supplement, out of the real estate left by said decedent, and the real estate appraised shall consist of a single messuage or tenement, lot of ground or other real estate which cannot be divided without prejudice or spoiling the whole, and the appraisers may have appraised or shall appraise and value the same at any sum not exceeding $600, it shall and may be lawful for the Orphans' Court to whom such application shall be made, to confirm such appraisement and to set apart for the use of the widow or children such messuage or tenement, lot of ground, or other real estate; conditioned, however, that the person or persons in whose behalf the claim is made, shall pay the amount of the valuation or appraisement in excess of the $300 within one year from the date of confirmation of such valuation. Provided, that if the widow and children interested in said real estate refuse to take the same at such appraisement, the court, on application of any person interested, shall grant an order to sell the same in the manner provided by law for the sale- of real estate of decedents after proceedings in partition. " Section 2. The real estate, if taken by the widow or children ' Pamphlet Laws, 425. 2 Larrison's Appeal, 12 Casoy, 130; Spencer'8 Appeal, 3 Casey, 218; Baldy's Appeal, 4 Wright, 328. > Pamphlet Laws of 1866, 1227. SEC. I.J DISTRESS. 117 as aforesaid, shall vest in her or them, and their heirs or assigns absolutely, upon her or them paying the surplus over and above the sum of §300 to the parties legally entitled thereto. Provided, that if the real estate should not be so taken at the appraisement, but should be sold as provided for in this aet, tliea the sum of $300 of the purchase-money shall be paid to the widow or children entitled thereto, and the balance, after payment of costs and ex- penses, distributed to the heirs or other persons legally entitled thereto." The widow or children can sell the lands thus set apart, and a conveyance from her or them gives a good title." 144. On 17th April, 1869,nhe following act was passed: "Sec- tion 1. All sewing machines belonging to seamstresses in this Com- monwealth shall be exempt from levy and sale, on execution and distress for rent, in addition to any articles or money now exempt by law." 145. On 4th March, 1870,' the following was enacted: "The act entitled an act to exempt sewing machines belonging to seam- stresses in this Commonwealth from levy and sale on execution and distress for rent, approved April 17th, 1869, shall, from and after the passage of this act, apply to all sewing machines used and owned by private families in this Commonwealth ; Provided, that this act shall not apply to persons who keep sewing machines for sale or hire." 146. The Wages Act of 9th April, 1872,* though not an exemp- tion act, has a similar bearing in regard to the distress of a land- lord, as it gives (where the premises leased are manufactories or mines) a preference to the clerks, mechanics, and laborers employed to the extent of §200 each, if earned within six months previous to the sale of the employers' assets, and although the claim of the landlord for rent next comes in, he in most cases has but little chance of -getting anything. The act is as follows: "Section 1. All moneys that may bo due, or hereafter become due, for labor and services-rendered by any miner, moclianie, laborer, or clerk, from any person or persons, or chartered company, employing clerks, miners, mechanics, or laborers, either as owners, lessees, contractors, or underowners of any works, mines, manufactory, or other business where ' Sipes V. Mann, 3 "Wright, 414. " Pamphlet Laws, 69. s Ibid. 35. * Ibid. 47. 118 NON-PAYMENT OF RENT. [CHAP. V. clerks, miners, or mechanics are employed, whether at so much per diem, or otherwise, for any period not exceeding six months immediately pre- ceding the sale and transfer of such works, mines, manufactories, or business, or other property connected therewith, and carrying on said business, by execution or otherwise, preceding the death or insolvency of such employer or employers, shall be a lien upon said mine, manufac- tory, business, or other property in and about or used in carrying on said business, or in connection therewith, to the extent of the interest of the said owners or contractors, as the case may be, in said property, and shall be preferred and first paid out of the proceeds of the sale of such mines, manufactory, business, or other property as aforesaid. Pro- vided, that the claim of such miner, mechanic, laborer, and clerk thus preferred shall not exceed $200. And provided further, that no such claim shall be a lien upon any real estate, unless the same be filed in the prothonotary's office of the county in which such real estate is situ- ated, within three months after the same becomes due and owing, in the same manner as mechanics' liens are now filed. "Section 2. In all cases of executions, landlords' warrants, attach- ments and writs of a similar nature, hereafter to be issued against any person or persons, or chartered company, engaged as before mentioned, it shall be lawful for such miners, laborers, mechanics, or clerks to give notice in writing of their claim or claims, and the amount thereof, to the officers executing either of such writs, at any time before the actual sale of the property levied on, and such officers shall pay to such miners, laborers, mechanics, and clerks out of the proceeds of sale the amount each is justly and legally entitled to receive, not exceeding $200." In referring to this act it may be well to mention that con- tractors are not laborers or clerks, and are not entitled to the benefit of the act.' This act is enlarged by act of 12th June, 1878,^ which specially provides that the laborers mentioned in the act shall have preference over landlords in all claims for rent where the lessee employs the miners, mechanics, laborers, or clerks. 147. An act passed 8th May, 1874,^ provides in section 4, that any exemption law of this Commonwealth shall not be construed to extend to any debtor not a resident thereof; which, however, only made more clear what was theretofore decided.* 148. The act of 13th May, 1876,' provides that hereafter all pianos, melodeons, and organs, leased or hired by any person or 1 "Wentroth's Appeal, 1 Norris, 469. ' Pamph. Laws, 207. ' Ibid. 123. * Yelverton v. Burton, 2 Casey, 851, 354; McCarthy's Appeal, 18 P. S. Smith, 217. ' Pamph. Laws, 171. SBC. I.] DISTRESS. 119 persons residing in this Commonwealih, shall be exempt from levy and sale, on execution and distress, for rent due by such per- sons so leasing or hiring any such piano or pianos, melodeon or melodeons, or organ or organs, in addition to any articles or money now exempt by law, provided that the owner or owners of any such piano, melodeon, or organ, or his or their agent, or the persons so leasing or hiring the same, shall give notice to the landlord, or his agent, that the instrument is leased or hired.' 149. Though partnership property is not exempt under the act of 1849,' the property of an individual partner is.^ 150. Where a debtor claims the exemption, and there is not personal property to the amount of $300, he is entitled to the balance out of the sale of the real estate.* 151. An oral agreement to waive the benefit of the exemption laws, if made without consideration, is void.' The privilege being a personal one may be waived by the debtor;^ and he may also release the privilege after having claimed it, but he cannot assign it to another f nor waive it in preference to a junior execution creditor, so as to give him a preference over a prior levy on the same property. If he does, his waiver will enure to the benefit of all, and the proceeds of the sale will be applied to the payment of the claims according to their priority f but the debtor does not by waiving the benefit of the exemption laws on a recent claim on which no execution is issued, lose the right to claim the priv- ilege against a former claim on which execution is issued and in relation to which there is no waiver.^ 152. Where the case is one of distress or a levy on personal property, the debtor should claim the exemption at the time of the distress or levy, and should demand of the officer or distrainer the appointment of three apjDraisers to appraise the property he ' Wireman v- Ditson, 5 Weekly Notes, 428 ; McGreary v. Mellor, 6 lb. 244. ' BonsftU V. Comly, 8 Wright, 442. 3 Spade V. Bruner & Carl, 22 P. F. Smith, 57. < Seibert's Appeal, 23 P. P. Smith, 359. 6 Hoffman v. McDermond, 1 Pittsburg, 197. s Line's Appeal, 2 Grant, 197. 7 Kyle&Dunlap's Appeal, 9 Wright, 353. 5 Garrett & Martin's Appeal, 8 Casey, 160; Hill v. Johnston & Parker, 5 Casey, 362 ; Bowyer's Appeal, 9 Harris, 210; CoUins's Appeal, 11 Casey, 83.. 9 Thomas's Appeal, 19 P. P. Smith, 120. 120 NON-PAYMENT OF RENT. [CHAP. V. elects to hold, and should point out the specific articles he may wish to retain.' He can make the claim either orally or in writing and must make it before the day of the sale, and, unless under special circumstances, should make it before the ad- vertisements are put up.^ And it seems he may claim by an. oral request to the officer, when the latter is absent from his ofBce.' 153. If the goods seized be stated by the tenant to be of less value than $300, and he claims all that belongs to him, his claim is good, as any words by which the officer may know the intent of the debtor will suf&ce.^ The tenant in a distress cannot claim for his exemption any money out of the sale of the chattels ; his claim must be for the chattels to the value of $300.^ 154. Where an officer, after distress, refuses to admit the claim for exemption and sells the goods exempt, he is liable to an action of either trespass or case ;" but the debtor's remedy is against the officer; he acquires no right to the proceeds of the sale/ nor in such a case is the title of the purchaser of the chattels affected.* When the debtor brings action against the ofScer and the creditor for selling exempt goods, the amount due by him to the creditor cannot be set off by the latter against the damages.' In a case where the officer disregarded a claim for exemption, under the Widows' Act of 1861 and sold the exempt goods — the money re- ceived therefor being ruled into court — an order was made sub- stituting the proceeds of the sale for the articles claimed ;" and when au officer gave a specific reason for refusing the claim for exemption, it was held that he waived all other reasons." 155. Under the acts of 1850 and 1851 the widow or children are entitled to the exemption in preference to a judgment for 1 Hammer v. Treese, 7 Harris, 255. » Ibid. ; Diehl v. Holben, 3 Wright, 213 ; Rogers w.Waterman, 1 Casey, 182 ; Gllleland v. Khoads, 10 Ibid. 187 3 Bowman «. Smiley, 7 Casey, 225; Diehl v. Holben, 8 "Wright, 213. 4 Keelcr v. Bricker, 14 P. F. Smith, 879. ' Hammer v. Freese, 7 Harris, 255. 6 Freeman v. Smith, 6 Casey, 261 ; Wilson v. Ellis, 4 Casey, 238. ' Mark's Appeal, 10 Casey, 8C ; Nyman's Appeal, 21 P. F. Smith, 447. « Hatch V. Bartle, 9 Wright, 166. 9 Wilson II. McElrcT, 8 Casey, 82; Freeman v. Smith, 6 Ibid. 264. " Hess V. Beates, 28 P. F. Smith, 429. "Wilson V. McCarthy, 8 Casey, S2, SEC. I.] DISTBBSS. 121 money lent to the decedent wherewith to purchase the land.' They are also- preferred to mechanics' liens and to all other claims excepting those for the purchase-monev of the land.' 156. In the distribution of the proceeds of the sale of the real estate of a debtor a mortgage claim comes first, a mechanic's lien second, a valid claim for exemption third, and then the judgments, according to their priority of lien.' 157. Where there is no personal property, and the real estate is taken in execution, the debtor must claim before the inquisition, and in cases where no inquisition is required, as where execution is on a mechanic's lien, he must claim and request an appraise- ment before the plaintiff has incurred the expense of advertising, the 3d section of the act of 9th April, 1849,* being imperative in its mandate to the sheriff to return the appraisement with the writ to the court, and if the debtor waive the inquisition without claiming the privilege of exemption, he waives his right to it.° 158. When the appraisement is evidently below the value of the goods the court may set it aside." And if the appraisement he not publicly conducted, it may be set aside.^ 159. If the sheriff neglect or refuse to make the appraisement, the debtor has no claim on the proceeds of the sale, his remedy is against the sheriff.^ 160. In cases of domestic attachment, the claim for exemption need not be made at the time of the levy, but must be made at the term to which .the writ is returnable.' 161. When the widow or children make claim, by virtue of the acts of 1850 or 1851, the claim should be made within a reason- able time" and before the expenses of a full administration are incurred, otherwise the privilege is lost." ^ Nottes's Appeal, 9 Wright, 361. 2 Hildebrand's Appeal, 8 Wright, 133. " Bower's Appeal, 18 P. P. Smith, 12G. * Pamphlet Laws, 533. 5 Bowyor's Appeal, 9 Harris, 210; Miller's Appeal, 4 Harris, 300; Brant's Appeal, 8 Harj-is, 141 ; Dodson's Appeal, 1 Casey, 232. 6 Sleeper J). Nicholson, 1 Philadelphia, 348; s. C. 5 Clark, 163. ' Huddy V. Sproule, 4 Philadelphia, 353. 8 Marks's Appeal, 10 Casey, 36; Nyman's Appeal, 21 P. P. Smith, 447. s Bittenger's Appeal, 26 P. P. Smith, 105, and cases there cited, i" Burk V. Gleason, 10 Wright, 297. But see Shumate v. McGarity, 2 Norris, 38. ^ Baskin's Appeal, 2 Wright, 65; Lymaa's Adrainistratur v. Byam and 122 NON-PAYMENT OF KENT. [CHAP.V 162. The debtor must claim honestly and not equivocate, dis- semble, or embarrass the officer ;' and if he conceal the property or fraudulently remove it, he loses his right to the exemption.^ And if he neglect to claim the exemption he also loses his right.' And if he fraudulently convey the property he also loses the privilege.^ Nor can he claim out of goods to which he has dis- claimed title, nor support trespass against the bailiff or officer who sells the same. In such a case the execution creditor has a right to test the ownership by a sale, without other risk than that of the claim of the alleged owner.' 163. The debtor must also claim the exemption against every successive writ, even for the same debt, but where several writs are in the hands of the sheriff at the same time, one claim is enough.^ And where land was sold on three judgments and the debtor claimed against the first, failed to claim against the second, yet did claim against the third, it was held that his claim against the first was lost, but that his claim against the third was good.^ 164. The claim for exemption may be made during the absence of the debtor by any one in charge of the premises, more especially by his wife or a child of reasonable age.* 165. A sub-tenant, or assignee of the original tenant, who has never been recognized as such by the landlord, has no right to claim the benefit of the exemption laws.' 166. A woman who is voluntarily separated from her husband wife, 2 Wright, 475; Heller's Estate, 2 Weekly Notes, 338; Bryan's Es- tate, 4 Pliiladelphia, 228 ; Sellers's Estate, 1 Norris, 153, 156, and cases there cited. ' Strouse's Executor v. Becker, 2 Wright, 190. ' Emerson v. Smith, 1 P. E. Smith, 90; McCarthy's Appeal, 18 P. P. Smith, 217 ; Strouse's Executor v. Becker, 2 Wright, 190; Freomiin v. Smith, 6 Casey, 264 ; Smith v. Emerson, 7 Wright, 456 ; Huey's Appeal, 5 Casey, 219. 3 Miller's Appeal, 4 Harris, 300; Weaver's Appeal, 6 Harris, 307 ; Brant's Appeal, 8 Harris, 141 ; Dodson's Appeal, 1 Casey, 232 ; Bowman v. Smiley, 7 Casey, 225. * Huey's Appeal, 6 Casey, 219; Dieffenderfer u. Eisher, 3 Grant, 80 ; Emer- son V. Smith, 1 P. F. Smith, 90; Miner v. Walter, 8 Philadelphia, 671. ' Gilleland v. Khoads, 10 Casey, 187 ; Strouse's Executor v. Becker, 2 Wright, 190. * Bechtel's Appeal, 2 Grant, 375. ' McCreary's Appeal, 24 P. F. Smith, 194. ' Meitzler's Appeal, 28 P. F. Smith, 368, and cases there cited. » Eosenberger v. Hallowell, 11 Casey, 369 ; s. c. 3 Philadelphia, 330. SBC. I.J DISTRESS. 123 cannot claim the benefit of the acts of 1850 or 1851 f- but when she is abaudoued by her husband she can claim such benefit." 167. After a debtor has once claimed the benefit of the exemp- tion law and has had certain chattels set apart for him, he cannot a second time claim the benefit out of other goods/ unless those other goods have been purchased out of the proceeds of the goods set apart.* 168. Where an administrator sub-let premises leased to his de- cedent and distraining for the sub-rent, sold the exempt goods, it was decided that he was personally liable for the trespass and not the estate of his decedent.^ 169. An unmarried defendant may claim the benefit of the Ex- emption Act of 1849." This act must be so understood as to admit a dealer to enjoy $300 of his capital in trade, and a new stock purchased with the proceeds of his sale of the goods exempt is protected to that amount.'' 170. All tenants, married or unmarried, may claim the privilege and benefit of the exemption laws of Pennsylvania, with the fol- lowing exceptions : 1. Joint or co-tenants out of partnership assets, though each may do so out of his private effects.' 2. A corporation.' 3. A tenant who has fraudulently conveyed or disclaimed his property.'" 4. An assignee of a tenant." 1 Hettrick u. Hettrick, 5 P. F. Smith, 290; Odiorne's Appeal, 4 P. F. Smith, 175. 2 Terry's Appeal, 5 P. P. Smith, 344. " Vogelsong v. Beltzhoover, 9 P. P. Smith, 67. « Hanley v. O'Donald, 6 Casey, 2G1. ^ Moulson's Estate, 1 Brewster, 296. « Dieffenderfer v. Fisher, 3 Grant, 30. ' Hanley v. O'Donald, 6 Casey, 261. 8 Bonsall u. Coraly, 8 Wright, 442; Clegg u. Houston, 1 Philadelphia, 852; Lippincott's Estate, 8 Philadelphia, 236. 9 Bonsull V. Comly, 8 Wright, 442. ■"> Huey's Appeal, 219; DieflFenderfer v. Fisher, 3 Grant, SO; Emerson v. Smith, 1 P. F. Smith, 90; Gilleland v. Ehoads, 10 Casey, 187; Strouse's Ex- ecutor ■«. Becker, 2 Wright, 190; Miner ■». Walter, 8 Philadelphia, 571. « Eosenberger v. Hallowell, 11 Casey, 869; B. c. 3 Philadelphia, 330. 124 NON-PAYMENT OF KENT. [CHAP. V. 5. A sub-tenant.' 6. A lessee who resides out of the State.^ 171. A constable cannot claim exemption against a judgment obtained for official misconduct;' nor can a defendant in an action of deceit ;* nor a mortgagor against his mortgagee f nor a debtor in case of foreign attachment ;" nor a terre-tenant who purchased subject to a judgment against his vendor.' 172. We may then conclude, that in Pennsylvania the follow- ing things are exempt from distress for rent in arrear, when the claim is properly made by the tenant: 1. Fixtures, either not detached or merely temporarily detached from the freehold. 2. The usufruct of the freehold, such as growing apples, pears, peaches, or other fruit on trees or bushes, excepting growing crops of grain, grass, pulse, potatoes, etc., being product of the soil pro- duced by the labor of the tenant, 3. Things delivered to a tenant in the way of his trade. 4. Things of such a perishable nature that they will spoil be- tween the date of the distress and the sale. 5. Wearing apparel of the tenant and his family. 6. Things in the actual use and possession of the tenant. 7. All bibles and school-books in use in the family. 8. Animals/ercB natures not kept for profit. 9. Things in the custody of the law. 10. Goods of a stranger on the premises with the consent of the landlord. 11. Goods of a deceased tenant. 12. Goods of an insolvent for more than one year's rent. 13. Chattels selected by a tenant, or by his widow or children, to the value of $300 ; and if the tenant be insolvent his wife may claim — even if he have waived — and so with his widow or orphans. 1 Kosenberger v. Ilnllowell, 11 Casey, 369; s. C. 3 Thiladelphia, 830. 2 Act of 8th May, 1874 ; Pamphlet Laws, 118. " Kii-kpatrick v. White, 6 Casey, 176. « Kenyon v. Gould, 11 P. P. Smith, 292; Edwards v. Mahon, 5 Philadel- phia, 631. s Gangwere's Appeal, 12 Casey, 466, and cases there cited. 8 Yelverton v. Burton, 2 Casey, 351 ; McCarthy 's Appeal, 18 P. F. Smith, 217. ' Ebei'hart's Appeal, 3 Wright, 509. SEC. I.] DISTRESS 125 14. Sewing machines, excepting those held for sale or hire. 15. Pianos rented to a tenant, provided the landlord be noti- fied of the fact. 16. The personal property of a railroad corporation required to carry on its operations. 17. The goods of a person or chartered company employing miners, clerks, and laborers, may be distrained on for rent in arrear and sold, but the proceeds of the sale will be used first to pay wages due and earned during the preceding six months — to each not exceeding the sum of $200 — before being applied to the dis- charge of the rent. 173. The privileges of the laws of Pennsylvania are not carried outside of the State. Thus where M., a citizen of Maryland, owed wages to N., a citizen of Pennsylvania, S., a citizen of Pennsylvania attached in the hands of M., of Maryland, the wages coming to N., notwithstanding the Wages Exemption Act of 15th April, 1845.' III. Fraudulent Removal of the Tenant's Goods to Avoid the Landlord's Distress. 174. The act of 21st March, 1772,' in section 5, and the act of 25th April, 1825,^ in section 1, authorize the landlord to follow and distrain on the goods of the tenant fraudulently removed, for the space of thirty days after such removal. 175. In order to make a removal fraudulent, under either the act of 1772 or 1825, it must be made at night, or the landlord must be deceived by some fraudulent statement made by the tenant. A mere removal in the daytime, without the consent of the landlord, is not fraudulent, nor in such a case can the land- lord follow the goods ; it is for him to be vigilant.* In all parts of the State, excepting Philadelphia, Pittsburg, and Allegheny, a tenant may remove his goods from the demised premises at any time before the rent is due, either openly or clandestinely, and 1 Morgan v. Neville, 24 P. ¥. Smith, 52. ' Smith's Laws, 370. 9 8 Smith's Laws, 411. * Grant & McLane's Appeal, 8 Wright, 477, and cases there cited; Hoops V. Crowley, 12 Sergeant & Eawle, 219; Morris v. Parker, 1 Ashmead, 187, 189. 126 NON-PAYMENT OF EENT [CHAP. V. the landlord cannot follow them.^ The goods of a tenant, as- signee, or undertenant, can be so followed and seized f but the goods of u stranger, though clandestinely removed, with the intent to avoid a distress, cannot be followed and seized f and although the goods of a stranger on the premises are subject to the distress of the landlord, the tenant is liable for the same to the stranger.* If the goods be openly removed, or, if clandestinely removed, and thirty days have elapsed, or if they be sold, after their removal, to an innocent purchaser, they cannot be followed and seized;' and where the tenant sold his goods to a person who subsequently leased the same premises, and the landlord dis- trained on the same for the rent due by the first tenant, it was decided that the distress was illegal.^ But if the purchaser of these goods had not leased the premises, and the real property had remained in the actual possession of the landlord, the goods would have been liable to the distraint of the landlord. If the tenant removes the goods, and the landlord's bailiff or distrainor sees him doing so, he may follow and distrain on them on the highway or wheresoever found.' But if in following the goods he enters and searches the house of a stranger, and fails to find them, he becomes a trespasser.^ 176. In order to justify a landlord in following the goods and chattels under the act of 1825, provision is made that the land- lord shall make oath or affirmation before some judge, alderman, or justice of the peace, that he believes that the same were carried away for the purpose of defrauding him of his remedy of distress, and this oath must be positive. An afiBdavit that he has just cause to suspect and doth believe that such was the tenant's intent, is not sufficient.' 177. The act of 21st March, 1772, is only applicable to cases where a certain right is clearly reserved," and no distress can be ^ Grace v. SMvely, 12 Sergeant & Rawle, 217. 2 Jones v. Gundrim, 3 Watts & Sergeant, 531. ' Adams a. La Comb, 1 Dallas, 440; Sleeper v. Parrish, 7 Philndpl;' ' «, 217. * O'Donnel v. Seybert, 13 Sergeant & Eawle, 54. 6 Clifford V. Beems, 8 Watts, 246. ' Ibid. ' Ibid. 8 Hobbs ». Geiss, 13 Sergeant & Kawle, 417. 9 Purfel V. Sands, 1 Ashmead, 120. "> MoGee v. Fessler, 1 Barr, 126. SEC. I.] DISTRESS. 127 made unless the rent be either certain, or can be reduced to a certainty, and that without the intervention of a jury.' 178. The taking care of grain and keeping out cattle is too uncertain,' as is also the putting a house iu order.^ 179. The one-third part of the toll of a grist-mill is sufficiently certain,* as is a third of the grain produced,^ as also are any ser- vices, such as daubing and chinking a house, and payment of taxes.^ 180. Where the rent is for produce, the distress cannot be for money.' 181. The landlord may distrain for rent payable in advance, provided the tenant has taken possession f but the rent must be due;' if it be not due he cannot distrain under the act of 1772.'° 182. The right of distress is a personal one, and may be waived by the lessor, but cannot be subrogated or assigned for the benefit of another." That is to say, that if a sub-tenant pay to the paramount landlord the rent due by the tenant, the landlord cannot subrogate his right of distress to the sub-tenant by distraining on the goods of the tenant for the rent thus paid. 183. The landlord may distrain, even if he have taken a note from the tenant for the rent, or have obtained judgment against him for it, and bail have been entered for a stay of execution." 184. The act of 1772 provides that five days, besides the day of the distress, shall be given to the tenant wherein to replevy the goods. Now if the day on which the distress is laid happen 1 McGee t>. Fessler, 1 Barr, 126; Wells v. Hornish, 3 Penrose & Watts, 30. « Scott V. Puller, 3 Penrose & Watts, 55. ' See Grier v. Cowan, 1 Addison, 347 ; Diller v. Eoberts, 13 Sergeant & Eawle, 60. * Fry V. Jones, 2 Eawle, 11. ^ Einehart v. Olwine, 5 Watts & Sergeant, 157; Fry v. Jones, 2 Eawle, 11. ^ Shaflfer v. Sutton, 5 Binney, 228; see Hohly v. German Eeformed Society, 2 Barr, 293. ' Warren v. Porney, 13 Sergeant & Eawle, 52; Pry v. Jones, 2 Eawle, 11. ' Beyer v. Penstermacher, 2 Wharton, 95; Anderson's Appeal, 3 Barr, 218, 219. 9 McKinney v. Eeader, 6 Watts, 34. i» Grace v. Shively, 12 Sergeant & Eawle, 217. 11 Shouffler v. Coover, 1 Watts & Sergeant, 400. " Snyder v. Kunkleman, 3 Penrose & Watts, 487; Shetsline v. Keemle; 1 Ashmead, 29 ; see also Kreiter v. Hammer, 1 Pearson, 559. 128 NON-PAYMENT OF RENT. [CHAP. V. to be Tuesday, the fifth day will be Sunday, which being dies non juridicus, shall not count, but Monday becomes the fifth day;* and suppose the distress happen on a Monday, and Saturday be the fifth day, the same rule applies, and Monday shall be the day on which to make the appraisement, and to remove the goods," unless the tenant consent to their remaining on the premises. If he should refuse, the distrainor should carefully remove the goods to some place in the county, not more than three miles distant from the place where distrained.^ The goods can be kept on the prem- ises during the five days, whether the lessee consent or not;* and a later decision is that they might remain a reasonable time, and that seven days was a reasonable time f but it has been held, that if the goods were not -removed on the sixth day, the parties distrain- ing were trespassers for the other days.' 185. The words of the act in regard to the sale of the distress are imperative.'^ Of course, this may be prevented by the tenant's replevying the goods, which he may do during the five days, or indeed after it, up to the time of the sale,' or the notice of sale may be given at any time after the appraisement when the tenant consents to the delay. It is to be presumed that the tenant can relieve the distress also by paying the rent and costs at any time up to the sale. The freeholders to appraise the property must be appointed by the sheriff or constable who attends to the appraise- ment, and not by any one delegated by him.' And though the constable is neither required to make either a distress or sale,'" he is yet required to attend the appraisement, and if the sale be made by him he is liable for the money collected." 1 McKinney v. Reader, 6 Watts, 34, 37. 2 Ibid. ; see also Harker v. Addis, 4 Barr, 515. ^ McKinney v. Eeader, 6 Watts, 34, 38. 4 Woglara V. Cowperthwaite, 2 Dallas, 68. ' Waitti). Ewing, 7 Philadelphia, 195. 6 McKinney v. Reader, 6 Watts, 34, 38; Brisben v. Wilson, 10 P. P. Smith, 452. ' Quinn v. Wallace, 6 Wharton, 460. 8 Brisben v. Wilson, 10 P. ¥. Smith, 452; Whitcombj). Lawrence, 11 Weekly Notes, — . 9 Armstrong v. ISfovinger, 8 Barr, 414. 1" See McElroy v. Dice, 5 Harris, 163, 169 ; Watts v. Horuish, 8 Penrose & Watts, 30, 33. 11 Commonweallh v. Sheppard, 2 Clark, 393. SEC. I.] DISTRESS. 129 186. In cases where a landlord, distrains and then omits to appraise and advertise, and sells, he becomes a trespasser and is liable to the tenant as such ;' but if he do not sell, it is otherwise.'' 187. The charges in a distress will include the cost of sustain- ing the cattle.' 188. The surplus money in a constable's hands after the sale of distrained goods cannot be attached by a judgment creditor.* 189. In regard to the notice of the distress to be served on the tenant, it should be served either on the tenant personally, or it should be left at his mansion-house, or on some notorious place on the land. If the notice be not left or served on the tenant and the goods be sold, the distrainor is a trespasser.^ But if there be no sale, the distrainor is not a trespasser.^ The notice may be given to the owner of the chattels on the premises as well as to the tenant, and either will protect the landlord from an action of trover.^ 190. If the appraisement be made earlier than the sixth day the distress becomes void and the distrainor a trespasser ab initio, and if the goods be sold an action of trover will lie for them in the hands of a purchaser, and the party distraining is liable to an action of trespass f and the same is decided as to the advertising.' 191. In case of the landlord's making a distress and sale when no rent is due, the act of 1772 provides that the party distraining, his executors and administrators, shall be liable in double the value of the goods with costs of suit : this does not apply to the landlord unless he make the distress in person;" but the land- lord is liable to an action on the case under the statute of 52 Henry III. Nor will trespass lie for an excessive distress or for ' Kerr v. Sharp, 14 Sergeant & Eawle, 389 ; and see Brisben v. Wilson, 10 P. F. Smith, 452, 458. 2 McKinney d. Header, 6 "Watts, 34. " Ibid * Comfort V. Taylor, Common Pleas, Philadelphia, March, 1848. ' McKinney v. Reader, 6 Watts, 34, 40. « Ibid. ' Caldcleugh v. Hollingsworth, 8 Watts & Sergeant, 302; Briggs v. Large, 6 Casey, 287, 291. 8 Brisben o. Wilson, 10 P. P. Smith, 452 ; Kerr v. Sharp, 14 Sergeant & Eawle, 399. 9 Quinn v. Wallace, 6 Wharton, 460 ; Briggs v. Large, 6 Casey, 287. » Wells V. Hornish, 3 Penrose & Watts, 30; Fretton v. Karcher, 27 P. P. Smith, '423. 9 130 NON-PAYMENT OF RENT. [CHAP.V. distraining for more rent than is due, but action on the case will lie under the same statute.^ 192. When a landlord distrained on goods taken in execution it was held that the creditor could not maintain an action against him, but that the officer could.' 193. If a seizure be made under a landlord's warrant when no rent is due, the landlord becomes a trespasser ah initio? 194. Where premises were let to a tenant conditioned that he should appropriate the rent to the payment of the debts of the lessor, and the tenancy became one from year to year, and the tenant assigned or sub-let, it was held that he had the right to distrain and the right to claim the rent out of a sale on execution of the sub-tenant's goods." 195. The assignee of a landlord or of a lessee who has sub-let in a tenancy from year to year, may distrain on the party in pos- session.^ ] 96. When a tenant dies insolvent before the rent is due the landlord is not preferred over the creditors under the act of 1834.® 197. When the surety for a tenant, in a case where goods have been distrained on and replevied, has to pay the rent, he is enti- tled to the benefit of the replevin bond taken by the sheriff.' IV- Landlord's Remedy when the Tenant's Goods liable to Distress are Seized in Execution. 198. As a landlord lost his right to distrain on the goods of a tenant by their being taken in execution, provision was made by the act of 21st March, 1772,' in section 4, as follows: " The goods and chattels lying or being in or upon any messuage, lands or tenements, wWch are or shall be leased for life or lives, term of years or otherwise, taken by virtue of any execution, shall be liable to the payment of all such sum or sums of money as are or shall be due for rent for the premises, at the time of taking such goods and chattels by virtue of such execution. And the sheriff shall, after the sale of the 1 McKinney v. Reader, 6 Watts, 34 ; O'Donnel v. Seybert, 13 Sergeant & Bawle, 54. ' Taylor v. Manderson, 1 Ashmcad, 130. » Fretton v. Karcher, 27 P. F. Smith, 423. * Bge V. Ege, 5 Watts, 134. s itid. « Hosldns V. Houston, 2 Clark, 4; McKim's Estate, Ibid. 224. ' King V. Blackmoro, 22 P. P. Smith, 347. « 1 Smith's Laws, 370. SEC. I.j DISTRESS. 131 said goods and cliattels, pay to the landlord or other person empowered to receive the same, stioh rent so due, if so much shall be in his hands, and if not, so much as shall be in his hands, and apply the overplus thereof, if any, towards satisfying the debt and costs in such execution mentioned. Provided always, that the said rent so to be paid to the landlord, shall not exceed one vear'srent. " 199. The object of this section of the act of 1772, was further carried out by the act of 16th June, 1836/ which enacts as fol- lows : " Section 83. The goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution. Provided, that such rent shall not exceed one year's rent. " Section 84. After the sale, by the officer, of any goods or chattels, as aforesaid, he shall first pay out of the proceeds of such sale, the rent so due, and the surplus thereof, if any, he shall apply towards satisfying the judgment mentioned in such execution. Provided, that if the pro- ceeds of the sale shall not be sufficient to pay the landlord and the costs of the execution, the landlord shall be entitled to receive the proceeds, after deducting so much for costs as he would be liable to pay in case of a sale under distress. " Section 85. Whenever any goods and chattels, liable to the pay- ment of rent as aforesaid, shall be seized in execution, the proceedings upon such execution shall not be stayed by the plaintiff therein, without the consent of the person entitled to such rent, in writing, first had and obtained. ' ' Section 119. If any lands or tenements shall be sold upon execu- tion, as aforesaid, which at the time of such sale, or afterwards, shall be held or possessed by a tenant, or lessee, or person holding or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements, shall, upon receiving a deed for the same, as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like remedies to recover any rents or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such accruing rent may have been paid in advance or not, if paid after the rendition of the judgment on which sale was made, as such de- fendant might have had, if no such sale had been made. " Section 120. If, after notice shall be given of such sale, as afore- said, such tenant, lessee, or other person, shall pay any rent or sum ac- cruing subsequently to the acknowledgment of such deed, and notice ' Pamphlet Laws, 777. 132 NON-PAYMENT OF EEMT. [OHAP. V. given him, as aforesaid, to sucii defendant, such tenant, lessee, or other person so paying, shall nevertheless be liable to pay the purchaser." 200. The 83d section of the act of 16th June, 1836, is similar to the 4th section of act of 21st March, 1772,' under which lattel section it was decided that the landlord was not entitled to claim payment out of goods taken in execution and sold when he had previously distrained on the same goods, and the tenant had re- gained them by a replevin, except for the rent which bad accrued subsequent to the distress.^ Whenever the goods and chattels of n, tenant, liable to distress, are seized in execution the proceedings- shall not be stayed unless with the consent of the jierson entitled to such rent in writing first had and obtained.^ An execution levied by a constable is within the act, although preceded by an attachment.^ 201. The provisions of the act of 1836 were intended to make amends to the landlord for taking away his right to distrain by the judicial sale of the tenant's goods. Where there was a sur- render of the tenancy after the levy, but before the sale on ex- ecution, the landlord was deprived of his right to claim out of the proceeds of the sale," and a sheriff's sale of the landlord's interest in the land will have the same efiFect,^ or the death of the tenant before the rent accrued.'' 202. The landlord may claim out of the proceedsof the judicial sale rent payable in advance,' but where a lease in which the rent was made payable quarterly in advance and the rent was paid for the first quarter, and during that quarter the tenant's goods were seized in execution and sold, it was held that the landlord could make no claim for rent of the second quarter.^ 203. The paramount landlord is entitled to claim rent due to Mm by his tenant out of the sale of the goods of the sub-tenant,'" 1 1 Smith's Laws, 370. = Gray v. 'Wilson, 4 TVntts, 89. s Act of 16th June, 1836, sec. 85; Pamphlet Laws, 777. * Morgan v. Moody, 6 Watts & Sergeant, 333 ; Seitzinger v. Steinberger, 2 Jones, 879. ' Greider's Appeal, 5 Barr, 422; Commonwealth v. Contner, 9 Harris, 266, 274 ; Shaw v. Oakley, 7 Philada. 89. * Hampton v. Henderson, 4 Clarlc, 561 ; Hosldns v. Houston, 2 Clark, 489. ' Ibid. ; McKim's Estate, Ibid. 224. ' Collins, Kookafellow & Co.'s Appeal, 11 Casey, 83. ' Purdy's Appeal, 11 Harris, 97; Morris v. Billings, 1 Philada. 464. '" McCombs and Howden's Appeal, 7 Wright, 435. SEC. I.] DISTRESS. 133 and rent due a lessee by his sub-lessee can be claimed, though rent due a tenant by his assignee cannot be, unless by virtue of a clause of distress contained in the assignment,^ and it is held that the landlord entitled to claim is the immediate landlord of the party whose goods are sold, but as the measure is the right to distrain, it may pertain to both paramount landlord and a lessee who has sublet. 204. The landlord's right to claim his rent out of the proceeds of a judicial sale under the acts of 1772 and 1836 depends on the power to distrain, and it was held even when the lease was forfeited and some goods of the tenant remaining on the demised premises were seized in execution and sold, that the landlord had still a right to claim out of the proceeds of the sale.^ This ruling shows that though a landlord loses his right to claim for rent not due by accepting a surrender of a lease before the judicial sale of tenant's goods, he does not do so by a forfeiture of the lease (not claimed by him) and the right to distrain is the measure to claim.' The landlord is entitled to claim out of the proceeds of the sale of the rent apportioned down to the day of the levy, if it be not over one year's rent,* and if there be more than one levy he can claim down to the date of the last.* But he cannot claim it down to the day of the sale.* 205. When the sheriff occupies premises between the day of the levy and the day of the sale the landlord must look to him for the rent, as he cannot claim it out of the proceeds of the sale.'' 206. Where there has been a sheriff's sale of the landlord's real estate, the landlord's right to claim the year's rent out of the pro- ceeds of a sale of the tenant's goods taken in execution is lost.* ' McCombs & Howden's 'Appeal, 7 "Wright, 435; Bromley ». Hopewell, 2 Harris, 400. 2 Moss's Appeal, 11 Casey, 162; Bromley «. Hopewell, 2 Harris, 400; Parker and Keller's Appeal, 5 Barr, 390. 3 Moss's Ap'l., II Casey, 162; McCombs & Howden's Ap'L, 7 Wright, 435. * Binns ». Hudson, 5 Binney, 505;. Ege v. Ege, 5 Watts, 134; Wickey d. Eyster, 8 P. P. Smith, 501, and cases there cited. ' Worley v. Meekley, 1 Philadelphia, 398; Leaming's App'l., 5 Weekly Kotes, 221. <■ Binns v. Hudson, 5 Binney, 501 ; West v. Sink, 2 Teates, 274; Morgan v. Moody, 6 Watts & Sergeant, 333; Anderson's Ap'l, 3 Barr, 218; Case v. Davis, 3 Harris, 80; Parker & Keller's Ap'l., 5 Barr, 390; Wager v. Duke, 1 Clark, 316. ' Megarge v. Tanner, 1 Clark, 331. * Hampton, Smith & Co. ». Henderson & Johnston, 4 Ibid. 438. 134 NON-PAYMENT 03? EENT. [CHAP.V. 207. The landlord is not confined in his claim to the current year, so that no more than one year's rent be recovered.' 208. The notice to be given by the landlord to the sheriff must be before the sheriff pays over the proceeds of the execution;^ even before the sheriff makes return of the same/ but the sheriff is bound to keep the proceeds a reasonable time to enable the landlord to make his claim.* 209. The preference given to rent over costs is confined to the costs of the execution, and not to the costs of the sheriff for exe- cuting it.' 210. Where in the lease the tenant has agreed to pay the taxes as well as the rent the landlord cannot claim out of the proceeds of the execution sale for unpaid taxes.° When the surety for the tenant apprises the landlord of the means of securing his rent, and the landlord declines to pursue it, and the opportunity of recover- ing it is thereby lost, the surety is discharged.' 211. The practice in claiming rent out of goods sold on execu- tion is to take a rule on the sheriff to pay the amount of rent due out of the proceeds.* 212. In a case where A leased premises to Z for two years, the rent being payable quarterly, and the term commencing on the second day of January, 1842, and in November, 1842, A assigned his right to the rent to B, and in December, 1843, the interest of A in the reversion was sold at sheriff's sale to C, and in the same month a fi. fa. was issued against the tenant Z, who died on Jan- uary 1st, 1844, owing three quarters' rent, and his goods were levied on on January 4th, 1844, and sold January 20th, 1844, claim was made for rent out of the proceeds of sale by B, the assignee of A, and by C, the sheriff's grantee, and also for medical attendance by Dr. L., it was held that A had no right to claim, as » Ege V. Ege, 5 Watts, 134; Richie v. McCauley, 4 Barr, 471; Parker & Keller's Ap'l., 5 Barr, 390 ; Weltner's Appeal, 13 ip. P. Sniith, 802. 2 Ege V. Ege, 5 Watts, 134. ' Mitchell's Administrator v. Stewart, 13 Sergeant & Eawle, 295; Allen v. Lewis, 1 Ashmead, 184. . « Fisher v. Allen, 2 Philadelphia, 115. 5 Hennis v. Streeper, 1 Miles, 2G9. ' Binns v. Hudson, 5 Binney, 506 ; Case v. Davis, 3 Harris, 80. ' Lichtenthaler v. Thonjpson, 13 Sergeant & Rawle, 157. ' West's Administrators v. Sink, 2 Yeates, 274. SBC. I.J DISTRESS. 135 he had no longer any right to the reversion ; that B was in the same position ; that C, the sheriff's grantee, had no right to claim, as no rent was due him, and also that Dr. L. could not claim against the lien of the execution, but would have to look to the estate of the decedent for his fees, and that the proceeds of the sale of the property should go to the execution creditor.' "V- Set-off Against Rent. 213. The landlord is also liable to having a set-off made against his rent by the taxes that his tenant may have paid," under the following acts, viz. : Act of 6th April, 1802,^ by which tenants of persons not resid- ing in the township, are made liable for road taxes. " Section 8. The tenant or tenants, or other persons residing on lands owned by persons not residing in tlie township, his, her, or their goods, sliall be liable to he levied on in manner aforesaid, for the pay- ment of road taxes ; and where any tenant or tenants sliall have taken, or hereafter may take a lease of lands or tenements, for one or more years, and of ■which the tenant shall be in possession at the time of as- sessing or levying the tax for public roads and highways, and shall pay the rate hereby imposed on the said lands or tenements so leased, in such case it shall be lawful for the tenant or tenants to deduct the tax out of the rent due, or to become due, or to recover the same from the owner or owners, by action of debt, with costs of suit. Provided, however, that, nothing herein contained shall be so construed as to impair or make void any contract between landlord and tenant, respecting the payment of the. road tax." This law was followed by act of 3d April, 1804,* which made tenants liable to payment of all taxes becoming due and payable during their occupancy. "Section' 6. Every tenant who may or shall occupy or possess any lands or tenements, shall be liable to pay all the taxes which, during; such occupancy or possession, may thereon become due and payable ; and' having so paid such taxes, or any part thereof, it shall be lawful for him,, by action of debt or otherwise, to recover said taxes from his landlord,, or at his election to defalcate the amount thereof in the payment of the- rent due to such landlord, unless such defalcation or recovery would im- pair any contract or agreement between them previously made." 1 Hoskina v. Houston, 2 Clark, 489. z See post, page 503 ei seq. s 3 Smith's Laws, 516. * Ibid. 203. 136 NON-PAYMENT OP KENT. [CHAP.V. 214. An act passed 15th April, 1834/ provides as follows : "Section 40. The goods and chattels of any person occupying real estate shall be made liable to distress and sale for the non-payment of any taxes assessed upon such real estate during his possession or occu- pancy, and remaining unpaid, in like manner as if they were the goods and chattels of the owners of such real estate." This act is more general than the acts of 1802 and 1804, as it applies to any occupant of real estate, be he tenant or trespasser. The act of 1804 applies to taxes becoming due and payable during the occupation; that of 1834 applies to such taxes as have been assessed during such occupation, s Moreover the property of the occupant may be distrained for taxes, even though it be not on the demised premises.' 215. These acts are still in force in all parts of the State, ex- cept in the city of Philadelphia, in which they are superseded by act of 24th March, 1870,* which directs the Receiver of Taxes in Philadelphia to appoint a person as collector of delinquent taxes due the city, who shall hold office for three years, and until his successor be appointed and qualified, and to this collector the Re- ceiver of Taxes is directed to hand over immediately the registry of all outstanding taxes due the city, and the collector is author- ized to levy on and sell the personal or real estate of the delin- quent owner, wherever found. This act deprived the Receiver of Taxes of Philadelphia of the power granted by the acts of 1802, 1804, and 1834, to seize the properties of the tenant for the taxes due by the landlord, and empowered the Collector of Taxes to seize and sell the property of the landlord, but gave no power to him to seize the property of the tenant. Yet for some years the Collector of Delinquent Taxes, supposing he had the rights con- ferred on the Receiver, illegally distrained on the property of tenants for taxes assessed during their occupancy. However, this power having been denied by one of the writers, the matter was brought before the Court of Common Pleas, to December Term, 1873, in the case of McAfee v. Bumm et al.,* in which it was decided that the collector had no power to distrain (in Phil- ' Pamphlet Laws, 518. ' Smeich v. The County of York, 18 P. P. Smith, 439. ' McGregor v. Montgomery, 4 Bavr, 237. i * Pamphlet Laws, 544. 6 iq Philadelphia, 157. SEC. I.] DISTRESS. 137 adelphia) the goods of a tenant for taxes due by his landlord. But the act of 16th April, 1879/ empowers the collector of delinquent taxes to levy upon the tenant's property, and collect the tax, to an amount not exceeding the rent due, but the lien of the levy continues during the tenant's occupancy, or until the tax and costs are paid out of rent subsequently accruing. In another portion of the work we have discussed taxes more fully.^ When the tax is assessed against the tenant, and he is bound to pay it, the col- lector, if he have lost his remedy against the tenant by his own neglect, cannot resort to the landlord.'' 216. The act of 6th April, 1802,^ authorized the tenant to de- duct the road tax assessed during his occupancy, and paid by him, and the act of 3d April, 1804,* made him liable for all taxes of the premises becoming due and payable during his occupancy, and empowered him on paying them to deduct the same'from the rent, or to bring an action of debt against the landlord for the same. And the One Hundred Dollar Act of 20th March, 1810,^ in section 20, gave j ustices of the peace j urisdiction in cases of set-off when the amount of the rent does not exceed one hundi-ed dollars. The section is as follows : " Section 20. The powers of the justices of the peace shall extend to all cases of rent not exceeding one hundred dollars, so far as to com- pel the landlord to defalcate or set-off the just account of the tenant out of the same ; but the landlord may waive further proceedings before the justice and pursue the niKthod of distress in the usual manner for the balance so settled, but if any landlord shall be convicted after such waiver, in any court of record, of distraining for and selling more than the amount of such balance, and of detaining the surplus in his hands, he shall forfeit to the tenant four times the amount of the sum detained. Provided, that no appeal shall be in the case of rent, but the remedy by replevin shall remain as heretofore." When the amount of the rent due exceeds one hundred dollars, the justice has no power, and the tenant's action must be a sepa- rate action.* 1 Pamphlet Laws, 24; see post, page 503, ff 952, 953. 2 Eussell V. Schenley, 2 Pittsburg, 856. a 3 Smith's Laws, 516. * 4 Smith's Laws, 203. « 5 Smith's Law?, 170. ^ Holden v. Wiggins, 3 Penrose & "Watt?, 469 ; Kessler v. JlcConachy, 1 Kawle, 435 ; Prestly v. Boss, 1 Jones, 410 ; Peter v. Schlosser, 3 Weekly- Motes, 47. 138 NON-PAYMENT OF RENT. [CHAP.V. 217. The tenant may set-off the landlord's breach of contract against the landlord's claim for rent/ 218. Where a tenant sues his landlord it is optional with the latter to make a set-off of the rent due. 219. There cannot be a set-off against a set-off.'' A debt not due at the commencement of the proceedings cannot be set off.^ 220. In a replevin or distress for rent, a tenant cannot set off an independent demand against his landlord.^ Yet this rule does not apply to a feigned issue to determine whether any rent is due by the tenant.' 221. When a landlord brings suit before a justice of the peace against a tenant for rent, and the tenant neglects to claim any set- off for a sum not exceeding one hundred dollars, due him by the landlord, he is forever barred.^ This arises from the provisions of the 7th section of the act of 20th Mai'ch, 1810,^ which is as follows : "A defendant who shall neglect or refuse, in any case, to set off his de- mand, whether founded upon bond, note, penal or single bill, written obli- gations, book account, or damages on assumption against a plaintiff, which shall not exceed the sum of one hundred dollars, before a justice of the peace, shall be and is hereby forever barred from recovering against the party plaintiff by any after suit ; but in case of judgment by default, the defendant, if he has any account to set off against the plaintiff's de- mand, shall be entitled to a rehearing before the justice within thirty days, on proof being made, either on oath or affirmation of the defend- ant, or other satisfactory evidences, that the defendant ■was absent when the process was served, and did not return home before the return day of such process ; or, that he was prevented by sickness of himself, or other unavoidable cause ; and the justice shall have power to render judgment for the balance in favor of the plaintiff or defendant, as justice may re- quire." 1 Depuy V. Silver, 1 Clark, 385; Fairman v. ITluck, 5 Watts, 510; Peter- son V. Haight, 3 Wharton, 150; Phillips «. Monges, 4 Wharton, 220, 228. ' XJlrich V. Berger, 4 Watts & Sergeant, 19 ; Gablo & Hughes v. Parry & Eandolph, 1 Harris, 181. " Eeed u. Ingraham, 3 Dallas, 505. * Beyer v. Fenstermaoher, 2 Wharton, 95 ; Peterson v. Haight, 3 Wharton, 150 ; s. c. 1 Miles, 250. * Gray v. Wilson, 4 Watts, 39. ^ Shoup V. Shoup, 3 Harris, 301 ; Herring v. Adams, 5 Watts & Sergeant, 459. ' 4 Smith's Laws, 161. SBC. I.] DISTEBSS. 189 222. The 6th section of the act of 22d March, 1814/ is as fol- lows : " The said justices of the peace and aldermen shall have original juris- diction in all cases of rent not exceeding one hundred dollars, to he re- covered as debts of a similar amount are recoverable." 22-3. In case of a landlord's distraining on the goods of his tenant, and refusing to allow the tenant's set-oif, the latter may (provided the amount of rent due, or the set-off claimed, do not exceed $100) apply to a justice of the peace or alderman, who will issue a summons citing the landlord to appear. The landlord may waive further proceedings, and pursue his right of distress, in which case if he distrain for more rent than is equitably due him he becomes liable to the tenant in four times the amount wrong- fully taken. When the rent or set-ofF exceeds $100, the justice must reject the evidence of the offset, but if the tenant's offset be composed of several items he may set-off such as do not exceed the jurisdiction of the justice.^ 224. When the rent or set-off exceeds $100, the tenant can apply to the Courts of Common Pleas for relief;^ he can institute a separate suit. 225. Set-off may also be made in cases where a tenant sub-lets or assigns, and then allows the rent due by him to his own land- lord to go in arrear. His sub-tenant or assignee is then j ustified in paying the rent due to the paramount landlord, and can offset the same against the rent due to the tenant. And if the sub- tenant or assignee owes no rent to the tenant, and yet have to pay the paramount landlord, he may recover the same from the tenant by action or by set-off against the rent next due. 226. A landlord may distrain in person, or by an agent, who is usually a constable, whose agency at the appraisement and sale is required by the act of 1772.^ 227. The whole rent in arrear, without interest thereon, must be distrained for at one time, and not part at one time and part at another, but if a first distress turn out to be insufficient a 1 6 Smith's Laws, 183. 2 Holden v. Wiggins, 3 Penrose & Watts, 469. ' Simpson v. Lapsley, 3 Barr, 459. * Wells V. Hornish, 3 Penrose & Watts, 30. 140 NON-PAYMENT OP RENT. [CHAP.V. second distress may be made, the landlord making it evident that the first distress was insufficient.' 228. As for interest on the rent in arrear, though it cannot be collected by a distress, a jury may allow it when an action of covenant is brought.^ 229. Where a distress is made by a landlord for rent in arrear under a lease to which there is a surety for the payment of the rent, and the landlord releases the distress, he thereby releases the surety.^ If it be stipulated in the lease that the surety shall be notified of the default in the payment of the rent by the tenant, the surety will be released if such notice be not given ;* and the same will be the result if there be in the lease a covenant not to assign, and the lessor assents to an assignment by the lessee.^ The surety may give notice to the landlord in writing to collect the claim for rent by proceeding against the principal, i. e., the tenant; and if the landlord fail to do so the surety is discharged.* But if the tenant have moved to another county, the landlord is not bound to follow.' Where the lease is from year to year, the surety may limit his liability for the rent to that of the current year by giving notice to the landlord ; otherwise, were the surety to die, the lease being filed under the provisions of the act of 24th February, 1834, sec- tion 24,' an indefinite claim would be a lien against his estate.^ VI. When Distress will Lie. 230. We may then conclude that a landlord or his agent may make a distress, as follows : (1.) When, under an actual demise, a certain rent is due;" and 1 See post, page 642, f^y 1148, 1149; see also Bantleon v. Smith, 2 Binney, 146, 153. 2 Obermeyer v. Nichols, 6 Binney, 159; Gasliins v. Gasliins, 17 Sergeant & Eawle, 390. 3 McNamee v. Cresson, 3 Weekly Notes, 139. * Hillary v. Tms", 9 Philadelphia, 189. * Bedford v. Jones, 5 Legal Gazette, ^30. « Act of 14th May, 1874; Pamph. Laws, 157. ' Alcorn v. Commonwealth, 16 P. F. Smith, 172. * Pamph. Laws, 75. 9 Pleasonton & Biddle's App'l., 25 P. P. Smith, 344. 10 Grier v. Cowan, Addison, 347 ; Wells v. Hornish, 3 Penrose & Watts, 30; Warren v. Forney, 13 Sergeant & Eawle, 52; Pry v. Jones. 2 Eawle 13; Purfel V. Sands, 1 Ashmead, 120. SEC. I.] DISTRESS. 141 in Philadelphia, Pittsburg, and Allegheny, in certain cases before the rent is due, under the provisions of act of 1825.' (2.) When in such cases he holds title to the demised premises, or has a reversionary interest therein.^ (3.) When the goods or chattels are on the demised premises, or he sees those of the tenant or of his assignee, or sub-tenant, being removed therefrom, or when clandestinely removed, for thirty days thereafter, wheresoever he may find them, unless the same have been sold to an innocent purchaser.' (4.) On any day (Sunday excepted), between sunrise and sunset.^ (5.) On all sorts of corn, grass, hops, roots, fruits, pulse, or other product whatsoever growing on the premises, as well as on the chattels thereon, excepting such as may be j^rivileged from dis- tress, or exempt by act of 9th April, 1849, or 4th March, 1870, and 13th May, 1876, or as may be in the possession of the law.^ (6.) On the goods of the tenant's assignee or sub-tenant.' (7.) On the goods of a stranger, not held in the way of the tenant's trade, profession, or business, and the stranger can have recourse to the tenant for any loss.' (8.) For rent payable in advance.^ (-9.) For rent 'payable in iron or other product.' (10.) For rent specified as one-third toll of a grist-mill."" (11.) For rent for which he has taken a promissory note." (12.) For rent for which he has obtained judgment." 1 8 Smith's Laws, 411 ; Act of 29th March, 1870, Pamph. Laws, 669. 2 Moss's Appeal, 11 Casey, 162; Clifford v. Beems, 3 Watts, 246; Beyer v. Fenstermacher, 2 Wharton, 95. ' Grace v. Shively, 12 Sergeant & Eawle, 217 ; Grant & McLean's Appeal, 8 Wright, 477 ; Woglara v. Cowperthwaite, 2 Dallas, 68 ; Clifford v. Beems, 3 Watts, 246. * Mayfleld v. White, 1 Brown, 241 ; Aldenburg v. Peaple, 6 Carrington & Payne, 212. * Pierce v. Scott, 4 Watts & Sergeant, 344. 8 Jones V. Gundrim, 3 Watts & Sergeant, 531. ' Kessler v. McConachy, 1 Kawle, 435; Earns ®. McKinney, 24 P. F. Smith, 387, and cases there cited. 8 Beyer v: Fenstermacher, 2 Wharton, 95; Martin's Appeal, 5 Watts & Sergeant, 221 ; Anderson's App'l., 3 Barr, 218. 9 Jones V. Gundrim, 3 Watts & Sergeant, 531 ; Einehart v. Olwine, 5 Watts & Sergeant, 157; Shaffer v. Sutton, 5 Binney, 228. 10 Fry V. Jones, 2 Jones, 11. u Snyder v. Kunkleman, 3 Penrose & Watts, 487. ^ Ibid. ; Shetsline v. Keemle, 1 Ashmead, 29. 142 NON-PAYMENT OF RENT. [CHAP.V. (13.) Oa goods returned to the tenant by writ of replevin.' (14.) On goods of a wife for rent due by her husband.' (15.) By breaking open the inner door of a house to obtain the goods.' (16.) By impounding the goods at any place in the township, and the cattle in any pound overt within three miles of the spot where distrained, or he may leave the same on the premises of the tenant for five days, exclusive of the day on which the distress is made; and if the fifth day fall on Sunday, Monday shall be the fifth day, and on the sixth day he shall call on a constable, and have the goods and chattels appraised by three freeholders, and unless the tenant consents to their remaining on the premises, he must remove them to some place within the township. If he fails to appraise or leaves the goods on the premises against the will of the tenant, he becomes a trespasser, and his proceedings are void from the beginning.* (17.) He must sell at the end of six days, unless the tenant agrees to a delay .^ (18.) He must give notice to the tenant of the distress, otherwise, if he sell, he becomes a trespasser.* (19.) He may distrain, even though the lease contain a right to re-enter on failure to pay the rent.' (20.) By authorizing a bailiff by parol to distrain.' (21.) He may distrain on the goods and chattels of a non-resi- dent of this State without regard to the exemption laws.' (22.) He may distrain after the termination of the lease if he retains title.'" ' Gray v. Wilson, 4 "Watts, 39; Woglam v. Cowperthwaite, 2 Dallas, 68; Prey v. Leeper, Ibid. 131. ' Blanche v. Bradford, 2 Wright, 344. 3 Coke upon Littleton, 161 ; see Mayfield v. White, 1 Brown, 241. * Brisben v. Wilson, 10 P. F. Smith, 452; Kerr v. Sharp, 14 Sergeant & Eawle, 399; Woglam v. Cowperthwaite, 2 Dallas, 68; Fretton v. Karcher, 27 P. F. Smith, 423. " Quinn v. Wallace, 6 Wharton, 452; see also Waith v. Ewing, 7 Philadel- phia, 195. 8 McKinney v. Pveiider, 6 Watts, 34. ' Smith V. Meanor, 16 Sergeant & Rawle, 375. * Franciscus v. Reigart, 4 Watts, 98; Jones v. Gundrira, 3 Watts & Ser- geant, 531. ' Act of 8th May, 1874, Pamphlet Laws, 118. 10 Moss's Appeal, 11 Casey, 162. SEC. I.] DISTRESS. 143 VII. When Distress will not lAe. 231 . We may also conclude that a landlord or his agent may not make a distress as follows : (1.) Unless under an actual demise a certain rent be due/ except in Philadelphia, Pittsburg, and Allegheny, where under the pro- visions of the act of 1825 a distress can be made in certain cases before the rent is due.^ (2.) Unless at the time of the distress the title to the premises be in the landlord, or he have therein a reversionary interest, or have provided in his lease for the right of distress.' (3.) On goods off the premises, unless a rescue thereof has been made, or when he sees the goods and chattels being removed to avoid the distress ; or when those of the tenant or of his assignee or sub-tenant have been clandestinely removed to avoid the dis- tress.* (4.) On Sunday. If he does, the distress is void and he is liable to an action of trespass.' (5.) On fixtures attached to the premises, or even temporarily detached. If he does he is liable to an action of trover as well as trespass.^ (6.) On the usufruct of the trees, shrubs, and flowers, such as apples, pears, raspberries, nuts, etc., when not detached. (7.) On things or chattels left with the tenant in the way of his trade or occupation, as a horse at a blacksmith shop to be shod, goods left to be sold on commission, or goods of a boarder at an inn or boarding-house, or cattle taken to be grazed and fed.' ' Grier v. Cowan, 1 Addison, 349; Wells «. Hornish, 3 Penrose & "Watts, 30; Warren v. Forney, 13 Sergeant & Bawle, 52; 'Fry v. Jones, 2 Eawle, 12; Purfel V. Sands, 1 Ashmead, 120. 2 8 Smith's Laws, 411 ; Act of 29th March, 1870; Pamph. Laws, 669. 3 Moss's Appeal, U Casey, 1C2 ; Clifford v. Beems, 3 Watts, 246 ; Beyer v. Fenstermacher, 2 Wharton, 95. * Woglam V. Cowperthwaite, 2 Dallas, 68; Jones v. Gundrim, 3 Watts & Sergeant, 531 ; Grace v. Shlvely, 12 Sergeant & Eawle, 217 ; Grant & McLane's App'L, 8 Wright, 477. * Mayfield v. White, 1 Brown, 241 ; Aldenburg v. Peaple, 6 Carrington & Payne, 212. ' See Voorhis c;. Freeman, 2 Watts & Sergeant, 116; Hill v. Sewald, 3 P. F. Smith, 271 ; Saeger v. Petit, 27 P. F. Smith, 437. ' Brown v. Sims, 17 Sergeant & Eawle, 138; Bevan «. Crooks, 7 Watts & 144 NON-PAYMENT OF RENT. [CHAP. V. (8.) On things so perishable that they will spoil between the day of the distress and the day of the sale.' (9.) On wearing apparel of the tenant or of his family.' (10.) On things in the actual use or holding of the tenant.' (11.) On the bibles and school-books in use in the tenant's family.* (12.) On animals of a wild nature, such as dogs, cats, deer, etc., unless kept for profit.^ (13.) On goods in the custody of the law, as taken in execution, or attachment, or in the hands of a receiver in bankruptcy.* (14.) On goods of a stranger or sub-tenant on the premises with the consent of the landlord.' (15.) On the goods of a deceased tenant.' (16.) On chattels claimed and selected by the tenant to the value of $300." (17.) On sewing machines not held for sale." (18.) On pianos leased to the tenant with notice to the landlord.'^ (19.) On the personal property of a railroad corporation requi- site to its operation." (20.) On goods clandestinely removed from the premises but sold to an innocent purchaser." (21.) On the chattels of an ambassador or minister of any for- eign country, unless the same be entirely disconnected from his official position or private use." Sergeant, 452; Briggs v. Large, 6 Casey, 287; Eiddle v. Welden, 5 Wharton, 14; Cadwalader ■«. Tindall, 8 Harris, 422; McCombs & Howden's Appeal, 7 "Wright, 435. ' 3 Blackstone's Commentaries, *9. 2 Act of 9th April, 1849, Pamphlet Laws, 533. ' 3 Blackstone's Commentaries, *9. 4 Act of 9th April, 1849, Pamphlet Laws, 533. ' 3 Blackstone's Commentaries, *9. ^ Pierce v. Scott, 4 "Watts & Sergeant, 344; Commonwealth v. Lelar, 1 Philadelphia, 173. ' Horsford v. Webster & Deacon, 5 Tyrwhitt's Exchequer Reports, 400. 8 MicUle's Administrator v. Miles, 1 Grant, 320; Hoskins v. Houston, 2 Clark, 489. 9 Act of 9th April, 1849, Pamphlet Laws, 533. i» Act of 4th March, 1870, Ibid. 35. " Act of 13th May, 1876, Ibid. 171. '^ See Covey v. Railroad Co., 3 Philadelphia, 173 ; see also Loudenslager v. Benton, 4 Ibid. 882; s. c. 3 Grant, 384. i' Clifford v. Bocnis, 3 Watts, 240. " Act of Congress of 30th April, 1790, 1 Statutes, 117; Kespublica v. Da Longchamps, 1 Dallas, 111. SEC. I.J DISTRESS. 145 (22.) On chattels or growing crops on the premises, but sold by the late tenant to the tenant succeeding him, for arrears of rent due by the first tenant.' (23.) On chattels or crops for arrears of previous tenancy, bought by a third party who is also a co-tenant.^ (24.) On chattels or crops remaining on the premises after sale on execution, providing there be no unreasonable delay in remov- ing them.' (25.) On goods taken by a sheriif on a writ of replevin and left a reasonable time on the premises.* (26.) On goods of a tenant, whom the landlord has treated as a trespasser.' (27.) On goods of a stranger clandestinely removed from the premises.' (28.) For money when the rent is payable in iron or other produce.' (29.) When the landlord takes the tenant's note in full settle- ment of rent reserved in grain and other produce.' (30.) Before the day after the rent is due, unless when the rent is due in advance, and except in Philadelphia, Pittsburg, and Allegheny, under the provisions of act of 1825.' (31.) Before sunrise, or after sunset.'" (32.) By breaking open an outer door or a window, even of a stable. If he does, the distress may not be void, but the dis- trainor is liable to an action of trespass." (33.) By removing the distress, if goods, out of the county, or if 1 Clifford v: Beems, 3 Watts, 246. = See Ibid. " Pierce v. Scott, 4 "Watts & Sergeant, 344. * Commonwealth v. Lelar, 1 Philadelphia, 173. ' Newman v. Butter, 8 "Watts, 51. s Adam v. La, Comb, 1 Dallas, 440; Scott v. MoEwen, 2 Philadelphia, 176; Sleeper v. Parrish, 7 Ibid. 247; Grant & MoLane's Appeal, 8 Wright, 477, and eases there cited. ' Warren v. Porney, 13 Sergeant & Ilawle, 52. " Ihid. 9 See Diller v. Roberts, 13 Sergeant & Eawle, 60; McKinney v. Reader, 6 Watts, 34. 1° Aldenburg v. Peaplo, 6 Carrington & Payne, 212. 11 May field v. White, 1 Brown, 241 ; see also Gould v. Bradstock, 4 Taun- ton, 562. 10 146 NON-PAYMENT OF EENT. [CHAP.V. cattle, out of the township, unless to a pound overt within three miles of the demised premises.' (34.) By impounding the distress in several places.' , (35.) By distraining for more rent than is due, or by making an excessive distress.^ (36.) By distraining and selling when no rent is due; if he does, the party distraining is liable in double the value of the goods with costs, and the landlord is liable to an action on the case under Statute 52 Henry III.* (37.) By distraining and selling exempt goods. If he does, he is liable to trespass, but the purchaser has a good title.' (38.) By distraining for the first year when he has permitted the tenant to enter into possession under a mere agreement to lease.° VIII. Demand of the Rent. 232. As a general rule it is not necessary for the landlord to make a demand of the rent prior to making a distress, but to this there are some exceptions,' as follows : 1. When the landlord has lapsed the day of payment, and was not on the land on that day to receive his rent. 2. When by the provisions of the lease the rent is made pay- able at some place other than the land out of which the rent is reserved. 3. When the right to distrain, as in a rent-charge, is given by the agreement of the parties. 4. When the tenant makes tender of the rent and the same is declined. 6. When the service under which the tenant holds is a per- sonal one. 1 Statute 52 Henry III, chapter 4; Koberts's Digest, *170. ' Statute 1 and 2 Philip and Mary, chapter 12; Koberts's Digest, *172. 2 Eees V. Emerick, 6 Sergeant & Eawlc, 28G. * Pretton v. Karcher, 27 P. P. Smith, 428; Wells v. Hornish, 3 Penrose & Watts, 30; Kees v. Emerick, 6 Sergeant & Eawle, 286; Smith k. Meaner, 16 Ibid. 375. '■ Freeman u. Smith, 6 Casey, 264; Wilson v. Ellis, 4 Casey, 238; Wilson ». McElroy, 8 Casey, 82; Stainer v. Moss, 3 Casey, 240; Van Dresor v. King, 10 Casey, 201 ; Bonsall v. Comly, 8 Wright, 442. ^ Hegan v. Johnson, 2 Taunton, *148. ' Gilbert on Rents, 73 to 87, and 141 to 144. SEC. I.] DISTEESS. 147 6. When the demise is of two separate properties. 7. When there is a penalty or nomine pcenae inserted in the lease. IX. Rescue. 233. The tenant may also in certain cases, rescue or retake from the party distraining the chattels distrained, but this he must not do with more than necessary violence. He may do this: (1.) When no rent is in arrear.' (2.) But not when the distress is made for more rent than is due.' (3.) When the distress is made off the demised premises, or on the highway.* (4.) When made on Sunday, or at night-time.* (5.) When made by breaking through an outer door, gate, or window.' (6.) When made after tender of the rent and costs, and before the impounding.' (7.) When the chattels distrained are privileged from distress, such as fixtures, things of a perishable nature, things in the actual use of the tenant, animals/erce naturcB.'' (8.) When the lessor has no reversionary interest in the demised premises.* 234. Rescue can, however, only be made before the distress is impounded, for if impounded it is in the custody of the law.' It can be made by the owner of the chattels, or by his agent, or ser- vant." This remedy is, however, a dangerous one, as, if the dis- tress be legal in all particulars, the distrainor may follow the dis- tress and retake it." And, moreover, in such cases the tenant making the rescue is liable under the second section of the act of 21st March, 1772, to treble damages, which may be assessed by the jury trying the case, or if the jury fail to assess the damages, ' Co. Litt. 160. ' Bro. Abridgment, Rescues, pi. 14-18. 3 Gilbert on Rents, 104. * Mayfield v. White, 1 Brown, 241 ; Aldenburg v. Peaple, 6 Carrington & Payne, 212. 5 Lord Raymond, 105. 6 Pirth V. Purvis, 5 Term Reports, 433. ' Coke upon Littleton, 160. « Ibid. ^ Bradby on Distresses, 196. '" Brooke's Abr., Rescues, pi. 7, 12. n Woglam' V. Cowperthwaite, 2 Dallas, 69. 148 NON-PAYMENT OP RENT. [cHAP. Y. the court oq a writ of inquiry may award them.' A stranger may rescue his own goods illegally distrained.'' X. Costs of a Distress. 235. The costs of a distress are as follows: In the counties of Philadelphia and Allegheny by provision of acts of 3d April, 1866,2 and 23d March, 1872.* 1. Executing landlord's warrant, 50 cents. 2. Taking inventory of go®ds distrained, each item, 2 cents. 3. Putting up notice of distress or serving the same, 25 cents. 4. Appointing three freeholders to appraise, $1. 5. Two freeholders to appraise, each $1. 6. Advertising the sale of the distress, |1. 7. Copy of the vendue paper (when demanded), each item, 2 cents. 8. Levying or distraining and selling the distress, for each dol- lar not exceeding $100, 3 cents; for each dollar exceeding $100, 2 cents. But only one-half of said commission when the rent is paid without sale, but no commission except on the amount actu- ally received and paid over by the constable to the landlord. 9. Travelling expenses, each mile circular (that is, one mile or under counts one mile; two miles or less, over one mile, counts two miles, and so on), ten cents. Besides the above charges the act of 3d April, 1872,' allows a charge of |3 per day for a watchman in the city of Philadelphia, and also on each adjournment of sale $1 and costs of advertising same. In the county of Washington, by provisions of act of 31st March, 1865.^ 1. Executing landlord's warrant, 50 cents. 2. Taking inventory of goods distrained, each item, 2 cents. 3. Putting up notice of distress, or serving same, 15 cents. 4. Two freeholders to appraise the distress, 25 cents each. 5. Advertising the sale of the distress, 50 cents. 1 Welsh V. Anthony, 4 Harris, 254; Rees v. Emerick, 6 Sergeant & Kawle, 285; Finn v. Commonwealth, 6 Barr, 460. " Coke upon Littleton, 160. » Pamphlet Law9, 94. * Ibid. 562. ' Ibid. 772. « Ibid. 434. SBC. I.] DISTRESS. 149 6. Copy of vendue paper (when demanded) each item, 1 cent. 7. Levying or distraining and selling the distress, for each dol- lar not exceeding $30, 6 cents ; for each dollar exceeding $30, 4 cents. But only one-half of such commission when the rent is paid without sale, and no commission except on the amount paid by the constable to the landlord. 8. Travelling expenses, each mile circular, 6 cents. In the counties of Montgomery and Berks, by provision of acts of 18th April, 1857,' and 18th February, 1869.' 1. Executing landlord's warrant, 25 cents. 2. Taking inventory of goods distrained, each item, 1 cent. 3. Putting up notice of distress or serving the same, 15 cents. 4. Two freeholders to appraise the distress, 25 cents each. 5. Advertising the sale, 40 cents. 6. Copy of vendue paper (when demanded), each item, 1 cent. 7. Levying or distraining and selling the distress, for each dollar not exceeding $30, 5 cents; for each dollar exceeding $30, 3 cents. But only one-half of said commission when the rent is paid without sale, and no commission except on the amount re- ceived by the constable and paid to the landlord. 8. Travelling expenses, each mile circular, 3 cents. In all the other counties of the State, by provision of act of 2d April, 1868,5 and 22d March, 1869.* 1. Executing landlord's warrant, 50 cents. 2. Taking inventory of goods distrained, each item, 2 cents. 3. Putting up notice of distress or serving the same, 20 cents. 4. Two freeholders to appraise the distress, 25 cents each, 50 cents. 5. Advertising the sale, 50 cents. 6. Copy of vendue paper (when demanded), each item, 2 cents. 7. Levying or distraining and selling, for each dollar not ex- ceeding $30, 6 cents; for each dollar not exceeding $30, 4 cents. But only one half of said commission when the rent is paid with- out sale, and no commission except on amount received by the constable and paid to the landlord. 8. Travelling expenses, each mile circular, 6 cents. There is nothing in the fee bill (except so far as relates to 1 Pamphlet Laws, 231. ^ Ibid. 196. « Ibid. 13. " Ibid. 479. 150 NON-P'ATMENT OF RENT. [CHAP.V. Philadelphia County by act of 1872), that allows a constable costs for employing a watchman to take charge of the distress, and if objected to by the tenant, the charge must be disallowed.^' In the county of Philadelphia the constable can also charge the landlord a Commission of five per cent, on the rent collected. [For forms of procedure in distress, see Appendix.] SECTION II. EB-ENTKY 236. The second remedy for the non-payment of rent to which a landlord in Pennsylvania may resort is that of re-entry, which is the act of resuming possession of lands or tenements in pursu- ance of a right which the party exercising it expressly reserved to himself in the lease when he parted with his former possession. This remedy is seldom resorted to in Pennsylvania, and to support it there must be contained in the lease a condition au- thorizing it, and this condition must be construed strictly and not extended beyond the express words. ^ 237. The prerequisites to a re-entry by a landlord for the non- payment of rent are : 1st. A demand therefor. 2d. Upon the day the rent falls due. 3d. For the precise rent due. 4th. At a convenient time before sunset. 5th. Upon the land, whereout the rent is reserved, and at the most notorious part thereof, unless the rent be made payable at some other place, in which case the demand must be made there. 6th. The demand for the rent must be made in fact, although there be no one on the land of whom to demand it.* But if the con- ' Patton's Estate, 2 Parsons, 107. 2 Coke upon Littleton, 201, 202; Gilbert on Kents, 135; Hassell v. Gow- thwaite, Willes, 500; Heil v. Strong, 8 Wright, 264, 268. " Duppa V. Mayo, 1 Saunders, 287 [noie] ; McCormick v. Connell, 6 Ser- geant & Kawle, 151 ; Eobert v. fiistine, 2 Philadelphia, 62; see also the note by Henry "Wharton, Esq., to Bowman v. Poot, 1 American Law Kegister, N. S. 852, 862. SEC. II.] RE-ENTRY. • 151 dltion foi re-entry be "without further demand," the foregoing requisites are dispensed with.^ Moreover, the forfeiture of the term cannot occur if the tenant be on the land the day the rent falls due and make a tender of the rent, and if the clause for re-entry be coupled with the condition or proviso "that no sufScient distress be found on the land," the landlord must search the premises for such distress before making such re-entry.^ 238. At common law no stranger to any covenant, action, or condition who might become the grantee of the premises subject to the same, could avail himself of the same for want of privity, and therefore the grantee of a reversioner could not avail himself against the tenant of a claim of re-entry or other condition con- tained in the indenture of demise. To remedy this, the statute of 32 Henry VIII,' chapter 34, was enacted, by virtue of which, the grantee of the reversion has the same right to re-enter as had his grantor, with the exception that where a reversioner in fee of four acres grants two acres in fee, the grantee cannot enter.* 239. The landlord may lose his right to re-enter by the com- mission of any act (such as the receipt of rent or the making of a distress) which recognizes the subsistence of the relation of land- lord and tenant, and courts of equity are so opposed to forfeit- ures that, upon the payment within a reasonable time of all rent in arrear and damages, they will restore the tenant to his former estate.' 240. When a landlord attempts a re-entry it is advisable for him,, with the view of perpetuating the testimony of the proceedings,, to act by an attorney in fact duly constituted by a written letter of attorney, which should be properly recorded, and on his re- entry he should make a petition to the Court of Common Pleas, ^ Kidwelley v. Brande, 1 Dyer, 68. 2 Newman o. Eutter, 8 Watts, 51 ; McCormick v, Connell, 6 Sergeant &. Eawie, 151 ; Stoever v. Whitman, 6 Binney, 416. 3 Roberts's Digest, *227 ; see Jones v. Gundrim, 3 Watts & Sergeant, 531 ;; Streaper v. Pisher, 1 Eawle, 155 ; Newbold v. Comfort, 2 Clarlc, 331 ; Hen- wood V. Cheeseman, 3 Sergeant & Eawle, 500. * Coke upon Littleton, 215. " Long n. Wood, 22 Pittsburg Law Journal, 93; s. c. 33 Legal Intelli- gencer, 410 (1876); Newman v. Eutter, 8 Watts, 51; Eoe v. Davis, 7' East. 363. 152 NON-PAYMENT OF RENT. [CHAP. V. for a subpoena against the tenant to show cause why a commission should not issue to examine the witnesses of the re-entry. 241. As the legislature has, by acts of 25th March, 1825,^ and of 3d April, 1830,' supplied landlords of demises for years, where the rent is unpaid and in arrear, with a remedy more simple and efficacious than that of re-entry for the re-obtaining possession of demised premises, it is hardly necessary to enter into more detail on a remedy which is now, even in cases of demises in fee (ground rents), seldom resorted to, as a better remedy exists in an action of covenant, or when, as is usual, a clause authorizing a distress is inserted in the ground-rent deed by distress. Since the Supreme Court, in Ingersoll v. Sergeant,' decided ground-rents to be rents- service, it was generally believed that distress was incident to them as a matter of right, and could be enforced even if there were no clause authorizing it in the deed ; but it has been decided by the same court in Wallace v. Harmstead* that by the Revolution of 1776, and by the acts of 27th November, 1779, and 9th April, 1781, titles to real estate in Pennsylvania were changed from feudal into allodial, and that therefore fealty does not here exist, nor does the right of distress exist in demises of fee unless sup- ported by the power in the article of demise. The consideration of this subject, however interesting, has, however, little to do with a manual relating to tenancies less than freehold ; but as the greatest objection existing to the use of this remedy of "re-entry" is the danger of the landlord's becoming liable to the penalties incident to forcible entry and forcible detainer, it may be well to treat cursorily of these offences, which are committed by " violently taking or keeping possession of lands and tenements with menaces, force, and arras, and without the authority of law,"^ and were punishable under the following British statutes reported in force here: 5 Richard II, chapter 7; 15 Richard II, chapter 2; 8 Henry VI, chapter 9: 31 Elizabeth, chapter 11; 21 James I, chapter 15." 242. The statutes of Richard II authorized the justices to fine and imprison the oflender and to remove the force. The statute ' 8 Smith's Laws, 411. a Pamphlet Laws, 187. 3 1 Wharton, 337 (1836). * 8 Wright, 492 (1863); see ante, page 4 ei seg. ' 4 Blacljstone's Commentaries, 148. « Roberts's Digest, *283 to *290. SEC. II.] KB-ENTRY. 153 of Henry VI gave power to hold an inquisition, and to restore the party ousted to his possession. That of Elizabeth enacted that no restitution upon an indictment of forcible entry, or holding with force should be made if the person indicted has had the occupation or has been in quiet possession for three years together, next before the indictment found ; and that of James I extended the same remedy to tenants for years which had been by former statutes confined to tenants of larger estates.^ It was decided in the case of Respublica v. Devore,^ that those statutes should receive a strict construction. In 1700' the Assembly of the Province of Pennsylvania passed an act, as follows : " Whoever shall violently or forcibly enter into the house or possessions of any other person, within this province or territories, being duly convicted thereof, shall be punished as a breaker of the peace, and make such satis- faction to the party aggrieved as the circumstances of the fact will bear." And the act of 20th March, 1810,* in section 27, pre- scribes the mode of recovering the penalties imposed by the act of 1700. There existed, therefore, two remedies, the one under the British statutes before two justices of the peace, the other by indictment under the act of 1810.° 243. It is, however, believed that the foregoing statutes and acts have been supplied by the act of 31st March, 1860,^ which in sec- tions 21 and 22 enacts as follows : Section 21. "If any person shall with violence and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows or other parts of a house, or by any kind of violence or other circumstances of terror, or if any person after entering peaceably, shall turn out by force or by threats, or men- acing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and on conviction, shall be sen- tenced to pay a fine not exceeding $500, or to undergo an imprison- ment not exceeding one year, or both, or either, at the discretion 1 Commonweallh v. Stoever, 1 Sergeant & Eawle, 480. 2 1 Yeates, 501. ' 1 Smith's Laws, 1. < 5 Smith's Laws, 173. s Eespublica v. Devore, 1 Yeates, 501 ; Blytiie v. Wright, 2 Ashmead, 428; Commonwealth v. McNeile, 8 Philadelphia, 438 ; Commonwealth v. "Wisner, Ibid. 612. " Pamph. Laws, 390; see Beport on tile Penal Code, 16 Brightly 's Pur- don's Digest, p. 320, note b. 154 NON-PAYMENT OF RENT. [CHAP.V. of the court, and to make restitution of the lands and tenements entered as aforesaid. Section 22. " If any person shall by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the pos- session of any lands or tenements, whether the possession of the same were obtained peaceably, or otherwise, such person shall be deemed guilty of forcible detainer, and upon conviction thereof shall be sentenced to pay a fine not exceeding $500, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of tlie court, and to make restitution of the lands and tenements unlawfully detained as aforesaid : Provided, That no person shall be adjudged guilty of forcible detainer, if such person by himself, or by those under whom he claims, has been in peace- able possession for three years next immediately, preceding such alleged forcible detention." This act more clearly defines the punishment for forcible entry and forcible detainer, which are distinct offences, and though both be charged in the same indictment yet the defendant may be con- victed of the one and acquitted of the other.* 244. The possession of the prosecutor must be quiet and actual, and there must be some evidence thereof; thus, if he have cir- cumscribed for himself a reasonable possession of a piece of land, ploughed, built on, and fenced in, he will be considered as being in possession.' In order to create the offence of forcible entry the violence must amount to a breach of the peace.^ A prosecution will lie by one tenant in common against his co-tenant where the possession has been adverse and exclusi\c,^ and although a land- lord is liable to an indictment for making a forcible entry on de- 1 Commonwealtli v, Kodgers, 1 Sergeant & Eawle, 124; Commonwealth v. Toram, 2 Parsons, 411 ; s. c. 3 Clark, 346. ' Pennsylvania t). Kobinson, Addison, 14; Pennsylvania)). Lcmraon, Ibid. 315; Commonwealth v. Keeper of the Prison, 1 Ashmead, 140; Pennsylvania V. Loach, 1 Addison, 355; Burd v. Commonwealth, 6 Sergeant & Eawle, 252; Piutzmaa v. Perree, 10 Watts, 144; Elliutt v. Powell, Ibid. 458, 455; Com- monwealth V. Conway, 1 Brewster, 509. ' Commonwealth v, Kees, 2 Brewster, 564; Commonwealth v. Conway, 1 Ibid. 509; Pennsylvania?!. Eobinson, Addison,' 14; Pennsylvania ». Waddle, Ibid. 42; Burd v. Commonwealth, 6 Sergeant & Eawle, 262; Eespublica v. Devore, 1 Yeates, 501. * Commonweath v. Oliver, 2 Parsons, 420, SEC. III.] ACT OP 1825. 155 mised premises after the expiration of the tenancy, he is not liable to an action of trespass or to an action of ejectment,^ and in order to authorize restitution in the case of forcible detainer the tenant must have a legal right to the possession, and the same must be averred in the indictment.^ When a landlord or others keep a lessee out of a possession to which he is entitled, an indictment of forcible detainer will lie,^ and where a tenant uses no more force than is necessary to maintain his rightful possession, he is not liable to an indictment for forcible detainer.* 245. The provision in section 22 of the act of 1860 relative to three years' peaceable possession is not extended to section 21 on forcible entry, because no conviction can be had unless the offender be prosecuted within two years from the date of the com- mission of the offence. The prosecution is commenced by complaint under affidavit be- fore a magistrate, who then issues a warrant to a constable for the arrest of the offender, and on his appearance binds him over for trial at the next term of the Court of Quarter Sessions, and in default of bail commits him to prison. [For forms of procedure in re-entry, see Appendix.] SECTION m. ACT OF 1825, SECTIOIf 2. 246. The third remedy for the non-payment of rent to which a landlord in Philadelphia may resort, is that accorded by the second section of the act of 25th March, 1825,® which enacts as follows : " Sectiok 2. If any lessee for a term of years in the city and county aforesaid, shall remove from such demised premises, without leaving suf- • Overdeer o. Lewis, 1 Watts & Sergeant, 90; Kellatn v. Janson, 5 Harris, 467 ; Commonwealth v. Kensey, 3 Clark, 233 ; riespublica v. Campbell, 1 Dal- las, 355 ; Eich v. Keyser, 4 P. P. Smith, 86. 2 Commonwealths. Conway,! Brewster, 509 ; Torrenoei;. Commonwealth, 9 Barr, 184; see Nepean v. Doe, 2 Smith's Leading Cases, *46G ; see also Dean v. Commonwealth, 3 Sergeant & Eawle, 418; Commonwealth v. Jack- son, 1 Grant, 262. 3 Commonwealth v. Wisner, 8 Philadelphia, 612. 4 Commonwealth v. McNeile, 8 Philadelphia, 438; Commonwealth v. Uax- ton, Lewis's Criminal Law, 282. ' 8 Smith's Laws, 411. 156 NON-PAYMENT OF KENT. [OHAP.V. flcient property thereon to sectire the payment of at least three months' rent, or shall refuse to give security for the payment thereof, in five days after demand of the same, and shall refuse to deliver up possession of such premises, it shall and may he lawful for the landlord or lessor to apply to any two aldermen or justices of the peace within the city or county of Philadephia, and make an affidavit or affirmation of the fact, and thereupon the said aldermen or justices of the peace shall forthwith issue their precepts, to any constable of the proper city or county, com- manding him to summon such lessee, before such aldermen or justices, on a day certain, not exceeding eight nor less than five days, to answer such complaint. And the said aldermen or justices shall, on the day ap- pointed, proceed to hear the case, and if it shall appear that the lessee has removed from the promises, vrithout leaving suflicient goods and chat- tels, or giving security for the payment of the rent as aforesaid, and has refused to deliver up possession of the demised premises, they shall enter judgment against such lessee, that said premises shall be delivered up to the lessor or landlord forthwith, and shall, on the request of the said lessor or landlord, issue a writ of possession, directed to said constable, commanding him forthwith to deliver possession of the premises to the landlord or lessor, and also to levy the costs on the defendant, in the same manner that executions issued by justices of the peace are directed bylaw." 247. The office of aldermau having been abolished in Phila- delphia by the Constitution of 1874,' and the office of magistrate substituted, the act of 1825 is affiacted by the act of 5th February, 1875, which, in section 12,^ enacts as follows: " The jurisdiction of each of said magistrates shall extend throughout the city and county of Philadelphia, and they shall be, b}' virtue of their office, ex officio justices of the peace ; they shall have all the powers and shall exercise the same jurisdiction, civil and criminal (except as herein otherwise provided), as is now by law exercised by aldermen of said city, and shall be liable to the same limitations and restrictions, pains and penalties, that are now imposed upon aldermen by the laws of this Com- monwealth ; where by law two aldermen are now required to hear and determine any matter brought before them, the same jurisdiction shall be exercised by one magistrate. " 248. In order that a landlord in Philadelphia may avail himself of the act of 1 825 there must be — 1st. A leasing for a term of years.^ 2d. A certain rent reserved.* ' Article V, Section 12, Pamphlet Laws, 15. ' Pamphlet Laws, 5G, dO. " JHund V. Vanfleet, 2 Philadelphia, 41; Geisenberger v. Cerf, 1 Ibid. 17; Gaulti). Lowry, Ibid. 394; Uber v. Hiokson & Clemens, G Ibid. 132; Erety V. Wiltbank, 8 Ibid. 300. < Ibid. SEC. III.] ACT OF 1825. 157 3d. An actual removal by the 'tenant, with intent to defraud the landlord, without leaving sufficient property on the demised premises to secure three months' rent.' 4th. A demand by the landlord or his agent for security for the rent, made at least five days before the application to the magistrate.^ 5th. A refusal or neglect of the tenant, during five days after demand, to either give the security or to remove.' 6th. An application by the landlord to a magistrate, accompa- nied by the oath or affirmation of the landlord setting forth tlie demise.* 249. 1. If the tenant fail to offer the security until after the expiration of five days after the notice, the tender comes too late, and he has incurred a forfeiture of his tenancy.^ _2. The demand for the security must be made by the landlord or his agent.* 3. Nor can proceedings under the act be maintained by an ad- verse claimant of the reversion.^ 4. A sub-tenant may tender the security, nor can the original lessee waive the right unless he has done so in the lease.^ 5. The affidavit of the landlord must set forth the demise.' 6. And the record of the magistrate must show that the tenant was a lessee for years.'" 250. The proceedings under the act are commenced, after the fraudulent removal of the tenant, by the landlord or his agent serving on the tenant a notice containing a demand for the secu- rity of three months' rent, and in default of this for the possession of the premises demised; this having been made and five days 1 Preytag v. Anderson, 1 Eawle, 73; Freytag v. Anderson, 1 Ashmead, 98; Black V. Alberson, Ibid. 127. ' Powell V. Campbell, 2 Philadelphia, 42; see also Grider v. Mclntyro, 6 Ibid. 112. ' Preytag v. Anderson, 1 Eawle, 73; Preytag v. Anderson, 1 Ashmead, 98; Black V. Alberson, 1 Ibid. 127; Grider v. Mclntyre, 6 Philadelphia, 1 12. * Mund V. Vanfleet, 2 Philadelphia, 41; Erety v. Wiltbank, 8 Ibid. 300, and cases there cited. 5 Ward V. Wandell, 10 Barr, 98. " Powell V. Campbell, 2 Philadelphia, 42. ' See Daly v. Barrett, 4 Ibid. 350. » Grider v. Mclntyre, 6 Ibid. 112. 9 Mund V. Vanfleet, 2 Ibid. 41. "' Geisenberger v. Cerf, 1 Ibid. 17. 158 NON-PAYMENT OP RENT. [CHAP.V. fully elapsed from the service "thereof, without any acquiescence in the demand by the tenant, the latter is then debarred from giving the security, and the landlord makes, under oath or affir- mation, an application or complaint to a magistrate, in which he sets forth, 1st, the demise; 2d, the fact of the removal of the tenant; 3d, that there are not goods enough on the premises to pay the rent of three months [except such as are exempt under the act of 1849]; 4th, that the tenant refuses to give up the possession of the premises, or to give the security as demanded; and, 5th, that the same demand had been made five days previous to the date of the complaint and deposition. 251. This complaint is sworn to, or afiirmed, before the magis- trate, and the latter thereon issues his precept to a constable of the city of Philadelphia, in which is set forth : 1st. That complaint, under oath, had been made by the landlord before him, and the date of such complaint. 2d. That the landlord had demised to the tenant by the year or otherwise. 8d. A certain tenement situate in the same city, and a reason- able description thereof. 4th. That the tenant has removed therefrom. 5th. That there are not goods enough on the said premises to pay a quarter's rent. 6th. That the said tenant refuses to give up the possession of the premises, or to give security for the rent, the same having been demanded of him five days previous to the date of the com- plaint. 7th. A command to the constable to summon the tenant to be and appear before the magistrate on a day certain, not exceeding eight days, nor less than five davs from the date of the precept. 252. On this the constable proceeds to the premises and serves this summons on the tenant, and on the day appointed the magistrate proceeds to hear the case; and if it appear that the tenant has re- moved from the premises without leaving sufficient goods as afore- said, or giving security for the rent as aforesaid, it is the duty of the magistrate to enter judgment against the said lessee, that the said premises be delivered up to the landlord forthwith, and on the request of the landlord the magistrate will issue a writ of pos- session, in which is set forth the whole facts of the case, and in SBO. III.] ACT OF 1825. 159 I which the constable is commanded to forthwith deliver possession of the said premises to the landlord, and to levy the costs off the tenant, and to make a return of the proceedings to the magistrate by a day certain. 253. The proceedings under the act of 1825 may be removed from before the magistrate to the Court of Common Pleas by a writ of certiorari.' This writ is one issued by a superior to an inferior court, re- quiring the latter to send into the former some proceeding therein pending, or the records and proceedings in some cause already ter- minated. In Philadelphia, in regard to the act of 1825, it derives its force from the common law, affirmed by the Constitution of 1874, which in section 10, of article 5,^ states that "the judges of the courts of common pleas, within their respective counties, shall have power to issue writs of certiorari to justices of the peace, and other inferior courts not of record, and to cause their proceedings to be brought before them, and right and justice to be done." 254. A certiorari to remove proceedings under the act of 1825 is not a supersedeas under the act of 24tli March, 1865," which act only applies to a certiorari to proceedings under the acts of 3d April, 1830,* and 14th December, 1863." There is no right to appeal from the proceedings before the magistrate given by the act of 1825, therefore such right does not exist, as it was long since decided that whenever a new jurisdiction is erected by act of 'Parliament, and the court or judge that exer- cises the j urisdiction acts as a j udge or court of record, according to the course of the common law, a writ of error lies upon their judg- ment, but when they act in a summary method, or in a new course different from the common law, a writ of error does not lie, but a certiorari." 255. The decision of the Court of Common Pleas may be removed by writ of error to the Supreme Court, and therein be either afBrmed or reversed, but the party applying for the writ of error • Freytag v. Anderson, 1 Ashmead, 98; s. c. 1 Bawlo, 73 ; Ward v. Wan- dell, 10 Barr, 98.. 2 Pamphlet Laws, 15. ' Ibid. 750. * Ibid. 187. 6 Pamphlet Laws of 1864, 1125 ; De Coursey v. Guarantee Co., 31 P. P. Smith, 217 ; s. c. 3 Weekly Notes, 65. " Qreenvelt v. Burwell, 1 Lord Kaymond, 469, cited in Eulhman v. Com- monwealth, 5 Binney, 24, 28. 160 NON-PAYMENT OF RENT. [CHAP.V. must make oatli or affirmation, to be filed of record, that the same is Bot intended for delay.' 256. The fees incidental to proceedings under the act of 1825 are as follows •? Maqistkate. Administering oath or affirmation, $0 25 Entering complaint, ....... 75 Hearing and determining case, 1 00 Record of proceedings 1 50 Issuing writ of restitution and return, . . . . 1 00 CONSTABLI;. Serving execution on writ of possession, . . . . 2 00 Serving summons, . . . . . . . . 1 00 Serving notice, 50 [For forms of procedure under act of 1825, see Appendix.] SECTION" ly. ACT OF 1830. 257. The fourth remedy for the non-payment of rent to which a landlord in Pennsylvania may resort is that accorded by the act of 3d April, 1830,^ which enacts as follows : Sectiok 1. In case any lessee for a term of years, or at will, or otherwise, of a messuage, lands or tenements, upon the demise whereof any rents are or shall be reserved, where the lessee shall neglect or refuse to pay rent re- served as often as the same may grow due according to the terms of the contract, and where there are no goods on the premises adequate to pay the said rent so in arrear, except such articles as are exempt from levy and sale by the laws of the Commonwealth, it shall and may be lawful for the lessor to give the lessee notice to quit the premises within fifteen days from the date of the notice, if such notice is given on or after the first of April, and before the first of September, and within thirty days from the date thereof, if given on or after the first of September, and before the first of April ; and if the lessee shall not within the period aforesaid, remove from and deliver up the said premises to the said lessor, 1 Act of 22d May, 1722, 1 Smith's Laws, 138 ; Act of llth March, 1809, 5 Smith's Laws, 15, 17. a See acts of 3d F«bruftry, 1865, Pamph. Laws, 92, and 3d April, 1866, Pamph. Laws, 94. » Pamphlet Laws, 187. SBC. IV.] ACT OP 1830. 161 or pay and satisfy the rent so due and in arrear, it shall be lawful for the lessor to make complaint on oath or affirmation, to any two aldermen or justices of the peace, as the case may require, who on its appearing^ to them that "the lessor has demised the premises for a term of years, or otherwise, whereof any rent or rents have been reserved, that the said rent is in arrear and unpaid, that there is not sufficient goods and chat- tels on the premises to pay and satisfy the said rent except such as are by law exempted from levy and sale, and that the lessee has, after being notified in manner aforesaid, refused to remove and redeliver up posses- sion of the premises, shall then and in that case issue their precept re- citing substantially the complaint and allegation of the lessor, directed to any constable of the proper city or eountj', commanding him to sum- mon the said lessee to appear before the said aldermen or justices at a ' day and time to be therein fixed, not less than three, nor more than eight days thereafter, to answer the said complaint, and the said aldermen or justices shall on the day appointed, or on some other day then to be ap- pointed by said justices or aldermen, proceed to hear the case, and if it shall appear that the said complaint so made as aforesaid, by the lessor, is in all particulars just and true, then the said aldermen or justices shall enter judgment against such lessee, that^ the premises shall be de- livered up to the lessor, and at the request of the lessor issue a writ of possession, directed to the said constable, commanding him forthwith to deliver actual possession of the premises to the lessor, and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution, but if on the hearing afore- said it shall appear that the said complaint is vexatious and unfounded, the said aldermen or justices shall dismiss the same, with costs to be paid by the lessor : Provided always, That at any time before the said writ of possession is actually executed, the lessee may supersede and render the said writ of none eifect, by paying to the said constable for the use of the lessor the rent actually due and in arrear, and the costs, which rent so in arrear shall be ascertained and determined by the said aldermen or justices on due and legal proof, and indorsed by them on the said writ of possession, together with the costs of the proceeding, of all of which doings the said constable shall make return to the said aldermen or jus- tices within ten days after receiving of the said writ, and the said con- ' These fees, as relating to aldermen, were altered as to Philadelphia by act of 3d February, 1865, P. L. 92, and extended to Berks County by act of 1st April, 1868, P. L. 541, and as to constables, by act of 3d April, 1866, P. L. 94, and extended to Pittsburg and Allegheny County by act of 23d March, 1872, P. L. 562, so that the fees are as follows : Magistrate complaint, twenty- five cents; oath, ten cents; precept, twenty-five cents; return, etc., thirty- five cents; trial, fifty cents; oath, ten cents; witness (by act of 22d February, 1821), twenty-five cents; record, fifty cents; writ of possession and return, fifty cents ; constable service, one dollar ; mileage, ten cents per circular mile ; executing writ, two dollars ; mileage, ten cents per circular mile. 11 162 NON-PAYMENT OF KENT. [CHAP.V. stable sliall be answerable in default of executing the said writ accord- ing to its lawful requisitions, or in returning the same in the same manner as to the amount of rent ascertained and determined and costs as constables are now by law answerable on other writs of execution : And provided further, That no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgment, and if within the said five days, the tenant shall give good, suflflcient, and absolute security, by recognizance for all costs that may have and may accrue, in case the judgment shall be affirmed,^ and also for all rent that has accrued, or may accrue, up to the time of final judgment, then the tenant shall be entitled to an appeal to the next court of common pleas, which appeal shall be then tried in the same manner that other suits are tried : And provided further, That nothing herein contained shall pre- vent the issuing of a certiorari with the usual form and effect. Sectiow2. The following fees,' in addition to the usual mileage, and none other, shall be demanded and received by the aldermen, justices, and constables, for doing and performing what is herein enjoined on them, viz. : To the aldermen and justices for issuing precept to the les- see, each justice twelve and one-half cents. Tor hearing and determining the complaint, and all other services rendered therein, fifty cents. For recording proceedings, each twenty-five cents. Tor issuing and receiving returns of writ of restitution, each twenty-five cents. For the constables, for serving precept and returning the same, twenty-five cents. For executing the writ of possession, and returning the same, fifty cents. When the rent shall be received from the lessee by the constable, such commission as is now by law allowed on writs of execution. 258. It was also provided by the act of 27 th March, 1833,^ as foUov^s : Section 1. "In all cases where the guardian of any minor is or shall be a party to a suit, either before a justice of the peace or in the common pleas, such guardian shall be allowed to appeal from the judgment of said justice, and from the award of arbitra- tors, without making the usual affidavit, and without giving surety or paying costs." Section 2. " Whenever an appeal is entered to the Supreme Court, or a certiorari is sued out to remove the proceedings of a justice or alderman to the Common Pleas or Quarter Sessions, the party, his agent or attorney, may make and enter into the required affidavit and recognizance." ' See note 1 on preceding page. * Pamphlet Laws, 99. SEC. IV.J ACT OF 18S0. 163 259. The act of 20th March, 1845/ Section 3, also provides that, " The right of appeal from judgments of aldermen and justices of the peace, and from their judgments on awards of referees, is hereby extended to defendants in all cases wherein, by existing laws, the right of appeal is enjoyed by plaintiff." This act makes the right of appeal reciprocal, but it does not extend the plaintiff's right of appeal ; consequently, where previously the plaintiff had no right of appeal, this act does not confer the right on the de- fendant.'' 260. The act of 1830 was also supplemented by that of 9th April, 1849,^ which is as follows: "The 1st section of the act, entitled 'An Act concerning feail and Attachments,' passed the 20th day of March, 1845,* shall not be construed to apply to the judgments of aldermen or justices under the 1st section of the act entitled 'An Act relating to Landlord and Tenant,' passed the 3d day of April, 1830." And also by act of 22d March, 1861,° which is as follows: " That so much of said act as requires the lessor to make com- plaint before any two aldermen or justices of the peace, as the case may require, is hereby repealed ; and it shall be lawful for any such lessor, or his authorized agent, to appear before any alderman -or justice of the peace of the county, as the case may require, and make such complaint on oath or affirmation, which said complaint shall be suEBcient for the said alderman or justice to issue his pre- cept, and to hear and determine the case as fully and effectually as the two aldermen or justices were required °to do; and when either one of two aldermen or justices before whom such proceed- ings shall have been commenced has died, resigned, or been re- moved from office, or from any other cause become unable or disqualified to act, the proceedings may be continued before the other alderman or justice." 261. By the act of 1st May, 1861,^ it is provided, "that in all 1 Pamphlet Laws, 188. ' Prestly v. Eoss, 1 Jones, 410 f Cook v. Duiikle, 1 Casey, 340. ' Pamphlet Laws, 526. * Pamphlet Laws, 188. This act was to the effect that in cases of appeal from the judgment of aldermen and justices of the peace, the bail must be bail absolute in double the probable amount. ' Pamphlet Laws, 181. « Pamphlet Laws, 63-5 ; Carter v. Hess, 3 W. N. C. 325. 164 NON-PAYMENT OF KENT. [CHAP.Y, cases in which judgment shall have been rendered for plaintiff by any alderman in the city of Philadelphia, no appeal shall be allowed unless the defendant shall make oath or affirmation, to be filed in the cause, that the same is not intended for delay merely." 262. By the act of 4th March, 1864,' it is provided "That whenever any person, or persons, shall be tenant, or les- see, of any house, or tenement, belonging to another, in the coun- ties of Mercer or Lawrence,^ and occupies the same, under an agreement, verbal, or written, to perform labor, or services, for the owner, or owners, of said house, or tenement, in addition to the rent reserved for the use of said house, or tenement, whilst he, or they, shall so occupy the same, and shall, during such occu- pancy, refuse, or neglect to perform such labor, or render such ser- vice, it shall and may be lawful for such owner, or owners, his, her, or their, agent or attorney, to dispossess such tenant, or ten- ants, in the manner now provided by the first section of the Act of April 3d, Anno Domini 1830, and the Supplements thereto, after giving seven days'^ notice to said tenant, or tenants, to sur- render the possession of the house, or tenement, in his, her, or their, possession, and on due proof to the said justice of the ne- glect of said tenant, or tenants, to perform such labor, or render such service, according to the agreement, the said justice shall have power to declare the lease, by M'hich any such house, or tenement, is held, to be absolutely null and void." This act is supplemented as follows by the act of 15th April, 1869 :* " That an act relative to landlords and tenants, for the counties of Mercer and Lawrence, approved fourth day of May, one thousand' eight hundred and sixty-four, as far as relates to Lawrence County, be and the same is hereby repealed." By the act of 17th April, 1869:* "That so much of said act as authorizes the dispossession of tenants after seven days' notice, be repealed, and hereafter, at least thirty days' notice shall be given before it shall be lawful to dispossess any tenant contemplated in said act." 263. The act of 3d April, 1830, is also supplemented by the act of 24th March, 1866," which enacts as follows : 1 Pamphlet Laws, 766. = Ibid. 972. » Ibid. 1126. » Ibid. 972. • Ibid. 1112. « Ibid. 750. SEC. IV.] ACT OF 1830. 165 "In every proceeding, or suit, brought in fhe city of Philadelpliia, un- der any of the several acts of this Commonwealth, by landlords, to re- cover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas; and the execution upon the judgment, in the said suit, or proceeding, shall be suspended until the final determination of the cer- tiorari, by the court, out of which the same issues ; and the said court, if the said determination shall be made adversely to the party at whose instance the writ of certiorari has issued, shall proceed to issue a writ of possession, directed to the sheriff of the County of Philadelphia, direct- ing him to deliver actual possession of the premises to the lessor •, and also, to levy the costs on the defendant, in the same manner that costs are now, by law, levied and collected, on other writs of execution : Provided, That the said certiorari shall be issued, within ten days from the date of the judgment rendered in said proceedings, and upon oath of the party applying for the same, to be administered by the Prothonotary of tlie Court of Common Pleas, that it is not for the purpose of delay, but that the proceedings, proposed to be removed, are, to the best of his knowledge and belief^ unjust and illegal, and will oblige him to pay more money than is justly due ; a copy of which aflSdavit shall be filed in the Pro- thonotary's office : and, Frovided further, That the party, applying for the same, shall give security for the payment of all costs that have ac- crued, or may accrue, and of the rent which lias already, or may become due, up to the time of the final determination of said certiorari, in the event of the same being determined against him." 264. The act of 1830 is also affected by the act of 15th April, 1869,' which enacts as follows : "No interest or policy of law shall exclude a party or person from being a witness in any civil proceeding : Provided, this act shall not alter the law, as now declared and practiced in the courts of this Common- wealth, so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communications of his client ; and this act shall not apply to actions by or against executors, adminis- trators, or guardians, nor where the assignor of the thing or. contract in action may be dead, excepting in issues and inquiries devisavit vel non, and others respecting the right of such deceased owner, between parties claiming such right by devolution on the death of such owner." 266. The act of 1830 is also supplemented, so far as relates to Philadelphia, hy the act of February, 1875,^ M'hich, in section 12, enacts as follows : "The jurisdiction of said magistrates shall extend throughout the city and county of Philadelphia, and they shall be, by virtue of their 1 Pamphlet Laws, 30. " IWd. 56. 166 NON-PAYMENT OF RENT. [CHAP.V. office, ex officio justices of the peace ; they shall have all the powers and shall exercise the same jurisdiction, civil and criminal (except as herein otherwise provided), as is now by law exercised by aldermen of said city." 266. The act of 1830 will not apply to a case in which the tenant lays claim to the reversion, which being a denial of the landlord's title, gives the latter a right of entry, and of action at common law,' nor where a third party lays claim to the reversion,' nor against a tenant for life or under a ground-rent in fee,' nor where in the lease a notice of five days is substituted for the notice re- quired by law.* But the affidavit of the tenant that the title to the land comes in question will not bar the jurisdiction ; the fact must be proved, like any other fact in the case,^ and the same is true in regard to the affidavit of a third party who claims the reversion.^ The act applies in favor of an assignee of the reversion, be he the assignee under a sheriff's sale or otherwise.' 267. In order that the landlord may successfully avail himself of the benefits of the act of 1830, he must be prepared to prove : (1.) That the premises were demised for a term of years, or at will, or otherwise.^ (2.) That rent therefor had been reserved.' (3.) That the tenant had failed to pay the rent." (4.) That there are not goods on the said premises sufficient to 1 Clark t). Everly, 8 Watts & Sergeant, 226; s. c. 2 Clark, 219; Bergman V. Eoberts, 11 P. F. Smith, 497, and cases there cited ; Stewart v. Hasson, 4 Legal Gazette, 92. '' Daily v. Barrett, 4 Philadelphia, 350 ; Stewart v. Hasson, 4 Legal Ga- zette, 85. 3 McDermott v. Mcllwain, 25 P. F. Smith, 341; Trimbath v. Patterson, 26 P. F. Smith, 277. " McCloud u. Jaggers, 3 Philadelphia, 304 ; see also Hopkins v. McClel- land, 8 Ibid. 302; s. c. 1 Legal Gazette Reports, 388. ^ Essler v. Johnson, 1 Casey, 350. ^ Daily v. Barrett, 4 Philadelphia, 350: Stewart i>. Hasson, 4 Legal Ga- zette, 85. ' McKeon v. King, 9 Barr, 213. 6 McDermott v. Mcllwain, 25 P. F. Smith, 341 ; Trimbath v. Patterson, 26 P. F. Smith, 277. 9 See Clark v. Everly, 8 "Watts & Sergeant, 226; s. c. 2 Clark, 219. 1° Ibid. SBC. IV.] ACT OF 1830. 167 pay the rent in arrear [except such as are by law exempt from levy and sale].' (5.) That proper notice to quit the premises [within fifteen days if given after 1st of April and before 1st of September, or within thirty days if given after 1st of September and before 1st of April] had been properly served on the tenant.^ ' (6.) That the tenant has failed to pay the rent so in arrears, or to remove from the 2)remises.^ 268. The notice to quit must be express and explicit, and must be accompanied by a demand for the rent claimed, and this no- tice must be served on the party in possession of the premises.' If the lessee reside on the premises and the notice be personally served on him elsewhere, it is a good service," and if the lessee have assigned or sub-let, the notice should be served on both lessee and the party in possession f moreover, the rent in arrear must not be calculated to a date subsequent to that of the notice.' 269. The notice having been properly made and served, not only on the tenant in possession but on the original lessee, the landlord must await the expiration of the days of grace, fifteen or thirty as the case may be, during which the tenant may pay the rent, or may remove from the premises, in which case the landlord's claim for rent is but a common debt ; but if the tenant remove it be- hooves him to notify the landlord, as otherwise the rent will con- tinue to accrue until the termination of the proceedings.^ 270. If the tenant do not pay the rent or remove from the prem- ises, the landlord may at the expiration of the time mentioned in the notice, make complaint under oath to any magistrate, justice of the peace, or alderman, setting forth the facts of the case, and herein the oath or affirmation of the landlord, or of his agent, is a condition precedent to the issue of the summons,' and on this the magistrate will issue to any constable of the city or county a pre- cept, reciting the complaint and allegations, and commanding him 1 See Clark v. Evenly, 8 Watts & Sergeant, 226 ; s. o. 2 Clark, 219. ' Ibid. ; see also, Hopkins v. JlcClelland, 1 Legal Gazette Eeports, 388;, s. c. 8 Philadelphia, 302. s Ibid. * Clark V. Everly, 8 Watts & Sergeant, 226, 228; s. c. 2 Clark, 219. Ibid. 6 Ibid. ' Stoever v. Miller, 4 Philadelphia, 149 ; Saving Pund v. Mark, 3 Ibid. 278. 8 Goldsmith v. Smith, 4 Philadelphia, 31. » Keid V. Christy, 2 Ibid. 144. 168 NON-PAYMENT OF RENT. [CHAP.V. to summon the tenant to appear at the magistrate's office at a cer- tain day, in said precept fixed, which day must not be less than three days, nor more than eight days, from the date of the precept, there to answer the complaint of the landlord. 271. On the day appointed the magistrate proceeds to try the case, and at this hearing the landlord's oath or affirmation was held to be not admissible to prove the fact or amount of rent in arrear.^ But since the passage of the act of 6th April, 1869,^ which pro- vides that no interest or policy of law shall exclude a party or person from being a witness in any civil proceedings, it is probable that such affirmation or oath is admissible. Where the landlord's complaint sets forth all the facts requisite to give the magistrate jurisdiction under the act, and the inquest recites that the magistrate found these averments to be true, it is sufficient, without the tau- tology of repeating them.* All the allegations set forth in the complaint having been found to be true, it is the duty of the magistrate to enter judgment in favor of the landlord for the re- delivery to him of the demised premises; but this judgment must be for the possession, and not in the alternative for an amount of rent, or possession,* nor can it be for the rent in arrear, nor can execution be issued for the rent under this judgment.^ 272. After the judgment the tenant has five days, except in Philadelphia, where he has ten under the act of 1865, before the writ of possession can issue, and to retain possession he may — (1.) Pay the rent in arrear and the costs.® (2.) Appeal from the judgment of the magistrate to the Court of Common Pleas, by giving security for the costs, and rent accrued and to accrue up to final judgment,' and having obtained judgment under the act of 1830, the provisions contained in the first sec- tion of the act of 20th March, 1845, do not apply.* (3.) If the tenancy be in Philadelphia, he may avail himself of the privileges accorded by the act of 24th March, 1865,' and within ' Fisher v. Bailey, 1 Ashmead, 209 » Pamplilet Laws, 80. 8 MoKeon «. King, 9 Barr, 213. " Evans v. Eadford, 2 Philadulphia, 370; Eailroad Co. v. Thornton, 8 Ibid. 257. . ^ liazen v. Culbertson, 10 Watts, 893 ; Eubicum v. Williams, 1 Ashmead, .230. « Euhiciim v. Williams, 1 Ashmead, 230. ' Ibid. * See ante, page 163, par. 2C0, and note 4. ' Pamphlet Laws, 750. SBC. IV,] ACT OF 1830. 169 ten days from the date of the judgment, and on oath before the Prothonotary of the Court of Common Pleas to the effect that it is not for the purpose of delay, but that the proceedings pro- posed to be removed are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due, and on giving security for the payment of all costs that have accrued or may accrue, and of the rent to become due up to the final determination of the certiorari, apply for a writ of certio- rari to the Court of Common Pleas, which certiorari is a superse- deas to the writ of possession. This act modifies in Philadelphia that provision of the act of 1830 which authorizes the writ of possession to issue in five days, and delays its issue until ten days after judgment.' 273. Moreover, in all other parts of the State where a certiorari is not a supersedeas,^ the tenant may apply within twenty days after the date of the judgment, or his knowledge of the same,^ to the Court of Common Pleas for a writ of certiorari, nor in order to obtain this is it requisite for the tenant to take the oath provided for in section 21, of the act of 1810.^ 274. It is also provided that no writ of possession shall be issued for five days after the rendition of the judgment, and if within the said five days the tenant shall give good, sufficient, and absolute security, by recognizance for all costs that may have and may accrue, in case the judgment be affirmed, and also for all rent that has accrued or may accrue, up to the time of final judgment, then the tenant shall be entitled to an appeal to the next court of com- mon pleas, which appeal shall be then tried in the same manner that other suits are tried. 275. It is seen that the security given by the tenant shall be suffi- cient and absolute^ for all costs and rent, and as it seemed that the act of 20th March, 1845,° which in section 1 provided that "in lieu ' Connelly v. Arundell, 6 Philadelphia, 38; Hutchinson v. Yanscriver, Ibid. 39; Do Ooursey v. Guarantee Co., 31 P. P. Smith, „n. 2 Grubb V. Pox, 6 Binney, 400; Buddy v. Hill, 8 Legal Insurance Ee- porter, 59. 3 Stedman v. Bradford, 8 Philadelphia, 258 ; Brookfield v. Hill, 1 Ibid. 439. * 5.Smilh's Laws, 172; Eubicum v. 'Williams, 1 Ashmead, 200. ' Bail absolute means, that the person giving it is bound for the full amount without privilege of defence, 6 Pamphlet Laws, 188. 170 NON-PAYMENT OF RENT. [CHAP. V. of the bail heretofore required by law in the cases herein men- tioned, the bail in case of appeal from the judgment of aldermen and justices of the peace, and from the award of arbitrators, shall be bail absolute in double the amount of costs accrued," etc., ap- plied to the act of 1830, an act was passed on 9th day of April, ] 849,^ providing that the 1st section of the act " concerning bail and attachments," passed the 20th day of March, 1845, shall not be construed to apply to the judgments of aldermen or justices, under the 1st section of the act entitled "An act relating to Landlord and Tenant," passed the 3d day of April, 1830,^ etc. 276. It would seem that an appeal from proceedings under the act of 1830 is a supersedeas to any writ of possession issued by the magistrate. That is, the appeal will deter the justice from remit- ting the landlord into possession of the demised premises. 277. When the appeal is thus taken the case is to be decided before the jury in the court to which the case is removed, just as if no prior decision had been had before the justice, and in such a case the landlord cannot suffer a nonsuit.^ By provision of act of 1st May, 1861,^ before obtaining an appeal the appellant must make oath that the appeal is not intended for delay. 278. In calculating the time allowed for an appeal care should be taken lest a return day of the court should intervene, as. if the security be entered prior to such return day the transcript must be filed previously or the appeal will be lost,^ but where the time within which an appeal is required to be entered is fixed by stat- ute the court has no power to lengthen the period." 279. 1. The act of 1830 also provides for a certiorari. The writ of certiorari is a writ issued by a superior to an inferior court, requiring the latter to send into the former some proceeding therein pending, or the records and proceedings in some cause already ter- minated. 2. In Pennsylvania, in landlord and tenant cases, it derives its force from three sources : (1st.) From the common law. ' Pamphlet Laws, 526. ' Ibid. 187. ' Koenig v. Bauer, 7 P. P. Smith, 1C8; s. c. 1 Brewster, 804. * Pamphlet Laws, 5.35. ' Moore ti. Creamer, 3 Penrose & Watts, 416 ; Potts v. Staeger, 2 Jones, 363i ' 2 Legal Observer (Luzerne), 194. SEC. IV.] ACT or 1830. 171 (2d.) By virtue of the act of 20th March, 1810, section 22," and herein it applies only to civil actions. (3d.) By virtue of the clauses in acts of 3d April, 1830,^ and 14th December, 1863,^ supplied by act of 24th March, 1865.' 3. From the first source the writ of certiorari may issue from either the Supreme Court or the Court of Common Pleas; it is not a writ of right, but is ex gratia,* nor is it a supersedeas in proceedings under the act of 21st March, 1772," or 25th March, 1825,' nor does the act of 24th March, 1865,8 affect it. 4. From the second source it issues to justices of the peace from the Court of Common Pleas, but the act of 1810,' section 24, pro- vides that " no writ of certiorari issued by or out of the Supreme Court to any justice of the peace in any civil suit or action, shall be available to remove the proceedings had before such justice of the peace." However, it was held in the Supreme Court that this act does not apply to proceedings under the landlord and tenant laws.'" 5. From the third source it issues in accordance with the pro- visions of the acts of 3d April, 1830,'' and 14th December, 1863,^ and is in Philadelphia, by virtue of act of 24th March, 1865," a supersedeas, provided it be issued within ten days after the date of the judgment entered, and upon the oath of the party applying for it; and provided also that the party applying shall give secu- rity for costs and rent accrued and to accrue up to the determina- tion of the certiorari. 6. In all other parts of Pennsylvania the certiorari issued under proceedings under act of 3d April, 1830, is not a supersedeas, nor is it requisite in applying for it to take the oath or affirmation provided for in the act of 1810." 7. The tenant cannot, however, have both an appeal and a certio- 1 5 Smith's Laws, 171. ' Pamphlet Laws, 187. - Ibid. 1864, 1275. * Ibid. 750. 6 Groenwelt v. Burwell, 1 Salkeld, 144. « 1 Smith's Laws, 370. ' 8 Smith's Laws, 411. s Pamphlet Laws, 750. 9 5 Smith's Laws, 172. 1° Clark V. Yeat, 4 Binney, 185; Lenox v. McCall, 3 Sergeant & Eawle, 95; Zimmorly v. Koad Commissioners, 1 Casey, 134; Commonwealth v. Burk- hart, 11 Harris, 521 ; Cooke v. Eeinhart, 1 Eawle, 317. " Pamphlet Laws, 187. " Ibid. 1864, 1275. is ibid. 750. 1* Eubicum v. "Williams, 1 Ashmead, 230. 172 NON-PAYMENT OP RENT. [CHAP.V. rari,' the latter brings nothing before the court but the record, the evidence does iiot come, and herein it differs from the former, as when the case comes up under an appeal it is decided before the jury as if no prior decision had been made,^ 8. If the proceedings of the magistrate be afGrmed by the Court of Common Pleas, they will issue a writ of possession.' 9. Where, in the proceedings before the magistrate, the attempt is made by the tenant to set aside the proceedings by a claim of title in himself, his own affidavit to that effect will be of no avail, the title must be proved like any other fact in the cause,* and if he succeed therein, it is the duty of the magistrate to dismiss the suit.° If the tenant fail to prove this, he may appeal to the Common Pleas, and therein prove his claim or the alienation of the rever- sion by the landlord since the commencement of the proceedings.^ 10. An appeal from the decision of the magistrate is a stay to further proceedings,'^ and in that case, or in Philadelphia after a writ of certiorari, under the provisions of the act of 24th March, 1865, the tenant may remain in possession until final judgment,* and the landlord may sue for his rent by the usual process.* 11. The tenant failing to avail himself of his right of appeal or certiorari, the magistrate issues a writ of possession to a constable of the city or county, commanding him forthwith to deliver actual possession of the premises to the landlord, and also to levy the costs on the tenant in the same manner that costs are by law levied and collected on writs of execution. 12. When the tenant appeals from the decision of the magis- trate, and the case is again tried in the Common Pleas, without resulting in a successful issue for him, he may, by a writ of error, have it removed to the Supreme Court, wherein the evidence would be reviewed. 13. But, if he have the proceedings removed by a writ of certio- rari to the Common Pleas, and there fail, and then apply to the 1 City V. Kcndrick, 1 Brewster, 406. » Bedford v. Kelly, 11 P. P. Smith, 491 ; Essler v. Johnson, 1 Casey, 350. s Ibid. * Ibid. ; Allen v. Nash, 6 Philadelphia, 812, and cases there cited. 6 Ibid. ^ Ibid. ; see also O'Neill v. Cahill, 2 Brewstnr, 357. ' Kubicum v. Williams, 1 Ashmead, 230. ' Pamphlet Laws, 750. 9 Eubieum v. Williams, 1 Ashmead, 230. SEC. v.] THE ACTION OF COVENANT. 173 Supreme Court, the evidence before the justice in the case cannot in either court be re-examined.' 280. A perusal of the act of 1830 will show that there is no undue haste in the proceedings, since the tenant has fifteen days between the 1st of April and the 1st of October, and thirty days between the 1st of October and the 1st of April, after the land- lord has notified him, before proceedings can commence, and then not less than three days before the case can be tried, after which he has, in Philadelphia, ten days in which to conclude whether he will take advantage of the act of 1865, making a certiorari a supersedeas, and in other parts of the State he has five days in order to give him an opportunity to appeal, so that he has, even before trial, at the least eighteen days, and in Philadelphia, after the trial, ten days, and in the other parts of the State at least five days before the writ of possession can issue. [For forms of procedure under the act of 1830, see Appendix.] SECTION V. THE ACTION OF COVENANT. / 281. The fifth remedy for th© non-payment of rent to which a landlord in Pennsylvania may resort is the action of covenant. This remedy is one of great antiquity, being found in England in that old collection of actions called the Registrum Brevium, or Register of Writs. 282. The covenant to pay rent runs with the land and binds the assignee, and the action lies for the recovery of damages for the breach of every agreement contained in a written instrument under seal, whether expressly stated in the Instrument or implied from the terms thereof.^ 283. It is extended in Pennsylvania, by the act of 25th April, 1850, section 8,' to enforce the payment of any ground-rent due upon lands held by virtue of any lease for life, or a term of years, ^ Essler v. Johnson, 1 Casey, 350; Clark v. Teat, 4 Binney, 185 ; Lenox v. McCall, 3 Sergeant & Eawle, 94. ' Shaeffer v. Geisenberg, 11 "Wright, 500; McKnight •». Kreutz, 1 P. F. Smith, 232 ; McManus & Henry v. Cassidy, 16 Ibid. 260. ^ Pamphlet Laws, 571. 174 NON-PAYMENT OP KENT. [OHAP. V. or in fee. The section is as follows : . " In all cases now pending, or hereafter to be brought in any court of record in this common- wealth, to enforce the payment of ground-rent due and owing upon lands or tenements, held by virtue of any lease for life, or a term of years or in fee, the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee or lessees, his, her, or their heirs, executors, administra- tors, or assigns, whether the said premises out of which the rent issues be held by deed poll or otherwise." Prior to this, the action would not lie for the breach of any covenants contained in a lease not under seal, nor for tha breach of covenants contained in a deed poll. 284. 1. The action continues to lie against the lessee notwith- standing his assignment of the term and lease and the recognition of the assignee by the lessors recovering rent from him.' 2. The tender of the rent by the assignee to the lessor dis- charges the premises from liability to distress.^ 3. The assignee continues liable, personally, only so long as he has title, and he may relieve himself from future rent by assign- ing to another.' 4. The lessee is not relieved from his covenant by a modification of the terms of the lease being made between his assignee or sub- tenant and the original lessor, provided the modification be not detrimental to his interests.* 285. The action of covenant, for the non-payment of rent, will lie even though there be a sufficient distress on the premises.^ 286. It will also lie for tha recovery of rent reserved and due from premises, that have been destroyed by fire or flood, or surrounded by water, or taken possession of by the public enemy;' ,6 ' Kunckle v. "Wynick, 1 Dallas, 305; Ghegan v. Young, 11 Harris, 18; Frank v. Maguire, 6 Wright, 77 ; Dewey v. Dupuy, 2 "Walts & Sergeant, 553; Fulmer v. Cressman, 4 Legal & Insurance Beports, 116 ; S. 0. 2 Luzerne Legal Observer, 331. 2 Lyon V. Houk, 9 Watts, 193. " Borland's Appeal, 16 P. P. Smith, 470; Wiley's Estate, 6 Weekly Notes, 208. '' Fisher v. MiHiken, 8 Barr, 111. ^ Royer v. Ako, 3 Penrose & Watts, 461. ^ Pollard t). Shaaffer, 1 Dallas, 210; Smith v. Ankrim, 1 3 Sergeant & Eawle, 39 ; Magaw v. Lambert, 3 Barr, 444 ; Bussman v. Ganster, 22 P. F. Smith, 285. SBC. v.] THE ACTION OF COVENANT. 175 but this will not apply where the premises are an upper chamber or room in a house and there is no clause in the lease compelling either lessor or lessee to rebuild.^ 287. It will lie for damages where in a lease of a stone quarry at a set price for each perch quarried, the tenant fails to work the quarry.^ 288. Unless there be some contrary provision in the lease it may be said : (1st.) That the tenant is liable to the payment of the rent whether the premises are in good condition or not.^ (2d.) That he is liable whether the premises are burnt down or destroyed or not, and from this a court of equity cannot relieve him.'' (3d.) That even when the premises are burnt down and the landlord collects'the insurance thereon, the rent still accrues, nor can the landlord be compelled to rebuild.* 289. The'covenant to pay rent may be annulled by : (1st.) Eviction by the landlord, or by a stranger under a title adverse to that of the landlord.^ (2d.) The purchaseof the reversion by the tenant or his assignee of the term.' (3d.) The merger of the estate of the covenantor and cove- nantee.^ (4th.) By the surrender of the term by the lessee, or the release of the covenants by the lessor.* 290. At common law theiassignee of a tenant for years of prem- ises demised by a sealed lease was not liable to the assignee of the lessor in an action of covenant for the non-payment of rent, as no one but the party sealing the lease could be so sued ; but this was I Graves v Berdan, 26 New York, 498. " Watson V. O'Hern, 6 Watts, 362. ' Kline v. Jacobs, 18 P. P. Smith, 57, and cases there cited ; Wheeler v. Crawford, 6 Weekly Notes, 172, and cases there cited. ■* Magaw V. Lambert, 3 Barr, 444; Bussman v. Ganster, 22 P. F Smith, 285 I Smith v. Ankrim, 13 Sergeant & Eawle, 39. 5 Ibid. ' Salmon v. Smith, 1 Saunders, 204, n. (2.) ' Webb V. Eussel, 3 Term Reports, 893. » Treport's Case, 6 Coke, 285. ' Greider's Appeal, 5 Barr, 422. 176 NON-PATMENT' OF KENT. [CHAP. V. changed by section 1 of the statute of 32 Henry YIII, chapter 34/ in force in Pennsylvania, which gives the assignee of the reversion, where the lease was under seal, and the tenancy for years, a right to the action.^ And it was held by the Supreme Court,* that a grantee under a deed poll could not be held liable in an action of covenant for the breach of the covenant contained in the instru- ment. To remedy this the provision contained in section 8 of the act of 25th April, 1850^, was made, which, as already quoted, enacts that "the lessor, his heirs and assigns, shall have a full and complete remedy therefor by action of covenant against the lessee, his, her, or their heirs, executors, administrators, or assigns, whether the said premises out of which the rent issues be held by deed poll or otherwise." So that now the action lies, when it is to enforce the payment of rent, whether the lease be sealed or not, or whether the lessee or assignee signed or sealed it or not, provided he has entered into possession under a letting; and it lies against his heirs, executors, administrators and assigns, whether the tenancy be for years or in fee.' Leases not under seal are not within the purview of the statute of 32 Henry VIII,^ but the act of 25th April, 1850, more than supplies the statute. 291. 1 . When the action is brought by one person for the beneiit of another, the action must be brought in the name of the covenan- tee, and not in the name of the person to be benefited.' 2. It cannot be brought for a breach committed by the lessee, subsequent to a declaration in ejectment for a forfeiture of the term.' 3. A recovery in one action of covenant is not a bar to the bringing of another action for rent accrued under the same lease.' 4. The action is transitory, under the statute of Henry VIII, and, therefore, may be brought, whether the land out of which the • Eoberts's Digest, *227. * Irish V. Johnston, 1 Jones, 483. ' Maule V. Weaver, 7 Barr, 329. * Pamphlet Laws, 571. ' Taggart v. McGinn, 2 Harris, 155. ' Sheets v. Solden's Lessee, 2 Wallace, 177. ' Stroheckeri). Grant, 16 Sergeant & Kawle, 237 j Poor Direstors v. McPad- den, 1 Grant, 230. ' Jones V. Carter, 15 Meeson & Welsby, 718. ° Merchants' Insurance Company v. Alger & Co., 7 Casey, 446. SBC. V.j THK ACTION OF COVENANT. 177 rent is reserved lies in the county wherein the suit is brought or not.' 292. The words "yielding and paying" in a lease make a covenant on the part of the tenant to pay the rent, but generally a special covenant to do so is also included f and it was held ia Vermont that the covenant in this case is implied and not ex- press.^ 293. 1. The tenant may defalcate against the landlord's claim for rent, taxes, coming due and payable during his tenancy, assessed against the property demised and paid by him.* 2. He may also recoup for damages arising from the failure of the landlord to fulfil some covenant contained in the lease incum- bent on him to perform." 294. 1. The tenant may also plead eviction from the demised premises,* but this will have no effect on the rent already due, and for this the tenant remains liable;'^ but if he be evicted before the rent is due the tenant is excused the accruing rent, as rent does not accrue from day to day as interest does.' A mere entry on the demised premises by the landlord is not an eviction, nor does it discharge the rent; in such a case a landlord is a mere trespasser.' If the tenant seek to excuse himself by the plea of eviction by a stranger, he must show that such stranger had a right to evict him.'" 2. The tenant may also plead the acceptance of a surrender of the premises by the landlord, by which he acquits the tenant of the rent coming due." 3. He may also plead a release.'^ 4. The tenant may also plead performance with leave, which 1 Henwood v. Cheeseman, 3 Sergeant & Kawle, *500. ■ " 1 Bolle's Abridgment, 519. ' Kimpton v. Walker, 9 Vermont, 191. * See post, page 503, \ 952. 5 Fairman i>. Fluck, 5 Watts, 516. « Wolf jj. Weiner, 2 Brewster, 524; S. 0. 7 Philadelphia, 274; Garrison?)^ Moore, 1 lb. 282; Bauer v. Broden, 3 lb. 214; McClurg o. Price, 9 P. F. Smith, 420 ; Doran ». Chase, 2 Weekly Notes, 609. ' Kessler d. McConachy, 1 Eawle, 435 ; Tiley v. Moyers, 7 Wright, 404 8 Bank of Pennsylvania v. Wise, 3 Watts, 394, and cases there cited. ' Roper V. Lloyd, cited in Hu^t v. Cope, Cowp. 242. ^0 Jordan v. Twells, Hardwicke, 172. " Snyder v. Middleton, 4 Philadelphia, 343. " Ibid. 12 178 NON-PAYMENT OF RENT. [CHAP. V. permits him to put in evidence everything which amounts to a defence.' Under this plea he can set up facts in defence which, though not amounting to payment, may excuse the same.^ 295. In the action of covenant the declaration of the plaintiff should set forth the lease under which he claims his damages, and a profert of the lease should be made or an excuse be given for the omission to produce it.^ The consideration should also be truly set forth and proved as laid. 296. The judgment in the action of covenant in favor of the plaintiff is for the damages that he may have sustained by reason of the breach, together with costs of suit, and when the judgment is in favor of the defendant, the jury may in this action find and certify a balance in his favor.^ Note. — In a manual intended to be condensed it is impossible to enter into detail on a subject so intricate as the consideration of covenants and the action thereon ; and for further information the reader is therefore referred to Eawle on Covenants for Title, Selwyn's Nisi Prius, Piatt on Covenants, and Spencer's Case, with Notes by Judge Hare, 1 Smith's Leading Cases, *116-»183. [For forms of procedure in the action of covenant, see Ap- pendix.] SECTION VI. THE ACTION OF ASSUMPSIT FOR USE AND OCCUPATION. 297. The sixth remedy for the non-payment of rent to which a landlord in Pennsylvania may resort is the action of assumpsit for use and occupation. The action of assumpsit is an action on the case, but from its general use it has acquired a generic character, and owes its being to the Statute of Westminster 2, 13 Edward I, chapter 24,^ which in section 2 enacts as follows : " And whensoever from henceforth it shall fortune in the chancery, that in one case a writ is found, and in like case falling under like law, and requiring like remedy is found none, the clerks of the chancery shall 1 Bender v. Fromberger, 4 Dallas, 436, 439 ; Neave u. Jenkins, 2 Teates, 108. s Evans v. Dravo, 12 Harris, 62. * Thoresly v. Sparrow, 1 Wilson, 16. •* Vicary v, Moore, 2 Watts, 451. ' Eoberts's Digest, *158. SEC. VI.J THE ACTION OP ASSUMPSIT. 179 agree in making the writ, or the plaintiffs may adjourn it until the next Parliament, and let the cases be written in which they cannot agree, and let them refer themselves until the next Parliament, by consent of men learned in the law, a writ shall be made, lest it might happen after that the court should long time fail to minister justice unto complainants." From this statute is derived trover and all actions on the case. 298. 1. The action of assumpsit could not form:erly be main- tained for rent in arrear upon a parol lease for years,' but to ob- viate this it was enacted by the Statute 11 George II, chapter 19, section 14 :^ " That it shall and may be lawful to and for the landlord or landlords, when the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements or hereditaments, held or occupied by the de- fendant or defendants, in an action on the case, for the use and occupa- tion of what was so held or enjoyed ; and if, in evidence, on the t/ial of such action, any parol demise or any agreement (not being in deed) whereon a certain rout was reserved, shall appear, the plaintiflf in such action shall not thereupon be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." 2. Section 15 of the same statute enacts as follows : " And whereas, where any lessor or landlord, having only an estate for life in the lands, tenements or hereditaments demised, happens to die before or on the day on which any rent is reserved, or made payable, such rent, or any part thereof, is not by law recoverable by the executors 01 administrators of such lessor or landlord ; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements or hereditaments, from the death of the tenant for life ; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the same ; For remedy whereof. Be it enacted by the authority aforesaid. That from and after the twenty-fourth day of June, one thousand seven hundred and thirty-eight, where any tenant for life shall happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tene- ments or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life, shall and may, in an action on the case, recover of and from such under-tenant or under-tenants of such lands, tenements or hereditaments, if such ten- ant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, according to the time such tenant for life lived ; of the last year or quarter of a 1 Brett V. Bead, Croke-Car. 343 ; 1 Eolle's Abridgment, 7. » Eoberts's Digest, *237. 180 NON-PAYMENT OP BENT. [CHAP. V. year, or other time in which the said rent was growing due as aforesaid, making all just allowances or a proportionable part thereof respectively." 3. Section 15 of the Statute 11 George II, chapter 19, was sup- plied by section 30 of the act of 24th February, 1834,' as follows : " The executors or administrators of any tenant for life, who shall die before or on a day on which any rent was reserved or made payable upon any demise or lease of any real estate, which determined on the death of such tenant for life, may have an action on the case, to recover from the lessee or under-tenant of such real estate, if such tenant for life die on the day on which the same was made payable, the whole, or, if before the day, a proportion of such rent for the last year, or quarter of a year, or other current period of pajoiient, according to the time elapsed at the decease of such tenant for life as aforesaid. " 4. And section 7 of the same act vests the part coming to any tenant for life in his executors or administrators, which is as fol- lows : "The rents of any real estate accruing to any tenant for life, of such estate who had demised the same, for a term or time not fully expired at his decease, shall go to and be vested in the executors or administrators of such tenants ; and the due proportion of such accruing rent, to be com- puted according to the time elapsed at the decease of such tenant, shall be included in the inventory of personal assets." 5. Section 9 vests in the executors or administrators of the dece- dent, all estates for the life or lives of another person or persons, unless the same be limited to the decedent and his heirs. 6. The right to the action of assumpsit against executors was formerly doubted in England, but it was decided in the case of Norwood V. E,ead,^ that it would lie. The right to avail themselves of it, of suffer from it, is given in Pennsylvania, by section 28 of the act of 24th February, 1834,* which is as follows ; "Executors or administrators shall have power to commence and prosecute all personal actions which the decedent whom they represent might liave commenced and prosecuted, except action for slander, for libels, and for wrongs done to the person ; and they shall be liable to be ' Pamphlet Laws, 73. * 4 Eeevts's History of the English Law, 527. ' Pamphlet Laws, 73, 78. SEC, VI.] THE ACTION OF ASSUMPSIT. 181 sued in any action, except as aforesaid, which might have been main- tained against such decedent if he had lived." 7. The same act, in section 8, also vests in such executors and administrators the right to the rent which had accrued during the lifetime of the decedent, as follows : "The arrearages of any rent charge, or other rent or reservation in nature of a rent, due at the death of any tenant, in fee simple, fee tail, or for term of life or lives of such rent, shall go to and be vested in the executors or administrators of such tenant, and be included in the in- ventory and appraised as personal estate, " 299. The distinction between the action of assumpsit and the action of debt is, that the latter only lies when there is a contract, and a "quid pro quo," whereas the former lies where there is a contract (not by deed) implied or expressed, but no quid -pro quo} 300. Assumpsit differsfrom covenant in this, that covenant lies where there is a deed, and assumpsit where there is not.' 301. The action of assumpsit for use and occupation is founded upon privity of contract, not privity of estate.^ By means of this action the plaintiff recovers in action for use and occupation, not the rent, but a reasonable satisfaction for the use of the premises."* The proof of the demise may be either direct or presumptive; if the plaintiff prove that the defendant occupied the premises by his permission, it is enough.' 302. In Pennsylvania the action of assumpsit for use and oc- cupation will lie as follows ; (1.) For the use and occupation of lands in another State." (2.) Where a tenant holds under an agreement to take a lease.' (3.) For the use and occupation of lands and tenements sold at sheriff's sale in favor of the purchaser, against the tenant for the time the latter held possession after the delivery to the former of the sheriff's deed.' 1 4 Eeeves's History of the English Law, 382. = Ibid. 5 Hen wood v. Cheeseman, 3 Sergeant & Eawle, 500; Brolasky v. Ferguson, 12 Wright, 434. * Henwood v. Cheeseman, 3 Sergeant & Eawle, 502. » Ibid. ; Brolasky v. Ferguson, 12 Wright, 434, ^ Henwood «. Cheeseman, 3 Sergeant & Eawle, 502. ' Elliott ». Eogers, 4 Espinasse, 59. » Stockton's Appeal, 14 P. F. Smith, 58 ; S. C. 3 Brewster, 320. 182 NON-PAYMENT OF RENT. [CHAP. V. (4.) Against a defendant who, after making a parol agreement to rent, afterwards refuses to take possossion.' (5.) Where, after possession under a parol agreement, the de- fendant abandoned the possession and tendered the possession to the lessor.^ (6.) In favor of the executors or administrators of a decedent landlord against the tenant.' (7.) In favor of one tenant in common against his co-tenant in common for his share of the rent received by the latter from the tenant of premises demised by them jointly.^ (8.) On a specialty modified by a parol agreement.* (9.) To recover damages, where a landowner by a parol agree- ment agreed to employ a farmer to cultivate his land on shares.' (10.) In favor of a landlord against his tenant for the breach of the implied contract to use the land in a husbandlike manner.^ (11.) In favor of, or against a corporation." 303. The action of assumpsit for use and occupation will not Ke as follows : (1.) In favor of one tenant in common against his co-tenant, unless where there be an express contract to pay rent.' (2.) Where the premises are let for an illegal purpose, as for a house of prostitution.'" (3.) Where six years have elapsed since the time of the cause of action." (4.) Where there is no contract, either express or implied, be- tween the parties." ' MoGunnagle v. Thornton, 10 Sergeant & Eawle, 251. ' Grant v. Gill, 2 Wharton, 42 ; Marseilles v. Kerr, 6 "Wharton, 500. » Act of 24th February, 1834, section 28, Pamphlet Laws, 73. * Gillis V. McKinney, 6 Watts & Sergeant, 78 ; Borrell v. Borrell, 9 Casey, 492. ' Vicary v. Moore, 2 Watts, 451. ' Hoy v. Grenoble, 10 Casey, 9. ' 1 Chitty's Pleadings, »n4. (16th Ed.) ' The Chestnut Hill and Spring House Turnpike Company v. Eutter, 4 Sergeant & Eawle, 6, 15. 9 Eline v. Jacobs, 18 P. F. Smith, 57. ■"> Girardy v. Eichardson, 1 Espinasse, 13. " Act of 27th March, 1813, 1 Smith' Laws, 76 ; Vicary v. Moore, 2 Watts, 451,457. " Brolasky v. Ferguson, 12 Wright, 434 ; Pott v. Lasher, 1 Teates, 576 ; Breokbill v. Turnpike Co. 3 Dallas, 496. SEC. VI.] THE ACTION OF ASSUMPSIT. 183 (5.) Where the demise was made by a deed under seal.' (6.) Unless the same be altered by a subsequent parol agree- ment clearly proven. (7.) To recover the value of specific articles in the possession of another.' (8.) To determine or try the title to land.* (9.) In favor of one tenant in common against another to re- cover the price of ore paid by the former under the mistaken opinion that the latter had the exclusive title to the land.' (10.) For the price of sand taken by one tenant in common from the joint property .° (11.) When the claim is based on an assurance of a nature higher than a promise, as for example, a lease by deed.' 304. In assumpsit, the plaintiff must, in his declaration, disclose the consideration upon which the contract was founded, the con- tract itself, whether implied or express, and the breach thereof^ and damages should be laid to cover the amount claimed;' but in this action no damages can be recovered for the violation of faith.' 305. Where two persons are jointly charged, a joint liability must be proved,'" and the plaintiff must in his pleadings allege a special parol contract or agreement, or he cannot recover." 306. The plea of the defendant is generally " non-assumpsit," and under this he may give in evidence most matters of defence.'^ He may also plead payn.cut," or he may in an action for use and occu- pation, plead a set-off of taxes paid, either coming due or assessed 1 Blume V. McClurken, 10 Watts, 380; Irwin v. Shultz, 10 Wright, 74. 2 Shaeffer v. Geisenberg, 1 1 Wright, 500 ; Irwin o. Shultz, 10 Wright, 74 ; McManus & Henry v. Cassidy, 16 P. V. Smith, 260. 3 Willet V. Willet, 3 Watts, 277. * Lewis V. Robinson, 10 Watts, 338, and eases there cited. * Irvine v. Hanlin, 10 Sergeant& Eawle, 219. ' Baljer v. Howell, 6 Sergeant & Eawle, 475. ' January v. Goodman, 1 Dallas, 208; Gilson v. Stewart, 7 Watts, 103. 8 1 Chitty's Pleading, *121 (16th Ed.). ' Hoy V. Gronoble, 10 Casey, 9. '" Eowan v. Eowan, 5 Casey, 181 ; Sohoneman v. Fegley, 7 Barr, 433. w Irwin v. Shultz, 10 Wright, 74. '" Stewart v. Kelly, 4 Harris, 160, and cases there cited; Kennedy v. Ferris, 5 Sergeant & Eawle, 394. J» McNairu. McLennan, 12 Harris, 384. 184 NON-PAYMENT OF KENT. [CHAP. V. during his occupancy,^ but when he makes a special plea he must give notice in compliance with the rules of court.^ 307. The judgment, when in favor of the plaintiff, is that he recover a specific sum assessed by the jury for his damages and full costs of suit." [For forms of procedure in assumpsit for use and occupation, see Appendix.] SECTION VII. THE ACTION OF DEBT. 308. The seventh remedy for the non-paymert of rent to which a landlord in Pennsylvania may resort is the action of debt. This action is one of those mentioned in the Registrum Brevium; and is distinguished from covenant by its lying on the privity of estate, whereas covenant lies on the privity of contract;* and from assumpsit in this, that it lies for a sum, either certain, or that can be reduced to a certainty, whereas assumpsit lies for damages.^ Moreover, debt lies for rent in arrear where the lease is under seal,® whereas assumpsit does not.' The action of debt is founded on the privity of contract, which is said to be annexed to the person in respect to the estate, and it follows the estate, and is transferred with it ; therefore, when a landlord grants or assigns his reversion, the remedy passes to his grantee.^ 309. This action did not lie at common law in favor of the heir, or personal representative, for the arrearages of rent accrued during the lifetime of an intestate or testate landlord ; the heir could not maintain an action of debt for them, as he had nothing to do with the personal contracts of his ancestor, nor could the executor or administrator, because he could not represent the decedent as to any contracts relating to the freehold. To remedy this the 1 See Act of 3d April, 1804, 4 Smith's Laws, 203 ; Act of 15th April, 1834, Pamph. Laws, 518. ' Irwin v. Leibert, 5 Watts & Sergeant, 104. s 1 Chitty's Pleading, *121 (16th Ed.). * Kunckle v. Wynick, 1 Dallas, 305. 6 1 Chitty's Pleading, *121 (16th Ed.). 6 1 Chitty's Pleadings, *12G (16th Ed.). ' Blumor. McClurken, 10 Watts, 380. 8 Mackey v. Kobinson, 2 Jones, 170 ; Humhle ii. Glover, Croke-Eliz., 328. SEC. VII.] THE ACTION OF DEBT. 185 statute 32 Henry VIII, chapter 37, was passed,' authorizing exec- utors and administrators to bring the action ; and this statute was also supplied by act of 24th of February, 1834,^ which in sec- tions 7, 8, and 29, provides as follows : ''Sec. 7. The rents of any real estate accruing to any tenant for life, of such estate who had demised the same, for a term or time not fully ex- pired at his decease, shall go to and be vested in the executors or admin- istrators of such tenants ; and the due proportion of such accruing rent, to be computed according to the time elapsed at the decease of such ten- ant, shall be included ia the inventory of personal assets. "Sec. 8. The arrearages ofany rent charge, or other rent or reservation in nature of a rent, due at the death of any tenant, in fee simple, fee tail, or for term of life or lives of such rent, shall go to and be vested in the executors or administrators of such tenant, and be included in the in- ventory and appraised as personal assets. " Sec. 29. The executors or administrators of every person who was the proprietor of any rent charge, or other rent or reservation in nature of a rent, in fee or otherwise, as mentioned in the eighth section of this act, shall and may have an action of debt for the arrearages of such rent due to the decedent, at the time of his decease, against the person who ought to have paid such rent, or his executors or administrators, or they may distrain therefor upon the lands or tenements which were charged with the payment thereof, and liable to the distress of such decedent, so long as such lands or tenements remain and are in the seizure or posses- sion of the tenant who ought to have paid such rent, or in rthe posses- sion of any other person claiming the same, from or under the same tenant, by purcliase, gift, or descent, in like manner as such decedent might have done if he had lived. ' ' 310. The action of debt for rent in arrear may be brought by a lessor against his lessee, either in the county where the demised premises lie, or in that in which the lease was made,' but when brought by a grantee of the reversion against the lessee, or against the assignee of the tenant, it must be brought in the county where the demised premises are.* If the action be brought in the wrong county, it may be demurred to. When the action is brought for rent it is not necessary to declare on the deed.* 311. When the action is brought against the executor or ad- ministrator of a deceased tenant it must be in the detinet, if the • Koberts's Digest, *254. » Pamphlet Laws, 73. " Patterson v. Scott, 2 Strange, 776. ' Ibid ; Barker v. Damer, Carthew, 183. ' Davis V. Shoemaker, 1 Bawle, 136. 186 NON-PAYMENT OF RENT. [CHAP. V. rent had accrued during the lifetime of the decedent.' If the rent accrued after the death of the decedent, it is optional with the landlord to bring it either in the debet or detinet.^ In the first case the action is transitory, in the second it is local.^ 312. Where the demise is not by deed the action for use and occupation has been substituted for the ancient method of declar- ing in debt for rent in arrear.* 313. If the rent be by deed the defendant may plead nora est fadum, or nil debet.'' If not by deed, non demisit, or nothing in arrear, or that he had never enjoyed the premises. Where nil debet is pleaded, if there be a receipt for the rent of a later month, or year, it is presumptive evidence that all former rent has been paid. 314. Where the action is against a lessee, or his personal repre- sentative, an assignment of the term cannot be pleaded, as the privity of the contract still exists,' but where there is an assign- ment of the term, and the lessor accepts the assignee as his tenant, the assignment may be pleaded, as by the acceptance by the lessor of the assignee as a tenant the privity of contract is broken as between him and the original lessee.^ 315. The tenant may also plead eviction; he may also plead in- fancy, but in this case the infant must waive the land before pay day. He may also plead the statute of limitation of 27th March, 1713,' if the rent has been reserved by a parol lease, and six years have elapsed since the same became due, and though a tenant cannot deny his landlord's title to the demised premises,' yet he may show that it has expired.'" [For forms of procedure in the action of debt, see Appendix.] 1 1 Eolle's Abridgment, 603. ' Koyston v. Cordrye, Aleyn, 43. » Cormel v. Lisset, 2 Levinz, 80. * Wilkins v. "Wingate, 6 Term Eeports, 62. » Bauer v. Eoth, 4 Eawle, 83, 92. » See Walker's Case, 3 Coke, 59. ' Marsh v. Brace, Croke-Jac, 334 ; Marrow v. Turpin, Croke-Eliz., 715. " 1 Smith's Laws, 76. » Naglee v. IngersoU, 7 Barr, 185. >» Heokart v. McKee, 5 Watts, 385 ; Elliott v. Smith, 11 Harris, 131. SEC. VIII.] THE ACTION OP ANNUITY. 187 SECTIOiSr VIII. THE ACTION OF ANNUITY. 316. The eighth remedy for the non-payment of rent to which a landlord in Pennsylvania may resort is the action of annuity. The only rent for which this action will lie is that accruing from a rent charge,' which is when a man seized of land grants by deed poll or indenture, a yearly rent issuing out of the same land to another in fee, in tail, or for life, and inserts in the deed a clause of distress.' It differs from an annuity in this, that in a rent charge the rent is payable solely out of the land ; in an annuity both the land and the person of the grantor are liable, or the person only.* 317. The regular remedies for the recovery of arrearages of rent from a rent charge are either by writ of annuity or by distress, and it is for the grantor to elect between them, and in some cases the action of annuity is preferable : thus if a tenant for years grants for himself and his heirs a rent charge out of his land to another and his heirs, and the rent falls in arrear, if the grantee distrain, he throws the charge entirely off the person of the grantor on to the land, and when the term ceases the rent charge is extinct, because the tenant for years could not charge the land longer than his interest therein existed ; whereas, if the grantee bring a writ of annuity, the charge on the personal assets of the tenant for years, and of his heirs, will yet continue.* 318. As rent charges are not common in Pennsylvania, and as annuities created by will or otherwise generally contain some clause under which an action of covenant will lie, this writ is seldom brought, but it still is a proper remedy.* [For forms of procedure in the action of annuitv, see Appendix.] ' See Bacon's Abridgment, Annuity ; Horton v. Cool?:, 10 "Watts, 124. * See Bacon's Abridgment, Annuity. ° Ibid. ' Ibid. ' See Gocbenauer v. Cooper, 8 Sergeant & Kawle, 186. 188 FRAUDULENT REMOVAL. [CHAP. VI. CHAPTER VI. Feaxtdulent Removal to avoid Disteess. SECTIOlsr I. ACT OF 1772, SECTION V. 319. The third wrong which a landlord may suffer from his tenant, is the fraudulent removal of the tenant's chattels to avoid a distress. In order to make a removal fraudulent, it must be made at night, or the landlord must be deceived by some fraudu- lent statement made by the tenant. A mere removal in the day- time, without the consent of the landlord, is not fraudulent, nor in such a case can the landlord follow the goods ; it is his duty to be vigilant.' 320. The first remedy for this wrong is the seizure of the ten- ant's chattels off the premises, by virtue of the provisions of sec- tion 5 of the act of 21st March, 1772,^ which enacts as follows : 'Section 5. In case any lessee for life or lives, term of years, at will, or otherwise, of any messuages, lands or tenements, upon the de- mise whereof any rents are or shall be reserved or made payable, shall, from and after the publication of this act, fraudulently or clandestinely convey or carry off or from such demised premises his goods and chat- tels, with intent to prevent the landlord or lessor from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any other person or per- sons by him for that purpose lawfully empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wher- ever the same may be found, as a distress for the said arrears of such rent, and the same to sell, or otherwise dispose of, in such manner, as if the said goods and chattels had actually been distrained by such lessor or landlord in and upon such demised premises, for such arrears of rent. " 321. The landlord or his bailiff may follow the chattels fraudu- lently or clandestinely removed, after the rent is due, at any time * Grant & MoLane's Appeal, 8 Wright, 477, and cases there cited ; Hoops 1). Crowley, 12 Sergeant & Eawle, 219; Morris «. Parker, 1 Ashmead, 187. See Chapter V, page 125, f 175. 1 Smith's Laws, 370. SBC. II.J ACT OF 1825, SECTION I. 189 within thirty days after the removal,' but he does so at the risk of the chattels having been sold to a bond, fide purchaser having no knowledge of such removal,^ and if he enters the premises of a third party to search for the chattels, and fails to find thera, he be- comes a trespasser.^ Moreover, he cannot follow the goods of a stranger, though clandestinely removed, with the intent to avoid a distress,^ while he can follow those of the tenant's assignee or of the under-tenant.' If the tenant removes the chattels, and the landlord's bailiff or distrainer sees him doing so, he may follow and distrain upon them on the highway or wheresoever found.* 322. In all parts of the State, excepting Philadelphia, Pitts- burgh, and Allegheny, a tenant may remove his chattels from the demised premises at any time before the rent is due, either openly or clandestinely, and the landlord cannot follow them.'' SECTION II. ACT OF 1825, SECTION I. 323. The second remedy for the fraudulent removal of the tenant's chattels to avoid a distress, to which a landlord in Phila- delphia, Pittsburgh, and Allegheny may resort, is the seizure of the tenant's chattels off the premises, by virtue of the provisions of section 1 of the act of 25th March, 1825,* which enacts as follows ■? 1 Grace II. Shively, 12 Sergeant & Eawle, 217. 2 Cliflford V. Beams, 3 "Watts, 246. In England, under a statute of similar import, it has been held that if the tenant's goods are fraudulently removed, they are prima facie liable to be distrained, and it is for the claimant of them to show affirmatively that he is a bon& fide purchaser, without notice of the fraud. Williams ». Eoherts, 14 English Law and Equity Eeports, 482; s. c. 7 Exchequer Eeports, 618. ' Hobbs V. Geiss, 13 Sergeant & Eawle, 417. * Adams v. La Comb, 1 Dallas, 440; Sleeper w. Parrish, 7 Philadelphia, 247. ' Jones 1). Gundrim, 3 Watts & Sergeant, 531. « Clifford V. Beems, 3 Watts, 246. ' See Grace v. Shively, 12 Sergeant & Eawle, 217. ' Smith's Laws, 411. ' The following provisions were extended to the cities of Pittsburgh and Al- legheny, by the act of 29th March, 1870, Pamphlet Laws, 069. 190 FRAUDirLENT REMOVAL. [CHAP. VI. " Sectioit 1. In case any lessee for life or lives, term of years, at will, or otherwise, of any messuages, lands or tenements, situate in the city or county of Philadelphia, upon the demise whereof any rents are or shall be reserved and made payable, shall from and after the first day of August next, before such rents as aforesaid shall become due and paya- ble, fraudulently convey away or carry off or from such demised premises, his goods and chattels, with intent to defraud the landlord or lessor of his remedy by distress, it shall and may be lawful to and for such land- lord or lessor, to consider his rents so reserved as aforesaid, as apportioned up to the time of such conveying away or carrying off, and for him, or any other person or persons, by him for that purpose lawfully authorized, within the space of thirty days next ensuing such conveying away or carrying off such goods and chattels as aforesaid, to take and seize such goods and chattels wherever the same may be found, as a distress for such rents so apportioned as aforesaid, and the same to sell or otherwise dispose of, in such mann,er as if the said goods and chattels had been distrained by such lessor or landlord, in and upon such demised prem- ises for rents actually due agreeably to the existing laws. Provided, that such landlord or lessor, before any such goods or chattels are seized as aforesaid, shall make oath or affirmation before some judge, alderman, or justice of the peace, that he verily believes that said goods or chattels were carried away for the purpose of defrauding as aforesaid. And pro- vided, that nothing herein contained shall extend or be deemed or con- strued to extend, to empower such lessor or landlord to take or seize any goods or chattels, or a distress for such rents so apportioned as aforesaid, which shall be bond fide, and for a valuable consideration, sold before such seizure, made to any person or persons not privy to such fraud as aforesaid, anything herein to the contrary notwithstanding. And pro- vided, also, that nothing herein contained shall be construed to apply to contracts made before the passage of this act." 324. There is a marked distinction between the action of the landlord under the fifth section of the act of 1772, and under the first section of the act of 1825. Under the provisions of the latter act, in order to justify a landlord in following the goods and chat- tels fraudulently removed, he must make oath or affirmation before some judge, alderman, or justice of the peace, that he verily be- lieves that said goods or chattels were carried away for the pur- pose of defrauding him of his remedy of distress. Under the act of 1772 no such oath or affirmation is required.^ 325. There is no particular process under the act of 1825. The duty of the magistrate therein is merely magisterial, nor can he » See Chapter V, page 125, n ^^^ and 175. SEC. II.] ACT OF 1825, SECTION I. 191 inquire into the facts of the case ; his duty is to attest the oath or affirmation as made, and hand the same to the party making it. 326. Moreover, under the act of 1772, the chattels fraudu- lently removed cannot be followed unless the rent be due,' whereas, under the act of 1825, the landlord has the right to proceed before the rent is due, and apportion the same up to the date of the fraud- ulent removal. Under both acts the fraudulent intent must, how- ever, exist. ' Grace v. Shively, 12 Sergeant & Kawle, 217. 192 RESISTANCE TO A DISTRESS. [CHAP. VII. CHAPTER VII. Resistance to a Disteess. SECTION I. THE ACTION OF TRESPASS ON THE CASE. I. Defined, and Statutes and Acts relating thereto. 327. The fourth wrong which a landlord in Pennsylvania may suffer from his tenant is a resistance to a distress legally made. The first remedy for this wrong is the action of trespass on the case. This action is for the recovery of damages for an injury com- mitted without force, but it does not afford redress by compelling either the restitution of a chattel or the performance of a duty. The action is not mentioned in the Segistrum Brevium, though it existed prior thereto to a limited extent. Its scope and efiBcacy were, however, greatly extended and increased by the statute of 13th Edward I, chapter 24,* generally known as the statute of Westminster 2, already referred to.^ Sir William Blackstone, in referring to this action, calls it "a universal remedy, given for all personal wrongs and injuries without force ; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writ.'" Again he says that this action, " with a little accuracy in the clerks of the chancery, and a little liberality in the judges, by extending rather than narrowing the remedial effects of the wjit, might have effectually answered all the purposes of a court of equity, except that of obtaining a dis- covery by the oath of the defendant."* 1 Roberts's Digest, *157. « See chapter v, f 297, pp. 178 and 179. 8 3 Blackstone's Commentaries, *122. * Ibid. 51. SEC. I.] THE ACTION OF TRESPASS ON THE CASE. 193 328. This action differs from that of trespass vi et armis, in the fact that the latter action applies when the injury is accompanied with/orce and is immediate; the former, when the injury suffered is merely consequential and without force. The distinction between the two actions is more fully stated in Hammond's Nisi Prius. Our Supreme Court has also, at various times, drawn the distinction between the two actions, as follows : " Where the act is an immediate wrong against all form of law, " trespass vi et armis is the proper action ; but where the process is " legal, but it is used in an oppressive manner, trespass on the "case."' " Trespass is proper, where the injury is by the direct act of " the party, whether done wilfully or negligently. Force directly " applied is the criterion."^ " The true criterion between trespass and case is, whether the " injury is immediate or consequential.'" " The boundary between trespass vi et armis and trespass on " the case, is frequently a very narrow one. But all the authorities, " both ancient and modern, agree in this, — that if the injurious act " be the immediate result of the force applied by the defendant, " and the plaintiff be injured by it, it is the subject of an action " of trespass vi et armis."* " When the injury is consequential, case and not trespass is the " proper remedy, without regard to the unlawfulness of the origi- " nal act."' 329. For injuries to personal property in reversion, trespass and trover will not lie, but the action of trespass on the case is the only remedy." In this action justices of the peace have no jurisdiction.' ' Sommer v. Wilt, 4 Sergeant & Kawle, 19. 2 StTohl V. Levan, 3 Wright, 177, 185. » Farmers' Bank v. McKinney, 7 Watts, 214, 216. « Berry v. Hamill, 12 Sergeant & Eawle, 210, 212. ' Cotteral v. Cummins, 6 Ibid. 343. « Chitty on Pleading, *156 (16th ed.). ' Winemiller v. Myers, 1 Browne, 331; Douglass v. Davidson, 1 Philadel- phia, 516; Zell v. Arnold, 2 Penrose & Watts, 292; Herrigas ti. McGill, 1 Ashmead, 152; Mann v. Bower, 8 Watts, 179; Seitzinger ». Steinberger, 2 Jones, 879. 13 194 RESISTANCE TO A DISTRESS. [CHAP. VII. The wrongs to which it is applicable are : (1.) To the absolute rights of persons. (2.) To the relative rights of persons. The species of property may be : (1.) Personal property, either in possession or reversion. (2.) Real property, either in possession or reversion. And these wrongs may be : (1.) Those by non-feasance, being the failure to perform a duty. (2.) Those by misfeasance, being the improper performance of a duty. (3.) Those by malfeasance, being the doing what ought not to be done. 330. The British statutes in force in Pennsylvania relating to this action, so far as regards landlord and tenant, are : (1.) That of 52 Henry III, chapter 4 •} which provides as fol- lows : " None from henceforth shall cause any distress that he hath taken, to be driven out of the county where it was taken; and if one neighbor do so to another of his own authority, and without judgment, he shall make fine (as above is said), as for a thing done against the peace. Nevertheless, if the lord presume so to do against his tenant, he shall be grievously punished by amerciament. Moreover, distresses shall be reasonable and not too great. And he that taketh great and unreasonable distresses shall be griev- ously amerced for the excess of such distresses." (2.) The same statute, chapter 15,^ which provides as follows: " It shall be lawful for no man from henceforth, for any man- ner of cause, to take distresses out of his fee, nor in the king's highway, nor in the common street, but only to the king or his officers having special authority to do the same." (3.) That of 13th Edward I, chapter 24.' See Chapter IV, t 111, pp. 90 and 91. (4.) That of 1 and 2 Philip and Mary, chapter 12,'' which pro- vides as follows : '' For the avoiding of grievous vexations, exactions, troubles and disorder in taking of distresses, and impounding of cattle. Be 1 Koberts'B Digest, *170. » Ibid. *171. » Ibid. *158. * Ibid. *172. SEC. I.] THE ACTION OF TRESPASS ON THE CASE. 195 it enacted by the authority of this present Parliament, That from and after the first day of April next coming, no distress of cattle shall be driven out of the hundred, rape, wapentake or lathe where such distress is or shall be taken, except that it be to a pound overt within the same shire, not above three miles distant from the place where the said distress is taken. And that no cattle or other goods distrained or taken by way of distress for any manner of cause at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevins for the delivery of the said distress so taken at one time, upon pain every person offending contrary to this act, shall forfeit, the party grieved, for every such offence, a hundred shillings, and treble damages." 331. The acts of the Province and State of Pennsylvania re- lating to this action so far as regards landlord and tenant, are (omitting those referring to the action of trover) — (1.) The act of 27th March, 1713' (viz., on Limitations), which enacts as follows : " Section 1. That all actions of trespass quare clausum /regit, all actions of detinue, trover and replevin, for taking away goods and cattle, all actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants,) all actions of debt, grounded upon any lending, or contract without specialty, all actions of debt, for arrearages of rent, except the proprietaries' quit-rents, and all actions of trespass, of assault, menace, battery, wounding and imprisonment, or any of them which shall be sued or brought at any time after the five and twentieth day of April, which shall be in the year of our Lord 1713, shall be commenced and sued within the time and limitation hereafter expressed." (2.) The act of 21st March, 1772,^ which enacts as follows : "Section 2. That upon any pound-breach or rescous of goods or chattels distrained for rent, the person or persons grieved thereby shall, in a special action upon the case for the wrong thereby sustained, recover his, her or their treble damages, and costs of suit, against the offender or offenders in such rescous or pound-breach, any or either of them •, or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his or their use or possession. " Section 3. That in case any distress and sale shall be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no 1 1 Smith's Laws, 76. ' 1 Ibid. 370. 196 RESISTANCE TO A DISTRESS. [OHAP. VII. rent shall appear to be in arrear or due to the person or persons distrain- ing, or to him or them, in whose name or names, or right, such distress shall he talien as aforesaid, that then the owner of such goods and chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or the persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of suit." (3.) The act of 21st March, 1806,' whioli enacts as follows: " Sectiok 13. That in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any act or acts of Assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect." (4.) The act of 24th February, 1834,^ which enacts as follows : " Section 50. It shall be lawful for any person to whom any bequest of money, or other goods or chattels, may be made by last will or testa- ment, to commence and prosecute an action of debt, detinue, account render, or an action on the case for the recovery thereof after it becomes due, against the executors of such will, having in their hands sufficient assets to pay all the just debts of the testator, and the legacies by him bequeathed." (5.) The act of 15th April, 1851,' which enacts as follows : " Section 18. That no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction. " Section 19. Whenever death shall be occasion ed by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow the personal representatives, may maintain an action for and re- cover damages for the death thus occasioned." (6.) The act of 26th April, 1855,* which enacts as follows : " Section 1. That the persons entitled to recover damages for any injury causing death, shall be the husband, widow, children, or parents of the deceased, and no other relative ; and the sum recovered shall go ' 4 Smith's Laws, 832. ' « Pamphlet Laws, 70, 83. » Ibid. 674. * Ibid. 309. SEC. I.] THE ACTION OF TRESPASS ON THE CASE. 197 to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors. " Section 2. The declaration shall state who are the parties entitled in such action ; the action shall be brought within one year after the death, and not thereafter." (7.) The act of 10th December, 1856,' which enacts as follows : "Section 1. That the act, approved the 26th day of April, 1855, en- titled " An act relating to damages for injuries producing death," shall not be construed retrospectively either as to rights of actions accrued or actions pending ; but the limitation of one year therein named shall be restricted to cases accruing from and after the passage of said act." II. WJien the Action of Trespass on the Case will lie. 332. The action of trespass on the case will lie in Pennsyl- vania as follows : (1.) For resistance on the part of the tenant to a distress legally made.^ (2.) For the rescue of chattels legally distrained.' (3.) For breach of the pound in which the distress is im- pounded.* (4.) For forcible detainer.* (5.) For the detention or obstruction of an easement.* (6.) For the detention or obstruction of an emblement.^ (7.) For distraining on a tenant's chattels when the lessor has no reversionary interest in the demised premises.* (8.) For distraining on the tenant's chattels off the demised premises not clandestinely removed.' (9.) For distraining the tenant's chattels on Sunday or at night.'" 1 Pamphlet Laws of 1857, 798. * Pitzherbert's Natura Brevium, Eescous, and Trespass sur le Case. » Act of 21st March, 1772, 1 Smith's Laws, 370. * Ibid. » PittD. Gaince, 1 Salkeld, 10; Child v. Sands, Ibid. 31. * Jones V. Park, 31 Legal Intelligencer, 372 ; O'Keson v. Patterson, 5 Casey, 22; Union Petroleum Co. v. Bliven Petroleum Co., 22 P. P. Smith, 173; Lindeman v Lindsay, 19 P. P. Smith, 93 ; Strickler v. Todd, 10 Sergeant & Eawie, 63 ; Eipka v. Sergeant, 7 Watts & Sergeant, 9. ' Stultz V. Dickey, 5 Binney, 285, 293. ' Hampton v. Henderson, 4 Clark, 438. * Roberts's Digest, *171 ; Coke's Institutes, 131. '" Chitty on Pleading, *156 (16th ed.) ; 2 Ibid. 504. 198 RESISTANCE TO A DISTRESS. [CHAP. VII. (10.) For distraining on chattels by breaking through an outer door or gate.' (11.) For distraining on tenant's chattels when no rent is 'due.^ (12.) For distraining for more rent than is due.* (13.) For distraining on more chattels than requisite.'' (14.) For distraining after tender of the rent.* (15.) For retaining the distress an unreasonable time on the demised premises.* (16.) For distraining on and selling fixtures.' (17.) For distraining on things of a perishable nature.^ (18.) For distraining on things in the actual use of a tenant.' (19.) For distraining on chattels exempt by law, and claimed as such, and selling the same.'" (20.) For distraining chattels of a tenant and selling the same without giving notice to the tenant." (21.) For selling the distress without appraising the same at the proper time." (22.) For selling the distress without advertising the same in accordance with the act of 1772." 1 Mayfield v. White, 1 Brown, 241 ; see Hopkins k. Nightingale, 1 Espiu- asse, 99. • ' Smith V. Meaner, 16 Sergeant & Eawle, 375; see Act of 21st March, 1772, 1 Smith's Laws, 370. ' MoElroy v. Dice, 5 Harris, 163 ; Statute 52 Henry III, Chapter IV ; Rob- erts's Digest, *170; 3 Blackstone's Commentaries, *12. * Llynne v. Moody, 2 Strange, 851 ; 3 Blackstone's Commentaries, *12 ; 1 Chitty on Pleading, *156. 6 Eees V. Emerick, 6 Sergeant & Eawle, 280 ; 1 Chitty on Pleading, *155 (16th ed.). 6 Griffin v. Scott, 2 Strange, 716 ; 1 Chitty on Pleading, *155 (16th ed.). ' Eoherts v. Dauphin Deposit Bank, 7 Harris, 71. ' Morley v. Pincombe, 2 Exchequer, 101. » Fields. Adames, 12 Adolphus & Ellis, 652; Story v. Eobinson, 6 Term Eeports, 13S; Bissett v. Caldwell, 1 Peake, 50, and note (a); Baynes v. Smith, 1 Espinasse, 206. "> Van Dresor v. King, 10 Casey, 201. " McKinney v. Eeader, 6 "Watts, 34. 12 Kerr v. Sharp, 14 Sergeant & Eawle, 399 ; Brisben v. "Wilson, 10 P. P. Smith, 452; 2 Chitty on Pleading, 503. '8 Kerr v. Sharp, 14 Sergeant &. Eawle, 399 ; Quinn v. "Wallace, 6 "Wharton, 460. SEC. I.] THE ACTION OF TRESPASS ON THE CASE. 199 (23.) Against a stranger by a landlord for a damage done to the leased premises.^ (24.) Against a stranger or tenant, by the landlord, for the de- struction of a landmark on the demised premises." (25.) For failure by the sheriff or constable to pay over to a landlord, one year's rent out of the proceeds of the tenant's goods sold under an execution.' « (26.) For refusal by the sheriff or constable to allow the tenant the benefit of the exemption laws.* (27.) Against a tenant by a stranger for maintaining a nuisance on the demised premises.' (28.) Against a landlord or his bailiff for the illegal distraint and sale of a stranger's chattels on the demised premises.^ (29.) Against a landlord or his bailiff, by the officer, for dis- training on and selling goods of a tenant taken in execution or foreign attachment.' (30.) Against a landlord or his bailiff for following and sell- ing the goods of a stranger removed from the demised premises.' (31.) Against a landlord or his bailiff for distraining on and selling the goods of a deceased tenant.' (32.) For consequential damages arising from a public nuisance."* (33.) For consequential damages arising from keeping mis- chievous animals." (34.) For the same arising from conspiracy." (35.) For the same arising from seduction.'' ' Eead ». Bias, 8 Watts & Sergeant, 189. 2 See act of 31st March, 1860, Pamph. Laws, 390. * Fisher v. Allen, 2 Philadelphia, 115; Seitzinger v. Steinburger, 2 Jones, 380. * Hammer v. Frees, 7 Harris, 255. ^ Casebeer v. Mowry, 5 P. F. Smith, 419. ® Brooks V. Olmstead, 5 Harris, 24 ; Brunot v. Kee, 6 "Watts & Sergeant, 513; Nagle ■,,. Mullison, 10 Casey, 48; Clifford v. Beems, 3 "Watts, 246; Beltzhoover v. "Waltman, 1 "Watts & Sergeant, 416. ' Pierce v. Scott, 4 "Watts & Sergeant, 344 ; Wharton v. Naylor, 12 Adolphus. & Ellis, 673. ' Adams v. La Comb, 1 Dallas, 440. 9 Mickle V. Miles, 1 Grant, 320. w Reynolds D. Clarke, 2 Ld. Eaymond, 1399; Pickering v. Eudd, 4 Camp- bell, 219. " Jenkins u. Turner, 3 Salkeld, 13; Campbell v. Brown, 7 Harris, 359. " Phelin v. Kenderdine, 8 Harris, 354. " Ibid. 200 RESISTANCE TO A DISTRESS. [CHAP. VII. (36.) For the same arising from a libel.' (37.) For the same arising from a malicious prosecution, when the proceedings are regular, but not when irregular (trespass).^ (38.) For the malicious execution of process in an oppressive manner.^ (39.) For damages arising from negligence.* (40.) For the samO' when an agent sells at a less price than in- structed .° (41.) For the same where deceit is practiced in the sale of lands." (42.) For damages for demolishing buildings on the land of an insolvent, to prevent a creditor from obtaining satisfaction by exe- cution.'^ (43.) In order to recover excess of interest paid.* (44.) Against a tenant or stranger for commissive waste.' III. The Declaration. 333. The form of the declaration in the action of trespass on the case depends on the particular nature of the case, and it is beyond the purview of this work to enter into the details which would be requisite to exemplify it. Since in our courts the system of equity and common law are blended, this action lies here in many cases, where it would not lie in the English courts of common law, and we cannot, therefore, be fully guided by the English works on pleading. IV. ThePUas. 334. The plea is, in general, " not guilty," and under it any matter may be given in evidence. It is a general rule, that a less degree of strictness of proof is required in it than in other actions. ' Buckley v. Wood, 4 Co. 146. •■ Barnett v. Reed, 1 P. P. Smith, 190; 1 Chittyon Pleading, 136. ' Eogers v. Brewster, 5 Johnson, 125. * Sommer v. Wilt, 4 Sergeant & Rawle, 19. ' Sarjeant ». Blunt, 16 Johnson, 74. 6 Warden v. Posdiok & Davis, 13 Ibid. 325; Monell & Waller ii. Golden, Ibid. 395. ' Lane v. Hitchcock, 14 Ibid. 214. » Heath v. Page, 12 Wright, 180. » 1 Chitty on Pleading, *158. SEC. II.] INDICTMENT. 201 V. Judgment and Verdict. 335. The judgment in the action of trespass on the case is, that the plaintiff recover a sum of money ascertained by the jury, for his damages. This action is sometimes concurrent with those of trespass and trover. As to when this action may be joined with another, and as to the election of actions, the reader is referred to Troubat & Haly's Practice, by F. C. Brightly (5th ed.). [For forms in the action of trespass on the case, see Appendix.] SECTION II. INDICTMENT. 336. The second remedy to which a landlord in Pennsylvania may resort for the wrong done by a tenant in forcibly resisting a distress legally made is that by indictment. An indictment will not lie, however, unless there be an assault.' To constitute an assault, there must be an attempt with force or violence to do a corporeal injury, accompanied by such cir- cumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.'' 337. The act of 31st March, I860,' enacts as follows: " Sectiok 8. If any person shall knowingly, wilfully and forcibly ob- struct, resist or oppose any sheriff, coroner, other officer of the common- wealth, or other person duly authorized, in serving or attempting to serve or execute any process or order of any court, judge, justice or arbi- trator, or any other legal process whatsoever, or shall assault or beat any sheriflF, coroner, constable or other officer or person, duly authorized, in serving or executing any process or order as aforesaid, or for and be- cause of having served or executed the same ; or if any person shall res- cue another in legal custody ; or if any person being required by any sheriff, coroner, constable or other officer of the commonwealth, shall neglect or refuse to assist him in the execution of his office in any crimi- 1 The King v. Wilson, 8 Term Keports, 857 ; The State v, Sotberlen, 1 Harper (S. Car.), 414. 2 Hays V. The People, 1 Hill's Keports (N. T.), 351. s Pamphlet Laws, 382, 386. 202 RESISTANCE TO A DISTRESS. [CHAP. VII. nal case, or in the preservation of the peace, or in apprehending and securing any person for a breach of the peace, such person shall be guilty of a misdemeanor, and on conviction, be sentenced to an imprison- ment not exceeding one year, and to pay a fine not exceeding one hun- dred dollars, or either, or both, at the discretion of the court." The provisions of this section embrace every legal process whatsoever.' The same act also provides in section 97, as follows : " Any person who shall be convicted of an assault and battery, or of an assault, shall be sentenced to pay a fine, not exceeding one thousand dollars, and undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court." 338. When rent is in arrear, the landlord or his bailiff has a right to enter upon the demised premises, to distrain for the same. The tenant has no right to resist or eject him, and it is an assault to do so, even though the bailiff attempt the distress merely on oral authority from the landlord.'^ 339. When an assault is attempted by the tenant with threats or actions indicative of bis intention and ability to use violence, the person distraining may appear before a judge, justice of the peace, or other magistrate, and under oath make complaint thereof. It will then be the duty of the magistrate to issue a warrant for the arrest of the offender, who, being arrested and brought before the magistrate, is, if the complaint be found to be true, bound over to appear at the Court of Quarter Sessions to answer therein for his offence, if an indictment be found against him by the grand jury. If the offender fail to give bail for his appearance, the magistrate commits him to the county gaol, and even if he give bail to appear, yet the magistrate may require him to give bail to keep the peace toward the party complaining. If the magistrate hold the offender over for ap- pearance at court, he makes up his record and presents the same to the Court of Quarter Sessions, on or before term day, where- upon the District Attorney draws up a bill of indictment. This is presented by the prosecuting official to the grand jury, who examine the case, and listen to the witnesses, and if it appear to 1 See United States v. Lukens, 8 Washington's Circuit Court Reports, 335; United States v. Lowry, 2 Ibid. 169. » Commonwealth v. MeStay, 8 Philada. 609. SBC. II.] INDICTMENT. 203 the grand jurors that the accusation is well founded, the bill is re- turned to the prosecuting officer as a true bill. But if it be not well founded, the bill is returned "ignoramus" and the proceed- ings drop. After the return of a true bill the offender is arraigned in court, and required to plead. If he plead " guilty," he is sen- tenced on his plea. If he plead " not guilty," the case proceeds to trial before a jury of twelve men, who render a verdict in accordance with the evidence. If the offender having given bail, fail to appear, the bail is forfeited to the county, and the court issues a warrant for his arrest. 340. If the offender be in custody and not indicted and tried some time during the next term of the proper court, then, unless it shall appear on oath or affirmation that the witnesses cannot then be produced, the court is required on the last day of the term to set the offender at liberty, to appear, under bail, at the next term, and if he be not indicted and tried at that term, he shall be dis- charged.' Moreover, if he be not indicted within two years after the committal of the offence, he cannot be prosecuted.' 341. In conformity with the act of 21st March, 1806,' which, in section 13, enacts "that in all cases where a new remedy is provided or a duty enjoined, or anything directed to be done by any act or acts of Assembly of this Commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying said act or acts into effect," the Supreme Court has held that where a mode of procedure is attached to a specific offence by an act of Assembly, the common law remedy is abrogated and the indictment and sentence must pursue the act.* [For full information relative to indictment, the reader is re- ferred to Wharton's American Criminal Law.J 1 Act of 18lh February, 1785, section 3, 2 Smith's Laws, 275; as to Phila- delphia County, see act of 13th March, 1867, Pamphlet Laws, 420. ' Act of 31st March, 1860, section 77, Pamphlet Laws, 450. 3 4 Smith's Laws, 332. * Wiko V. Lightner, 1 Eawle, 290; Hellings v. The Commonwealth, 5 Ibid. 64; Oliphant i>. Smith, 3 Penrose & Watts, 180; Criswell v. Clugh, 3 Watts, 330. 204 CHATTELS LEGALLY DISTRAINED. [CHAP.VIII. CHAPTER VIII. Kescue of Chattels Legally Distrained. SECTION I. the action of eescous. 342. The fifth wrong which a landlord in Pennsylvania may- suffer from his tenant is the rescue of chattels legally distrained. The first remedy for this wrong was formerly the action of rescous. It is almost certain that since the act of 21st March, 1806 (section 13)/ this remedy no longer exists, as that act provided that where a remedy was given by statute the same should be followed in lieu of the common-law remedy, and as the second section of the act of 21st March, 1772,^ had supplied the remedy of a special action on the case, it is probable that this com- mon-law remedy is abrogated. However, prior to 1772, the action of rescous was the proper action for a landlord to resort to, and prior to the act of 21st March, 1806, it was a permissible ac- tion. 343. The writ was as follows : The Commonwealth, etc. To the Sheriff of — — county, Greeting: If A. B. shall make you secure, etc., then put C. D., etc., to shew why, whereas the said A. B. at, etc., certain beasts of the said C. D. had taken, and distrained for rent, etc. And those there according to the law and custom of the Commonwealth of Pennsylvania, would have impounded, the said C. D., the beasts aforesaid with force and arms rescued, and other enormities there did, to the contempt of and against the peace of the said Commonwealth, and grievous damage of the said A. B, 344. The action of rescous did not lie, as follows : (1.) When the distrainer had the actual possession of the things distrained.' ' 4 Smith's Laws, 332. » 1 Ibid. 370. » Coke upon Littleton, 164. I SEC. II.] THE ACTION OF TRESPASS. 205 (2.) When the distrainer abandoned the distress, and the owner retook it.' (3.) When the distress was reseized by the owner after it had been impounded, as the oiFence then was not a rescue, but a pound- breach.^ (4.) When the rescous was of a distress made as follows : a. When no rent was in arrear.' h. When made after tender of the rent.* c. When made on Sunday or at night.® d. By breaking through an outer door, gate, or window." e. When the chattels were privileged from distress.' /. When the chattels were off the demised premises, and had not been fraudulently removed.' g. When the lessor had no reversionary interest in the demised premises.^ 345. The action of rescous, however, lay, if the beasts escaped on their way to the pound, and returned to the demised premises, and the tenant refused to deliver them." [As the action of rescous may be regarded as no longer exist- ing in Pennsylvania, no forms of procedure will be given in the Appendix.] SECTION II. THE ACTION OF TEESPASS OK THE CASE UNDER THE ACT OF 1772. 346. The second remedy to which a landlord in Pennsylva- nia may resort for the rescue, on the part of the tenant, of chattels legally distrained, is the action of trespass on the case, by the pro- visions of section 2 of the act of 21st March, 1772," which enacts as follows : ' Dod V. Monger, 6 Modern, 216. 2 Oomyn's Landlord and Tenant, 554. » Coke upon Littleton, 160. * Gilbert on Rents, 104. " Mayfield v. White, 1 Brown, 241 ; Coke upon Littleton, 142 a, ' Lord Kaymond, 105. ' Coke upon Littleton, 160. 8 Firth V. Purvis, 5 Term Reports, 433. » Coke upon Littleton, 160. " Ihid " Smith's Laws, 370. 206 CHATTELS LEGALLY DISTRAINED. [CHAP.VIII. ' ' Section 2. That upon any pound-breach or rescous of goods or chat- tels distrained for rent, the person or persons grieved thereby shall, in a special action upon the case for the wrong thereby sustained, receive his, her or their treble damages, and costs of suit, against the offender or offenders in such rescous or pound-breach, any or either of them ; or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his or their use or possession." The action of trespass on the case has already been treated of. See chapter vii, section i, page 192 et seq. SECTION III. EECAPTTTEE OP THE CHATTELS. 347. The third remedy to which a landlord in Pennsylvania may resort for the rescue, on the part of the tenant, of chattels legally distrained, is that of recapture of the chattels. This remedy is effected by the mere act of the landlord or dis- trainer, and must be carried into effect so cautiously as not to create a breach of the peace.* It existed at common law,^ and is justified in our courts by a decision in the case of Woglam v. Cowperthwaite,^ in which one Cresson distrained for rent on the goods of one Hamilton. Hamilton replevied the goods, and moved them into a house which he rented from Woglam, who, after rent had accrued, made a distress on them ; thereupon Hamilton re- moved the goods from the demised premises, when Woglam's bailiff followed the goods, recaptured them, and had them appraised in the house to which Hamilton had removed them. In this Wog- lam was sustained by the decision of the court. 348. The right of recapture is, moreover, explicitly given in cases of the clandestine removal of chattels by virtue of the provi- sions of section 5 of the act of 21st March, 1772,* and by section 1 of the act of 25th March, 1825.' See chapter vi, section i, page 188 et seq., and section ii, page 189 et seq. 1 3 Institutes, 134. ' Coke upon Littleton, 47. » 2 Dallas, 68. * 1 Smith's Laws, 870. « 8 Smith's Laws, 411. BEO. I.] THE ACTION OF POUND-BREACH. 207 CHAPTEE IX. Beeach of the Pound in which the Distress is Impounded. SECTION I. THE ACTION OF POUND-BEBACH. 349. The sixth wrong which a landlord in Pennsylvania may suffer from his tenant is the breach of the pound in which the distress is impounded. The first remedy for this wrong was the action of pound-breach. The same law probably exists in relation to this remedy as to that of rescous, and the same reasoning applies;' It was the proper remedy prior to the act of 21st March, 1772,^ and was a permissible remedy prior to the act of 21st March, 1806,' but it is probable that now the only fit action is that of the action on the case under section 2 of the act of 21st March, 1772. 350. When the action did lie, the only plea a defendant could use was that of not guilty as to the breach ; it having been held that even though the distress was made without cause, yet the ten- ant could not thereby justify the breach, and the taking of the chattels, because the same were in the actual custody of the law, and the offence was, therefore, not only a grievance to the landlord, but a contempt of the law,* and was indictable at common-law.' [As this action is probably abrogated by the act of 1806, no form of procedure will be given.] 1 See chapter viil, section I, page 204 ei seq. ' 1 Smith's Law, 370. • 4 Ibid. 332. * Cotsworth V. Bettison, Salkeld, 247. ' Hawking's Pleas of the Crown 10. 208 BREACH OF THE POUND. [CHAP. IX. SECTION II. THE ACTION OF TRESPASS ON THE CASE UNDER THE ACT OF 1772. 351. The second remedy to which a landlord in Pennsylvania may resort for the breach of the pound in which the distress is impounded, is the action of trespass on the case under the pro- visions of section 2 of the act of 21st March, 1772.' This action has been treated of in chapter vii, section i, page 192 ei sej., and in chapter viii, section ii, page 205 et seq. SECTION III. EECAPTUKE OF THE CHATTELS. 352. The third remedy to which a landlord in Pennsylvania may resort for the breach of the pound in which the distress is im- pounded, is the recapture of the chattels. This has been treated of in chapter viii, section iii, page 206. ' 1 Smith's Laws, 870. SBC. I.j RE-ENTRY. 209 CHAPTER X. Non-delivery of Possession. SECTION I. EE-ENTKY. 353. The seventh wrong which a landlord may suffer from his tenant is the non-delivery of possession of the demised premises at the end of the term, or on the happening of some contingency, which may authorize the determination of the tenancy. 354. The first remedy for this wrong, to which a landlord may resort, is that of re-entry on the demised premises with not more than necessary force. This remedy is enforced by the personal act of the landlord, or of his agent duly empowered, and it must be authorized by a provision in the lease, and is justified by the expiration of the term, by effluxion of time, or by the happening of some con- tingency which authorizes the termination of the tenancy. I. The Determination of the Tenancy. 355. The tenancy may terminate as follows : (1.) By effluxion of time when the lease is for a definite period.' (2.) By notice to quit, given three months before the end of the current year, when the tenancy is from year to year.'' (3.) By forfeiture of the lease under the conditions expressed therein, or implied thereby, as by the setting up by the tenant of a title in himself or another, adverse to the title of the landlord, ' Logan V. Herron, 8 Sergeant & Kawle, 459 ; MacGregor u. Eawle, 7 P. P. Smith, 184 ; Rich v. Keyser, 4 Ibid. 86 ; Kellam v. Janson, 5 Harris, 467. ' JjOgan V Herron, 8 Sergeant & Kawle, 459 ; Lesleyii. Randolph, 4 Eawle, 123, and cases there cited ; Lewis v. Bffinger, 6 Casey, 281. 14 210 NON-DELIVERY OP POSSESSION. [CHAP. X. wliich may be by his making a grant in fee of the premises demised, or by any other act inconsistent with the relation of landlord and tenant.' (4.) By surrender.^ (5.) By merger.' (6.) By eviction of the tenant by one having a title paramount to that of the landlord.* (7.) By the demised premises being taken for public use.* (8.) By the premises being used for an illegal or immoral purpose.* (9.) By the death of a tenant for life.' (10.) By the loss of the landlord's reversion, when the same is sold under a judgment antedating the lease.' (11.) By the sale of the decedent landlord's reversion under an order of the Orphans' Court.' (12.) By (in Philadelphia) the non-payment of rent under the provisions contained in the act of 25th March, 1825.'° (13.) By the non-payment of rent under the provisions of the act of April 3d, 1830.'' (14.) By (in Philadelphia) the refusal of the tenant, when the landlord has lost his lease or evidence of the beginning and ter- mination of the term, to furnish the date on which the tenancy commenced.'^ 1 McKnight v. Kreutz, 1 P. F. Smith, 232; Sharon Iron Company b. City of Erie, 5 Wright, 341 ; Newman v. Eutter, 8 Watts, 51 ; Eeed v. Reed, American Law Journal, 263 ; Hill v. Miller, 5 Sergeant & Eawle, 355; Kline V. Johnston, 12 Harris, 72. ' Keating t>. Condon, 18 P. P. Smith, 75 ; Brandon v. Bannon, 2 Wright, 63 ; Weaver v. Wood, 9 Barr, 220 ; McKinney v. Eeader, 7 Watts, 123. ' Dougherty v. Jack, 5 Watts, 456 ; Kershaw v. Supplee, 1 Eawle, 131. * Bauderst). Fletcher,- 11 Sergeant & Eawle, 419; Magawti. Lambert, 3 Barr, 444 ; Briggs v. Thompson, 9 Ibid. 338 ; Doran v. Chew, 2 Weekly Notes, 609 ; Noble V. Warren, 2 Wright, 340. 6 Dyer v. Wightman, 6 P. F. Smith, 425; Workman v. Mifflin, 6 Casey, 362; Schuylkill Co. v. Schmach, 7 P. F. Smith, 271. ° Girardy v. Eiehardson, 1 Espinasse, 13. ' Ludford v. Barber, 1 Term Reports, 86. 8 Act of 16th June, 1834, sections 106 and 119; Pamph Laws, 780 and 783. » Act of April 9th, 1849, section 16; Pamph. Laws, 527. 1" 8 Smith's Laws, 411. " Pamphlet Laws, 187. 12 Pamphlet Laws of 1865,253; McMullin b. McCreary, 4 P. F. Smith, 230; Dubasso v. Martin, 24 Legal Intelligencer, 92. SEC. I.] RE-ENTRY. 211 Before discussing the remedy of re-entry, it will be well to make some remarks on the effluxion of time and the foregoing contin- gencies. 356. First Effluxion of time. Where a lease is made for a certain definite term, the tenancy expires with the term and without the requisite of any notice to quit, and if the tenant remain longer on the premises he becomes a mere tenant at sufferance, and may be dispossessed by the land- lord, by night or by day, ard from motives of mere caprice, with this limitation only, that the landlord shall, in making his re-entry, use no more force than may be necessary, and shall do no wanton damage, but if he does so, he is liable for the trespass to the per- sonal property, but is not liable to an action of trespass quare clausum Jregii? The landlord cannot, however, avail himself of the provisions of the act of 21st March, 1772, or of the act of 14th December, 1863, without having given the notice to quit pre- scribed therein, but no notice to quit in such a case is requisite to support an action of ejectment when the term has expired.'' 357. Second. Notice to quit. Notice to quit, given three months before the end of the current year, when the tenancy is one from year to year, will terminate the tenancy. 1. A tenancy from year to year may be. created as follows : (1.) By the lessee's holding over of the demised premises after the expiration of the term for years, with the consent of the land- lord either express or implied.^ (2.) By the lessee's holding over of the demised premises of a deceased tenant for life, with the assent, either express or im- plied, of the remainderman given during the lifetime of the. tenant for life.* (3.) By the making of a lease for an indefinite period of time, as 1 Overdeer v. Lewis, 1 Watts & Sergeant, 90 ; Kellam v. Janson, 5 Harris, 467; Eich v. Keyser, 4 P. F. Smith, 86; Adams v. Adams, 7 Philadelphia, 160 ; Commonwealth v. Kensey, 2 Parsons, 401 ; 3 Clark, 233. 2 Bedford u. McElherron, 2 Sergeant & Kawle, 49 ; Evans v. Hastings, 9 Barr, 273; McCanna b. Johnston, 7 Harris, 434. " Logan V. Herron, 8 Sergeant & Rawle, 459 ; Diller v. Roberts, 13 Ser- geant & Eawle, 63 ; Phillips v. Monges, 4 Wharton, 226 ; Laguerenne v. Dougherty, 11 Casey, 45. * Coke upon Littleton, 45 a. 212 NON-DELIVERY OF POSSESSION. [CHAP. X, for SO long a time as the tenant shall carry on a particular trade.* (4.) By the creation of a tenancy for more than three years, by a lease not under seal.^ 2. In all the foregoing cases, except where the original tenancy for years was for a period less than a year, to determine the tenancy from year to year, a notice to quit must be given by the landlord three months prior to the end of the current year.* 3. It has also been decided, that where a landlord made a contract that a person should occupy a house and put it in repair, and in consideration thereof enjoy the property at a certain rent till the repairs were reimbursed, a tenancy for years was created, and the tenant was not liable to be ejected without notice to quit.* 4. In England the notice to be given was that of half a year, but in Pennsylvania it is that of three months ; this is by custom, as also by inference drawn from the 12th section of the act of 21st March, 1772, wherein it is provided that three months' notice to quit shall be given, in order that the landlord may avail himself of the remedy therein given. ° 5. In England it is held that in a tenancy for years, neither land- lord nor tenant has the right to end the tenancy except by notice to quit -^ but our Supreme Court has decided by a divided court that a tenant from quarter to quarter, who holds over, has the right to leave at the end of the current quarter without giving the three months' notice.' 6. Where the tenancy is for a period less than a year, and runs on from period to period, say from month to month or from week to week, the notice to quit to be given by the landlord is regulated in England by the letting, a month's notice for a monthly letting, or a week's notice for a weekly letting,* and the expiration of the ' Warner v. Brown, 8 East, 165. '' Clayton v. Blakey, 2 Smith's Leading Cases, *180. ' Pahnestock v. Paustenauer, 5 Sergeant & Eawle, 174; Logan v. Herron, 8 Sergeant & Kawle, 459 ; Lesley v. Randolph, 4 Rawle, 123, and cases there cited ; Lloyd v. Cozens, 2 Ashmead, 231. * Thomas v. Wright, 9 Sergeant & Eawle, 87. 5 See cases in note 1. 6 See Opinion by Sharswood, P. J., in Cooke v. Neilson, Brightly (Nisi Prius), 468. ' Cooke i>. Neilson, 10 Barr, 41 ; see also S. C. Brightly (Nisi Prius), 463. ' Doe dem. Campbell v. Scott, 6 Bingham, 362 ; Doe dem. Parry v. Hazelli SEC. I.] EE-BNTRY. 213 notice must be with the expiration of the period, and where prem- ises were talien under an agreement by which the tenant " was always to be subject to quit at three mouths' notice," it was held that a quarter's notice should be given expiring at the same time of the year at which the tenancy commenced, or any corresponding quarter-day.' 7. In regard to these tenancies in Pennsylvania, it is probable that the law is the same as in England, and that their terms can be determined in the same manner,^ and on the determination of the 1 Espinasse, 94 ; Doe dem. Peacock v. Eaffan, 6 Ibid. 4; Eight dem. Flower V. Darby and Bristow, 1 Term Reports, 159. 1 Comyn's Landlord and Tenant, *305 ; Kempc. Derrett, 3 Campbell, 510; Doe dem. Holcomb v. Johnson, 6 Espinasse, 10; Savage v. Stapleton, 3 Car- rington & Payne, 275; Doe dem. Castleton w. Samuel, 5 Espinasse, 173; Anderson v. Prindle, 23 Wendell, 616 ; Wilson v. Abbott, 3 Barnewall & Cresswell, 88. ' A different theory from the foregoing is, however, held hj many good lawyers, which is to be respected in the absence of any decisions of our Supreme Court on the subject, and it is this: That where a simple lease has been made for a month or other short period, and the tenant holds over with the assent of the landlord, he is in for a year from the beginning of the month for which his original lease did not provide, and that the landlord can only terminate this tenancy from year to year, by giving a three months' notice to quit prior to the termination of the year, counting from the beginning of tha first month for which the lease did not provide. This view may be correct, but, if so, it is not in accord with English decisions, which the writers are inclined to follow in the absence of decisions in our own courts. In order to come to a fair conclusion in regard to this doubtful point, it may be well to reason on the theory of tenancies for years. These were originally derived from tenancies at will determinable at the option of the lessor, but as leases in former days generally related to arable land, it was found to be un- just that the tenant who occupied such at the will of the lord, should, without reasonable notice to quit, be turned out of possession after he had ploughed and sowed the farm. The judges of the courts, therefore, laid hold upon any circumstance in the case that could be construed to indicate an intention of the parties that the tenancy should continue until reasonable notice to quit was given, and it was just that the length of this uotice should be measured by the time requisite for the tenant to reap the fruits of his labor. It is ac- cordingly settled in England, that where one of the circumstances of the let- ting is the payment of a yearly rent to the landlord, the tenancy is assumed to be one for a full year to year, and in order to terminate such tenancy a half year's notice to quit must be given, expiring at that period of the year at which the tenancy commenced. And reasoning by analogy, we may conclude that where the original let- ting was for one month, or one quarter, with the concomitant circumstances 214 NON-DELIVKRT OF POSSESSION. [OHAP. X. tenancy, the landlord may, if it is so provided in the original lease, re-enter, or bring an action of ejectment, or having deter- mined the tenancy by notice to quit, he may three months there- after avail himself of. the provisions of the act of 21st March, 1772,' and thus regain possession ; but to avail himself of the provisions of the act of 14th December, 1863,^ he will have to give a three months' notice to the tenant determining the tenancy at the end of three mouths, and in giving these notices he would have to be careful to malse the tenancy expire on the proper day. Thus, if the case be that of a monthly letting, which commenced, say, on the first day of September, 1878, and in the month of January, 1879, the landlord concluded to terminate such tenancy at such a time as would enable him to avail himself of the act of December 14th, 1863, his proper plan would be to notify the ten- ant to quit on the thirtieth day of April, 1879. Moreover, in order to avail himself of either the act of 21st March, 1772, or of the act of 14th December, 1863, it is requisite that a certain rent shall have been received, and the relation of landlord and tenant established. Third. Forfeiture. 358. A tenancy may terminate by the forfeiture of the term under the conditions expressed or implied by the lease, or by the setting up by the tenant of a title in himself or another adverse to that of the landlord, which he may do by making a grant, in fee, of the demised premises, or by any other act inconsistent with the relation of landlord and tenant.^ 1. At common law, only the lessor, his heir or executor, could of a month's rent, or a quarter's rent, the assumption can only be, that should the landlord assent to the holding over of the tenant, the latter does so (in the absence of any explicit agreement) at the same rent, and under the same con- ditions as those agreed upon at the time of the original letting ; therefore if the original lease be for, say, one month, provided that the tenant should vacate the premises on ten days' notice, the same notice would be suiScient after the holding over. See Doe dem. Rigge v. Bell, 5 Term Eeports, 471 ; Kichard- son V- Gifford, 1 Adolphus & Ellis, 62; Beale v. Sanders, 3 Bingham (New Cases), 850 ; Laguerenne v. Dougherty, 11 Casey, 45 ; Diller v. Roberts, 13 Sergeant & Eawle, 60 ; Phillips v. Monges, 4 Wharton, 226. 1 1 Smith's Laws, 370. ^ Pamphlet Laws of 1864, 1125. s Read v. Erington, Cro. Eliz., 321 ; Fenn dem. Matthews ij. Smart, 12 East, 444 ; Goodright dem. Walter v. Davids, Cowper, 803 ; McKnight v. Kreutz, 1 P. F. Smith, 232 ; Sharon Iron Co. u. City of Erie, 5 Wright, 341. SBC. I.] RE-ENTRY. 215 re-enter for a breach of the condition,' or if a limitation were aiSxed to the estate, then he, in remainder, might enter because the es- tate determined ipso facto without entry.^ The statute of 32 Henry VIII, chap. 34, in force in Pennsylvania,' enacted that the as- signee of the reversion, his heirs, executors, and assigns, should have the like advantage of the conditions to be performed by the lessees, by entry, as the lessor himself, and so may an assignee of part of the reversion take advantage of a condition, but not the assignee of part of the land, because a condition cannot be apportioned.^ In other words, when a lessor dies leaving two heirs, they, or either of them, may take advantage of a condition, but where a lessor grants a part of the land demised, neither he nor his grantee can take advantage of the position. In such a case, the rent is appor- tioned, but the condition is gone. For a full construction of this statute, see Roberts's Digest, *230. 2. In order to give a party a right to enter for condition broken, it is not necessary in all cases to have the reversion. Thus, if a lessee for years assigns his whole term upon a condition, and the assignee makes a breach of the same, the lessee, though he has parted with his whole reversion, may enter on the assignee.^ But were the lessee in such a case to make a surrender to his land- lord, the latter could not avail himself of the breach of the condi- tion contained in the assignment made by the lessee." 3. Conditions that work forfeitures are not favorites of the law, and nothing less than a clear expression of intention that a pro- vision shall be such, will make it a condition upon which the continuance of an estate granted depends.' 4. In Pennsylvania, where a lease provides that on the breach of a condition the lease shall be void, no subsequent recognition of the tenancy can set it up,^ but if the provision only be that the lessor may, on the breach, re-enter, it is optional with the lessor to do so or to waive the forfeiture.' I Comyn's Landlord and Tenant, *325. ' Ibid. ' Eoberts's Digest, *227. * Comyn's Landlord and Tenant, *325.- ' Preemau v. Bateman, 2 Barnewall & Alderson, 168. 6 Chaworth v. Phillips, Moore, 876. ' McKnight v. Kreutz, 1 P. P. Smith, 232. ' Ibid.jKenrick ». Smick, 7 Watts & Sergeant, 41; Davis t). Moss, 2 Wright,. 346. ' Coke upon Lit. 215 a; Duppa v. Mayo, 1 Saunders, 287, note. 216 NON-DELIVBBY OP POSSESSION. [CHAP. X. 5. The most commou waiver is by acceptance of rent accruing since the breach/ but to make this a waiver, it is necessary that the lessor should have at the time knowledge of the breach. If he have this knowledge, by accepting the rent the condition is lost forever.'' The landlord does not, however, waive the breach of the condi- tion by the acceptance of rent which came due prior to the breach.* Moreover, where there is a continuing cause of forfeiture, the landlord may accept the rent accrued after the breach of the con- dition.* Thus, when the forfeiture was incurred by using two rooms in a house, in a manner prohibited by the lease, such user was held to be a continuing breach, and it was held that the right to the condition was not lost by the acceptance of rent due since the breach.'' The mere knowledge by the landlord of the breach, and his failure to act, does not amount to a waiver,* as if a land- owner make a lease upon condition that the lessee shall not under- let the premises, and the lessee does so, and the lessor suffers the subtenant's term to expire without taking advantage of the condi- tion, and the lessee sub-lets again, the landlord may re-enter, always providing, however, that there is a clause in the lease au- thorizing the landlord to re-enter on a breach.'^ But if the land- lord permit the lessee, or his sub-tenant, to lay out money in the improvement of the premises demised after the breach, with full knowledge by the landlord of the breach, it is presumable that the breach is waived.* 6. In England it was also a waiver on the part of the landlord to distrain after the breach for rent accrued before the forfeiture, because distraining was an act which could only be done during the tenancy.' ' Newman v. Kutter, 8 Watts, 51. ' Comyn's Landlord and Tenant, *330. s Jackson v. Allen, 3 Cowen, 220; Hunter v. Osterhoudt, 11 Barbour, 33; and cases there cited. * Doe V. Woodbridge, 9 Barnewall & Cresswell, 376. ^ Ibid. ' Perry v. Davis, 3 Common Bench Eeports, !N. S. 769 ; Jackson v. Allen, 3 Cowen, 220. ' Doe dom. Boscowen v. Bliss, 4 Taunton, 735. 8 Doe V. Allen, 3 Taunton, 78. 8 See cases cited in Zouch v. Willingate, 1 H. Blackstone, 311 ; Jackson ti. Allen, 3 Cowen, 220. It is probable that such is not the law in Pennsylvania, as it was decided in Moss's Appeal (11 Casey, 162), that a landlord might dis- train after the term had been forfeited and the tenant had left the premises. See, also, note to Bowman v. Foot, 1 American Law Register, 361. SEC. I.] RE-ENTRY. 217 7. If the condition in the lease be single, it is discharged by one waiver. If continuous, 'the waiver only discharges the particular breach. Thus, a condition against assigning is of the former kind,' as only the one breach can occur during the term, but a condition against underletting is of the latter kind, as more than one breach may occur. And so of a condition providing for the right to re- enter, in the case of the failure to fulfil a covenant to repair,^ or to keep the premises insured, or to pay the taxes or charges for gas. 8. In regard to the relief that our courts will grant against forfeitures, it has been decided that the Supreme Court may, in certain cases, so relieve.' 359. Fourth. Surrender. A lease for years or life may also be ended by a surrender, which is the yielding up of an estate for life or years to him who has the immediate reversion or remainder, and by this the estate for years or life is ended.* 1. This may happen as follows: (1.) In law, which is when the lessor and lessee do some act so inconsistent with the relation of landlord and tenant as to imply the intention that the lessor should be in the same position as if an express surrender had been made.° Such as when the lessee takes a new lease of his lessor, thereby admitting that the lessor is as much in a condition to grant a new lease as if the old one had been expressly surrendered.^ In such a case, the new lease ope- rates as a surrender of the old one, but when a new lease for years was made, to commence on the death of a certain person, it was held to be no surrender of the former term because this person might survive the term, but if the parties die within the terra, then the lease operates as a surrender.' If the new lease be made to commence at a future time, or if it be granted conditionally, it yet acts as a surrender,' but if the acts of the lessor and of the- 1 Lloyd V. Orispe, 5 Taunton, 249. ' Doe dem. Bosoowen v. Bliss, 4 Taunton, 735. 3 Pittsburgh & Connellsville K E Co. v. Mount Pleasant & Broad Ford E. E. Co., 26 P. F. Smith, 481 ; Kemble v. Graff's Executors, 6 Philadel- phia, 402. * Mellow V. May, Moore, 636 ; Coke upon Littleton, 337 b. 6 Corny n's Landlord and Tenant, *340. 6 Ibid.' ' Ibid. *341. 8 Coke upon Littleton, 218 b. 218 NON-DELIVERY OF POSSESSION. [CHAP. X. lessee be such as to rebut the idea of a surrender, then none ought to be presumed.' (2.) By the act of the parties, which is where by express words the surrender is made by the act of the lessee and accepted by the lessor in the same manner, or by some act which implies the acceptance of such surrender, such an acceptance dissolves the relation not only between the landlord and the lessee, but between the lessee and his snb-tenant.^ 2. The surrender of the lessee will not prejudice his under- tenant, where there is no proviso in the lease against underletting, but the latter has the right of possession for the term of the lease, provided he fulfil towards the paramount landlord all the cove- nants contained in the original lease.^ 3. There are also cases of implied surrender. Thus, in the case of McKinney v. Reader,* the lessee abandoned the rented premises, absconded to New Jersey, and afterwards his family locked up the house without leaving property sufficient to answer for the payment of the rent and followed the fugitive, and, in that case, in deliver- ing the opinion of the court. Chief Justice Gibson remarks: "We must, as the British courts would have done had not their Parlia- ment relieved them from the task, enlarge the class of implied surrenders beyond its limits in the books, by holding that an abandonment is such a relinquishment of the premises as justifies an immediate resumption of it." This case, as appears, did not occur in Philadelphia, as in that city the landlord could have had a remedy under the act of 25th March, 1825,^ section 2, which provides that when a tenant removes from demised premises with- out leaving thereon sufficient property to secure the payment of three months' rent, and shall refuse to give security therefor, the landlord may regain possession by application, etc., to two justices of the peace. 4. It is evident also, that, although the act of 21st April, 1772,° generally called the Statute of Frauds, provides that no leases, estates, or interests, either of freehold or terms of years, or any un- > But see Hutohins v. Martin, Croke Elizabeth, 605. » Pratt & Reath v. Riohards's Jewelry Store, 19 P. F. Smith, 53; Greider'a Appeal, 5 Barr, 422; Gunnis v. Kater, 29 Legal Int. 230. 8 Brown v. Butler, 4 Philada. 71. * 7 Watts, 123, 124. ' 8 Smith's Laws, 411. ' 1 Smith's Laws, 389. SEC. I.] RE-ENTRT. 219 certain interest in or to, etc., shall be assigned, granted, or surren- dered, unless it be by deed or note in writing, etc., yet when the tenant abandons or surrenders the possession of the demised prem- ises to the landlord, who accepts and enters on the same, the ten- ant is estopped from again claiming the possession thereof, and this notwithstanding the statute.' 5. It was formerly thought, that an estate for years might be surrendered by the mere cancelling of the lease and the finding of the same so cancelled in the possession of the lessor, and though it has been held in a number of English cases that the same is not a surrender,^ yet it is a strong corroboration in evidence that a surrender was made.' 360. Fifth. Merger. A tenancy may become terminated by merger, which is where a greater and a lesser estate become united in the same person. To effect a merger, it is a general rule, that the lesser and the greater estates should vest in the same right, or that the greater estate should vest in the party in behalf of another. The best criterion of a merger is the intention of the parties, expressed at the time, and an intent to prevent a merger will be presumed, whenever it is the interest of the party that the term or incumbrance should not sink in the inheritance.* 1. Tenancies for years, or from year to year, or for life, may become extinguished and determined as follows: (1.) When a tenant for years, or from year to year, purchases the landlord's reversion.' (2.) When a tenant for years, or from year to year, or for life, acquires the reversionary estate by inheritance.® 1 McKinney v. Reader, 7 Watts, 123 ; Greider's Appeal, 5 Barr, 123 j Kies- ter V. Miller, 1 Casey, 481 ; Pier v. Carr, 19 P. F. Smith, 326; Pratt & Reath V. Richards Jewelry Co., 19 P. P. Smith, 53 ; Dennison v. Wertz, 7 Sergeant & Rawle, 372. 2 Roe V. Thomas, 9 Barnewall & Cresswell, 288 ; Roe v. Archbishop of York, 6 East, 86. ' Walker v. Richardson, 2 Meeson & Welsby, 882; Wootley v. Gregory, 2 Younge & Jervis, 5S6. " Richards v. Ayres, 1 Watts &;Sergeant, 485, and cases there cited ; Kline V. Bowman, 7 Harris, 24; Shertzer v. Herr, Ibid. 34; Wallace «. Blair, 1 Grant, 75. 5 2 Blackstone's Commentaries, *177 ; see Clift v. White, 12 New York, 619; James v. Johnson, 6 Johnson's Chancery Reports, 417. ' Ibid. 220 NON-DELIVERY OF POSSESSION. [CHAP. X. (3.) When a tenant for years, or from year to year, or for life, acquires the same by devise.' (4.) When a wrongful possession and the title of the rightful owner unite in the same person.^ (5.) An estate for years may merge in another estate for years of longer duration than the first.^ (6.) In England, it is held that if one who has a lease for years as executor, purchase the reversion, the terni is merged, and in Pennsylvania, prior to the act of 1848,° when a lessee for years married the lessor, the estate merged. 2. But in Pennsylvania the leasehold estate will not merge as follows : (1.) When the tenant for years (if a man) marries the owner of the reversion.* (2.) When the owner of the reversion mortgages the premises demised to the lessee thereof (3.) When the lessee for years, or from year to year, or for life, becomes the executor of the lessor.^ (4.) When the owner of a ground-rent purchases at sheriff's sale the land out of which it issues, and dies before receiving a deed from the sheriff.' (5.) When a party holding land by a defective title purchases the ground-rent on the land.'" 361. Sixth. Eviction. A tenancy may end by eviction, which is the taking from the tenant of a part or the whole of the demised premises. 1. This may be effected as follows: (1.) By the act of the landlord, or one claiming under him. (2.) By the act of a stranger possessed of a title paramount to that of the landlord. 1 Ibid. ' Koons V. Steele, 7 Harris, 203. 3 3 Preston on Conveyancing, 185; 4 Kent's Commentaries, *100. * Comyn's Landlord and Tenant, *336. ' Pamphlet Laws, 535. ' See act of lltli April, 1848, Pamphlet Laws, 535. ' Moore v. Harrisburg Bank, 8 Watts, 138 ; Helmbold v. Mais, 4 Wharton, 410. ° Dougherty v. Jack, 5 Watts, 456. » Penington v. Coats, 6 Wharton, 277, and cases there cited. « Wilson V. Gibbs, 4 Casey, 151 ; S. C, 2 Philadelphia, 84. SEC. I.] RE-ENTRY. 221 2. First. Eviction by the landlord, or one claiming under him, may happen as follows : (1.) By his illegal entry on the demised premises, and the ac- tual expulsion of the tenant therefrom.' (2.) By his using, without the consent of the lessee, privileges appurtenant to the demised premises not reserved in the lease." (3.) By his erecting or creating adjacent to the demised prem- ises such a nuisance as deprives the tenant of the enjoyment of the premises.^ (4.) By (when the demise is of part of a house) his habitually bringing lewd women under the same roof, and there creating nocturnal noise and disturbance.* (5.) By his entering on the premises during the tenant's ab- sence, and putting another person in possession thereof.^ 3. The entry on even a part of demised premises, and the evic- tion of the tenant therefrom, will suspend the rent of the whole of the demised premises during the time that such eviction lasts,* 4. It has, however, been decided in Pennsylvania, that an en- try by the lessor, without the expulsion of the tenant, will not suspend rent, and that it will be for thS jury to decide whether there was an eviction or not.' But an eviction from any part of the premises will suspend accruing rent.' It will not, however, have any effect on the rent already due prior to the eviction ;' bat if an action be brought against the tenant for the rent, he may de- falk his damages for the subsequent eviction.'" 5. If premises demised be destroyed by fire, and the lessor, without the assent of the tenant, enter thereon with the purpose of ' See Note 2 to Salmon v. Smith, 1 Williams's Saunders, 204. 2 Vaughan v. Blanchard, 1 Teates, 175; Neale i>. McKenzie, 1 Meeson & Welsby, 747 ; Garrett v. Cummins, 2 Philadelphia, 207. 3 Taylor's Landlord and Tenant, ? 880. * Ibid. ; Pendleton v. Dyett, 4 Cowen, 581. ' Briggs V. Thompson, 9 Barr, 338. ' 8 Bacon's Abridgment, Rent, N., 523; Kessler v. MoConachy, 1 Kawle, 435 ; but see Seabrook v. Mover, 7 Weekly Notes, 189. ' Bennet v. Bittle, 4 Rawle, 339 ; see Noble v. Warren, 2 Wright, 340 ; Doran v. Chase, 2 Weekly Notes, 609. 8 Wolf V. Weisner, 2 Brewster, 524; S. 0. 7 Philadelphia, 274; Garrison V. Moore, 1 Philadelphia, 282 ; Bauer v. Broden, 3 Ibid. 214. ' Kessler v. McConachy, 1 Kawle, 435 ; Tiley v. Moyers, 7 Wright, 404. w Tiley v. Moyers, 7 Wright, 404. 222 NON-DELIVERY OF POSSESSION. [CHAP. X. rebuilding, it is an eviction. If with assent, it is (without special agreement) a rescission of the lease.' Moreover, when a lessor retains possession of a part of demised premises under an agree- ment to deliver the same to the tenant when demanded, his refusal to do so amounts to an eviction, and while his refusal con- tinues there can be no recovery of the rent.'' But if a lessor sell part of the premises demised, and the rent be apportioned, the illegal eviction by one of the reversioners of the tenant will not discharge the rent accruing to the other innocent reversioner.^ 6. Second. Eviction of the tenant by a stranger happens as follows : (1.) Where a title is set up and established by another para- mount to that of the tenant's lessor. (2.) Where the title of the lessor becomes divested by judicial sale under an incumbrance antedating the lease. 7. (1) As to where a title is set up and established by another paramount to that of the tenant's lessor. In every leasing there is an implied covenant on the part of the lessor, for the quiet enjoyment by the tenant of the premises de- mised for the term agreed on, and this whether the lease be oral or written, and for the breach of this covenant an action of as- sumpsit will lie;* but this implied covenant will not survive the estate of the grantor as an express one will ; thus, if a tenant for life make a lease for years, and dies during the tenancy, the remedy on the implied covenant dies with him.* 8. But though an express covenant for quiet enjoyment will sur- vive the estate, and for the breach of it an action will lie against the executor of a deceased tenant for life as already stated, it is yet in most cases better that the landlord should insert such in his lease, provided that he restrains the tenor of it to eviction by himself and all persons claiming by, from, or under him. In this manner he may avoid the dangers of suits for damages by the tenant in case the title under which he holds should prove defective.^ More- 1 Magaw V. Lambert, 3 Barr, 444. 2 McClurg V. Price, 9 P. F. Smith, 420. ' Keed v. Ward, 10 Harris, 144 ; Linton v. Hart, 1 Casey, 193. " Maule V. Ashmead, 8 Harris, 484 ; Koss v. Dysart, 9 Casey, 452. " Quain's App'l, 10 Harris, 510; Fisher ». Milliken, 8 Barr, 112. ' Merrill v. Frame, 4 Taunton, 329 ; Stanley v. Hayes, 3 Queen's Bench, 105. SBC. I.] RE-ENTRY. 223 over, if the tenant be evicted by the State under its right of emi- nent domain, the landlord is not liable.* Where a tenant has been evicted by suit in ejectment under a title paramount to that of his landlord, he is not liable for rent from the time of the commencement of the ejectment ;' or in case the tenant attorn to the plaintiff under the pressure of a writ of habere facias, the lessor's right to recover the rent is gone and will not be revived by his success in a second action of ejectment.^ 9. The covenant for quiet enjoyment does not extend to oblige a lessor to rebuild in case of accidental fire.* 10. (2) As to where the title of the lessor becomes divested by judicial sale under an incumbrance antedating the lease. In such a case, after the execution of the deed, the tenant becomes a tenant at sufferance to the purchaser, and is liable to be evicted from the premises, either by the mere entry thereon of the pur- chaser, or by the forms of procedure prescribed by the act of 14th June, 1836' (sections 105 and sequents), and the supplementary act thereto of 24th May, 1878.° The covenant against incumbrances is not implied in a lease." But in Funk v. Voneida,' where a deed, containing a covenant of special waiTanty, was executed, that if a deed be made conveying a property without mentioning therein a mortgage previously made by the grantor, Duncan, J., declared that the implied covenant against incumbrances was broken at the time of the delivery of the deed, and that the grantor need not await an actual eviction to be enabled to sustain an action. In analogy with this reason- ing, it would seem that where a lease is made without mention being made therein of prior incumbrances, the covenant is at once broken. In the case of Knepper v. Kurtz,' it was held that there must be an eviction to break the covenant of general warranty, while a covenant against incumbrances is broken as soon as en- tered into if incumbrances exist. 1 Frost V. Earnest, 4 Wharton, 86 ; Dobbins v. Brown, 2 Jones, 75 ; Bailey 0. Miltenberg, 7 Casey, 37 ; see also Peters v. Grubb, 9 Harris, 465. ' Bauders v. Fletcher, 11 Sergeant & Eawle, 419. » Koss V. Dysart, 9 Casey, 452. « See Comyn's Landlord and Tenant, *212. 5 Pamphlet Laws, 761 ; Bush v. National Oil Co., 5 "Weekly Notes, 143; Mozart Building Association v. Frisdjen, Ibid. 318. • Pamphlet Laws, 135. ' See posi, page 560, 1[ 1015 et seq. « 11 Sergeant & Kawle, 109. 9 8 P. F. Smith, 480. 224 NON-DELIVERY OF POSSESSION. [OHAP. X, 362. Seventh. The tenancy may terminate by the demised prem- ises being taken for public use. 1. This taking may occur as follows: (1.) When the United States, by its right of eminent domain, demands the possession of the soil for the purpose of public use.' (2.) When the State, by the same right, demands the possession of the soil for the purpose of internal improvement or public use.' (3.) When the State, by the same right, authorizes a private cor- poration to occupy the soil as an easement.' (4.) When the State, by the same right, authorizes a municipal corporation to occupy the soil, either as an easement or in fee for municipal purposes.'' 2. It is beyond the purview of this manual to enter into as much detail as the writers feel inclined to do, therefore the subject must be restricted to the effect such evictions have on the right of the par- ties to a lease. Whenever the tenant is evicted by the State from all the premises demised, the lease is extinguished f but if only part of the premises demised be taken, the lease is not thereby extin- guished, even pro tanto, except by the force of some statute; nor is the lessee discharged of his liability to pay the rent for the residue of the term, but the lessor and lessee are each entitled to compen- sation for damage to their respective interests.* 3. When private property is taken by the Commonwealth, it is not requisite that the damages should be actually ascertained and paid,' but if the same be taken by a private or municipal cor- poration, the damages must first be ascertained and paid.' In New 1 In re League Island, 1 Brewster, 524; Darlington and Wife v. United States, 1 Norris, 382, S. C. 3 Weekly Notes, 221. 2 Haldeman v. Pennsylvania Railroad Co. , 14 Wright, 425 ; Craig v. Mayor, etc., of Alleghany, 3 P. ¥. Smith, 477; Wyoming Coal and Transportation Co. I,. Price, 31 P. P. Smith, 166, S. C. 3 Weekly Notes, 224 ; Long v. Fuller, 18 P. P. Smith, 170. ' Lance's Appeal, 5 P. P. Smith, 16 ; Jessup v. Loucks, Ibid. 850 ; McClin- ton V. Pittsburg, Port Wayne and Chicago Railroad Co., 16 P. P. Smith, 404. ^ Harrisburg v. Crangle, 3 Watts & Sergeant, 460. s Harvey's Case, 4 Leonard, 161 ; Taylord's Landlord and Tenant, J 519. * Ibid. Workman v. Mifflin, 6 Casey, 362 ; Schuylkill, etc., Co. v. Schmoele, 7 P. P. Smith, 271 ; Water Street, 7 Philadelphia, 457 ; Haley v. Philadelphia, 18 P. P. Smith, 146. ' Pittsburg V. Scott, 1 Barr, 309 ; Commonwealth v. Pittsburg and Con- nellsville Railroad Co., 8 P. P. Smith, 26; Hatermehl v. Dickerson, 8 Phila- delphia, 282. 8 See Constitution of 1874, Article XVI, Sec. VIII. SEC. I.] RE-ENTRY. 225 York when a street is closed up on which lie the demised prem- ises, and the same are no longer on a public highway, the lease becomes void.' 363. Eighth. The tenancy may terminate by the demised prem- ises being used for an illegal or immoral purpose. 1. A lease of premises to be used for purposes of prostitution, or for any other immoral object, is a contract against the law and good morals, and is absolutely void.^ However, if the lessor was igno- rant at the time of the letting that it was the intention of the tenant to use them as such, the lease is not avoided, nor will the lease be avoided when the prostitutes merely lodge in the house and receive their followers elsewhere.' 2. The act of 31st March, I860,* in section 43, provides that " if any person shall keep and maintain a common bawdy house, or place for the practice of fornication, or shall knowingly let or demise a house, or part thereof, to be so kept, he, or she, shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an impris- onment not exceeding two years." 364. Ninth. The tenancy may become terminated by the death of a tenant for life. 1. A tenant for life, either for his own life or that of another, cannot (unless authorized by the instrument creating his life es- tate) make a lease to continue longer than the life on which his own estate depends, for the lease is absolutely determined and void by the falling in of the life estate,^ and such a lease being once determined, can never be set up again at law by any act of the party in remainder, as by his acceptance of rent, or by his allowing the tenant for years to make improvements, after the death of the tenant for life.* However, if rent be accepted by the remainder- man, a tenancy from year to year is created between the parties.' ' Taylor's Landlord and Tenant, J 519. 2 Girardy tJ. Eichardson, 1 Espinasse, 13; Taylor's Landlord and Tenant, §521. ' Appleton V. Campbell, 2 Carrington & Payne, 347. < Pamphlet Laws, 394 ; see Commonwealths. Johnson, 4 Clark, 398. ^ Bacon's Abridgment, Lease, 1 f Comyn's Landlord and Tenant, *24. ^ Ibid. ; Doe dem Simpson v. Butcher, Douglas, 50. ' Doe dem Martin v. Watts, 7 Term Reports, 83; Doe dem. Collins v. Weller, 7 Ibid. 478. 15 226 NON-DELIVERY OF POSSESSION. [OHAP. X. The case will also be different where the tenant for life makes a lease for years, and the party in reversion or remainder confirms the same.' Leases are sometimes made for years, dependent on the life or lives of the grantee, or of some one or more named, and where it is the case that the lives of two persons are contem- plated, the lease continues until the death of the survivor. Thus, if a lease be made for ninety-nine years, if A and B so long live, it is determined by the death of either, but if it be if A or B so long live, the lease will exist to the death of the survivor.^ 2. In regard to the payment of rent by tenant for years under a lease from a tenant for life, the statute of 11 George II, chapter 19,^ and also the act of 24th February, 1834, section 7,* provide that the rent is apportioned up to the day of the death of the ten- ant for life, and therefore the rent up to that time goes to the exec- utors, or the administrators, of the decedent lessor. But if the tenant for years hold over with the consent of the party in rever- sion or remainder, his tenancy becomes one from year to year, and he is liable for the rent as such. 3. It may happen that some difficulty may arise relative to the question of the existence of the tenant for life, either of the lessee for his life, or for that of another, and to remedy this the statute of 19 Charles II, chapter 6,' was enacted, which provides, that when persons, upon whose lives estates have been granted by copy of court-roll or lease, shall remain beyond the seas, or elsewhere absent themselves, for seven years together, an action shall be brought by the lessor, or reversioners, to recover possession of the land so granted ; such persons shall, unless sufficient proof be made of their lives, be accounted dead, provided, that if such persons shall afterwards be forthcoming, the tenant evicted may re-enter the lands, and recover the mesne profits, or, upon proof that the ces- tui que vie died after the eviction, then the tenant may recover the profits arising between the re-entry and the death. 365. Tenth. The tenancy may terminate by the loss of the land- lord's reversion, where the same is sold under a judgment ante- dating the lease. 1 Comyn's Landlord and Tenant, *25. ' Lord Vaux's Case, Croke Elizabeth, 269 ; Taylor's Landlord and Tenant, » Roberts's Digest, *237. * Pamphlet Laws, 73. ^ Koborts's Digest, *233. SEC. I.J KE-ENTRY. 227 1. The act of 16th June, 1836/ in section 43, provides that if sufficient personal estate of a debtor subject to a writ of fi. fa. be not found, the officer may proceed to levy on his real estate. Sub- sequent sections of the same act provide the manner of sale, and the effect the sale shall have on the estate of a tenant holding under the debtor, and also provide the process for obtaining possession of the demised premises by the purchaser. This is done by the pur- chaser, after getting a deed for the property, by giving the tenant in possession (provided his lease does not antedate the judgment under which the property was sold) three months' notice to quit, and at the end of that time by applying (since act of 24th May, 1878^) to one magistrate or justice of the peace, who, on due proof being made, will direct the sheriff to summon a jury of six men to hold an inquest, and proceed as will be more fully shown in a subsequent chapter. 2. The purchaser may also proceed to obtain possession by bringing an action of ejectment,^ or, after having received his deed, he may peaceably re-enter. 366. Eleventh. The tenancy may terminate by the sale of the decedent landlord's reversion, under an order of the Orphans' Court. 1. The act of 29th March, 1831,^ empowered the Orphans' Court to decree the sale of decedent's land for the purpose of pay- ing his debts, or for the maintenance and education of his children, or on application by the guardian setting forth special circum- stances, or, when on proceedings in partition, the parties in interest refuse to take at the valuation. This act was further supple- mented by the act of 24th of February, 1834,° and the act of 16th June, 1836;^ but neither of these acts provided any means whereby a purchaser could obtain possession of premises which had been demised by the decedent landlord. To remedy this, pro- vision was made in the act of 9th April, 1849,' to the effect that after receiving the deed, the purchaser of real estate sold under order of Orphans' Court, could proceed to obtain possession in the same manner as was provided in the act of 16th June, 1836, relating to executions. This act, however, does not relate to sales ' Pamphlet Laws, 761. ' Ibid. 135. 8 Stockton's Appeal, 14 P. F. Smith, 58. * Pamphlet Laws, 190. » Ibid. 73. « Ibid. 785. ' Ibid. 427. 228 NON-DELIVERY OF POSSESSION. [CHAP. X. in partition authorized by the Court of Common Pleas.' The purchaser may, however, bring an action of ejectment, or may peaceably re-enter. 367. Twelfth. The tenancy may become terminated in Phila- delphia by the non-payment of rent, under the provisions of the act of 25th March, 1825.== 1. This act, which in section 2 relates solely to the city of Philadelphia, provides a summary process for evicting a tenant who removes from the demised premises without leaving thereon sufficient property to secure the payment of at least three months' rent. In regard to it the reader is referred to Chapter V, Section III, page 155 et seq., where it is fully treated of. 368. Thirteenth. The tenancy may also become terminated by the non-payment of rent, under the provisions of the act of 3d April, 1830.^ 1. This act relates to the whole State and provides a summary process for evicting a tenant for the non-payment of rent. It is fully treated of in Chapter V, Section IV, page 160 et seq. 369. Fourteenth. The tenancy may terminate in Philadelphia by the refusal of the tenant to furnish the date on which the same commenced, when the lessor has lost his lease or evidence of the beginning and termination of the term. 1. To provide for this contingency the Legislature enacted the act of 28th February, 1865,^ which provides that in such a case the landlord, provided there has been a lease or verbal letting of property for a term of years, or from year to year, may, after the first year, or after the term of years, give notice in writing to the tenant that he has lost such lease, or is unable to make such proof, and that he requires the tenant within thirty days after the serving of the notice to furnish him in writing with the date at which his term commenced. If the tenant fail to give such information within the said time, the landlord may, at the end of that time, give the tenant three months' notice to leave the premises, and at the end of the three months may proceed to regain possession by application to a magistrate ; but if the tenant within the thirty days make affidavit that he is unable to comply with the land- 1 Fitzgibbons v. Keller (MS.), cited by the court in Simpson v. Thornton, 4 P. P. Smith, 391, 393. 2 8 Smith's Laws, 411. 5 Pamphlet Laws, 187. » Ibid. 253. SEC. I.] BB-ENTRT, 229 lord's request, stating the causes of his inability, the landlord may give him six months' notice, and then proceed to regain possession in the manner aforesaid. II. The Landlord's Right of Re-entry. 370. Having now set fcrth the circumstances which will either terminate or justify the termination of a tenancy, we will consider the right of the landlord to re-enter. 371. The right is absolute when the tenancy is determined by the following methods: (1.) By effluxion of time where the lease is for a definite period. (2.) By notice to quit, given three months before the end of the current year, when the tenancy is one from year to year. (3.) By forfeiture of the term, under the conditions contained in the lease. (4.) By merger. (5.) By surrender. (6.) By eviction of the tenant by one having title paramount to that of the lessor. (7.) By the demised premises being used for an illegal or im- moral purpose. (8.) By the death of the tenant for life. (9.) By the loss of the landlord's reversion, when the same is sold under a judgment antedating the lease. (10.) By the sale of the decedent landlord's reversion by the order of the Orphans' Ck)urt or Court of Common Pleas. In all these cases a landlord, or the possessor of his reversion, may re-enter on the premises, provided there has been inserted in the lease a right of re-entry. 372. Moreover, when the demised premises have been sold at a sheriffs sale, under a judgment antedating the lease, the pur- chaser after having received the sheriff's deed for the premises may peaceably enter on the premises and dispossess the party in possession. That such is the law seems to be decided by our Supreme Court, in the case of Kellam v. Janson,' but the party in possession, in that case, was one who had assumed possession after the delivery to the purchaser of the sheriff's deed. Had he been a tenant for years under the former landlord by a lease post- 1 5 Harris, 467. 230 NON-DELIVERY OF POSSESSION [CHAP. X. dating the judgment under which the premises were sold, it is possible the decision might have been the reverse, on 'the reason- ing that the act of Assembly of 21st March, 1806, enacts, that when in all cases a remedy is provided, or duty enjoined, or any- thing directed to be done by any act or acts of Assembly of this Commonwealth, the directions of the said acts shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, fur- ther than shall be necessary for carrying such act or acts into effect. And as the act of 16th June, 1836, provides how the de- fendant in possession, or his tenant, may be removed from the premises demised and sold as aforesaid, it would seem that the provisions of the said act should be conformed to. The same reasoning is applicable to an entry on the premises sold by order of the Orphans' Court, or by order of the Court of Common Pleas. The act of 9th April, 1849, enacts that after such sale by order of the Orphans' Court the possession may be obtained in the same manner as was then provided for in relation to purchasers at sheriff's sales. No such provision is made for purchasers at sales in partition by order of the Court of Common Pleas. 373. When the entry on the premises by the party entitled to the possession is peaceable, he is not liable in an action of trespass nor to an indictment for forcible entry. Nor can he be compelled to make restitution of the premises to the party expelled ; but if he enter with force and arms, and violently expel the party in possession, he becomes liable to an indictment for forcible entry, under the provisions of the act of 31st March, I860,' which en- acts as follows : "Section 21. If anypersonshall with violenceandastrong hand enter upon or into any lands or buildings,either by breaking open doors, windows or otlier parts of a house, or by any kind of violence or other circumstances of terror, or if any person after entering peaceably, shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and on conviction shall be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements entered as aforesaid." > Pamphlet Laws, 882, 390. SBC. I.] RE-ENTRY. 231 It would seem from the reading of the above that if the party legally entitled to the possession, should enter with force and violently expel the party in the actual possession, that the former would be liable not only to a fine or an imprisonment, but also to restore the premises to the party he had expelled. However, it seems that tliis is not so, provided that the party in possession be not entitled to the possession, it having been decided by the Supreme Court, Mr. Justice Gibson delivering the opinion, in the case of Burd and Others v. The Commonwealth,^ that a naked possession was insufficient to authorize a writ of restitution, and in Torrence v. The Commonwealth^ it was held that restitution would not be made unless the estate of the ejected party was set forth in the indictment. It would seem, therefore, that the words "party in possession" in the act should be construed to be "party lawfully in possession," and that if the possession be not lawful res- titution will not be awarded, even though the offender be proven to be guilty of a forcible entry, and be fined or imprisoned. 374. In cases where the legal possession of the premises has never been parted with, as in ground-rents in fee, entry is not required in order to divest the conditional estate of a grantor. Thus in Hamilton v. Elliott,' Almond sold subject to a ground- rent to Hairiilton, conditioned that Hamilton should build a house on the premises, in which Almond and his wife were to reside during their lives. Hamilton failed to build the house, and Almond continued to reside on the premises in an old house thereupon, but declared no forfeiture. Yet Almond before his death made a conveyance to Elliott, who afterwards brought eject- ment for the premises against Hamilton and recovered. The Supreme Court, per Mr. Justice Gibson, held that as Almond, was in possession there was no need of entry on his part, and quoted 1 Institute, 218 B, for the proposition, that if a man grant a. rent-charge in fee out of his land, the rent shall be extinct on a. breach of the condition without entry or claim, for he is in pos- session and need make no claim. And as to the non-entry of Elliott, it was held that as assignee of the feoffor he had no right- to enter. Though the above case be not applicable to demises for years. • 1 6 Sergeant & Eawle, 251. ' 9 Barr, 184. » 5 Sergeant & Eawle, 375. 232 NON-DKLIVEBY OF POSSESSION. [cUAP. X. where the tenant enters into the possessson of the premises, it yet shows how an estate may be lost by a failure to fulfil the condi - tions of a grant, but the case of McKnight v. Kreutz* is directly applicable. In that case Kreutz demised to McKnight for a term of years a piece of land, stipulating in the lease that if the lessee failed to comply with the covenant in the lease relative to the payment of rent, the lessor should have power to dissolve and annul the lease entirely. The lessee failed to pay, the lessor re- sumed the possession of the premises, and in an action by the lessee against the lessor in ejectment, it was held by the Supreme Court, Mr. Justice Strong delivering the opinion, that the lessee could not recover. It would seem, therefore, that in Pennsylvania, where land is held on condition on the breach thereof, the title is ipso facto void without entry or claim.^ 375. We may then conclude with regard to re-entry by a land- lord, who becomes entitled to the actual possession of demised premises either by the effluxion of time or the happening of such contingency as may authorize the determination of the tenancy, that the landlord may — (1st.) Enter peaceably and resume his former possession, and if the tenant attempt to deforce him it will be the tenant who is the trespasser. (2d.) Re-enter even forcibly, in which sase he becomes liable to an indictment under sections 21 and 22 of the act of 31st March, 18G0; but if he be legally entitled to the possession, the tenant cannot recover the possession, SECTION II. THE WRIT OF ENTRY AD TERMINUM QUI PE^TERIIT. 376. The second remedy to which a landlord in Pennsylvania may resort for the non-delivery of possession of the demised premises at the end of the term, or on the happening of some con- tingency which may authorize the determination of the tenancy, is that of the writ of entry ad terminum qui prceteriit. This ac- 1 1 P. P. Smith, 232. ' Davis V. Moss, 2 Wriglit, 346 ; Siieaffer v. Sheaffer, 1 Ibid. 525 ; McKnight ,». Kreutz, 1 P. F. Smith, 232. SBC. III.] ACTION OP EJECTMENT. 233 tion is now practically obsolete in Pennsylvania, being, like the other real actions, supplanted by the action of ejectment. It is, however, optional with the landlord to resort to it, but if he does, the courts will demand a strictness of practice difficult to attain. 377. The action lies for the recovery by the lessor of the de- mised premises, after the end of the terra, where the lessee holds over, or where there was a lessee for the life of another, and the lessee holds over the termination of the life, or where the tenant for life aliens his term and dies, and the grantee holds over. As no record can be found of such an action in this State, we will not dwell upon it. [For the form of this action, see Fitzherbert's Natura Brevium, page 201. J SECTION III. THE ACTIOK OF EJECTMENT. 378. The third remedy to which a landlord in Pennsylvania may resort for the non-delivery of possession of the demised premises at the end of the term, or on the happening of some contingency which may authorize the determination of the ten- ancy, is that of the action of ejectment. I. Its History. 379. This action was originally founded on a writ invented in the reign of Edward the Third, the vigor of which was enlarged and extended in the times of Oliver Cromwell and Charles the Second, and was based upon fictions, with an imaginary lease, plaintiff and defendant, and a feigned entry and ouster. As such it remained in Pennsylvania until the act of Assembly of 21st March, 1806,' swept away these fictions and the old writ, substi- tuting therefor an intelligible action with a simple process, and this without making any alteration in the rights of parties, or any substantial change in the action. The process by declaration is supplied by the writ given in the act, and the real parties in the action are substituted for the fictitious John Doe and Richard Roe, or other imaginary persons, whose titles formerly appeared in the action. After the passage of this act, doubts arose with re- » 4 Smith's Laws, 582. 234 NON-DELIVERY OP POSSESSION. [cHAP. X. gard to its extent and effect. To remove these the legislature, on the 13th day of April, 1807,' passed a supplementary act, which declares as follow : (1.) That the writ prescribed by the act of 1806 shall give a remedy as fully and effectually as in the actions of ejectment for- merly in use. (2.) That all persons having an undivided interest in lands and hereditaments may join in the action and recover according to their interest, and that minors may sue by their guardians. (3.) That the defendant may defend upon his own title or that of another. (4.) That the landlord shall be admitted as defendant as there- tofore, and in such case shall, on the trial, admit himself in pos- session. (5.) That when a writ is issued, and on the service thereof it may appear to the sheriff that persons not named in the writ are in possession of the whole, or part of the premises, he shall add the names of such persons to the writ, and serve the same on them. (6.) That on the return of such service, the prothonotary of the court shall enter such additional names, and they shall be parties to the action. (7.) That in case of any of the defendants not appearing, on motion before the court and on affidavit of the officer serving the writ, stating the manner in which the writ was served, and the same appearing to the court agreeable to law, judgment by de- fault may be entered, and a writ of possession issue against them, and the trial proceed against the other defendants who had ap- peared. (8.) That the return by the sheriff of having served the writ, shall be evidence of the defendants in default being in actual pos- session of the premises or of part thereof. (9.) That no writ of ejectment shall abate by reason of the death of any plaintiff or defendant, but the person next in interest may be substituted. (10.) That where two verdicts between the same parties are given in succession, for the plaintiff or defendant, and judgment ren- dered, no new ejectment shall be brought ; but where there is a I i Smith's Laws, 476. SEC. III.J ACTION OF EJECTMENT. 235 verdict against a verdict and judgment thereon, a third eject- ment and verdict and judgment thereon shall be final and conclu- sive, and bar the right. (11.) That the plea in ejectment shall be "Not Guilty." On these two important acts of Assembly is based the practice of ejectment in the State courts of Pennsylvania, and the same practice is, by act of Congress of 1st June, 1872,' extendedf to the Federal courts in Pennsylvania having original jurisdiction on the subject. The subsequent acts relative to ejectment are all minor in their import, as will appear by the synopsis hereafter given. 380. In consequence of the possessory remedies supplied by the acts of 21st March, 1772,' 25th March, 1825,' 3d April, 1830,* and 14th December, 1863,^ the remedy of ejectment in landlord and tenant cases is seldom resorted to, excepting where it results from a warrant of attorney contained in the lease, which author- izes an entry of an amicable action. Nevertheless, cases arise in which it is, if not the only, at least the best remedy. Thus where a landlord grants a lease in which no rent is reserved, he cannot avail himself of the possessory remedies contained in either of the acts of 1772, 1825, or 1830; and if after giving a lease he neglects to give notice three months prior to the expiration of the 4erm, of his desire to repossess the demised premises, he cannot avail him- self of the remedies contained in the act of 1863, and in these cases he is driven to seek either the remedy of peaceable re-entry or of ejectment. In Pennsylvania the action is not only a possess- ory remedy in which the plaintiff recovers on his general right of action, but it is a mode of trying title. 381. This action exists in Pennsylvania in two forms. First. Ejectment at common law, which enforces the right of a plaintiff in relation to the possession of land, and this, in this State, is the usual action for trying title.° Second. Equitable ejectment, which is applicable where the object is to enforce the specific performance of a contract, either by the recovery of the land or of money instead of the land.'' 1 n U. S. Statutes at Large, 196. => Smith's Laws, RIO. 3 8 Ibid. 411. * Pamphlet Laws, 189. 6 ibid. 1125. " Morris's Lessee u. Vanderen, 1 Dallas, 64, 67 ; Cooper i>. Smith, 9 Sergeant & Eawle, 26, 81 ; Wells v. Fox, 1 Dallas, 308. ' Peebles v. Reading, 8 Sergeant & Rawle, 484 ; Corson v. Mulvany, 13 "Wright, 88. See also Eussell v. Baughman, 9 Weekly Notes, 284. 236 NON-DELIVERY OP POSSESSION. [CHAP. X. 382. In ejectment at common law two successive verdicts and judgments are conclusive and a bar to another action ; but in cases where there is a verdict against a verdict between the same parties, and judgment thereon, a third action may be brought, which will be final and conclusive, and bar the right.' 383. In actions of equitable ejectment one judgment and ver- dict is conclusive,^ provided it is clearly shown that the equitable title was directly in issue.^ Xhe form of procedure in both forms is the same. II. Synopsis of the Acts of Assembly. 384. Before giving the text of the various acts of Assembly relating to the action of ejectment, it may be as well to give a synopsis of them. 385. The act of 21st March, 1772,* in section 8, makes it obliga- tory, under a penalty of two years' rent, on the tenant to give notice to the landlord of any declaration in ejectment delivered to him, and although since the act of 1 806 it is not usual to serve the declaration on the tenant, it is yet the duty of the tenant to notify the landlord of the service of the writ.^ Sectlpn 9 of the same act makes it lawful for the court to suffer the landlord to join with the tenant as defendant, and, in case of the tenant's failure to appear, to defend alone.^ 386. 1. The act of 26th March, 1785,^ is a statute of limitation, and makes it requisite for the demandant to bring his action within twenty-one years after his right first descended or accrued. This act does not bar the Commonwealth,^ but it does a county or a 1 Act of 13th April, 1807, See. IV, Pamphlet Laws, 189; Seitzinger v. Eidg- way, 9 Watta, 496; Drexel v. Man, Jun., 2 Barr, 267; Drexel v. Man, Ibid. 271 ; Treaster v. Fleisher, 7 Watts & Sergeant, 137 ; Ives v. Leet, 14 Sergeant & Eawle, 301 ; Mercer v. Watson, 1 Watts, 330. ^ Peterman v. Huling, 7 Casey, 432 ; Seitzinger v. Eidgway, 9 Watts, 496 ; Coughanour v. Bloodgood, 3 Casey, 285. " Meyers v. Hill, 10 Wright, 9. * 1 Smith's Laws, 370. ' Boyer v. Smith, 5 Watts, 55, 65. ^ McClay v. Benedict, 1 Eawle, 424 ; Boyer v. Smith, 5 Watts, 55, 65 ; Lin- derman v. Berg, 2 Jones, 301; Brown v. O'Brien, 3 Clark, 115. ' 2 Smith's Laws, 299. * Johnston v. Irwin, 3 Sergeant & Eawle, 291 ; McCoy v. Trustees of Dickin- son College, 4 Ibid. 302; Bagley v. Wallace, 16 Ibid. 245; Commonwealth i'. Baldwin, 1 Watts, 56 ; Commonwealth v. Miltenberger, 7 Ibid. 450 ; McKee- han V. Commonwealth, 3 Barr, 151. SBC. III.] ACTION OF EJECTMENT. 237 municipal corporation.' An entry by the owner suspends the act/ but the entry must be made expressing the intention.' The act of 13th April, 1859/ however, provides that the action must be brought within one year after the entry. The act applies to all cor- poreal hereditaments, including sub-surface rights and title by war- rant and survey,' and begins to run when a right of action accrues.' 2. By the Statute of Limitations, a complete title is gained,'' not only sufficient to support a defence, but also to recover in an action of ejectment.* But the possession must be — (1st.) Adverse.^ (2d.) Actual, visible, exclusive, and notorious.'" 1 Evans v. Erie County, 16 P. JF. Smith, 222. ' Hinman v. Cranmer, 9 Barr, 40; Ingersoll v. Lewis, 1 Jonps, 212; Hole o. Rittenhouse, 7 Harris, 305. » Miller v. Shaw, 7 Sergeant & Eawle, 129, 133 ; Altemas t. Campbell, 9 Watts, 29; Lawrence v. Hunter, Ibid. 64,80; Holzapple «. Phillibaum, 4 Weekly Notes, 357. ■• Pamphlst Laws, 603. 5 Armstrong v. Caldwell, 3 P. P. Smith, 284; Pipherii Lodge,/4 Sergeant & Eawle, 310; McCall v. Coover, 4 Watts & Sergeant, 151; Clarke v. Dougan, 2 Jones, 87 ; McCoy v. Trustees of Dickinson College, 4 Sergeant & Rawle, g02. 6 Hall D. Vandegrift, 3 Binney, 374 ; Shepley v. Lytle, 6 Watts, 500 ; Poe ?). Poster, 4 Watts & Sergeant, 855 ; Marpleu. Myers, 2 Jones, 125; Dough- erty V Snyder, 15 Sergeant & Eawle, 84; Garnet v. Lynn, 7 Casey, 94; Culler v. Motzer, 13 Sergeant & Eawle, 356 ; Miltenberger v. Croyle, 3 "Casey, 170; Bensal v. Chancellor, 6 Wharton, 371 ; Tiernan v. Eoland, 3 Harris, 429 ; Baldridge „. McParland, 2 Casey, 338 ; Carlisle v. Stitlor, 1 Penrose & Watts, 6 ; Eankin v. Tenbrook, 6 Watts, 388 ; Thompson v. Smith, 7 Sergeant & Eawle, 209 ; Push v. Barr, 1 Watts, 110 ; Soott v. Gal- lagher, 14 Sergeant & Eawle, 333 ; Dikeman v. Parrish, 6 Barr, 210 ; Peppard V. Deal, 9 Ibid. 140; Coulter v. Philips, 8 Harris, 154. ' Watson V. Gregg, 10 Watts, 289, 295, and cases there cited ; HoUinshead u. Nauman, 9 Wright, 140. * Pederick v. Searle, 5 Sergeant & Eawle, 235, 240; Hole v. Eittenhouse, 7 Harris, 306. 5 Morris u. Vanderen, 1 Dallas, 64, 67 ; McCoy v. Trustees of Dickinson College, 4 Sergeant & Eawle, 302; Gonzalus v. Hoover, Ibid. 118 ; Miller v. Shaw, 7 Ibid. 125, 135, and cases there cited ; Munshovver v. Patton, 10 Ibid. 338; Carlisle «. Stitler, 1 Penrose & Watts, 6; Allen v. Getz, 2 Ibid. 310; Marsh v. Weckerly, 1 Harris, 250 ; Hood v. Hood, 2 Grant, 230 ; Wheeler v. Winn, 3 P. P. Smith, 122. '" Hawk V. Senseman, 6 Ibid. 21 ; Johnston «. Irwin, 3 Sergeant & Eawle, 291 ; Mackentile v. Savory, 17 Ibid. 104; Mercer v. Watson, 1 Watts, 338; Brown v. McKinney, 9 Ibid. 565 ; Long t>. Mast, 1 Jones, 189 ; Hole v. Eit- tenhouse, 7 Harris, 309; same case, 1 Casey, 491, and cases there cited; Washabaugh v. Bntriken, 10 Casey, 74. 238 NON-DELIVERT OF POSSESSION. [CHAP. X. (3d.) Continuous and uninterrupted.' To support the title it is not requisite that there should be — (1st.) Residence;'' and (2d.) Payment of taxes.' The widow of a tenant for life who continues in possession without contract does not hold adversely, even after a subsequent marriage.^ 3. A peaceable and uninterrupted possession of more than twenty-one years is enough to protect the occupant in the enjoy- ment of his property/ but where the lands were unseated, and had been surveyed and patented to another, and the occupants had entered without color of title, it was decided in various cases that they only acquired title to so much as they had actually culti- vated or inclosed.' Since which it has been decided that if a party define his boundaries, and take actual possession of a part by clearing or cultivating, and use the remainder, as farmers usually do woodland, taking timber, tapping trees, and so forth, and does this adversely and exclusively for a period to satisfy the statute — the owner in the meantime not interfering — he gains title by limitation.' 4. To give effect to the statute the possession of an occupant by a colorable title is co-extensive with his title, but the posses- 1 Pederick v. Searle, 5 Sergeant & Kawle, 235 ; Overfield v. Christie, 7 Ibid. 173 ; Cooper v. Smith, 9 Ibid. 26 ; Parker v. Southwick, 6 Watts, 377 ; Sorber v. Willing, 10 Ibid. 141; GrafBus v. Tottenham, 1 Watts & Ser- geant, 488 ; Sheetz v. Fitzwater, 5 Barr, 126 ;• Cunningham v. Patton, 6 Ibid. 355; Hughes v. Pickering, 2 Harris, 297; Stephens v. Loach, 7 Ibid. 262; G-roft V. Weakland, 10 Casey, 304. 2 Porter v. McGinnis, 6 Walts & Sergeant, 502 ; Hoey v. Furman, 1 Barr, 295, 301 ; Stephens v. Leach, 7 Harris, 262. •' Hockenburg v. Snyder, 2 Watts & Sergeant, 250 ; Graft v. Weakland, 10 Casey, 304. * Bannon v. Brandon, 10 Casey, 263 ; same case, 2 Wright, 63. 6 Hole V. Rittenhouse, 7 Harris, 305 ; Suber v. Willing, 10 Watts, 141. 6 Heiser v. Eiehle, 7 Watts, 35; Miller v. Shaw, 2 Sergeant & Kawle, 129; Farley v. Lenox, 8 Ibid. 391 ; McCaffrey w. Fisher, 4 Watts & Sergeant, 181. ' O'Hara v. Kichardson, 10 Wright, 385 ; Thompson v. Milford, 7 Watts, 443; Aments's Executor v. Wolf, 9 Casey, 332, and cases there cited; Sholly ». Stahl, 2 Weekly Notes, 418 ; see also Bell v. Hartley, 4 Watts & Sergeant, 33 ; McCall v. Hoover, Ibid. 151 ; Cluggage v. Lessee of Duncan, 1 Sergeant & Eawle, 109; Bishop v. Lee, 8 Barr, 214; Boyer v. Benlow, 10 Sergeant & Rawle, 303. SBC. III.] ACTION OF EJECTMENT. 239 sion of an intruder was held to be confined to the land actually occupied by him.' If the rightful owner of land be in actual pos- session of a part he is in constructive and legal possession of the whole unless actually disseized/ but if he be not in actual posses- sion, and omit to pay the taxes for twenty-one years, and suffer one who has entered without title to pay the taxes, the jury in ejectment may presume that he was ousted.* The acknowledg- ment of the owner's title interrupts the running of the statute,* but it must be made to the owner or his agent and must be ex- press.^ Where one in possession in purchasing part of a tract of land admits the vendor's title to the whole tract, he thereby in- terrupts the running of the statute as to the part he does not agree to purchase.^ But if the statute has closed on the title nothing less than a conveyance will revest it.' 387. The act of 2d April, 1803,' in section 2, provides that a writ of estrepement to stay waste may issue without motion when any ejectment is pending in the Supreme Court, or in the Court of Common Pleas, and to obtain this writ the plaintiff, or other per- son, knowing the fact, must make an affidavit thereof before one of the judges. This act only facilitates the issuing of the writ, the authority for which springs from the Statute of Gloucester.' 388. The act of 21st March, 1806,'" which authorized the issu- ing of a writ of ejectment in place of the old process, which has already been referred to. This act also provided that the plaintiff shall file in the office of the prothonotary a description of the land and also the number of acres thereof. 389. The act of 13th April, 1807," has already been fully re- ferred to on page 234. • McCall V. Neely, 3 Watts, 69 ; Hopkins v. Eobinson, Ibid. 205. 2 Hall V. Powell, 4 Sergeant & Eawle, 456 ; Burns v. Smith, 2 Ibid. 435. ' Eoyer v. Benlow, 10 Sergeant & Eawle, 303; Clark v. Dougan, 2 Jones, 187. * Sailor v. Hertzog, 2 Barr, 184 ; Ingersoll v. Lewis, 1 Jones, 212, and cases there cited. ^ Farmers' and Mechanics' Banks. Wilson, 10 Watts, 261; Sailor w. Hertzog, 10 Barr, 296. ^ Ingersoll v. Lewis, 1 Jones, 212. ' Sailor v. Hertzog, 2 Barr, 182. 8 4 Smith's Laws, 89. « Eoberts's Digest, *418 ; Brown v. O'Brien, 3 Clark, 93. w 4 Smith's Laws, 332. " Ibid. 476. 240 NON-DBLIVBRY OF POSSESSION. CHAP. X. 390. The act of 31st March, 1823/ which, in section 1, enacts that when there is more than one plaintiff in an action of eject- ment, nonsuit may be entered against one, and a verdict in favor of the others. 391. The act of 29th March, 1824,= which, in section 4, pro- vides that when the action is for land on which no one resides and which has been sold for taxes, the plaintiff in ejectment may- bring his action and serve the writ on the purchaser, and if he cannot be found in the county, the court may grant a rule for him to appear and plead, which rule shall be published sixty days successively, and if the defendant then fail to appear, the court shall on motion enter judgment by default. But if the defen- dant appear, or some one claiming under him, the court shall cause him to be made defendant, and the cause shall be proceeded with. 392. The act of 1st February, 1834,' which, in section 1, pro- vides that when, after the execution of a writ of habere facias pos- sessionem, the defendant re-enters on the land, it shall be the duty of the court to issue alias and plwies writs of habere facias pos- sessionem, provided the application for the same be made within three years after the return day of the preceding writ. 393. The resolution of 5th May, 1843 ,*in section 5, enacted that the part of the act of 13th April, 1807, which provided that two verdicts in ejectment should be conclusive, applied to all actions of ejectment legal or equitable, but this resolution was partially re- pealed by the act of 21st April, 1846, and wholly by the acts of 21st April, 1850, and 8th May, 1850.° 394. The act of 21st April, 1846," in section 1, provides that in all actions to enforce the payment of purchase-money, when time becomes an esssence in the finding or judgment, one verdict and judgment shall be conclusive, and a failure to pay the money shall be deemed a rescission of the contract. 395. The act of 9th April, 1849,' in section 5, enacts that in all actions of ejectment to enforce the payment of purchase-money due and owing on land contracts, it shall be lawful for the administra- tors or executors of the deceased creditor to sustain the action in ' 8 Ibid. 141. 2 Ibid. 291. > Pamphlet Laws, 26. * Ibid. 446. " Ibid. 716. « Ibid. 424. ' Pamphlet Laws, 526. SBC. III.] ACTION OF EJECTMENT. 241 their own names, but this applies only to the executor or adminis- trator of the vendor." 396. The act of 26th April, 1850,^ in section 4, provides that when the title of a plaintiff in ejectment shall change after action brought, the action shall not abate, but the assignor may prose- cute the action. This act is permissive only.^ 397. The act of 30th April, 1850,^ in section 5, repeals the act of 6th May, 1841. 398. The act of 8th May, 1850,^ in section 13, provided that the repeal by the act of 30th April, 1850, section 5, should not affect any actions of ejectment pending in any of the courts at the time of the repeal, brought since the passage of the act of 6th May, 1841. 399. The act of 14th April, 1851,° in section 11, provides how service shall be made in an action to enforce specific performance when no one resides on the land. 400. The act of 18th April, 1853,' in section 1, enacts that when an action is brought against a non-resident in the county, action may be brought and the writ served 'on any person in the county having charge or superintendence of the land, provided that before the judgment it shall be made to appear to the court that the de- fendant had notice in fact of the suit. 401. The act of 22d April, 1866,* in section 2, enacts that no purchaser or mortgagee shall be affected by the notice of any eject- ment, unless such action be indexed against the defendant in the ejectment index. The provisions of this act are, by act of 22d April, 1863, infra, limited to actions brought after the passage of the act. 402. The act of 13th April, 1858,' in section 1, enacts that the provisions of the act of 14th April, 1851, relative to service of the writ, shall extend to all cases of vacant possession when the ad- verse claimant or mortgagee does not reside in the county, and has no known agent therein ; provided it appear to the court that the defendant has had actual notice of the suit. 1 Thompson v. Adams, 5 P. F. Smith, 479. 2 Pamphlet Laws, 591. ' Longbine v. Piper, 4 Legal Gazette, 60 ; Morford v. Cook, 12 Harris, 92. Not enrolled and published in Pamphlet Laws, but notwithstanding in force. See Peterson v. Huling, 7 Casey, 432. " Pamphlet Laws, 716. " Ibid. 614. ' Ibid. 467. « jtid. 532. » Ibid. 256. 16 242 NON-PELIVBRY OF POSSESSION. [CHAP. X. 403. The act of 5tli December, 1860/ in section 1, enacts that when the defendant fails to appear and plead before the terra day, if the process have been duly served on the actual party claiming title, the court may direct a plea to be entered for the defendant. 404. The act of 11th April, 1862,' in section 1, provides that the act of 6th May, 1844, which prohibited injunctions being issued until a bond of indemnity had been given by the applicants, shall apply to all writs of estrepement. 405. The act of 2d April, 1863,' in section 1, provides that the act of 1862, supra, shall not apply to writs of estrepement in ac- tions of ejectment to compel specific performance of a contract for the sale and conveyance of land. 406. The act of 22d April, 1863,^ in section 1, provides that the act of 22d April, 1856,° shall not afiect parties to actions pending at the time of its passage. 407. The act of 14th December, 1863,* enacts that in all legal ejectments where there may be one verdict and judgment or ver- dict and judgment between the same parties, and the party in possession be desirous of settling the controversy, it shall be law- ful for him to enter a rule on the adverse party, requiring him to commence his second or third action of ejectment within two years thereafter or show cause why the same cannot be brought, and if the said adverse parties shall fail to appear or show cause as aforesaid, the court shall enter judgment, which shall be final. 408. The act of 27th April, 1864,' provides that costs in parti- tion shall be paid by all the parties in proportion to their several interests. This act was extended to ejectment in Erie County by the following act. 409. The act of 10th April, 1867,' extends the provisions of the act of 27th April, 1864, to actions of ejectment in Erie County. 410. The act of 6th April, 1869,' in section 1, enacts that when an action of trespass quare clausum /regit and an action of eject- ment shall have been brought successively by the same parties or their privies upon the same title and two judgments rendered in succession for plaintiff or defendant, no new ejectment shall be 1 Pamphlet Laws of 1861, 844. 2 Ibid. 430. ' Ibid. 250. * Ibid. 560. s Ibid. 532. « Ibid. 1123, ' Ibid. 641. 8 Ibid. 1115. 9 Ibid. 16. SEC. III.J ACTION OF ejectmeStt. 243 brought; but where it is judgment against judgment, a seconrl ejectment and judgment shall be conclusive. 411. The act of 12th April, 1869,' in section 1, enacts that no action of trespass for mesne profits shall abate by reason of the death of the defendant. 412. The act of 3d April, 1872,^ enacts in section 1 that when in an action of ejectment a nonsuit be entered or a judgment found for the defendant, he may enter a rule upon the plaintiif to sue out a writ of error within one year from the time of service of the rule, and failing to do so shall thereafter be debarred from any writ of error. Also, the defendant may enter a rule on the plain- tiff to show cause why he shall not bring a second ejectment within one year ; and if the plaintiff fail to show cause the rule shall be made absolute, and at the expiration of the year the plaintiff will be barred from bringing any further action of ejectment. 413. The act of 18th February, 1873,' in section 1, enacts that the president judges of the Courts of Common Pleas may dissolve writs of estrepement during vacation. 414. The act of 11th June, 1879,* enacts that when real estate has been sold by the sheriff, treasurer, or commissioners of a county, and any one other than the defendant as whose prop- perty the same has been sold shall claim that the title is vested in him, and shall be in possession, and shall be desirous of settling the title, he may present a petition to the Court of Common Pleas, or in vacation to a law judge thereof, whereupon a rule shall be granted on the purchaser at such sale to bring his action of ejectment within ninety days from the service of the rule, or show cause why the same cannot be brought ; and on the failure of such purchaser to bring such action or show such cause, judgment shall be entered against him, and thereafter no action of ejectment shall be brought by the said purchaser. III. British Statutes. 415. The only British statute that applies to the action of ejectment is that of 6 Edward I, chapter 1,^ which relates to costs, and provides in section 2, " That the demandant may recover against the tenant the costs of his 1 Pamphlet Laws, 27. ^ Ibid. 83. » Ibid. 35. * Ibid. 127. ^ Koberts's Digest, *107. 244 NON-DELIVERY Of POSSESSION. [CHAP. X. writ purchased, together with the damages aforesaid. And this act shall hold place in all cases where the party is to recover damages." IV. Ads of Assembly. 416. The acts of Assembly of the Commonwealth of Pennsyl- vania which affect the action of ejectment, are the following : The act of 21st March, 1772,' enacts as follows : " Section 8. And whereas great inconveniences may frequently hap- pen to landlords, by their tenants secreting declarations in ejectment, which may be delivered to them, or by refusing to appear to such eject- ments, or to suffer their landlords to take upon them the defence thereof: Be it enacted. That, from and after the publication of this act every tenant, to whom any declaration in ejectment shall be delivered for any lands, tenements or hereditaments, within this province, shall forthwith give notice thereof to his or her landlord or landlords, or his, her or their bailiff, receiver, agent or attorney, under penalty of forfeiting the value of two years' rent of the premises so demised, or holden in the possession of such tenant, to the person of whom he or she holds, to be recovered by action of debt, to be brought in any of the Courts of Common Pleas within this province, wherein no essoin, protection or wages of law, shall be allowed, nor any more than one imparlance. " Section 9. And be it further enacted, that it shall and may be law- ful for the court where such ejectment shall be brought to suffer the landlord or landlords to make him, her or themselves defendant or de- fendants, by joining with the tenant or tenants, to whom such declara- tion in ejectment shall be delivered, in case he or they shall appear ; but in case such tenant or tenants shall refuse or neglect to appear, judg- ment shall be signed against the casual ejector, for want of such appear- ance ; but if the landlord or landlords of any part of the lands, tene- ments or hereditaments, for which such ejectment was brought, shall desire to appear by himself or themselves, and consent to enter into the like rule, that by the course of the court, the tenant in possession, in case he or she had appeared, ought to have done, then the court where such ejectment shall be brought shall and may permit such landlord so to do, and order a stay of execution upon such judgment against the casual ejector, until they shall make further order therein." 417. The act of 26th March, 1785,' which enacts as follows : " Section 1. Whereas it is necessary for the quieting of estates, and for the greater security of real property, that provision should be made for the limitation of actions to be brought for any manors, lands, tene- ments or hereditaments. 1 1 Smith's Laws, 370. » Ibid. 299. SEC. III.] ACTION OF EJECTMENT. 245 " Section 2. From henceforth, no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments, after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued ; nor shall any person or per- sons whatsoever have or maintain any writ of right, or any other real or possessory writ or action, for any manor, lands, tenements or hered- itaments, of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit so hereafter to be, sued, commenced or brought." This act was repealed by the act of 11th March, 1800/ so far as related to seventeen townships in the county of Luzerne, or in any case where title was claimed under the Susquehanna Company, or under the State of Connecticut, but the act of 11th March, 1800, was repealed by the act of 25th March, 1813,^ the repeal to take effect in two years from the passage of the act. The act of 1785, also, in section 5, as amended by the act of 11th March, 1815, provides, " That any person or persons having right or title as aforesaid, within the age of twenty-one years, or feme covert, or non compos mentis, or imprisoned, may, notwithstanding the said twenty-one years have ex- pired, bring an action of ejectment or make entry on the lands within ten years after attaining full age, disco verture, soundness of mind, or enlargement out of prison, and if such person or persons shall die within the said term of ten years, their heirs shall have the same benefit, and if any abatement shall happen in any proceedings, the same proceedings may be renewed and continued within three years from the time of the abatement, but not afterward. " And this exception was by the act of 22d March, 1856, further limited so as to prohibit such parties from maintaining any action for the recovery of lands after thirty years have elapsed since the right of entry by them accrued. The same act also provides that no right of action for specific performance shall continue longer than five years after the date of the contract. 418. The act of 2d April, 1803,^ which enacts as follows: " Section 2 When any ejectment shall be depending in the Supreme Court, Circuit Court, or Court of Common Pleas, it shall and may be lawful for the prothonotary or clerk of the court, in which such ejectment is, or shall be depending, upon affidavit of the plaintiff > 3 Smith's Laws, 421. 2 g ibjj gl. » 4 Ibid. 89. 246 NON-DELIVERY OF POSSESSION. [CHAP. X. or other person knowing the fact, filed in his office, that the tenant or defendant in such ejectment has committed or is committing waste and destruction of or in the premises, to issue a writ of estrepement to pre- vent the same of course, without motion to the court and in vacation, which affidavit sliall be sworn before one of the judges of the Supreme Court or Common Pleas, and shall be considered regular though the judge before whom it shall be taken, may not he a judge of the court in which such ejectment shall or may be depending." 419. The act of 21st March, 1806,' which provides as follows: " Section 12. That all writs of ejectment shall be in the form follow- ing, and not otherwise, viz. : The Commonwealth of Pennsylvania. [l.s.] County, ss. To the sheriff of the said county, Greeting : You are hereby commanded that you summon A. B. to appear before the judges of the Court of Common Pleas, in and for said county, to be holden at , on the day of next, then and there to answer to a certain complaint made by C. D., that he, the said A. B., now hath in his actual possession a tract of land, situate in town- ship, in the said county, containing acres, or thereabouts, bounded by lands of E. P., G. H., the right of possession or title to which he the said C. D. saith is in him (or them, as the case may be), and not in the said A. B., all which he the said C. D. averreth he is prepared to prove before our said court, hereof fail not. Witness J. B., president (or judge, as the case may be). Of our said court, at the day of • Anno Domini one thousand eight hundred and . Attested: L. M., Piothonotary. And it shall be the duty of the plaintiff, either by himself, his agent or attorney, to file in the office of the prothonotary of the proper county, on or before the first day of the term, to which the process issued is return- able, a description of the land, together with the number of acres, which he claims and declares that the title is in him, and the defendant shall enter his defence (if any he hath) for the whole or any part thereof, be- fore the next term, and thereupon issue shall be joined." 420. The act of 13th April, 1807,^ enacts as follows : " Section 1. That the writ of ejectment prescribed in the act to which this is a supplement, shall issue in all cases where lands, tenements or hereditaments are claimed, and give remedy as fully and effectually as in ejectments in the form heretofore used ; and all parties having an undivided interest in any such lands, tenements and hereditaments, whether as joint tenants, copartners or tenants in common, may join I 4 Smith's Laws, 332. « Ibid. 476. SEC. III.J ACTION OF EJECTMENT. 247 therein, and recover according to their interest and title ; and minors may sue by their guardians as in other cases ; and the defendant may defend upon his own title or the title of third persons ; and the landlord may, as heretofore, be admitted as defendant, and in such case on the trial, shall admit himself in possession. "Section 2. That where any writ of ejectment shall be issued, and ou the service thereof it shall appear to the sheriff that other persons not named in the writ are in possession of the premises or part thereof, such sheriff shall add the name of such person or persons to such writ, and serve the same, and on return thereof, the prothonotary shall enter such addi- tional defendants to the action, and they shall be parties thereto ; and in case of any of the defendants not appearing, on motion to the court, and on affidavit of the sheriff or other officer having served the said writ, stating the manner in which the said service was made, and on the same being deemed by the court a service agreeably to law, judgment may be entered by default for such part as he is possessed of; and a writ of pos- session may issue upon such judgment and the action may proceed to trial for the residue, against the other defendant or defendants, and tne return by the sheriff of having served any such writ on the defendants, marked served by him, shall be evidence of such defendant or defend- ants being in actual possession of the premises or part thereof. " Sbctiok 3. That no \vrit of ejectment shall abate by reason of the death of any plaintiff or defendant, but the person or persons next in interest may be substituted in the place of the plaintiff or defendant, who shall have died, pending the writ. " Section 4. That where two verdicts shall in any writ of ejectment between the same parties be given in succession for the plaintiff or defend- ant, and judgment be rendered thereon, no new ejectment shall be brought, but where there may be verdict against verdict between the same parties and judgment thereon, a third ejectment in such case, and verdict and judgment thereon, shall be final and conclusive and bar the right, and the plea in ejectment shall be not guilty." The effect of these last two acts was most beneficial, substitut- ing real parties for the fictitious ones formerly entered. 421. The act of 31st March, 1823,^ enacts as follows : " Section 1. In all actions of ejectment now pending, or hereafter to be commenced in the courts of this Commonwealth, by more than one plaintiff, if, on the trial of the cause, any of the said plaintiffs shall fail tO' establish his, her or their right to recover, judgment of nonsuit may be entered against the plaintiff or plaintiffs so failing, and a verdict and judgment may be rendered in favor of the other plaintiff or plaintiffs,, for the interest in the premises which they may be respectively entitled', to recover m any such action." 1 8 Smith's Laws, 141. 248 NON-DELIVERY OF POSSESSION. [CHAP. X. 422. The act of 29th March, 1824,' enacts as follows : "Section 1. Any person wishing to bring an ejectment for land on which no person resides, and which lands have been sold for taxes, may- bring his action and serve the writ ou the person who purchased the said lands ; and if such person cannot be found in the proper county, then the court, after the return day of the writ, may, on motion of the plaintiflf or his attorney, grant a rule on the defendant, describing the premises, to appear and plead, which rule shall be published for sixty days successively, before the return day thereof, in a weekly or daily newspaper of the proper county ; and if no person appears, then the court, on proof of the publication, shall, on motion, in open court, at the stated term, give judgment by default ; but when the purchaser appears, or some person claiming under him, the court shall cause the person or his legal representative, so claiming under the purchaser, to be made de- fendant, and the cause shall be proceeded in and tried on the respective titles of the parties, as fally as if there was an actual occupation of the land." 423. The act of 1st February, 1834,^ enacts as follows: " Section 1. Whereas inconvenience frequently occurs to plaintiffs in ejectment, from the re-entry of the defendants, or persons claiming under them, on the lauds recovered, after the execution and return of the writ of habere facias possessionem, and the plaintiffs are obliged to resort to a new ejectment, and it is proper to render recoveries in ejectment more effectual. Therefore, it shall be the duty of the court in which a judg- ment in ejectment shall be recovered, on the application of the plaintiff, his agent or attorney, and on cause shown, to award alias and pluries writs of habere facias possessionem, from time to time, notwithstanding any or all preceding writs may have been returned executed ; and the ad- ditional costs shall be taxed and collected in the usual manner : pro- vided, that such application shall be made within three years after the return day of the preceding writ." 424. The act of 5th May, 1841,' enacts as follows : " Section 5. That the provisions of the fourth section of an act en- titled ' A supplement to an act to regulate arbitrations and proceedings in courts of justice,' passed the thirteenth day of April, one thousand eight hundred and seven, declaring that ' where two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought, but where there may be verdict against ver- dict between the same parties and judgment thereon, a third ejectment in such cases, and verdict and judgment thereon, shall be final and con- clusive and bar the right, ' shall be construed to extend to all actions of ' 8 Smith's Laws, 291. 2 Pamphlet Laws, 20. » IbiJ. 445. SBC. III.] ACTION OF EJECTMENT. 219 ejectment, whether the same be founded on a legal or equitable title, or such action be brought as a substitute for a bill in equity, or for any other object or purpose whatever." This enactment was repealed by the acts of 21st April, 1846, 21st April, 1850, and 8th May, 1850. 425. The act of 21st April, 1846,' enacts as follows : " Section 1. That in all actions of ejectment, hereafter tried, to en- force the payment of purchase-money, wherein time becomes of essence in the finding of the jury, or in a judgment, by confession, by fixing a time for such payment, one verdict and judgment thereon unreversed, or a judgment in such case, by confession, shall be conclusive between the parties ; and a failure to pay the money within the time so fixed, shall be deemed a rescission of the contract between the parties, and shall render such judgment absolute ; and in all such actions tried since the fifth day of May, one thousand eight hundred and forty-one, wherein by the finding of the jury, or by a confession of judgment by the de- fendant, time became of essence as aforesaid, it shall be lawful for any such defendant, within two years after the passage of this act, to com- mence an action and therein to enforce his contract in such case, on paying the amount of purchase-money, interest and costs, due thereon, together with such sum as the jury, trying the cause, may deem reason- able, for any improvement made, and increase in the value of the prop- erty since the trial of such case, to be paid within such reasonable time as may be fixed by the jury, under the direction of the court ; and if not paid within such time, such failure to pay shall operate as an absolute rescission of the contract between the parties, and as a judgment for costs against the party so failing to pay." 426. The act of 9th April, 1849;'' enacts as follows : " Section 5. That in all actions of ejectment now pending, or which may hereafter be brought, when the object is to enforce the payment of purchase-money due and owing on land contracts, it shall and may be lawful for the executors or administrators of the deceased creditor, to sustain the same in their own names, to the same extent and in like manner as the testator or intestate, if living, could." 427. The act of 26th April, 1850,' enacts as follows : " Section 4. That when the title of a plaintiff in ejectment to lands may have been changed by sale or assignment, after action brought, the suit shall not be affected thereby ; but the purchaser or assignee may prose- cute said action ; and the verdict and judgment in said action shall inure to him, in the same manner that they would have inured to the said plain- tiff if no sale or assignment had taken place ; and the purchaser of the real 1 Pamphlet Laws, 424, 2 Ibid, 526. « Ibid. C91. 250 NON-DELIVERY OF POSSESSION. [cHAP. X. estate in controversy may be substituted on record, by a motion in open court." 428. The act of 30th April, 1850/ ia sectioa 5, provides that " The 5tli section of the act passed on the 5th May, 1841 , entitled ' A resolution relative to the Warren Bridge Company and for other pur- poses,' be and the same is hereby repealed." 429. The act of 8th May, 1850,^ enacts as follows : " Section 13. That the repeal of the fifth section of the act of the fifth of May, one thousand eight hundred and forty-one, entitled 'An act relating to the Warren Bridge Company, and for other purposes,' by the fifth section of the act of the thirteenth of April, one thousand eight hundred and fifty, entitled ' Au act to incorporate the Presbyterian Congregation of Fruit Hill, in the County of Clearfield, and relative to actions of eject- ment,' shall not have any effect upon actions of ejectment pending in any of the courts of this Common wealtn at the time of the said repeal, and which were brought since the passage of the said act of the fifth of May, one thousand eight hundred and forty-one, but all such actions of ejectment shall be tried and finally determined as though the said fifth section of the said act of the fifth of May, one thousand eight hundred and forty-one, was in full force." 430. The act of 14th April, 1851,^ enacts as follows : " Section 11. That any action of ejectment hereafter to be brought by a vendor to enforce the specific performance of the agreement against the vendee or vendees or persons claiming under him or them, for land upon which there is no person residing, the writ may be served on the vendee or vendees or persons claiming under them, and if such vendee or per- son claiming as aforesaid cannot be found by the sherifi" of the proper county, then and in that case the court after the return day of the writ may on motion of the plaintifi" or his attorney grant a rule on the de- fendant (describing the premises) to appear and plead, which rule shall be published sixty days before the return thereof, in one newspaper of the county in which such action is brought, to be inserted at least three times, and if no proper person shall appear to defend against the said action, the court on proof of such publication shall, on motion in open court, at the stated term give judgment by default, but in case the vendee or purchaser or person claiming under him shall appear, the court shall cause the person, or his legal representatives so claiming under the vendee or purchaser to be made defendant, and the cause shall be proceeded in and tried with the same effect as if there were an actual oc- cupation of the land and regular service on the defendant." • Not enrolled and published in Pamphlet Laws, but notwithstanding in force. See Peterman v. Huling, 7 Casey, 432. 2 Ibid. 716. ' Pamphlet Laws, 614. SEC. III.] ACTION OF EJECTMENT. 251 431. The act of 18th April, 1853,' enacts as follows : " Section 1. That any person wishing to bring ejectment for land claimed adversely to him by any person or corporation not resident or being within the county where such land lies, may bring his action and serve the writ on any person within the county having charge or superin- tendence of the land, in behalf of or as agent of such party claiming ad- versely : Provided, That before any trial or judgment shall be had in such suit it shall be made to appear to the satisfaction of the court, that the defendant has had notice in fact of the suit in time to appear and defend it, and if the defendant be a corporation, this notice may be given to the president, or other chief officer of it." 432. The act of 22d April, 1856,^ enacts as follows : "Section 2. That no purchaser or mortgagee shall be affected with notice of the pendency of any ejectment or action to recover real estate, or to compel a conveyance- thereof, unless such action shall be indexed against the defendant, and any terre tenant made a party thereto, in a book to be kept by the prothonotary, and called the ejectment index, for which the plaintiff shall furnish the necessary information." This act is not to affect parties to an action pending at the time of its passage.* 433. The act of 13t.h April, 1858,* enacts as follows : " Section 1. That the provision of the 11th section of the act passed the 14th day of April, 1851, relative to the service of writs in certain actions of ejectment, shall hereafter extend to all cases where claimants and mortgagees may desire to bring actions of ejectment for any unseated or unoccupied lands within this Commonwealth, whenever the adverse claimant or mortgagor does not reside in the county where such lands are situate, and has no known agent or person having the charge or superintendence of said lands, resident within said county : Provided, That before any trial or judgment shall be had in such suit, it shall be made to appear to the satisfaction of the court, that the defendant has had notice in fact of the suit, in time to appear and defend it, and if the defendant be a corporation, this notice may be given to the president or other chief officer thereof." 434. The act of 5th December, I860,' enacts as follows : "Section 1. That in actions of ejectment where the defendant or de- fendants shall have neglected or refused to appear and plead on or before the term next after that to which the original process was made return- able, or having appeared and then withdrawn said appearance, if said process shall have been duly served, the court may direct a plea to be 1 Pamphlet Laws, 467. ' Ibid. 632. 3 Act of 22a April, 1863, Pamphlet Laws, 560. * Ibid. 256. 6 Ibid, of 1861, 844. 252 NON-DELIVERY OF POSSESSION. [CHAP. X. entered for the defendant or defendants, and the case shall proceed to trial and judgment as in other cases : Provided, That the writ shall have been so served on the parties actually claiming the title." 435. The act of 11th April, 1862/ enacts as follows: " Section 1. That the provisions of the first section of an act, entitled ' An act further to regulate proceedings in courts of justice, and for other purposes,' approved the 6th day of May, Anno Domini 1844, relating to security upon injunctions, shall hereafter apply to all writs of estrepe- ment." 436. The act of 2d April, 1863,' enacts as follows: " Section 1. That the provisions of the act entitled 'A supplement to an act further to regulate proceedings in courts of justice, and for other purposes, ' approved the 11th day of April, Anno Domini 1862, be and the same are hereby repealed, so far as relates to writs of estrepement, issued, or to be issued, in any action of ejectment brought to compel specific per- formance of a contract for the sale and conveyance of lands." 437. The act of 22d April, 1863,' enacts as follows : " Section 1. That the provisions of the second section of an act passed the 22d day of April, Anno Domini 1856, entitled, 'An act for the greater certainty of title, and more secure enjoyment of real estate,' shall not apply, or be deemed and taken to have applied, to any action, or pro- ceeding pending at the time of the passage of the said act, nor in any way to affect the parties to such action, or proceeding." 438. The act of 14th December, 1863,^ enacts as follows: " Section 1. That in all legal actions of ejectment, wherein there has been, or shall be, one verdict and final judgment, or verdict and judgment against verdict and judgment, between the same parties, and the party or parties, his or their heirs, or assigns, remaining in possession of the premises, the title to which is, or may be, in controversy, shall be de- sirous of settling the same, it shall be lawful for such party, or parties, so in possession, to enter a rule upon the adverse party, claiming title to such premises, requiring him or them to commence his or their second or third action of ejectment, as the case may be, within two years there- after, or show cause why the same cannot be so brought ; which rule shall be entered of record, in the case last tried between the parties, and shall be served and returned by the sheriff, as writs of summons are served and returned. " Section 2. That whenever the party , or parties, upon whom such rule shall have been served, shall fail to appear, and show cause why such action should not be brought, within two years after such service, it shall be the duty of the court to enter judgment, and make the rule ab- 1 Act of 22d April, 1863, Pamphlet Laws, 430. " Tbid. 2-50. 3 Pamphlet Laws, 560. * Ibid, of 1864, 1128. SEC. III.] ACTION OF EJECTMENT. 253 solute against the party so failing ; which judgment shall be final and conclusive between the parties, their heirs and assigns, in the same manner as a second, or third, verdict and judgment, between the same parties, would be, if regularly rendered upon trial." 439. The act of 27th April, 1864,' enacts as follows: " Section 1. That the costs in all cases of partition in the Common Pleas, or Orphans' Court, of this Commonwealth, with a reasonable allow- ance to the plaintiffs, or petitioners, for counsel fees, to be taxed by the courts, or under its direction, shall be paid by all the parties, in propor- tion to their several interests." 440. The act of 10th April, 1867,^ enacts as follows : " Section 1. That the provisions of an act relative to costs, in cases of partition, approved April 27th, 1864, be and the same are hereby extended to cases of ejectment in Erie County ; the costs and allowances being payable to the successful party in such suit, to be ascertained in the mode pointed out in said act, and collected from the party, or persons, against whom judgment shall be rendered." 441. The act of 6th April, 1869,^ enacts as follows : " Section 1. That where in an action of tresT^ass, quare clatisumfregit, in which the plea shall be liberum tenementum, and an action of eject- ment shall-have been brought successively by the same parties or their privies upon the same title, and two judgments shall be rendered in succession for the plaintiff or defendant in said actions, no new ejectment shall be brought ; but where there may be judgment against judgment in said actions, a second ejectment in such case and a verdict and judg- ment rendered thereon shall be final and conclusive and bar the right." 442. The act of 12th April, 1869,^ enacts as follows: " Section 1. That no action or right of action for mesne profits or for trespass against property, real or personal, shall abate by reason of the death of the person liable therefor, but suit may be brought and recovery had against the personal representatives of such deceased person ; and if such death occur after suit brought, the personal representatives may be substituted for the decedent, and said suit prosecuted to judgment, and the estate of such deceased person shall be liable to the same extent as if he were living." 443. The act of 3d April, 1872,'euants .-.s follows: ' ' Section 1. That whenever, in any action of ejectment, a nonsuit has been or shall be entered, or a verdict has been or shall be found for 1 Pamphlet Laws, 641. = Ibid. 1115. » Ibid. 16. * Ibid. 27. ' Ibid. 33. 254 NON-DELIVERY OP POSSESSION. [CHAP. X. the defendant or defendants therein, the said defendant or defendants therein may enter a rule upon the plaintiff or plaintiffs to sue out a writ of error to the Supreme Court, upon such order of nonsuit or verdict or judgment thereon, within one year from the time of service of said rule; and if .said plaiutifl'or plaintiffs shall fail to sue out a writ of error within that time, said plaintiff or plaintiffs shall thereafter be forever debarred from suing out any writ of error, or other writ, upon such order of nonsuit or verdict or judgment thereon ; and thereupon the defendant or defend- ants in such action may enter a rule upon the plaintiff or plaintiffs therein, returnable according to the special order of the court, to show cause why the said plaintiff or plaintiffs should not bring a second action of ejectment in the premises within one year from the determination of said rule ; and if no good cause for delay be shown to the satisfaction of the court, said rule shall be made absolute; and in such case, upon the expiration of the year aforesaid, the said plaintiff or plaintiffs shall be forever debarred from bringing any further action of ejectment for the same land upon the same title." 444. The act of 18th February, 1873,i enacts as follows: " Section 1. That the president judges of the several Courts of Com- mon Pleas of this Commonwealth, shall and may exercise in vacation all the powers and authority of dissolving writs of estrepement that could be exercised by the courts over which they preside when iu session : Provided, that notice shall be first given to the opposite party." 445. The act of 11th June, 1879/ enacts as follows : "Section 1. Be it enacted, etc.. That in all cases where real estate has been or shall hereafter be sold by the sheriff, treasurer or commissioners of any county of this Commonwealth, and any person or persons other than the defendant or defendants as whose property the same may have been sold, shall claim that the title to the said premises sold is vested in him, her or them, and shall be in possession of the said premises by occupancy, lease, coverture or otherwise, and the said party or parties in possession of the said premises, the title to which is or may be in contro- versy, shall be desirous of settling the same, it shall be lawful for such party or parties claiming title to said premises, to present his, her or their petition to the Court of Common Pleas of the county wherever such prem- ises are situated, or to a law judge thereof, in vacation, setting forth that the petitioner or petitioners claim title to the premises in contro- versy ; whereupon a rule shall be granted upon the purchaser or purcha- sers at such sheriff's, treasurer's or commissioners' sale, or on any person holding said sheriffs, treasurer's or commissioners' title under such pur- chaser or purchasers, to bring his, her or their action of ejectment, within ninety days from the service of such rule upon them, or show cause why ' Pamphlet Laws, 35. ^ Ujid., 127. SEC. III.] ACTION OF EJECTMENT, 255 the same cannot be so brought ; which rule may be made returnable to any term or return day of such court, and- be served and returned as writs of summons are served and returned, and shall be entered of record in the appearance docket of said court, and duly indexed therein, and also in the ejectment index of said court : Provided, That when the purchaser or purchasers, or parties holding under them, shall reside with- out the county wherein the premises sold are situate, and their residence can be ascertained by the party or parties petitioning for said rule, such rule may be served by the sherifl" or any constable within the county wherein the said purchaser or purchasers, or those holding the said title under thein, may reside ; and when the residence of the said purchaser or purchasers, or those holding said title under them shall reside without the Commonwealth, or his or their residence cannot be ascertained by the petitioner or petitioners (affidavit of which fact of non-residence shall be duly filed of record), then said rule shall be served, by publication of the substance of said rule in a weekly newspaper published within the county wherein the said premises are situate, for four weeks prior to the return day of said rule, which service so made by publication shall have the same effect as if personally served and so returned by the sheriff." " Section 2. Whenever the purchaser or purchasers at such sheriflT's, treasurer's or commissioners' sale, or the holder or holders of said sheriff's, treasurer's, or commissioners' title under such purchaser or purchasers, shall have been served, shall fail to appear and show cause why such action cannot be brought within ninety days after such service, it shall be the duty of the court to enter judgment against the parties served and make the rule absolute, which judgment shall be final and conclusive between the parties, their heirs and assigns ; and thereafter, no action of ejectment for the recovery thereof shall be brought by tlie said purchaser or purchasers at such sheriff's, treasurer's or commis- sioners' sale, or any person or persons claiming or holding such sheriff's, treasurer's or commissioners' title under such purchaser or purchasers." 446. Although some of the acts of Assembly just recited have but little bearing upon actions of ejectment between landlord and tenant, many thereof relating to actions of equitable ejectment, yet it seems advisable to treat of the action in full instead of attempt- ing to treat of it merely as applicable to the purport of this treatise. Prior to 1807 action after action of ejectment might be brought to test the title to real estate, and this arose from the peculiar nature of the action, which was originally only an action of trespass brought by a lessee against one who had ousted him of . his term. Damages only, but not possession, were recoverable thereby. The act of 13th April, 1807, however, changed all this by limiting the number of suits, and up to 1810 it was supposed 256 NON-DELIVERY OF POSSESSION. [GHAP. X. that this act governed equitable ejectments as well as legal, but the decision of the Supreme Court in Seitzinger v. Ridgway,' an- nounced the doctrine: That one verdict with judgment in an action of ejectment brought by a vendee to compel the specific performance of an agreement relating to the sale of lands was conclusive and a bar to a subsequent action. To counteract this decision the Legislature passed the resolution of 5th May, 1841, but this was partially repealed by the act of 21st April, 1846, and wholly so by the act of 30th April, 1850, by which repeal the law returned to what it was declared to be by the decision of Seitzinger v, Ridgway {supra), and as it remains at present.^ 447. The rule that one verdict and judgment on an equitable title is conclusive and is a bar to any subsequent action of eject- ment for the same land, applies only where the action is to be re- garded as a bill in equity and not as a possessory ejectment at common law.^ When land is bought under articles of agreement and paid for, one verdict is conclusive.* A conditional recovery for the payment of one instalment of the purchase-money of land is no bar to an action for a future in- stalment.' 448. In order to enable the party remaining in possession or who may have recovered the possession to quiet his title, the act of 14th December, 1863, provided that in legal actions of eject- ment where there has been one verdict and judgment, or verdict and judgment against verdict and judgment, such party may enter a rule against the other, requiring him to commence his second or third action, as the case may be, within two years thereafter. And the act of 3d April, 1872, provides that where a nonsuit has been entered or a judgment given for the defendant, he may enter a rule on the plaintiff to sue out a writ of error to the Supreme Court within one year from the time of service of the rule; and on failure so to do the plaintiff is debarred from suing out a writ of error, and the defendant may enter a rule on the plaintiff to 1 9 "Watts, 496. » Peterman v. Huling, 7 Casey, 432, 435, 437. ' Ibid. 433 ; Coughanour & Glussner v. Bloodgood, 3 Ibid. 285 ; Myers ». Hill, 10 Wright, 9. < Winppnny v. Winpenny, 8 Weekly Notes, 149 ; Trefts v. Pitts, 24 P. F. Smith, 343. ' Hamm v. Beaver, 1 Grant, 448. SEC. III.] ACTION OF EJECTMENT. 257 show cause why the latter should not bring a new action within one year from the determination of the rule. And failing so to do at the expiration of the year, the plaintiff will be forever de- barred froai bringing any further action of ejectment for the same land upon the same title. It is advisable that, after one verdict and judgment in eject- ment,, the plaintiff should obtain possession of the land before bringing a second action of ejectment, as otherwise if the second action be decided against him, he may be debarred a further action. It is also to be noticed that where an equitable action of eject- ment is pending a writ of estrepement may issue without a bond of indemnity being given. V. The Title requisite to support Ejeotment. 449. It is necessary for a claimant in an action of ejectment to show a good and sufficient title in himself, to enable him to recover ; therefore he must rely on the strength of his own title, and not on the weakness of that of his adversary.' If an out- standing title better than his own be shown, he cannot recover,^ but a naked possession is a good title against one who can show none better.' Even a wrongdoer or disseisor may recover in eject- ment against a subsequent intruder without an actual adverse possession of twenty-one years.* The title to the land must be vested in the plaintiff at the time of bringing the suit, otherwise he cannot recover, even though a good title be obtained by him before the trial ;° nor can a plaintiff in ejectment recover upon a legal title acquired from the defendant, in pursuance of a contract, the consideration of which had failed.' 450. The distinction between an action of ejectment brought ' Mather v. Trinity Church, 3 Sergeant& Rawle, 509 ; Lanew. Reynard, 2 Ibid. 65 ; Creigh v. Shatto, 9 Watts & Sergeant, 82; Heffner v. Betz, 8 Casey, 376; Kennedy v. Skoer, 3 Watts, 95 ; Covert v. Irwin, 3 Sergeant & Rawle, 283; Burford v. McCue, 3 P. F. Smith, 427. 2 Kennedy v. Skeer, 3 Watts, 95 ; Jack v. Dougherty, Ibid. 151. 3 Woods V. Lane, 2 Sergeant & Rawle, 53 ; Shumway b. Phillipps, 10 Har- ris, 151 ; Lair v. Hunsicker, 4 Casey, 115. ■• Hoey V. Furman, 1 Barr, 295 ; Shumway v. Phillipps, 10 Harris, 151. ^ MoCulloch V. Cowhcr, 5 Watts & Sergeant, 4'J7; Alden v Grove, 6 Har-. ris, 377 ; Schrack v. Zubler, 10 Casey, 38. 8 Bishop V. Reed, 3 Watts & Sergeant, 261. 17 258 NON-UELIVKKY OF POSSESSION. [CHAP. X. on a legal title and one brought on an equitable title is, that in the former the plaintiff has a right to commence an action before tendering to the defendant the money due on his equitable claim, while in the latter the plaintiff must not only tender the money before suit brought, but he must have it in court, ready to be paid to the defendant, in case of a verdict in favor of the plaintiff." 451. In an action of ejectment a landlord can recover against his tenant without showing any other title than the relation ex- isting between them and the ending of the term, and he may do this even if there be an outstanding title in another.^ Neither a tenant, nor one claiming under him, can deny his landlord's title, or even resist it by means of an adverse title acquired during the term,^ but in cases where the landlord is unable to prove the de- mise, he must in his action of ejectment prove his title and his right to the possession of the premises, and further that he is not barred by the Statute of Limitations of 1785.* Unless there be a forfeiture of the lease, the landlord cannot support an action of eject- ment against his tenant during the term.' If the tenancy be one at will, he can terminate it by mere entry ; and if the tenant re- fuse to give up possession, the landlord can bring the action after three months' notice or demand." 452. If, however, the tenant has acquired the title under which the lessor claims he may defend his possession.' He may also re- sist the landlord's claim to possession when the lease has been unfairly or fraudulently obtained f and when he becomes the owner of the landlord's title.' The tenant may also defend himself ' Gore V. Kinney, 10 Watts, 140, and cases there cited ; Magaw v. Lathrop, 4 Watts & Sergeant, 316, 321. ' Kline v. Johnston, 12 Harris, 72. ' Graham v. Moore, 4 Sergeant & Eawle, 466 ; Lessee of Galloway v. Ogle, 2 Binney, 468 ; Eankin v. Tenbrook, 5 Watts, 386 ; Elliott v. Smith, 11 Har- ris, 131. * 2 Smith's Laws, 299. 6 Stofflet V. Troxell, 8 Watts & Sergeant, 340 ; Evans c;. Hastings, 9 Barr, 273. ^ Logan V. Herron, 8 Sergeant & Rawle, 458 ; Lesley ». Randolph, 4 Eawle, 123. ' Elliott V. Smith, 11 Harris, 131. 8 Brown v. Dysinger, 1 Rawle, 408 ; Miller v. McBrier, 14 Sergeant & Eawle, 882 ; Hockenbury v. Snyder, 2 Watts & Sergeant, 240; Thayer v. Society of United Brethren, 8 Harris, 60. ' Elliott v. Smith, 11 Harris, 131. SBC. III.] ACTION OF EJECTMENT. 259 when threatened by the landlord with ejectment unless he take a lease ;' and he may also prove that his landlord's holding is in violation of law,^ or that his interest in the premises has expired.^ 453. It is the part of the landlord to prove the possession of the tenant; this he may do by the return of service of the writ.* The return is, however, only prima facie evidence, and may be rebutted.' 454. If the tenant does not intend to contest the landlord's claim to possession, but yet pleads "not guilty" in the suit of ejectment, it is not necessary that he should enter a disclaimer f but if he wishes to disclaim the possession in order to avoid costs, he should do so on the record, at an early date, pending the proceedings.' VI. Parties in Ejectment. (1.) In whose favor l^ectment will lie. 455. The first section of the act of 13th April, 1807,' provides that ejectment shall lie in favor of all parties having an undi- vided interest in lands, tenements or hereditaments. Therefore the action will lie in Pennsylvania as follows : (1.) In favor of a landlord against his tenant.' (2.) In favor of a lessee after entry." (3.) In favor of a lessee entitled to possession under a lease, though the grant be of an incorporeal interest." 1 Hamilton v. Marsden, 6 Binney, 45 ; Brown v. Dysinger, 1 Eawle, 408. 2 Satterlee v. Mathewson, 13 Sergeant & Kawle, 133. 3 Heckart v. McKee, 5 Watts, 385 ; Newell v. Gibbs, 1 Watts & Sergeant, 496. * Act of 13th April, 1807, ? 2, 4 Smith's Laws, 476 ; Kirkland v. Thompson, 1 P. F. Smith, 216. ^ Helfenstein v. Leonard, 14 Wright, 461, and cases there cited ; Gratz v. Benner, 13 Sergeant & Eawle, 111. 8 McCanna v. Johnson, 7 Harris, 434 ; see Kirkland v. Thompson, 1 P. P. Smith, 216. ' Steinmets v. Logan, 3 Watts, 160. 8 4 Smith's Laws, 476. s AldeuB. Lee, 1 Yeates, 160; Evans v. Hastings, 9 Barr, 273. "> Sennett v- Buoher, 3 Penrose & Watts, 392 ; Susquehanna and Wyoming Valley R. E. and Coal Co. v. Quick, 11 P. F. Smith, 327. 11 Karns v. Tanner, 16 P. F. Smith, 297. 260 TSON-DELIVBRT OF POSSESSION. [CHAP. X. (4.) In favor of a tenant in common against his co-tenant,' or against the grantee of his co-tenant.'' (5.) In favor of a joint-tenant.' (6.) In favor of trustees or assignees suing in their own names.* (7.) In favor of a trustee in conjunction with his cestui que trust.^ (8.) In favor of a trustee against his cestui que trust.^ (9.) In favor of a cestui que trust either against his trustee or a stranger.' (10.) In favor of the heirs of a trustee.' (11.) In favor of the beneficiaries of a resulting parol trust.' (12.) In favor of the holder of the legal title against every one but the equitable owner. ^° (13.) In favor of a mortgagee." (14.) In favor of the assignee of the administrators of a mort- gagee." (15.) In favor of a warrantee though he have no beneficial inter- est in the land.'' (16.) In favor of one having the exclusive right of mining on the land." 1 Law V. Patterson, 1 Watts & Sergeant, 184 ; McMahan v. McMahan, 1 Harris, 376 ; Hill v. Hill, 7 Wright, 521. 2 Cumberland Valley R. R. Co. v. McLanahan, 9 P. P. Smith, 23, 30. ' Milne v. Cummings, 4 Yeates, 577. * Cooper V. Henderson, 6 Binney, 190; Hunt v. Crawford, 3 Penrose & Watts, 426. 5 Thomas v. Wright, 8 Sergeant & Kawle, 91 ; Presbyterian Congregation V. Johnston, 1 Watts & Sergeant, 9 ; Altiraus v. Elliott, 2 Barr, 62 ; Schuyl- kill Navigation Co. v. Parr, 4 Watts & Sergeant, 363. ' Eeed & Murray v. Murray, 1 Jones, 334. ' Presbyterian Congregation v. Johnston, 1 Watts & Sergeant, 9; Cald- well V. Lowden, 3 Brewster, 63 ; see also Kennedy v. Fury, 1 Dallas, 72. " Lessee of Crunkerlton v. Evert, 3 Yeates, 570. ° Lynch v. Cox, 11 Harris, 265. w Brolaskey v. McCIain, 11 P. P. Smith, 144; see also Eckels v. Stewart, 3 P. P. Smith, 460. 1' Bagley v. Wallace, 16 Sergeant & Eawle, 245 ; Smith v. Shuler, 12 Ser- geant & Rawle, 240 ; Wharf jj. Howell, 5 Binney, 499, 504 ; Pluck v. Keplogle, 1 Harris, 406; Knaub v. Esseck, 2 Watts, 282; Martin v. Jackson, 3 Casey, 504. '^ Lessee of Simpson v. Ammons, 1 Binney, 175; see also McCall v. Lenox, 9 Sergeant & Eawle, 302. IS Campbell v. Galbreath, 1 Watts, 70; Boss v. Barker, 5 Ibid. 391 ; but see Lawrence v. Hunter, 9 Ibid. 64. '* Turner v. Reynolds, 11 Harris, 199. SBC. III.] ACTION OF EJECTMENT. 261 (17.) In favor of a married woman joined with her husband.' (18.) In favor of a minor by his next friend or guardian.' (19.) In favor of an executor* or administrator.^ (20.) In favor of the heirs of a decedent for land of which their ancestor had no actual possession.^ (21.) In favor of the plaintiff in an action of partition against whom a verdict has been rendered.* (22.) In favor of a plaintiff in a second ejectment, against the same defendants, before he has enforced the verdict in the first ejectment.' (23.) In favor of a vendor, by articles of agreement for the sale of land, against the vendee where the balance of purchase-money remains unpaid.' (24.) In favor of a vendor, who has the legal title, against the vendee for enforcing specific performance though a tender to reim- burse a payment on account of purchase-money had not been made before instituting the action of ejectment.' (25.) In favor of a vendee against the vendor, for enforcing the specific performance of articles of agreement for the sale of land, upon the tender of the purchase-money.'" (26.) In favor of a vendee, under articles of purchase, who is illegally ousted, without bringing into court the balance of the purchase-money due upon the agreement." (2.) In whose favor Ejectment will not lie. 456. The action of ejectment will not lie in Pennsylvania as follows : I Atkinsons. KitteDhouse, 5 Barr, 103. » HeftandHixp. McGin,3Barr,2.56. ' Chew's Executors u. Chew, 4 Casey, 17; Jones v. Maffet, 5 Sergeant & Eawle, 523; Carpenter v. Cameron, 7 Watts, 61. * Cornell v Green, 10 Sergeant & Eawle, 14. " "Webster v. Webster, 3 P. F. Smith, 161. 8 Boss V. Pleasants, 7 Harris, 151, 168, and eases there cited. ' Rambler v. Tyron, 7 Sergeant & Eawle, 89, 94; Eoss». Pleasants, 7 Har- ris, 157, 168. 8 Mitchell V. De Eoche, 1 Teates, 12 ; Marlin v. Whitlink, 7 Sergeant & Eawle, 297. » Moody V. Vandyke, 4 Binney, 31 ; see Thomas v. Wright, 9 Sergeant & Eawle, 87. '" Hawn ». Norris & Brown, 4 Binney, 77; Hendersons. Hays, 2 Watts, 148 ; eee also Gregg v. Patterson, 9 Watts & Sergeant, 197. II D 'Arras v. Keyser, 2 Casey, 249. 262 NON-DBLIVEEY OP POSSESSION. [CHAP. X. (1.) In favor of a landlord for demised premises during the term of the lease/ unless the term be forfeited.^ (2.) Nor in favor of a landlord who has obtained the lease from his tenant unfairly or fraudulently.' (3.) Nor in favor of a reversioner who has leased his land against one who is a mere trespasser thereon.* (4.) Nor in favor of a discharged insolvent for lands of which the title was vested in him prior to his discharge.'' (5.) Nor in favor of a widow for her dower or for her interest under the intestate act.* (6.) Nor in favor of a widow of an intestate, for her interest in the real estate of which her husband died seized.' (7.) Nor in favor of a widow of an intestate joined with the heirs of the decedent.' (8.) Nor in favor of a widow's grantee before assignment of dower.' (9.) Nor in favor of an heir, before partition, against a widow in possession of land of which her husband died seized." (10.) Nor in favor of an actual settler without a survey." (11.) Nor in favor of a purchaser of land until he has paid the purchase-money or made tender thereof.'^ (12.) Nor in the name of the original warrantee, for the use of another person, without proving title existing in such person when the suit is brought." ' Stofflit V. Troxell, 8 Watts & Sergeant, 341 ; Evans v. Hastings, 9 Barr, 273. 2 Lessee of John Penn v. Divellin and Musser, 2 Testes, 309. ' Miller v. McBrier, 14 Sergeant & Rawle, 382; Brown v Dysinger, 1 Eawle, 408 ; Hoekenbury v. Snyder, 2 Sergeant & Eawle, 240. 4 Stofflitt V. Troxell, 8 Watts & Sergeant, 340. ' Lessee of Willis v. Eow, 3 Yeates, 520. 6 Bratton v. Mitchell, 7 Watts, 115 ; Gourley v. Kinley, 16 P. F. Smith, 270, 275. ' Bratton v. Mitchell, 7 Watts, 113 ; Gourley v. Kinley, 16 P. F. Smith, 270. ' Pringle v Gay, 5 Sergeant & Rawle, 536 ; Hinckle v. Eiifert, 6 Barr, 196, 197; Gourley v. Kinley, 16 P. P. Smith, 270, 275. 8 Jones V. Hollopeter, 10 Sergeant & Rawle, 326. '0 Gourley v Kinley, 11 P. P. Smith, 270, 275. " Cosby V. The Lessee of Brown, 2 Binney, 124. '* Smith's Lessee v. Patton, 1 Sergeant & Rawle, 80 ; Lessee of Minsker ». Morrison, 2 Yeates, 344. '3 Lawrence v. Hunter, 9 Watts, 64. SBC. III.] ACTION OF EJECTMENT. 263 (13.) Nor in favor of a husband for his wife's land, without her jointure as plaintiff.^ (14.) Nor in favor of a vendor against the vendee for enforcing payment of the purchase-money after a conveyance has been made, and a bond taken for the money.^ (15.) Nor in favor of a vendor under a legal title against the vendee for compelling the payment of the residue of the purchase- money, when a portion was paid on the condition that a convey- ance should be made. The vendor must tender a deed for the land before he can maintain an action of ejectment.' (16.) Nor in favor of a vendor, under articles for the sale of land, for enforcing payment of a balance of purchase-money, after his title has been divested under a prior incumbrance, and pur- chased at judicial sale by his vendee.* VII. When Ejectment will lie. 457. The action of ejectment will lie in Pennsylvania as follows : (1.) For anything attached to the soil of which possession can be given.^ (2.) For land used by a corporation without paying damages,* (3.) For land subject to a right of way.' (4.) For land in naked possession.' (5.) For standing timber by the grantee against the grantor.' (6.) For an equitable right to the possession of land.'" (7.) On a contract for the sale of land where the same is signed and sealed by the agent of the grantor, though the agent's author- ity be not under seal." ' Bratton v. Mitchell, 7 Ibid. 13. ^ Megargel v. Saul, 3 Wharton, 18. 2 Brown v. Metz, 5 Watta, 164. * Thompson v. Adams, 5 P. F. Smith, 479. 5 Black V. Hepburne, 2 Yeates, 331, 333. ^ Seal V. Northern Central Railway, 1 Pearson, 547 ; McClintock v. Pittsburgh Fort Wayne and Chicago E. E. Co., 16 P. F. Smith, 404. ' Cooper V. Smith, 9 Sergeant & Rawle, 26. * Shumway v. Phillipp.s, 10 Harris, 151, and cases there cited. 8 Narehood v. Wilhelm, 19 P. F. Smith, 64. '" Presbyterian Congregation v. Johnston, 1 Watts & Sergeant, 9. " Baum V. Dubois, 7 Wright, 260. 264 NON-DELIVERY OF POSSESSION. [CHAP. X. (8.) For compelling specific performance of a contract for the sale of land.' (9.) For enforcing the execution of a trust, or the decree of a conveyance.'' (10.) For enforcing the performance of a condition, stipulated in a conveyance.' VIII. When Ejectment will not lie. 458. The action of ejectment will not lie in Pennsylvania as follows : (1.) For a mere privilege, or incorporeal hereditament.* (2.) For purchase-money payable infuturo after the delivery of the deed.^ (3.) For a life estate after the death of the tenant for life.^ (4.) For lands held or appropriated by the State.'' (5.) For a strip of land covered by a party wall." (6.) For enforcing a provision in a deed for the support of the grantor.^ (7.) For enforcing a provision in a devise, charged upon real estate, for the support of the testator's widow. (8.) For enforcing the payment of a ground-rent reserved upon a conveyance in fee." IX. Decisions Incidental to the Action of Ejectment. 459. Actions of ejectment do not close or abate by the death of either plaintiff or defendant, but the person next in interest may ' Corson v. Mulvany, 13 Wright, 88; see also Cornpll v. Green, 10 Sergeant & Kawle, 14. But see Eussell v- Baughman, 9 Weekly Notes, 284. 2 Peebles ». Reading, 3 Sergeant & Rawle, 483. ' Bear v. Whisler, 7 Watts, 144; Cook v. Trimble, 9 Ibid. 15: * Black V. Hepburne, 2 Yeates, 331. ' Zentnieyer v. Mittower, 5 Barr, 403. ^ Hamilton v. Overseers of the Poor of Whitely Township, 2 Jones, 147. ' North Brancli Canal Company d. Hireen, 8 Wright, 418. 8 Robinson v. Gunnis, 2 Weekly Notes, 224. 9 Cook V. Trimble, 9 Watts, 15. 10 Craven v. Bleakney, 9 Watts, 119. » Kenege v. Elliott, 9 Watts, 258. SEC. III.] ACTION OF EJECTMENT. 265 be substituted/ and if the tenant in tail die, the heir in tail may be substituted, and if a trustee, his devisee.'^ Where land is sold during a suit in ejectment, the suit is not affected, as the pur- chaser's name may be substituted for that of the vendor by motion made in court;* but no purchaser or mortgagee can be affectei I by notice of the pending of a suit, unless the same be indexed in the ejectment index. This index is directed to be kept by the pro- thonotary of the court by act of 22d April, 1856,* and it is the duty of the plaintiff in an ejectment to furnish the necessary in- formation. 460. The action of ejectment being founded on a present right of possession, a lessee who was illegally dispossessed of leased premises by his lessor, cannot after a lapse of years support an action of ejectment to recover the premises against the lessor's grantees, as he has no present right to the possession," and the action being a possessory one, no one can support it for property of which he himself is in possession.'' 461. By the act of 21st March, 1772,' it is made the duty of a tenant to give notice to his landlord of the delivery to him of any declaration in ejectment, and although declarations, since the act of 1806, are not in common use, yet the same duty is incum- bent on the tenant with regard to a writ.' It is the part of the court to suffer the landlord to become defendant, but before mak- ing the order it is their duty to inquire whether the applicant stands in the relation of landlord or whether his claim of title is consistent with the possession of the occupier.' The landlord being admitted as co-defendant with the tenant, the name of the tenant is not stricken out unless with the consent of the plaintiff, 1 Act of 13th April, 1807, § 3, 4 Smith's Laws, 477. 2 Hunt V. Crawford, 3 Penrose & Watts, 426 ; Grant v. Levan, 4 Barr, 419 ; Darnes v. Welsh, 7 Sergeant & Rawle, 203; Shoemaker d. Huffnaglo, 4 Watts & Sergeant, 437. " Act of 26th April, 1850, ? 4, Pamphlet Laws, 591. * Ibid. 532. Parties to actions pending at the time of the passage of the act are not affected. Act of 22d April, 1863, Pamph. Laws, 560. 5 Heffner v. Betz, 8 Casey, 376. ^ Kribbs v. Downing, 1 Ibid. 399. ' Smith's Laws, 372. 8 Boyer v. Smith, 3 Watts, 449 ; Boyer v. Smith, 5 Watts, 55, 65 ; Wharton V. Botham, 8 Watts & Sergeant, 158. 8 McClay v. Benedict, 1 Bawle, 424. 266 NON-DELIVERY OF POSSESSION. [CHAP. X. as otherwise the tenant might become a witness for the landlord ;i but since the acts of 27tli March, 1865,'and 15th April, 1869,' the tenant can be a witness in any event. In case the tenant shall fail to give notice to the landlord as stated, the court will open a judgment obtained by default, and will admit the landlord to de- fend,* and it behooves the landlord, who wishes to defend, to make himself a party to the record.' And, moreover, the court may refuse to admit him when the purpose is delay,* nor will his ad- mission prove that the party first sued was his tenant.'^ A pur- chaser of a part of demised premises will not be permitted to come in and defend as landlord,' but by virtue of the act of 26th April, 1850,' the name of a purchaser or assignee may be substituted for that of the original landlord. It is not error for the court to refuse permission to one claiming adversely to the landlord to be admitted as co-defendant with the tenant.'" A tenant is not bound to defend in ejectment where the landlord refuses to indemnify him." 462. Where the tenant sets up an outstanding lease from the landlord, the latter may prove a surrender of the lease or explain by parol how far it .related to the premises in dispute.'^ It is competent for the tenant to prove on the trial that the landlord had only a life estate, which terminated by his death, before action was brought by his heirs." A confession of judgment by a tenant who was co-defendant with his landlord, amounts to nothing.'* 463. Where a lessee, after another had intruded on his pos- session, did not bring suit for two years and a half, the Supreme Court held that he had abandoned the term." ■" Emlen v. Hoops, 3 Sergeant & Kawle, 130. ' Pamphlet Laws, 38. » Ibid. 80. * Wharton v. Bothum, 3 Watts & Sergeant, 158. ^ Clayton's Lessee v. Alshouse, 2 Dallas, 150; see also Losee v. McParland and wife, 5 Norris, 33. 6 Linderman v. Berg, 2 Jones, 301. ' Curry v. Raymond, 4 Casey, 144. * Brown v. O'Brien, 3 Clark, 115 ; Curry v. Eaymond, 4 Casey, 144. » Pamphlet Laws, 591. i" Boyer v. Smith, 5 Watts, 55. " Stewart v. Roderick, 4 Watts Sc Sergeant, 189. 12 Galbraith v. Elder, 8 Watts, 81. w Heckart v. McKee, 5 Watte, 385. t* Helfenstein v. Leonard, 14 Wright, 461. w Kreutz v. McKnight, 3 P. F. Smith, 319. SBC. III.] ACTION OF EJECTMENT. 267 464. Where the plaintiff claims title by twenty-one years' ad- verse possession, he must prove every element requisite to con- stitute his title, otherwise it will be the duty of the court to instruct the jury that there is not sufficient evidence to entitle him to recover.' The rights of the Commonwealth are unaffected by the statutes of limitation or by any act that authorizes the sale of lands for unpaid taxes.^ 465. The defendant in an action of ejectment is not bound to appear or do anything until the second term, nor can judgment be taken against him until that time.' 466. Whenever in an action of ejectment the plaintiff shall be nonsuited or verdict be entered against him, the defendant may (for the purpose of proving his title) enter a rule upon the plain- tiff to sue out a writ of error to the Supreme Court within one year from the service of the rule ; and in case the plaintiff fail to do so he shall be debarred from ever doing so, and the defendant may then enter a rule against the plaintiff to show cause why he shall not bring a second action of ejectment within one year from the determination of the rule, and if no good cause of delay be shown the said rule shall be made absolute, and on the expiration of the year, if the plaintiff has not brought the action, he is de- barred from bringing an action for the same land on the same title.* 467. If a landlord by virtue of any breach of a covenant in the lease to pay rent, re-enter and the possession be vacant, he is, of course, in his possession as before the lease ; but if the tenant be there and refuse to yield possession and he be driven to his action of ejectment and by means of it regain the possession, his title, if the condition broken relate to rent, is defeasible on tender by the tenant of all the arrearages of rent and the payment of all costs and charges. 468. When re-entry is attempted for breach of the covenants in a lease to pay rent, the proceedings are minute and complicated, and the following is requisite." ' De Haven v. Landell, 7 Casey, 120. = Troutman v. May, 9 Casey, 455. s Vanderslice v. Garven, 14 Sergeant & Rawle, 273. * Act of 3d April, 1872, Pamphlet Laws, 33. 6 MoCormick v. Connell, 6 Sergeant & Eawle, 151 ; Eoyer v. Ake, 3 Pen- rose & Watts, 461 ; Duppa v. Mayo, 1 Williams's Saunders, 276, 287, and note (16) ; Coke upon Littleton, 202, a ; Bowman v. Foot, 1 American Law Regis- ter (N. S.), 352, 362, note. 268 NON-DELIVKRY OF POSSESSION. fCHAP. X. (1st.) A demand for the rent must be made in person or by an agent properly authorized, and if there be goods on the premises out of which the rent can be collected, the re-entry cannot be made. (2d.) Demand must be made for the precise amount due. (3d.) The demand must be made on the day the rent becomes due. (4th.) It must be made just before sunset. (6th.) It must be made on the land and on the most public place of it, such as at the front door of the house ; and if the tenant make tender of the rent anywhere on that day, it prevents the forfeiture of the lease. (6th.) If a place be named for the payment of the rent, the demand must be made there. (7th.) The demand must be made in fact, even if no one be present, and yet with all this, if the tenant pay up the rent and costs any time before execution, the forfeiture will be set aside, and on that account this course is seldom resorted to. X. Oj the Prerequisites before bringing Action. (1.) Entry. 469. Under the old process of ejectment it was requisite for the plaintiff to make an entry on the lands before bringing his action, but this is not now requisite in Pennsylvania,' since it has been held that a right to enter, which involves an immediate right to the possession, is sufficient.' (2.) Notice to Quit. 470. As to notice to quit, it is not requisite in some cases, though it is in others. (a.) When not Requisite. 471. Notice to quit is not requisite as follows : (1.) When the term of a lease is to end on a precise day or on the occurrence of a particular event.' • Sims's Lessee v. Irvine, 3 Dallas, 425 j Carlisle v. Stitler, 1 Penrose & Watts, 6. 2 Hylton's Lessee v. Brown, 2 "Washington Circuit Court Reports, 165; Stof- flitj). Troxell, 8 Watts & Sergeant, 340, 341. ' Bedford v. McElherron, 2 Sergeant & Eawle, 49 ; Evans u. Hastings, 9 Barr, 273 ; MaoGregor u. Eawle, 7 P. F. Smith, 184; S. 0. 6 Philadelphia, 243 ; MeCanna v. Johnston, 7 Harris, 434; Doe dem. Waithman v. Miles, 1 Starkie, 181. BEC. III.] ACTION OF EJECTMENT. 269 (2.) When the party occupies under an agreement to lease dur- ing the term for which the lease was to be granted.' (3.) When the holding of the tenant is adverse.' (4.) When the tenant commits an act which amounts to a dis- avowal of the title of the lessor.^ (6.) When after a mortgage is due, the mortgagee brings an action against the mortgagor.* (6.) When the party in possession is a tenant strictly at will.' (7.) Where the party in possession is a mere intruder.^ (8.) When the party in possession is a mere tenant at suffer- ance. And this may be — (a.) When a tenant for years holds over without the consent of the landlord.' (6.) When the party in possession remains without the consent of a purchaser of the landlord's reversion at a judicial sale, under a judgment or mortgage antedating the lease,' or at a sale by order of the Orphans' Court,' or by order of the Court of Common Pleas in partition, and has received a deed from the sheriff. (6.) When Requisite. 472. The notice to quit is requisite where the tenancy is one from year to year, month to month, or week to week, and this tenancy may arise as follows : (1.) When the tenant is put into possession by the express ' Doe d. Tilt v. Stratton, 4 Bingham, 446. ' Doe d. Davis, Chees, etc. v. Creed, 2 Moore & Payne, 048. ' Doe d. Grubb v. Grubb, 10 Barnewall & Cresswell, 816 ; Doe d. Jefferies V. Whitticlj, Gow, 195 * Doe d. Pisher v. Giles, 5 Bingham, 421 ; see MeCall v. Lenox, 9 Sergeant &Kawle, 311. ^ Doe d. Jones v. Jones, 10 Barnewall & Cresswell, 718 ; Richardson v. Lun- gridge, 4 Taunton, 128. * Lewis V. Ringo, 8 A. K. Marshall (Kentucky), 247, 248. ' Bush V. National Oil Refining Co , 5 Weekly Notes, 143 ; Bannon v. Bran- non, 10 Casey, 263. 8 Act of 16th June, 1836, §? 105, 111, and 119, Pamphlet Laws, 780; Bit- tinger v. Baker, 5 Casey, 66; Borrell v Dewart, 1 Wright, 134; Adams v. McKesson's Executrix, 3 P. P. Smith, 81. 8 Act of 9th April, 1849, ? 16, Pamphlet Laws, 527; Simpson jj Thornton, 3 P. P. Smith, 391. 270 NON-DELIVERY OF POSSESSION. [CHAP. X. agreement of the landlord for an indefinite period, paying an an- nual, monthly, or weekly rent.' (2.) When a tenant for years remains in possession after the end of his term with the express consent of the landlord.^ (3.) When a tenant for years remains in possession by the im- plied consent of his landlord, and this may be by the landlord's receiving from the tenant rent accruing after the end of the term,^ or by his permitting the tenant to remain in possession for many years after the end of the term.' (4.) When the tenant is put into possession for an indefinite time under an agreement that he shall make repairs on the house in payment of the rent.* (c.) 0/ the Notice. 473. (1.) The notice to quit should be served as follows : (a.) On the lessee in person ;* (6.) Or on the assignee of the lessee (in possession) ;' (c.) Or on any adult person on the demised premises.' (2.) The notice should be signed by the landlord, or by his duly authorized agent.' (3.) The notice should be served as follows : (a.) Three months prior to the expiration of the current year in a tenancy from year to year.'" (6.) One month prior to the monthly ending of a tenancy from month to month." (c.) One week prior to the weekly ending of a term from week to week." 1 Brown o. Vanhorn, 1 Binney, 334, note; Lesley v. Randolph, 4 Eawle, 123 ; Lloyd v. Cozens, 2 Ashmead, 181. 2 Bedford v. McElherron, 2 Sergeant & Eawle, 49. ' Hemphill v. Flynn, 2 Barr, 144 ; Phillips v. Monges, 4 Wharton, 229. ■• Bedford v. McElherron, 2 Sergeant & Eawle, 49. 5 Thomas v. Wright, 9 Sergeant & Eawle, 87. 8 Act of 13th June, 1836, Pamphlet Laws, 572. Where there are two joint li^Rsees a notice to one is sufficient. Glenn v. Thompson, 25 P. F. Smith, 389. ' Lloyd V. Cozens, 2 Ashmead, 131. 8 Act of 13th June, 1836, Pamphlet Laws, 572 ; see note 2, page 213. ' Doe d. Mann v. Walters, 10 Barnewall & Oresswell, 626. "> Logan V. Herron, 8 Sergeant & Eawle, 458, 474, and cases there cited; see Hutchinson v. Potter, 1 Jones, 472. " Doe d. Peacock v. Euffln, 6 Espinasse, 4. >2 Ibid. SEC. III.] ACTION OF EJECTMENT. 271 (4.) The language of the notice should be clear and decisive, without ambiguity, or giving any alternative to the tenant, and though an oral notice be sufficient it is better that it should be in writing.' (5.) The notice is not waived by the landlord's permitting the tenant to remain one year in possession.'' (6.) But if the lessor give the notice and then alien the prem- ises, and the grantee give a new notice to quit, it is a waiver of the former notice.' XI. The Proceedings in Ejectment. (1.) The Prcedpe. 474. The praecipe is directed to the prothonotary of the court, directing him to issue a summons in ejectment against the defend- ant, and if this praecipe contain a sufficient description of the land, it will not be necessary to file another description,^ and the same will stand in place of a narr." The name of the county and township, the number of acres, and the adjoining lands by which the land is bounded, and the names of the owners thereof, should be inserted f but when only the adjoiners were specified it was held to be too vague.' The omission of the name of the township, if pleaded in abatement, would be fatal, but if not taken advantage of soon after the defendant's appearance the objection cannot be made.' However, where the property is in a city having a known system of notation, the description by number is sufficient.' (2.) The Writ. 475. In accordance with the praecipe the prothonotary then • Thamm v. Hamberg, 2 Brewster, 528 ; S. C. 7 Philadelphia, 266 ; Common- wealth V. Keiter, 28 P. P. Smith, 161. ' Boggs V. Black, 1 Binney, 333. « Pitzpatriok v. Childs, 6 Philadelphia, 135; S. 0. 2 Brewster, 365. * Cahill V. Benn, 6 Binney, 99. ^ Ewing v. Alcorn, 4 Wright, 492, 501. " Lyons v. Miller, 4 Sergeant & Eawie, 279; Pisher v. Larick, 7 Sergeant & Eawle, 101 ; Tryon v. Carlin, 5 "Watts, 371 ; Thomas v. Gulp, 4 Sergeant & Eawle, 271. ' Hunt u. McParland, 2 Wright, 69; Clement & Masser v. Toungman & Walter, 4 Wright, 841 ; Sheik v. McElroy, 8 Harris, 26. 8 Lyons v. Miller, 4 Sergeant & Eawle, 279. 9 Planigen v. Philadelphia, 1 P. P. Smith, 491. 272 NON-DELIVERY OF POSSESSION. [OHAP. X. issues the summons or writ, of which the form is provided by the act of 21st March, 1806,i and this is handed to the sheriff, who serves it on the tenant in possession' either in person, or by leaving the same at his dwelling in the same county, or otherwise as stated in the following paragraph. In the description the writ should, moreover, tally with the praecipe. The description of the premises being thus fully set forth in the prsecipe and writ renders it needless for the plaintiff to file either a declaration or the state- ment stating the description of the land together with the number of acres, as provided by the act of 1 806. If after the writ of eject- ment has been issued the sheriff discover that the premises are occupied by some person other than the one named in the writ, he may add the name of such person.^ It is, however, provided by the act of 22d April, 1856,* that no purchaser or mortgagee shall be affected by the notice of an ejectment unless the same shall be indexed in a book to be kept by the prothonotary, to be called the ejectment index, for which the plaintiff is to furnish the necessary information. (a.) Of the Service. 476. The service of the writ may be made as follows : (1.) By reading the same in the hearing of the defendant." (2.) By giving the defendant notice of the contents of the writ, and a true and attested copy thereof." (3.) By leaving such attested copy at the dwelling-house of the defendant, in the presence of an adult member of the family.'' (4.) When the defendant resides with the family of another, by leaving the attested copy with a member of such family.' 477. If the copy be not attested by the sheriff the service will be set aside,' and also if it be left at the counting-house of the de- fendant with his agent or clerk,'" and if the sheriff make return ' 4 Smith's Laws, 32; see page 245, ^ 418. 2 Losee v. McFarland and wife, 5 Norris, 88. 8 Irish V. Scovil, 6 Binney, 55 ; Freedly v. Mitchell, 2 Barr, 100. * Pamph. Laws, 532. Parties to actions pending at the time of the passage of the act are not affected. Act of 22d April, 1863, Ibid. 560. 6 Kleckner v. Lehigh County, 6 "Wharton, 66; Act of 13th June, 1836, § 2 Pamphlet Laws, 572. 8 Ibid. ' Ibid. ' Ibid. ° Bank v. Perdriaux, Brightly, 67. '" Winrow i>. Eaymond, 4 Barr, 501. SBC. III.] ACTION OF EJECTMENT. 273 " summoned by leaving a copy at defendant's place of residence," the service will be insufficient by reason of the defect in the return in failing to mention the time when served.' It is, however, the custom for the attorney of the defendant to accept service of the writ, and this being indorsed on the ■(vrit dispenses with the ne- cessity of serving it; but accepting service is not entering an ap- pearance. Service cannot be made in a county wherein the land does not lie, but if the land lie in two counties the act of 13th March, 1836,' provides that the plaintiff may sue in either, in which case the sheriff of the county in which he does uot sue may serve the writ on the defendant residing or being therein.'' 478. The act of 14th April, 1851,* provides that where the action is brought to enforce specific performance of a contract for land upon which no one resides, the writ may be served on the vendee claiming under the vendor ; and if he cannot be found, the court will grant a rule on the defendant to appear and plead, which rule shall be published for sixty days before the return day, in one newspaper of the county wherein the action is brought, and if the defendant appear the court shall cause him to be made defendant, but if not, judgment shall be given in default. The act of 18th April, 1853,' provides that in such a case the writ may be served on the agent, but before the trial it must be made to appear to the court that the defendant had notice of the suit in time to appear and defend. The act of 13th April, 1858,* ex- tends the provisions of the act of 1851 to all cases where claim- ants and mortgagees desire to bring the action for unseated or unoccupied lands, whenever the adverse claimant or mortgagor does not reside in the county where the lands are situate, and has no known agent therein, provided it is made to appear that the defendant has had notice of the suit. 479. If the writ be served on a tenant in possession, it is his duty to notify his landlord thereof that he may come in and defend.' ' Weaver v. Springer, 2 Miles, 42. 2 Pamphlet Laws, 572. ' Act of 13th Junp, 18.S6, section 80, Pamphlet Laws, 572 ; Bellas v. Houtz, 8 Watts, 373. ' 1 Pamphlet Laws, 614. ^ i^id. 467. " Ibid. 256. ' Act of 2l3t March, 1772, 1 Smith's Laws, 370. 18 274 NON-DELIVERY OF POSSESSION. [CHAP. X, (6.) Of the Return of the Writ. 480. The writ of ejectment having been served by the sheriff, he returns it to the prothonotary of the court, having first thereon indorsed the time and manner of the service, say, as follows: " Served, February 9th, 1879, by giving a true and attested copy of the within writ to the defendant. A. B., Sheriff." Or other- wise, as the case may be. This return is prima facie evidence that the defendant was in possession of the premises,' whether his name was in the writ originally, or had been added by the sheriff^ but this evidence may be rebutted by the defendant.' The question of possession is one of fact for the jury, and it is error in the court to decide it, unless under particular circum- stances.* For the purpose of a writ of error the sheriff's return is con- clusive of the service of the writ.^ (3.) Appearance of the Defendant. 481. The 12th section of the act of 1806* enjoins the defendant to enter his defence, if any he have, for the whole or any part of the premises claimed, before the next term. It seems, however, that he is not bound to do so or to appear until the second term, nor can judgment be taken against him until then.' It is also provided by the act of 5th December, I860,* that where the de- fendant shall have neglected or refused to appear and plead on or before the term next after that to which the original process was made returnable, or having appeared shall then withdraw, if the process have been duly served, the court may direct a plea to be entered for the defendant, and the case shall proceed to trial, provided that the writ has been so served on the party claiming title. ■ Actof 13th April, 1807, §2; 4 Smith's Laws, 476 ; Kirkland*. Thompson, 1 P. F. Smith, 216. ^ Dietrick v. Mateer, 10 Sergeant & Kawle, 151 ; Gratzw. Benner, 13 Ibid. 110; Cooper V.Smith, 9 Ibid. 26; Helfenstein u. Leonard, 14 Wright, 461,476. 3 Ibid. t Helfenstein v. Leonard, 14 Wright, 461 ; Cooper a. Smith, 9 Sergeant & Bawle, 26. 6 Camp V. Welles, 1 Jones, 206. ^ 4 Smith's Laws, 332. ' Vanderslice v. Garven, 14 Sergeant & Eawle, 273. 8 Pamphlet Laws, 844. SBC. III.] ACTION OF EJECTMENT. 275 (4.) Tlie Plaintiff's Declaration or Statement. 482. The defendant having appeared, the next step is for the plaintiff to file his declaration or statement. It has already been noticed that if the praecipe be full and explicit in the description of the premises, the same would stand in the place of a declaration or narr, which is simply a plain history of the plaintiff's cause of action ; but, presuming such description not to have been made, the act of 1806' makes it the duty of the plaintiff to file in the office of the prothonotary on or before the first day of the term to which the process is returnable a description of the lands, and the act of 22d April, 1856,^ provides that no purchaser or mortgagee shall be af- fected by the notice of an ejectment unless such action is indexed in the ejectment index. It therefore behooves the plaintiff in such a case to see that such description is filed and the action in- dexed as aforesaid. The statement authorized by the act of 1806 is a specification by the plaintiff of his cause of action, and is not restricted to any par- ticular form. It must accord with the evidence, as otherwise the variance will be fatal. (5.) The Defendant's Plea. 483. 1. The plaintiff having either described the land fully in the praecipe or in his declaration or statement, it behooves the de- fendant to enter his defence, and the act of 13th April, 1807,' pro- vides that this plea shall be "Not Guilty ;" and, if the defendant fail to appear and defend after due notice, the court may by pro- vision of the act of 5th December, 1856,* direct this plea to be entered. 2. On this the cause is ready for trial without any formal join- ing of issue,* and under it the defendant may defend to the whole or any part of the land, confining his defence, however, to the part he claims.^ 3. When the action is brought for distinct properties against ' 4 Smith's Laws, 382. " Pamphlet Laws, 614. ' 4 Smith's Laws, 476. * Pamphlet Laws, 844. " Gallagher v. MoNutt, 3 Sergeant & Eawle, 409. 6 Hill V. Hill, 7 Wright, 521 ; Ulsh v. Strode, 1 Harris, 433. 276 NON-DELIVERY OF POSSESSION. [CHAP. X, two or more defendants, they may defend separately on their sep- arate titles, unless these be identical.^ 4. An affidavit of defence is not required in an action of eject- ment, but where an application is made to the court to open a judgment entered by default, it should be grounded upon an affi- davit of merits.^ 5. Under the plea of "Not Guilty" the defendant may set forth : (1.) The Statute of Limitations.^ (2.) The death of the plaintiff before the entry of the suit.* (3.) Eviction by the entry of a stranger under title paramount.' (4.) Coverture." (5.) Non-possession of the premises.' (6.) A valid subsisting title in a third party.' (7.) Disclaimer.' 6. Notwithstanding the act of 1807, the defendant may plead in abatement; thus he may plead that no such person as the plain- tifi" is in existence.'" (6.) Admission of Defence. 484. Before admitting a party to defend as landlord the court should inquire whether the applicant really occupies that position, or whether his claim is consistent with the possession of the occu- pant," and on admitting him may limit his defence to a portion of the land claimed." The landlord may be admitted though he did not apply at the return of the writ, if the interests of others be not thereby jeopardized.^' When the landlord is admitted the name of ' Helfenstein v. Leonard, 14 Wright, 461. 2 2 Troubat & Haley's Practice, 317. 3 Gallagher v. McNutt, 3 Sergeant & Eawle, 409. * Patterson v. Brindle, 9 Watts, 98. ' Naglee v. Ingersoll, 7 Barr, 185, 205. 6 Black V. Tricker, 2 P. P. Smith, 436. ' Helfenstein v. Leonard, 14 Wright, 461. 8 Riland v. Eckert, 11 Harris, 215. » Ulsh V. Strode, 1 Harris, 433 ; Steinmets v. Logan, 3 Watts, 160 ; Hill ». Hill, 7 Wright, 521 ; Bratton v. Mitchell, 5 Watts, 70 ; Kirkland v. Thompson, 1 P. F. Smith, 216; Zeigler v. Fisher's Heirs, 3 Barr, 365. 1° Campbell v. Galbreath, 5 Watts, 428. 11 McClay v. Benedict, 1 Rawle, 424. 12 Ege V. Medlar, 2 Norris, 86 ; S. C, 3 Weekly Notes, 437. '» Brown V. O'Brien, 3 Clark, 115. SBC. III.] ACTION OF EJECTMENT. 277 the defendant willnot be stricken out without the assent of the plain- tiff/ but as the reason that governed this decision was that other- wise the tenant might be made a witness for his landlord, it is probable that since the passage of the acts of 1865 and 1869 ex- tending the right to testify, the decision of the court would be the reverse. The admission of a party to defend as landlord is not proof of the tenancy. That must be proved on the trial.'' A party who has purchased the defendant's interest, pendente lite, and has obtained possession, may be admitted to defend.' The court may refuse to admit the landlord to defend where the purpose is delay.* The vendor of a defendant who has no reversionary interest will not be admitted to defend,'' nor will the vendee during the suit^ XII. The Trial. 485. The defendant's plea having been filed and the cause com- ing on for trial at the second term, the question arises as to the right of counsel to begin. As a general rule it is for the party claiming in the affirmative to begin, and since in ejectment it is for the plaintiff to prove his title, it is for him- to begin. (1.) Of the Evidence. 486. The plaintiff need not show title further back than the person who last died seized, first showing title out of the Com- monwealth ;' but he must in most cases prove not only his own title, but also the possession of the defendant,^ Where both par- ties claim under the same title, the plaintiff need not trace his title back beyond the person holding that right.' To compel the pay- ment of purchase-money, the plaintiff need not first show a per- fect title in himself; the burden of proving an outstanding title is ' Emlen v. Hoops, 3 Sergeant & Kawle, 130. ^ Curry ». Eaymond, 4 Casey, 144. ' Murray «. Galbraith, 2 Binney,59. * Linderman w. Berg, 2 Jones, 301. ' Ibid. * Loos V. Caldwell, 2 Miles, 390; Brown v. O'Brien, 3 Clark, 115; Penn- sylvania Canal Company v. Central Iron Works, 7 Philadelphia, 662. ■' Shrider's Lessee v. Nargan, 1 Dallas, 68. * McCanna v. Johnston, 7 Harris, 434, 438, and cases there cited. ° Eiddle v. Murphy, 7 Sergeant & Eawle, 230 ; Patton v. Gouldsborough, 9 Ibid. 47; Turner v. Eeynolds, 11 Harris, 199; Clark ». Trindle, 2 P. F. Smith, 492. 278 NON-DELIVERY OF POSSESSION. [CHAP. X. on the defendant, when he relies upon a defective title in the plaintiff.^ 487. Possession out of the Commonwealth need not be shown iu the following instances : (1.) Where the defendant entered as tenant under the plaintifiF.'' (2.) Where both parties claim under a sale for taxes.' (3.) In ejectment against a mere intruder.* 488. For the purpose of proving possession the plaintiff may show that he recovered the land from one to whom he had con- tracted to sell the same/ and where he holds under articles for the sale of land, he may give in evidence a conveyance by his vendor to a third party.* The plaintiff need not prove possession within twenty-one years where the defendant does not show a title ac- quired by adverse possession ;' nor is he bound to prove all the recitals in a deed from trustees conveying the legal title.^ If his title depend on the dying of another person without issue under twenty-one, he must show that both these events occurred.' Where his right to recover is founded on an allegation of fraud in a sheriff's sale, all the proceedings under the sale are competent evidence.'" 489. In an action of ejectment against an intruder it is suffi- cient to show that the plaintiff's ancestor died in possession of the premises." And in an action by a purchaser at a treasurer's sale for unpaid taxes against a mere intruder, he need only show title out of the Commonwealth and the treasurer's deed.'^ 490. In an action by a purchaser at sheriff's sale, against one claiming by a different title, the record of the judgment under which the land was sold is evidence,'' and the return of the writ is 1 Stokely v. Trout, 3 Watts, 163. 2 Thompson v. Graham, 9 Philadelphia, !S&. ' Stewart v. Shoenfelt, 13 Sergeant & Eawle, 360. * Lair v. Hunsicker, 4 Casey, 115. ■■ Vanhorn v. Friek, 3 Sergeant & Eawle, 278. " Diermond v. Eobinaon, 2 Yeates, 324. ' Hawk V. Senseman, 6 Sergeant & Eawle, 21. 8 MoHenry v. McCall, 10 Watts, 456. 8 Clark V. Trinity Church, 5 Watts & Sergeant, 266. '° Smull V. Jones, 6 Watts & Sergeant, 122. >i Mobley v. Bruner, 9 P. P. Smith, 481, 483, and cases there cited. 12 Crura V. Burke, 1 Casey, 377. '= Schall V. Miller, 3 Wharton, 250. SBC. III.] ACTION OP EJECTMENT. 279 conclusive evidence of what was actually levied on ;' and where the sale was under a mortgage in the loan office, it was held that the purchaser must produce in evidence the mortgage and precept.^ In ejectment under a sheriff's deed, one admitted to defend as landlord may show that he was tenant in common with the debtor.'' 491. Tax-books and receipts for the payment of taxes are evi- dence in an action of ejectment/ but where the question of the validity of the original title is raised, evidence of the payment of taxes is inadmissible.' A draft of land is not admissible until some evidence of title has been shown,' but an abstract of title filed by a party, under a rule of court, may be read in evidence by the other party to the suit.^ 492. A verdict against a defendant in another suit, upon the same title, for the same land, and between parties under whom the then plaintiff and defendant claim, may be given in evidence;' so also of a nonsuit.' If the defendant give in evidence the ver- dict and judgment in a former ejectment for the land in question, the plaintiff may sliow that the evidence given in the present suit was neither known nor produced.'" Where title under a judicial sale, as the property of a person in possession, is shown by the de- fendant, the burden of proof is upon the plaintiff denying such title." Where the defendant sets up title in various ways, the plaintiff may give the defendant's title in evidence, when the de- fendant declines to do so himself." Where the plaintiff does not claim under the defendant, evidence of the value of the land is inadmissible." 493. The defendant may give in evidence the title under which ' Beeson v. Hutchinson, 4 Watts, 442. 2 Marshall v. Ford, 1 Yeates, 195 ; Gilbert's Lessee v. Probst, Ibid. 300. 3 Knox V. Herod & Wilson, 2 Barr, 26. * Vastbinder v. Wager, 6 Ibid. 339.- * Quin B. Brady, 8 Watts & Sergeant, 139. ^ Sample v. Kobb, 4 Harris, 305. ' Ege V. Medlar, 1 Norris, 86; S. 0. 3 Weekly Notes, 437. ^ Shaefer v. Kreitzer, 6 Binney, 430 j Levers v. Van Buskirk, 4 Barr, 309.. 3 Koons V. Hartman, 7 Watts, 20. 10 Brindle v. Mcllvaine, 10 Sergeant & Eawle, 282. " Bowman v. Fry, 1 Yeates, 21. 12 Bratton v. Mitchell, 3 Barr, 44. •2 Hoover v. Gonzalus, 11 Sergeant & Kawle, 314 ; Mottw. Clark, 9 Barr, 399;. 280 NON-DELIVBRY OF POSSESSION. [CilAP. X. he claims, though it be not the better one ;' also that he is not a wanton trespasser, but came in under color of title.' He may give evidence of his possession anterior to the date of his deed f also of a return of survey made after suit brought ;* and also of a lease made by his predecessor.^ 494. The defendant cannot give in evidence an application in tlie nature of a vacating warrant fi!ed after the ejectment is brought ;" and he cannot give in evidence a breach of contract by one under whom he claims in order to defeat the plaintiff's re- covery.'^ (2.) Of the Verdict. 495. In regard to the verdict the form must be sufficiently cer- tain as to the land, to enable the court to give judgment and the sheriff to give possession on the writ oi habere facias possessionem, and this certainty must be attained by a reference to something of a permanent nature, such as a recorded deed or a diagram filed of record with the verdict.' When the prsecipe contains a sufficient description a general finding for the plaintiff is good.' A verdict " that the defendant should have the third share of the forty-one acres and thirty-two perches neat, and if any surplus it goes to the plaintiff," was held to be too uncertain.^" The verdict must also be certain as to the matter ;" the jury cannot find for the plain- tiff and give the costs to the defendant." ' Grunt V. Levan, 4 Burr, 393. ■> Moody V. Fulmer, 3 Grant, 317. ' Benner v. Hauser, 11 Sergeant & Eawle, 352. * Galbraith v. Elder, 8 Watts, 81. ^ Maus V. Montgomery, 15 Sergeant & Kawle, 221. ' Shippen v. Aughenbaugh, 4 Yeates, 328. ' Reed v. Dickey, 1 Watts, 152. 8 O'Keson v. Silvcrthorn, 7 Watts & Sergeant, 246 ; Borough of Harrisburg ■u. Crangle, 3 Ibid. 460 ; Tyson v. Passmore, 7 Barr, 273 ; Green v. Watrous, 17 Sergeant & Kawle, 393; Hagey u. Detweiler, 11 Casey, 409; Hunt u. McFarland, 2 Wright, 69 ; Miller v. Casselberry, 11 Ibid. 376 ; Koss v. Barker, 5 Watts, 391 ; Emig v. Diehl, 26 P. F. Smith, 359 ; Nolan «. Sweeny, SO Ibid. 77; Smith v. Brotherline, 12 Ibid. 461. * Ewing V. Alcorn, 4 Wright, 492. '» Smith V. Jenks, 10 Sergeant & Rawle, 163. ii Bagley v. Wallace, 16 Sergeant & Rawle, 245 ; Martin v. Martin, 17 Ibid. 432 ; Stewart v Speor, 5 Watts, 79 ; Ewing v. Alcorn, 4 Wright, 492. w Allen V. Flock, 2 Penrose & Watts, 159. SEC. III.j ACTION OP EJECTMENT. 281 496. If an action of ejectment be brought by one of several ees- tuis que trust in the name of the warrantee, the plaintiff is entitled to recover the whole tract, the assent of his co-tenants being pre- sumed.' A tenant in common, in sole possession, who has been ousted by a trespasser can only recover his own interest in the land.' 497. In an action to enforce the payment of purchase-money the plaintiff is only entitled to a conditional verdict stating a time for payment/ the defendant may either tender the balance of unpaid purchase- money, or ask for a conditional verdict.' Where the vendee pays the money into court the plaintiff is entitled to a verdict for nominal damages and costs.' AVhere a conditional ver- dict for purchase-money was recovered, it was held that a failure to comply with the condition of the verdict operated as an entire rescission of the contract and left the parties in statu quo.^ 498. Where a written contract is made for the sale of land, the price of the same to be paid in labor, and the vendee performs part of the same, and tendere performance of the balance, which is declined, the vendee is entitled to recover an absolute verdict in ejectment.' Where in an action of ejectment the defendant alleges a parol gift of land by the ancestor of the plaintiff to his ancestor, it is error for the jury to attach a condition to the verdict.' Where an executor claiming to be the devisee of the decedent, sold the land of the latter and applied the proceeds thereof to the payment of the decedent's debts, it was held that those who really were the devisees were entitled to recover the land without refunding the purchase-money paid by the executor's vendee.' Where land was sold by a trustee illegally appointed, it was decided that the land could not be recovered from the vendee of the trustee without re- payment to him of the purchase-money.'" Where a deputy sheriff purchased property at a sheriff's sale and there was no fraud proven, it was decided that the owner of the property might dis- ' Campbell v. Galbreatb, 5 Watts, 423. ' Dawson v. Mills, 8 Casey, 302. ' Dixon V. Oliver, 5 Watts, 509. * Ohadwick v. Felt, 11 Casey, 305. ^ Cadwaladcr v. Berkhaiser, 8 Casey, 43. ' Arnold v. Fitzgerald, 26 P. P. Smith, 385 ; see also Gordonier v. Bill- ings, 27 Ibid. 498. ' Patterson v. Wilson, 7 Harris, 380. « Gill v. Gill, 1 Wright, 312. Walker v. Quigg, 6 Watts, 87. "> Reinhwd v, ILeenbartz, 6 Watts, 93. 282 NON-DELIVERY OP POSSESSION. [CHAP. X. affirm the sale, but should refund the purchase-money.' It was held, in a case where an administrator, who was also as heir enti- tled to one-half of the estate of the decedent, purchased at a sheriff's sale two tracts of land, and paid partially for the same with mort- gage bonds of the decedent's estate, and afterwards sold the land for his own account, that the other heirs of the decedent could, on payment to the vendee of a moiety of the purchase-money that had been paid prior to notice of their claim, recover from the vendee a moiety of the land so sold.^ Where the plaintiff's title is aliened by a sheriff's sale after bringing suit in ejectment, he is yet entitled to a verdict for nominal costs and damages.' 499. An action of ejectment by a landlord against a tenant to recover possession is not a proceeding in eq^uity but in law ; a prior verdict is therefore not conclusive.* A plaintiff who has obtained one verdict may maintain a second action without having taken possession or having issued process to do so, provided oppression be not intended.^ Though a first verdict does not control another, yet if the latter be delayed more than twenty years after the facts occurred, the first verdict ought not to be disturbed.* A defendant who is joined in a suit, but not proven in possession after dis- claimer, is entitled to a verdict and costs.' A verdict for one-half the premkes is erroneous ; but one for an undivided half of the premises is good.' (3.) Of the Judgment. 500. The judgment is grounded on the verdict, and it must therefore be entered up for the same lands ; but a trifling differ- ence between the verdict and the judgment, where the latter does not give the plaintiff more lands than the verdict, will not be held erroneous.' When one of several defendants dies before judgment and the case goes on against the survivor or survivors, and the ' Jackson v. McGinness, 2 Harris, 331. 2 Beck V. Ulrich, 4 Harris, 499. ' Freedly v. Mitchell, 2 Barr, 100. : McLaughlin v. McGee, 29 P. F. Smith, 217. " Koss V. Pleasants, 7 Harris, 157 ; Rambler v. Tryon, 7 Sergeant & Rawle, 95. ' Wilson V. Biqiger, 7 Watts & Sergeant, 111. ' Tripner v. Abrahams, 11 Wright, 220. ^ McCauley v. MoCauley, 4 Weekly Notes, 402. ^ Camden v. Haskill, 3 Randolph's Reports, 462. SEC. III.] ACTION OF EJECXMENT. 283 plaintiff has a verdict, the judgment should be general that the plaintiff recover his term in the premises against such survivors ; although the death of the deceased defendant should be suggested upon the roll and appear in the record.^ Where in ejectment against three persons — one confessed judgment "as to himself alone," and the others took "defence for the undivided two- thirds" — it was held that a verdict "for the defendant" was a proper verdict.* "When time is given for the payment of purchase- money, the amount should be stated on the record before the time begins to run; until this be done the act of 21st April, 1846,' which provides that in certain cases one verdict and judgment in ejectment shall be conclusive, has no application.* When a plain- tiff in ejectment includes in his writ more land than the defendant claims, and there is no disclaimer until the trial, he is entitled to recover costs, no matter what the result may be as to the contested partj^ but it was also decided in a case where the defendant dis- claimed as to all but one undivided fourth part of land, and there was a verdict for the plaintiff for the other three-fourths, that the defendant was entitled to costs accrued subsequent to the dis- claimer.° When several parties are joined in the suit as defend- ants, and against some the plaintiff fails to recover, they are entitled to obtain their costs against the plaintiff under Statutes 8 and 9 William III, chapter 12, section 1 (in force in Pennsylvania), unless the judge certify that there was reasonable cause to make them parties.' (4.) Of the Execution. 501. The execution in ejectment is by the writ oi habere facias possessionem. This is a command to the sheriff to put the plain- tiff in possession of the lands recovered, and it may also contain a fieri facias or a capias ad satisfaoienduTn to collect the costs. It being the duty of the sheriff under this writ to deliver absolute ' Darnes v. "Welsh, 7 Sergeant & Kawle, 203. 2 Cambria Iron Co. v. Tomb, 3 P. P. Smith, 422. ' Pamphlet Laws, 424. ^ Harmer v. Holton, 1 Casey, 245. ' Kirkpatrick v. Vanhorn, 8 Casey, 131. 6 Lane v. Harrold, 16 P. F. Smith, 319. ' Ulrich V. Forney, 1 Pearson, 93. 284 NON-DELIVBRT OF POSSESSION. [CHAP. X. possession to the plaintiff, it is the practice for the plaintiff to ac- company him and point out the premises, and if he take more than he ought the court will compel summary restitution.' And if the plaintiff be bound in equity to make title to the defendant of part of the premises, the court will stay the execution of the writ until the title be secured.^ If the sheriff be resisted he may break open the doors of a house to obtain possession, and if neces- sary may call to his aid the posse comitatus. If after the depar- ture of the sheriff, the defendant regain possession by force or fraud, the plaintiff may have a new writ before the return of the writ by virtue of the act of 1st February, 1834.' Even after the return of the writ, he may from time to time obtain, within three years, alias and pluries writs,'' but if it be a stranger who turns the plaintiff out of possession, after the execution of the writ, the plain- tiff is put to a new action of ejectment or to an indictment of for- cible entry and detainer. If the writ of habere facias possessionem be for a portion of certain premises, and the plaintiff have pos- session of the same, having been put in by the sheriff, eject the defendant from the other portion, after the return-day of the writ the court will not restore the defendant in a summary man- ner f and if the execution of the writ of habere be delayed for a year and a day, a writ oi scire facias becomes necessary.* If the sheriff deliver possession of other land than that recovered, the court may correct the error.^ A tenant who has not been served cannot be dispossessed by the writ.* XIII. An Amicable Ejectment. 502. It has been customaiy for many years to insert in leases a warrant of attorney authorizing, in case of the refusal of the les- see to surrender possession of the demised premises at the end of the term or the forfeiture thereof, any attorney to appear for the lessee in court and therein, in an amicable action of ejectment, to be brought by the landlord, confess judgment in ejectment. It ' Strickland ». Strickland, 6 Sergeant & Eawle, 94, 101. ' Lessee of Mathers v. Akonwright, 2 Binney, 93. s Pamphlet Laws, 26. * Ibid. 6 Gardner v. Bridge Co., 2 Binney, 450 ; Ash v. McGill, 6 Wharton, 391. 6 Tidd's Practice, 1089. ' Shaw v. Bayard, 4 Barr, 257. 8 Young V. Algeo, 3 Watts, 223. SBC. III.] ACTION OF EJECTMENT. 285 has been decided that these warrants need not be under seal,' and that they cannot be revoked by the party giving them.' They are executed in the office of the prothonotary of the court by an agree- ment signed by the attorney of the plaintiff and by an attorney employed to represent the defendant and are of record.' When parties agree to an amicable action they may by virtue of the 8th section of the act of 21st March, 1806,* and the 40th sec- tion of the act of 13th June, 1836^ enter the same without the agency of an attorney, the prothonotary of the court being by the latter act authorized to enter the action on the docket, and from the time of such entry the action shall be deemed to be depending in )ike manner as if the defendant had appeared to a summons issued against him by the plaintiff. XIV. The Action of Trespass vi et armis for the Mesne Profits. 503. This action is generally consequential to an action of eject- ment, and is for the recovery of the damages that the plaintiff has incurred by the wrongful retention of the land by the d efendant. In regard to any chattels severed from the freehold, the plaintiff may recover them by an action of replevin after the recovery in ejectment and before the execution of the writ of habere facias pos- sessionem.^ It is usual in actions of ejectment to take a verdict for merely nominal damages, and to depend upon the action for the mesne profits for the real damages.' In an action for mesne proiits the plaintiff complains of his loss of possession, states the time the defendant held the land wrongfully and received the profits thereof, and asks judgment for the damage- sustained.* In relation to these the plaintiff must in his declaration expressly state the parcels of land whence the profits arose, or the tenant may plead liberum ' Cook V. Gilbert, 8 Sergeant & Eawle, 566; JNL:'- y o. Thomas, 6 Binney, 833. " Odes V. Wood, 2 Lord Eaymond, 850; Salkeld,87, pi. 6. 3 See Planigen B. Philadelphia, 1 P. P. Smith, 491. * 4 Smith's Laws, 330. ^ Pamphlet Laws, 579. 6 Harlan v. Harlan, 3 Harris, 507, 514. ' Osbourn v. Osbourn, 11 Sergeant & Eawle, 55, 57. 8 Adams on Ejectment, *380. 286 NON-DELIVERT OP POSSESSION. [CHAP. X. tenemenium^ and if the plaintiff claim for a greater period than six years the defendant may plead the Statute of Limitations of 1785.^ 504. The mesne profits may be secured in the action of eject- ment down to the time of the verdict, but in such a case the plain- tiff must give notice of his intention to claim them.' Where during a suit for mesne profits the plaintiff sold and conveyed the premises to the defendant, it was held that the plaintiff was still entitled to the mesne profits.* In this action no defence can be set up which would have been a bar to the action of ejectment.* In relation to the damages the plaintiff cannot give evidence of them beyond the time of the lease mentioned in his declaration," and it is error to charge the jury "to find the expense of the plaintiff in prosecuting his claim.'" 505. After the recovery in ejectment the tenant cannot contest the title of the plaintiff in the action for mesne profits,' unless the plaintiff sue for mesne profits accrued prior to the ejectment.' Not- withstanding a recovery by the plaintiff in two alternate eject- ments, one of which was prior to the term for which the recovery was sought, and the other was subsequent, an intermediate verdict in ejectment is conclusive of the plaintiff's right to the mesne profits.'" When the action is between a landlord and his tenant it is admissible to introduce a verdict in ejectment against the tenant." When the tenant openly abandons the premises pending the action of ejectment he is not liable for mesne profits subsequent to his re- moval.'" A tenant in common who has recovered in ejectment against his co-tenant, may maintain an action for the mesne profits against him," but the former must obtain possession in a reasona- ble time, or he will be debarred. ^ 2 Dunlap'8 Precedents, 107. 2 2 Smith's Laws, 300; see Hare v. Pury, 3 Teates, 13 ; Lynch v. Cox, 11 Harris, 265 ; Hill v. Meyers, 10 Wright, 15. s Dawson o. McGill, 4 Wharton, 230. * Duffield V. Stille, 2 Dallas, 156 ; Fenn v. Stille, 1 Teates, 154. 5 Lloyd V. Nourse and Wife, 2 Eawle, 48. 6 Shotwell V. Boehm, 1 Dallas, 172. ' Alexander v. Herr's Executors, 1 Jones, 537. * Baaders v. Fletcher, 11 Sergeant & Kawle, 419, 421. 9 Huston V. Wiclcershara, 2 Watts & Sergeant, 309, 313. 1" Marr v. Drexel, 2 Barr, 271. " Chambers v. Lapsley, 7 Ibid. 24. 12 Mit^-hellv. Freedley, 10 Ibid. 198. " Goodtitle v. Tombs, 3 Wilson, 118. 1* Hare v. Fury, 3 Teates, 13 ; as to what is reasonable time, see Chambers ». Lapsley, 7 Barr, 24, 25. SBC. IV.j ACT OF 1772, SECTION XII. 287 506. The right to claim the mesne profits does not abate by reason of the death of the plaintiff, but did by the death of the de- fendant until the passage of the act of 12th April, 1869,' which provided that the personal representatives of the decedent might be substituted.' Where the sale is by a trustee, the right of action survives to his heir-at-law and not to his personal representative.' 507. The act of 11th June, 1879,* authorizes the plaintiff in ejectment to bring an action for mesne profits, before as well as after the termination of the suit in ejectment. The act is as follows : " Section 1, That whenever an action of ejectment is pending for the recovery of real estate, the plaintiff or plaintiffs therein may, as well before as after the termination of said ejectment, bring an action or ac- tions for mesne profits against any person or persons, predecessor or pre- decessors in title of the defendant or defendants in said ejectment, but such action or actions for mesne profits shall not be proceeded in to trial and judgment, until the plaintiff or plaintiffs shall have recovered posses- sion of the real estate in controversy." [For forms of procedure in the action of ejectment, see Ap- pendix.] SECTION IV. ACT OF 1772, SECTION XII. 508. The fourth remedy to which a landlord in Pennsylvania may resort for the non-delivery of possession of demised premises at the end of the term, is that provided by the twelfth section of the act of 21st March, 1772,' which enacts as follows: " And whereas it frequently happens within this province, that lessees or tenants for years, or at will, often hold over the tenements to them demised, after the determination of such leases, and although such lessees and tenants have been required to deliver up the tenements to the land- 1 Pamphlet Lawe, 27. * Bard v. Nevin, 9 Watts, 328. " Means v. Presbyterian Church, 3 Barr, 93. ' Pamphlet Laws, 125. s Smith's Laws, 373. 283 NON-DELIVBRT 01' POSSESSION. [CHAP. X. lord or lessor, who had occasion to dwell in his own house, or give, grant, or demise the same to another, yet they have most unjustly refused so to do, and have obliged the lessors or landlords, at a great expense, to bring ejectments against their tenants, and by the delays incident to law pro- ceedings have kept the owner of the house at law, and out of possession, several years. For preventing therefore such unjust practices, Be it further enacted, That where any person or persons in this province, having leased or demised any lands or tenements to any person or persons for a term of one or more years, or at will, paying certain rents, and he or the}', or his or their heirs or assigns, shall be desirous upon the de- termination of the lease to have again and repossess his or their estate so demised, and for that purpose shall demand and require his or their lessee or tenant to remove from and leave the same, if the lessee or tenant shall refuse to comply therewith, in three months after such request to him made, it shall and may be lawful to and for such lessor or lessors, his or their heirs and assigns, to complain thereof to any two justices of the city, town, or county where the demised premises are situated, and upon due proof made before the said justices, that the said lessor or lessors had been quietly and peaceably possessed of the lands or tenements so demanded to be delivered up, that he or they demised the same, under certain rents, to the then tenant in possession, or some person or persons under whom such tenant claims, or came into possession, and that the term for which the same was demised is fully ended, that then, and in such case, it shall and may be lawful for the said two justices, to whom complaint shall be made as aforesaid, and they are hereby, enjoined and required forthwith to issue their warrant, in nature of a summons, di- rected to the sheriff of the county, thereby commanding the sheriff to sum- mon twelve substantial freeholders to appear before the said justices, with- in four days next after issuing the same summons, and also to summon the lessee or tenant, or other person claiming or coming into possession- uuder the said lessee or tenant, at the same time to appear before them, the said justices and freeholders, to show cause, if any he has, why restitution of the possession of the demised premises should not be forthwith made to such lessor or lessors, his or their heirs or assigns ; and if, upon hearing the parties, or in case the tenants, or other persons claiming or coming into possession under the said lessee or tenant, neglect to appear after being summoned as aforesaid, it shall appear to the said justices and freeholders, that the lessor or lessors had been possessed of the lands or tenements in question, that he or they had demised the same for a term of years, or at will to the person in possession, or some other under whom he or she claims or came into possession, at a certain yearly or other rent, and that the term is fully ended; that demand had been made of the lessee, or other person in possession as aforesaid, to leave the premises three months before such application to the said justices ; that then, and in every such case, it shall and may be lawful for the said two justices to make a record of such finding by them, the said justices and freeholders ; and the said freeholders shall assess such damages as SEC. IV.J ACT OP 1772, SECTION XII. 289 they think right against the tenant, or other person in possession as aforesaid, for the unjust detention of the demised premises, for which damages and reasonable costs, judgment shall be entered by the said justices, which judgment shall be final and conclusive to the parties, and upon which the said justices shall, and they are hereby enjoined and required to issue their warrant, under their hands and seals, directed to the sheriff of the county, commanding him forthwith to deliver to the lessor or lessors, his or their heirs or assigns, full possession of the de- mised premises aforesaid, and to levy the costs, taxed by the justices, and damages so by the freeholders aforesaid assessed, of the goods and chattels of the lessee or tenant, or other person in possession, as afore- said, any law, custom, or usage, to the contrary notwithstanding." 609. But in cases where the tenant, during the proceedings, alleges that the title to the lands and tenements in question, is disputed by virtue of a right or title acquired since the commence- ment of the lease, the provisions contained in the foregoing sec- tion are restrained by the following section of the same act.' " Sectioit 13. Provided always nevertheless, that if the tenant shall allege that the title to the lands and tenements in question is disputed and claimed by some other person or persons, whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease, so as aforesaid made to him, by descent, deed, or from or under the last wiU of the lessor, and if thereupon the person so claiming shall, forthwith, or upon a summons, immediately to be issued by the said justices, returnable in six days next following, before them appear, and on oath or affirmation, to be by the said justices administered, declare that he verily believes that he is entitled to the premises in dispute, and shall, with one or more sufficient sureties, become bound by recogniz- ance in the sum of one hundred pounds^ to the lessor or lessors, his or their heirs or assigns, to prosecute his claim at the next court of Common Pleas to be held for the county where the said lands and tenements shall be, that, then, and in such case, and not otherwise, the said justices shall forbear to give the said judgment. Provided also. That if the said claim shall not be prosecuted, according to the true intent and meaning of the said recognizance, it shall be forfeited to the use of the lessor or landlord, and the justices aforesaid shall proceed to give judg- ment, and cause the lands and tenements aforesaid to be delivered to him in the manner hereinbefore enjoined and directed." 510. The twelfth section of the act of 1772 is also further ex- ' Smith's Laws, 374. 2 One hundred pounds Pennsylvania currency is the equivalent of two hundred and sixty-six dollars. 19 290 NON-DELIVKRT OF POSSESSION. [CHAP. X. plained and limited by the first section of the act of 22d March, 1814/ which provides as follows: "That the provisions of the twelfth section of the act, entitled ' Au Act for the sale of goods distrained for rent, and to secure such goods to the persons distraining the same, for the better security of rents, and for other purposes therein mentioned,' shall not be so construed or ex- tended as to enable any landlord or lessor, his heirs or assigns, by the summary mode of proceeding therein prescribed to dispossess any person claiming to hold such leased or demised premises as joint-tenant, co- partner or tenant in common with the landlord or person claiming pos- session : Provided, That the tenant or the person in possession, or the person under whom the tenant may claim to hold, shall, upon the return of the warrant, in the nature of a summons issued by the two justices of the peace, to whom the landlord, lessor, or person claiming possession may have applied, declare on oath or affirmation, to be taken and sub- scribed before the said justices, that the premises in dispute are holden and claimed by or under a co-joint tenant, copartner or tenant in common with the landlord, lessor, or person claiming possession, and that the person making such oath or affirmation doth verily believe that the premises iu dispute do not exceed in quantity or value the just proportion of the joint tenant, partner, or tenant in common, by or under whom the premises may be holden or attempted to be holden : And provided also, That the tenant or person in possession, or the person under whom the tenant may claim to hold, shall, with one or more sufficient sureties, be- come bound by recognizance in the sum of one thousand dollars to the lessor or landlord, or person claiming possession, his heirs or assigns, to prosecute his claim at the next court of Common Pleas, to be held for the county where the lands shall be. But if the said claim shall not be so prosecuted, then and in that case such proceedings shall be had as would have been had if the said recognizance had not been entered into." 511. The act of 1772 is also affected, so far as relates to the city of Philadelphia, by the act of 5th February, 1875,'' which sub- stitutes magistrates for aldermen, and provides that where by law two aldermen are now required to hear and determine any matter brought before them, the same jurisdiction shall be exercised by one magistrate. 512. We may then conclude that a lessor, in order to avail him- self of the provisions of the act of 1772, must prove before two > 6 Smith's Laws, 176. ' Pamphlet Laws, 56; see page 156, f 247. SEC. IV.] ACT OF 1772, SECTION XII. 291 justices or aldermen (or in Philadelphia before one magistrate), as follows; (1.) That he or the person under whom he claims, had been in possession of the premises and had demised them to the tenant in possession or to some person or persens under whom the tenant claims, or under whom he obtained possession. (2.) That there was a tenancy for one or more years,' or at will. (3.) That a certain rent had been reserved. (4.) That the lessee either entered into possession or accepted the lease, and that he or one claiming under him is still in possession. (5.) That the term for which the premises were demised has fully ended. (6.) That a demand had been made for the premises, or notice to quit had been served three months previous to the complaint to the justices. (7.) That' the tenant in possession has neglected or refused to comply with the notice or request to move. 513. The heir, devisee, assignee, or the sub-assignee of a lessor are entitled to the benefit of the act of 1772.^ The act is not repealed by the act of 14th December, 1863.^ If the existence of the tenancy depend on a contingency, and the relation of the, parties be complicated and involved, the act of 1772 does not apply.* The relation of landlord and tenant must be dissolved before proceedings can be instituted.^ 514. If it do not appear in the proceedings that the lease was made reserving a certain rent, the judgment of the justices will be> set aside." Proof must be made that there was a certain rent reserved or a rent that can be reduced to a certainty.^ The smallest amount of money is certain and so are services when defined.' Paying taxes and chinking and daubing a house is a ' A lease for a certain time less tlian a year is a lease for one or more years under the act of 1772: Shaffer «. Sutton, 5 Binney, 228. 2 Duffi). Fitzwater, 4 P. P. Smith, 224; Cook v. McDevitt, 6 Phil., 131. 3 Ibid. * Steele v. Thompson, 8 Penrose & Watts, 84; see also Newall v. Gibbs, 1 Watts & Sergeant, 496. " Logan V. Herron, 8 Sergeant & Kawle, 459. « McGee v. Fessler, 1 Barr, 126. ' Blashford v. Duncan, 2 Sergeant & Bawle, 480; Steele v. Thompson, 3 Penrose & Watts, 34 ; Scott v. Fuller, lb. 55. 8 Shaffer v. Sutton, 5 Binney, 228. 292 NON-DELIVERY OB POSSESSION. [CHAP. X. certain rent.' One-third of the toll of a grist mill is also a cer- tain rent.'' But the services of a tenant as foresinger and organ- ist are not a certain rent f nor is the service of taking care of the lessor's grain and the keeping out of cattle.* 515. It must also be proved that the term has expired/ which in a tenancy for years for a specified time, under a written lease, is of course easily proven by the lease itself; but if it be an oral lease the landlord must prove the expiration of the term. The affi- davit of the landlord is sufficient to found the proceedings under the act of 1772.» 516. It is not necessary to give a tenant for a specified time notice to quit before the expiration of the term. The notice can be given at any time before or after the end of the term ; but pro- ceedings under this act cannot be instituted until after the de- termination of the lease, and three months after notice to quit has been served on the tenant.' Thus, where the tenancy is for one year from the 1st of April, 1876, and notice to quit is given Janu- ary 1st, 1877, proceedings can be commenced April 1st, 1877,' or if given February 1st, 1877, they can be commenced May Istj 1877, or if given April 14th, 1877, they can be commenced July 14th, 1877.' 517. If the tenancy be one at will, proof must be made of the expiration of the tenancy — which may result from express notice having been given by either the landlord or tenant, or from notice arising by implication of law, as where the landlord conveys the premises to another, or enters thereon and cuts timber, or makes partition, or makes a distress for rent in arrear,-" or where the tenant attempts to transfer his interest to another, or commits an act of voluntary waste. 1 Shaffer v. Sutton, 5 Binney, 228. 2 Pry V. Jones, 2 Eawle, 11. ' Hohly V. German Reformed Society, 2 Barr, 293. * Scott V. Fuller, 3 Penrose & Watts, 55. 6 Fahnestock v. Faustenauer, 5 Sergeant & Eawle, 173, 178; Blashford d. Duncan, 2 Ibid. 480 ; Hohly v. German Eeformed Society, 2 Barr, 293 ; May V. Kendall, 8 Philadelphia, 244. ^ Cunningham v. Gardner, 4 Watts & Sergeant, 120. ' Logan V. Herron, 8 Sergeant & Eawle, 459. 8 See Duffy v. Ogden, 14 P. F. Smith, 240, 242. 9 Logan V. Herron, 8 Sergeant & Eawle, 459, 462. 1' Adams v. McKesson, 3 P. F. Smith, 81. SBC. IV.j ACT OP 1772, SECTION XII. 293 518. If the tenancy be one from year to year,' proof may be given ; first, as in the case of a tenancy for years for a specified time; second, that notice to quit had been given three mouths (current) before the end of the current year," but if it be not so given, it is too late — as the act will not apply, and the moment the next year commences, the tenant from year to year acquires a right to hold the premises until the expiration of that current year, and indeed for a longer time unless notice be given.' 519. If, in giving the notice to quit, the landlord mentions a par- ticular day for quitting, it should be the day on which the tenancy ends. But in giving notice to quit, it is not necessary to specify in the notice the date of the expiration of the current term,* nor need the notice to quit be given exactly three months preceding the termination of the year, for a notice given in February, 1800, when the term ended March 29th, 1801, was held to be good to justify an inquest held April 28th, 1802; the landlord having done nothing to imply a renewal of the lease.^ But if the landlord by his conduct give the tenant reason to conclude that the lease is re- newed, the tenant may remain.'' A three months' notice to quit on May the 12th, if served on February the 12th, is good.' And an oral notice by the tenant to his landlord during the term, that " their agreement is at an end " entitles the landlord to lease to another.' If a landlord, after a notice to quit, make another lease ' See Chapter X, Section 1, ^ 357, page 211 et seg. ; see also note 2, page 213. 2 Logan V. Herron, 8 Sergeant & Eawle, 459, 462 ; Pahnestock v. Faustenauer, 5 Sergeant & Kawle, 173. Ibid. * Snyder v. Carfrey, 4 P. P. Smith, 90. ' Boggs V. Black, 1 Binney, 333. ^ Logan V. Herron, 8 Sergeant & Eawle, 459, 461. It was held in Boggs v. Black (1 Binney, 335), that a tenant who held over after the expiration of his term was a, trespasser, and in Overdeer v. Lewis (1 Watts & Sergeant, 90), that he was a tenant at will, but the better opinion is that he is a tenant at sufferance (Bush ji. National Oil Company, 5 Weekly Notes, 143; Hemphill V. Plynn, 2 Barr, 144, 145 ; Bannon v. Brandon, 10 Casey, 263, S. C. 2 Wright, 63), or at the option of the landlord a tenant from year to year under the terms of his former lease. ' McGowen v. Sennett, 1 Brewster, 397, and cases there cited ; see also Duffy i>. Ogden, 14 P. P. Smith, 240; S. C. Legal Gazette Eeports, 4. * Commonwealth v. Conway, 1 Brewster, 509. 294 NON-DELIVERT OF POSSESSION. [OHAP. X. to the tenant, thus creating a new term, he cannot proceed against the tenant under the old notice.' It was held by a divided court that a tenant by the quarter, who held over from quarter to quarter, was not bound to give notice to his landlord that he was going to quit.^ Reasoning by analogy, a tenant from year to year may quit at the end of any year without giving notice to his landlord of his intention. An oral notice to quit is sufficient,' but it is better to give it in writing. The notice must be positive. If there be an alternative in the notice, to pay an increased rent or quit, it is invalid.* When, however, a notice to quit or pay an increased rent has been given and the tenant holds over, there seems to be, on the part of the tenant, an implied promise to pay the rent demanded. ° Where a lease for three years contains a clause that if the tenant should continue in possession then the lease shall be in force for another year, and so on from year to year, the notice to quit need not be given before the end of the term.® A notice to quit given by the assignee of the reversion to the tenant is not good unless it appear that the tenant was informed of the rights of the assignee.' No notice to quit need be given to the under tenants, as no privity of estate exists between them and the land- lord.* Notice to quit given to one joint tenant binds the others.' In a written notice to quit a mistake may be corrected orally at the time of service."* In all cases, a notice left at the dwelling- house of the tenant is sufficient." A copy of the notice served is admissible in evidence." 520. The tenant may waive the notice in his lease, as when a 1 Kelly V. Loch, 1 Brewster, 303. 2 Cooke V. Neilson, 10 Barr, 44; see S. C, Brightly (Nisi Prius), 463, opinion by Sharswood, P. J. See also page 212. ' Koenig t. Baner, 1 Brewster, 304 ; Thamm v. Hamberg, Ibid. 528 ; S. 0. 7 Philadelphia, 266. « O'Neill V. Cahill, 2 Brewster, 357, 359, note. 5 Pittfield V. Ewing, 6 Philadelphia, 465. « MacGregor v. Eawle, 7 P. F. Smith, 184; S. C. 6 Philadelphia, 243. ' Donaldson v. Likens, 2 Brewster, 486 ; S. C. 7 Philadelphia, 257 ; Thamm ■a. Hamberg, 2 Brewster, 628; S. C. 7 Philadelphia, 266. 8 Roe V. Wiggs, 5 Bosanquet & Puller, 330. 9 Glenn v. Thompson, 25 P. F. Smith, 389. 10 Thamm v. Hamberg, 2 Brewster, 528 ; S. 0. 7 Philadelphia, 266. " Griffith V. Marsh, 4 Term Reports, 465. " Eisenhart v. Slaymaker, 14 Sergeant & Rawie, 153. iSEC. IV.J ACT OF 1772, SECTION XII. 295 clause is inserted agreeing to surrender possession without further notice; this dispenses with the three months' notice required; but this agreement to waive notice must be found by the inquisition, otherwise proceedings on certiorari will be quashed. • The pay- ment to the landlord of rent accrued since the expiration of the term is a waiver of notice ; but a payment to a clerk, the clerk having no especial authority to waive the notice, does not amount to a waiver.^ Mere delay in ejecting a tenant after the notice to quit has been served and the three months have expired is no waiver of the notice.^ 521. The term having expired and three calendar or current months having elapsed since the serving of the notice to quit, the landlord may make his complaint to two justices of the peace or aldermen, or in Philadelphia to one magistrate, who will then issue a writ called a venire, directed to the sheriff of the county, instruct- ing him to summon twelve substantial freeholders, to meet at a place named, to try the cause. The sheriff himself must alone select the jurors, since he cannot depute the act to another.'' The summons- should be made returnable within four days;^ but if it exceed that time the irregularity is cured by the appearance of the tenant.^ In computing the days for the return of the summons, the day of the date is excluded.^ The sheriff is also instructed to sum- mon the tenant ; and the summons should be served on the tenant or his agent, or on the person in possession of the premises;' and should be served in the manner prescribed by the act of 13th June, 1836,' that is, by reading the same in the hearing of the defendant, or by giving him notice of its contents, and by giving a true and attested copy thereof, or, if the defendant cannot be conveniently found, by ' Hutchinson*!). Potter, 1 Jones, 472. = Fitzpatrick v. Cliilds, 2 Brewster, 365; S. C. 7 Philadelphia, 135. ' Boggs V. Black, 1 Binney, 333. * MoMullen ... Orr, 8 Philadelphia, 342 ; S. 0. 1 Legal Gazette Reports,. 92; Pennsylvania Railroad u. Heister, 8 Barr, 445, 452; Ayres v. Novinger,, Ibid. 414. ^ Hower v. Krider, 15 Sergeant & Eawle, 43. ^ Stroup V. MoClure, 4 Yeates, 523. ' GoswWer's Estate, 3 Penrose & Watts, 200 ; Cromelien v. Brink, 5 Casey,. 522, 524; Marks's Executors, 4 Wright, 372 ; DuflFy ». Ogden, 14 P. F. Smith, 240; S. C 1 Legal Gazette Reports, 4; Ferris v. Zeidler, 5 Philadelphia, 529. « Watts & Parker v. Fox, 14 P. F. Smith, 336. 9 Pamphlet Laws, 572; Watts v. Fox, 14 P. F. Smith, 336. 296 NON-DBLIVERY OF POSSESSION. [CHAP. 2. leaving such copy at his dwelling-house in the presence of one or more of the adult members of his family, or, if the defendant reside in the family of another, with one of the adult members of the family in which he resides. The sheriff having served the summons on the jurors, selected by him, and on the tenant, makes his return, and the jury of freeholders, having met before the justices, make oath to well and truly inquire into the matter. The cause being opened, time must be allowed to the tenant to procure evidence, and if the justices do not postpone the trial to enable the tenant to procure his witnesses, the proceedings will be set aside. ^ It is the right of either party to be represented by counsel, and a continuance will be granted on account of illness of counsel.^ Where partiality, corruption, and extortion are proved the proceedings will also be set aside on certiorari.' 522. If, when the tenant appears, he, as provided in the 13th section of the act of 1772, allege that the title to the premises is claimed and disputed by other named parties, in virtue of a title acquired by descent, deed, or under the last will of the lessor, since the making of the lease,* it becomes the duty of the justices to cause the sheriff to summon this claimant, who must appear within six days, and on his appearing and making oath and giving security to prosecute his claim the justices will for- bear proceeding further in the matter. But the tenant cannot himself set up the outstanding title of a stranger who does not appear and claim;' nor can his wife, unless with his authority, allege that the title is in another.^ When a case is brought into the Court of Com mon Pleas, under the 13th section of the act of 1772, the question is that of title acquired after the demise, and the burden of proof is on the tenant.' The 13th ^section of the act of 1772 has no bearing upon the question of proceedings under the act of 14th December, 1833.' 1 Stewart v. Martin, 1 Teates, 49. 2 McMulIen v. Orr, 8 Philadelphia, 342 ; S. C. 1 Legal Gazette Eeports, 92. 3 Ibid. • Koontz V. Hammond, 12 P. P. Smith, 277; Hoffman v. Hockley, 7 Phila- delphia, 267; S. C. 3 Brewster, 253. ^ Cunningham v. Gardner, 4 Watts & Sergeant, 120; see also heritage s. ■Wilfong, 8 P. P. Smith, 137. 8 Hoffman u. Hockley, 7 Philadelphia, 267 ; S, C. 3 Brewster, 2.53. ' Neumoyer v. Andreas, 7 P. P. Smith, 446, and cases there cited. 8 Pamph. Laws of 1864, 1125; Koontz v. Hammond, 12 P. P. Smith, 177. SEC. IV.J ACT OF 1772, SECTION XII. 297 523. The tenant may also defend by showing under oath that he holds the premises under a person who is either a joint tenant, copartner, or tenant in common with the plaintiff, and that the premises in dispute do not exceed, in quantity or value, the just proportion of the person under whom he claims. To make this defence effective this person must appear within six days, and either he or the tenant in possession become bound, with sufficient sureties to the plaintiff, in the sum of one hundred pounds, to prosecute his claim at the next Court of Common Pleas, and if he fail to do so, proceedings shall be had as before. 524. Although the general rule of law is that a tenant cannot dispute the title of his landlord nor acquire an adverse title pend- ing his possession,' yet he may show that the landlord's title has expired.'' The tenant may also show that he himself has purchased it at sheriff's sale or otherwise f but when he claims title through his landlord, since the commencement of the lease, he must show either a conveyance executed, or such an equitable right to one, as would sustain a decree for specific performance.^ "When one has no title, and by trick or artifice induces another in possession to accept a lease from him, the tenant may dispute the lessor's title.' He may also set up a superior title to that of the lessor, where he has been induced to accept the lease by misrepresentation, fraud, or trick.^ The tenant may also show that the plaintiff claiming as assignee of the lessor has no title and that he was induced to attorn to him by fraud.^ 525. The jury may be discharged if, after hearing the cause, they cannot agree, and a new venire may issue.' 1 Graham v. Moore, 4 Sergeant & Kawle, 466 ; Lessee of Galloway ii. Ogle, 2 Binney, 468; Eankin i>. Tenbrook, 5 Watts, 386 j EllioM. v. Smith, 11 Har- ris, 131 ; Mays v. Dwight, 1 Norris, 462, 464. 2 Newell V. Gibbs, 1 Watts & Sergeant, 498 ; Hill v. Miller, 5 Sergeant & Eawle, 355j Foust i>. Ross, 1 Watts & Sergeant, 501; Hockart v. McKee, 5 Watts, 385; Heritage ■«. Wilfong, 8 P. P. Smith, 137; Koontz jj, Hammond, 12 P. F. Smith, 177; Sparks v. Walton, 4 Philadelphia, 72. ' Elliott V. Smith, 11 Harris, 131. * Debozear v. Butler, 2 Grant, 417; see also Brown v. Gray, 5 Watts, 17. 6 Evans v. Bid well, 26 P. F. Smith, 497, 501. ' Mays V. Dwight, 1 Norris, 462, and cases there cited ; Koontz v. Ham- mond, 12 P. F. Smith, 177, 182. ' Goldsmith v. Smith, 3 Philadelphia, 360. 8 Cunningham v. Gardner, 4 Watts & Sergeant, 120. 298 NON-DBLIVERT OF POSSESSION. [CHAP. X. 526. It is the duty of the justices of the peace or aldermen or magistrate to keep a record of the proceedings, and set forth all the facts necessary to give them jurisdiction of the cause/ and although proceedings before justices under the landlord and tenant laws are not to be criticized with the extreme strictness that is ajjplied to summary convictions under penal statutes/ yet the record must show as follows : (1.) That the lessor or one under whom he claimed was, at the time of leasing, in quiet and peaceable possession of the premises in question.' (2.) That being so possessed, he or they did demise the same to the tenant in possession, or to one under whom he claims or obtained possession.* (3.) That the lease was for a term of one or more years or at will. (A lease for a certain time less than a year is a lease for one or more years, under the act of 1772.") (4.) That a certain rent had been reserved .° (5.) That the lessee either entered into possession or accepted the lease, and that he or one claiming under him is still in possession. (6.) That the term is fully ended.' (7.) That a demand had been made for the premises or a notice to quit had been served three months previous to the complaint to the justices.^ (8.) That the tenant in possession had neglected or refused to comply with the demand or notice. 527. If the tenant neglect to appear after being summoned, or if the cause is heard and the facts alleged by the landlord be proven, judgment is given in favor of the landlord, and the justices 1 McGee v. Fessler, 1 Barr, 126 ; Blashford v. Duncan, 2 Sergeant & Rawle, 480; Pahnestock v. Faustenaiier, 5 Sergeant & Kawle, 174. 2 Snyder v. Carfrey, 4 P. P. Smith, 90. ' Givens v. Miller, 12 P. P. Smith, 133. * McGinnis v. Vernon, 17 P. F. Smith, 149. 6 Shaffer v. Sutton, 6 Binney, 228. * McGee v. Fessler, 1 Barr, 126 ; Blashford v. Duncan, 2 Sergeant & Eawle, 479 ; Steele v. Thompson, 3 Penrose & Watts, 34 ; Scott v. Fuller, Ibid. 55. ' Fahnestock v. Paustenauer, 5 Sergeant & Rawle, 173, 178; Blashford «. Duncan, 2 Ibid. 480; Hohly v. German Reformed Society, 2 Barr, 293; May ■V. Kendall, 8 Philadelphia, 244. 8 Logan V. Herron, 8 Sergeant & Eawle, 459; see also Fahnestock v. Paus- tenauer, 5 Ibid. 173. SBC IV.j ACT OF 1772, SECTION XII. 299 draw up an inquisition, in which is set forth the facts of the case and the assessment of the damages awarded to the landlord. This is signed and sealed by the justices and each member of the jury. If this inquisition be attached to the record it becomes part of it.' In the inquisition, it is sufficient if the description of the premises is the same as ia the lease.^ 528. One finding or judgment binds and concludes the tenant but not the landlord, who may renew his complaint before other justices.' The finding of the jury, both upon the point of pos- session and amount of damages, being made of record, there is no appeal for the tenant from the judgment of the justices,'' but the proceedings may be re-examined by the Court of Common Pleas or the Supreme Court, who may grant a writ of certiorari to bring the matter before them,' or the finding of the inquisition may be traversed in an action of ejectment brought by the tenant to try the title.* Although the act of 1772 declares that the judg- ment of the justices shall be final and conclusive to the parties, and gives no appeal,' yet, as we have already shown, the proceed- ings may be reviewed upon certiorari from the Common Pleas or Supreme Court. 529. The writ of certiorari is an order issuing out of the Supreme Court of the State, by virtue of Article V, Section 3, of the Consti- tution of 1874, to inferior courts of record, and out of the Courts of Common Pleas, by virtue of Article V, Section 10, to justices of the peace and other inferior courts not of record, by which the pro- ceedings are removed to the superior court in order that the errors in law on the face of the record may be reviewed. The evidence is not brought up, the regularity of the proceedings alone being examined into.^ The writ is a judicial one directed to the judge 1 Buchanan v. Baxter, 17 P. P. Smith, 348; see also Blashford v. Duncan, 2 Sergeant & Eawle, 480. 2 Duff V. Pitzwater, 4 P. F. Smith, 224. ' Ayres v. Novinger, 8 Barr, 414. * Neumoyer v. Andreas, 7 P. F. Smith, 446. 5 McClurew. White, Addison, 192; Boggs u. Black, 1 Binney, 333; Clark V. Yeat, 4 Ibid. 185; Grubb v Fox, 6 Ibid. 460; Clark v. Patterson, Ibid. 128. ^ Galbraith v. Black, 4 Sergeant & Eawle, 207. ' Neumoyer v. Andreas, 7 P. F- Smith, 446. ' Union Canal Company ». Keiser, 7 Harris, 137; Buchanan v. Baxter, 17 P. F. Smith, 348; Bedford v. Kelly, 11 Ibid. 491; Wistar v. Ollis, 27 Ibid. 291; McMillan v. Graham, 4 Barr, 140. 800 HON-DELIVERY OF POSSESSION. [CHAP. X, or officer who has charge of the record, and is a writ of error in every respect but form.' 530. The certiorari, in cases where the jurisdiction of the jus- tices, aldermen, or magistrate is not contested, must be issued within twenty days after the judgment was entered. It is issued by the prothonotary upon the filing of a prsecipe, and upon the party applying for it making an oath that it is not for the purpose of delay, but that in the opiuion of the party applying for the same the proceedings to be removed are unjust and illegal. A copy of such affidavit must be filed with the prothonotary, and the party applying for the certiorari must give security for the amount of the damages and costs, etc. 531. On a reversal of the judgment, a writ of restitution is a matter of grace, and the court may refuse it." 532. A certiorari is not a supersedeas to a writ of possession issued under the act of 1772 ; the act of 24th March, 1865,' does not apply to proceedings under that act.^ 533. The Supreme Court, in Grubb v. Fox,* decided that in cases between landlord and tenant, a writ of error is not a supersedeas to proceedings in the Court of Common Pleas ; but in the case of Wright V. Clendenning,* it was held by the Court of Common Pleas of the County of Philadelphia, that a writ of error, accom- panied by affidavit and recognizance as required by the acts of 11th March, 1809, infra, and 16th June, 1836, infi-a, is a super- sedeas in all landlord and tenant cases. 534. The act of 11th of March, 1809,' in section 6, provides as follows : " That apjDeals and writs of error may be had, and may issue to and from the Supreme Court of the proper district from and to the courts of 1 Cook V. Eeinhart, 1 Eawle, 317, 321; "Welker v. Welker, 3 Penrose & "Watts, 21, 24. 2 McGee v. Fessler, 1 Barr, 126 ; Grant v. Eodgers, 6 Philadelphia, 132. ' Pamphlet Laws, 750. * De Coursey v. Guarantee Trust, etc., Co., 31 P. P. Smith, 217, 230; S. C. 3 Weekly Notes, 65; Guarantee Company v. De Coursey, 10 Philadelphia, 88; see also Grubb v. Pox, 6 Binney, 460 ; Stewart v. Martin, 1 Yeates, 49; Eubicum v. Williams, 1 Ashmead, 230, 238. ' 6 Binney, 460. 5 1 Brewster, 449 ; S. 0. 6 Philadelphia, 329. ' 5 Smith's Laws, 17. SEC. V.J ACT OF 1825, SECTION II. 301 the several counties , and any party appealing or purchasing any -writ of error shall make oath or affirmation, to be filed with the record, that the same is not intended for delay, and where the facts in any special verdict may he insufficiently or uncertainly found, the judges may remand the record and direct another trial to ascertain the facts ; and that every party may have sufficient opportunity to take out a writ of error, no ex- ecution shall issue upon any judgment on any special verdict, demurrer, or case stated, unless by leave of the court, in special cases for security of the demand, within three weeks from the day on which such judgment shall be pronounced." 535. The act of 16th June, 1836,' in the seventh and eighth sections, provides as follows : " Section 7. Execution shall not be stayed upon any judgment in any civil action or proceeding by reason of any writ of error from the Su- preme Court to any other court of this Commonwealth, unless the plain- tiff in such writ, or some one in his behalf, with sufficient sureties, shall become bound by recognizance, to the party in wliose favor such judg- ment shall be given, with conditions to prosecute such writ of error withi eifect, and if the judgment be affirmed, or the writ of error be discon- tinued or non-prossed, to pay the debt, damages, and costs (as the case may be) adjudged accruing upon such judgment, and all other damages and costs that may be awarded upon such writ of error." "Section 8. Provided, 1, That the preceding section shall not extend to any writ of error brought by an executor or administrator, or by any guardian in behalf of his ward, or by any other person suing or defend- ing in a representative character ; and provided, 2, That if a writ of error in any such case shall be issued, served, and bail entered as aforesaid, within three weeks from the day on which the judgment shall be entered, such writ of execution shall be stayed and superseded upon the payment of costs, although the service or execution thereof shall have begun, and if such execution shall have been fully executed, the defendant therein may have from the court which issued the same a writ of restitution of the proceeds thereof, as the case may require." [For forms of procedure under the act of 1772, see Appendix.] SECTION V. ACT OF 1825, SECTION 2. 536. The fifth remedy to which a landlord in Philadelphia may resort for the non-delivery of possession of demised premises upon the removal of the tenant vpithout leaving sufficient goods or 1 Pamphlet Laws, 76. 802 NON-DELIVBKY OF POSSESSION. [CHAP. X. giving security for the payment of at least three months' rent, is that provided by the second section of the act of 25th March, 1 825. This remedy has been treated of in Chapter V, Section III, page 155, et seq. SECTION VI. ACT OF 1830. 537. The sixth remedy to which a landlord in Pennsylvania may resort for the non-delivery of possession of demised premises upon the non-payment of the rent when there are no goods, ex- cept such as are by law exempt from levy and sale, on the prem- ises adequate to pay the rent in arrear, is that provided by the act of 3d April, 1830. This remedy has been treated of in Chapter Y, Section IV, page 160, et seq. SECTION" VII. ACT OF 1836. 538. The seventh remedy for the non-delivery of possession of demised premises, when the landlord's reversion is sold by the sheriff, is the action, before a justice of the peace, alderman, or magistrate, given the purchaser by the act of 16th June, 1836,' and its supplementary act of 24th May, 1878.' 539. Formerly real estate in Pennsylvania was not affected by a judgment against the owner, and therefore could not betaken in execution and sold. To remedy this the legislature of the Province of Pennsylvania enacted the act of 1 700.^ This act, in section 1 , made real estate liable to sale and gave a clear estate in it to the pur- chaser, but gave no authority to the sheriff to deliver possession of the same to the purchaser. Following this was the act of 1705,* which provided that lands should be liable to be seized and sold upon judgment and execution, but there is nothing in this act which authorized the delivery of possession by the sheriff, and the 1 Pamphlet Laws, 761. « Ibid. 134. ' 1 Smith's Laws, 7. * Ibid. 57. SEC. VII.] ACT OF 1836. 303 purchaser was left to seek his remedy by an action of ejectment or by peaceable entry with the consent of the tenant in possession.' 540. To remedy this the legislature passed the acts of 6th April, 1802/ and 14th March, 1814.^ The act of 1802, in section 1, au- thorized the purchaser of lands at sheriff's sale, made by virtue of any execution issued out of any court of record of this Commonwealth, when he desired to obtain the possession, after receipt of his deed and after the expiration of a three months'notice to quit given to the party in possession, to apply to two justices, who on due proof being made would direct the sheriff of the county in which the lands lay to summon a jury of twelve men to inquire into the facts of the com- plaint, and this being found to be true, it became the duty of the justices to render judgment for the purchaser and to issue a warrant to the sheriff to deliver possession of the premises to him. In the second section it was provided, that if the party in possession of the premises should make oath or affirmation before the justices that he did not come into possession or hold under the defendant named in the execution^ and also that the title was claimed by some one other than the defendant named in the execution, and should name the party claiming, and this party, upon summons, should appear before the justices within thirty days and on oath declare that he believed that he was legally entitled to the premises by a title different to that of the defendant, and should also become bound to the complainant with sureties in a sum sufficient to cover the rents and profits accrued and the damages and costs to accrue before the trial of the case, before the next Court of Common Pleas of the county, the justices should forbear to give judgment; but if the defendant in the case, or the party in possession, should fail to prosecute his claim in accordance with his recognizance, the same should be forfeited to the purchaser, and the justices should pro- ceed to give judgment of possession, and cause the sheriff to give possession of the premises to the purchaser. In the third section it was provided that where any lands or tenements, sold as afore- said, should be in the possession of a tenant or lessee under the defendant named in the execution, the purchaser of the same should be considered the landlord to such tenant, and should have the like remedies by distress or otherwise to recover any rents, ' Pennsylvania u. Kirkpatriok and Menough, Addison, 193, 199. 2 3 Smith's laws, 530. 8 q ibid, 182. 304 NON-DELIVERY OF POSSESSION. [CHAP. X. due subsequent to the sale, as had the defendant on whose property the lands were sold, and if the tenant after the notice of the sale pay rent to the defendant aforesaid he should be liable to repay the same to the purchaser. In the fourth section it was provided that the tenant in possession of the premises sold as aforesaid, should within three mouths after demand give security to the purchasers for the mesne profits that might accrue pending any suit in ejectment for the recovery of possession, and in case of refusal should be liable to distress, etc., provided that nothing in this section should be construed to impair any contract made between any landlord and tenant. 541. The act of 14th March, 1814,' provided that the tenant in possession should have the benefit of the second section of the act of 1802 ; that is to say, that if the party in possession claimed under oath that he held possession under the defendant (as where the property was sold by a title derived before the judgment was entered under which the said premises were sold), and tendered the security provided for in'the second section, he should be en- titled to all the privileges granted by the said second section to the person whom the party in possession was supposed in said second section to name.^ 542. The acts of 1802 and 1814 were supplemented, but not fully supplied by certain sections of the act of 16th June, 1836, and this act was supplemented by that of 24th May, 1878. 543. The supplementary sections of the act of 1836,' are as follows : "Section 105. Whenever any lands or tenements shall be sold by virtue of any execution as aforesaid, the purchaser of such estate may, after the acknowledgment of a deed therefor to him, by the sheriff, give notice to the defendant, as whose property the same shall have been, sold, or to the persons in possession of such estate under him, by title, derived from him subsequently to the judgment under which the same were sold, and require him, or them, to surrender the possession' thereof to him, within three months from the date of such notice." " Section 106. If the defendant, or any person in possession under him, as aforesaid, shall refuse or neglect to comply with the notice-and requisition of the purchaser, as aforesaid, such purchaser, or his heirs and assigns, may apply by petition to any two justices of the peace, or 1 6 Smith's Laws, 132. ^ Lenox ». McCall, 8 Sergeant & Rawle, 96. = Pamphlet Laws, 761, 780. SBC. VII.] ACT OF 1836. 305 aldermen of the city, town or county -where such real estate may he, set- ting forth : "I. That he purchased the premises at a sheriff's or a coroner's sale. "II. That the person in possession at the time of sucli application is the defendant, as whose property such real estate was sold, or that he came into possession thereof under him. "III. That such person in possession had notice, as aforesaid, of such sale, and was required to give up such estate three months previous to such application." " Section 107. If the applications as aforesaid shall be verified by the oath or affirmation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said justices are hereby enjoined and required forthwith to issue their warrant, in the nature of a summons, directed to the sheriff of the county, commanding him to summon a jury of twelve men of his bailiwick, to appear before the said justices, at a time and place to be specified, within four days next after the issuing thereof, and, also, to summon the defendant, or person in pos- session as aforesaid, at the same time to appear before them and the said jury, to show cause, if any he has, why delivery of the possession of such lands or tenements should not he forthwith given to the petitioner." "Section 108. If, at the time and place appointed for the hearing of the parties, the defendant, or person in possession, as aforesaid, shall fail to appear, the said justices shall require proof, by oath or affirmation, of the due service of such warrant upon him, and of the manner of such service ; Provided, That such services shall have been made three days before the return." " Section 109. If the defendant, or other person in possession under him, as aforesaid, shall be duly summoned as aforesaid, or he shall appear, the said justices and jury shall proceed to inquire — "I. Whetherthepetitioner, or those under whom he claims, has, or have, become the purchaser of such real estate, at a sherifTs or coroner's sale, as aforesaid, and a sheriff's or coroner's deed for the same, duly acknowl- edged and certified, shall be full and conclusive evidence of that fact be- fore such justices and jury. " II. Whether the person in possession of such real estate was the de- fendant in the execution under which such real estate was sold, or came into the possession thereof under him, as aforesaid. " III. Whether the person so in possession has had three months' notice of such sale, previous to such application." "Section 110. Upon the finding of the facts as aforesaid, the justices shall make a record thereof, and thereupon, they shall award the posses- sion of such real estate to the petitioner." " Section 111. In case of a finding for the petitioner as aforesaid, the jury shall assess such damages as they shall think right against such de- fendant, or person in possession, for the unjust detention of the premises, and thereupon, the said justices shall enter judgment for the damages •2{j 306 NON-DELIVERY OF POSSESSION. [CHAP. X. assessed, and reasonable costs, and such judgment shall be final and con- clusive to the parties." " Section 112. The said justices shall, thereupon, issue their warrant, directed to the sheriff, commanding him forthwith to deliver to the peti- tioner, his heirs or assigns, full possession of such lands or tenements, and to levy the costs taxed by the said justices,, and the damages assessed by the jury as aforesaid." " Section 113. No certiorari, which may be issued to remove such proceedings, shall be a supersedeas, or have any efifect to prevent or delay the execution aforesaid, or the delivery of the possession agreeably thereto." " Section 114. If the person in possession of the premises shall make oath or aflBrmation before the justice — " I. That he has not come into possession, and does not claim to hold the same under the defendant in the execution, but in his own right, or "II. That he has not come into possession under the title derived to him from the said defendant, before the judgment under which the execution and sale took place, and shall become bound in a recognizance, with one or more sufficient sureties, in the manner hereinafter provided, the said justices shall forbear to give the judgment aforesaid." " Section 115. If the person in possession of the premises shall make oath or affirmation before the justices that he does not hold the same under said defendant, but under some other person, whom he shall jiame, the said justices shall forthwith issue a summons to such person, requir- ing him to appear before them, at a certain time therein named, not ex- ceeding thirty days thence following, and if at such time the said person shall appear, and make oath or affirmation that he verily believes that he is legally entitled to the premises in dispute, and that he does not claim under the said defendant, but by a different title, or that he claims under the said defendant by title derived before the judgment aforesaid, and shall enter into a recognizance, with sureties, as aforesaid, in such case also the justice shall forbear to give judgment." " Section 116. The oath or affirmation which shall be administered to such claimant, shall be in the following form to wit : " I do (swear or affirm) that I verily believe that I am legally entitled to hold the premises in dispute against the petitioner — that I do not claim the same by, from, or under the defendant, as whose property the same were sold (as the case may be) — that I do not claim the same by, from, . or under the defendant, as whoge property the same- were sold, by title derived to me subsequently to the rendition of the judgment under which the same were sold, but by a different title," etc. " Section 117. The recognizance aforesaid shall be taken in a sum fully sufficient to cover and secure, as well the value of the rents and mesne profits of such lands and tenements, which may have accrued, and which may be expected to accrue, before the final decision of the said claim, as all costs and damages, with condition that he shall appear SEJ. vii.J ACT OF 1836. 307 at the next Court of Common Pleas, or District Court, having jurisdic- tion, and then and there plead to any declaration in ejectment which may be filed against him, and thereupon proceed to trial in due course of practice, and in case he shall fail therein, that he will deliver up the said premises to the purchaser, and to pay him the full value of the rents or mesne profits of the premises accrued from the time of the purchase." " Section- 118. If such recognizance shall be forfeited, the justices aforesaid shall proceed to give judgment, and cause such real estate to be delivered up to the petitioner in the manner hereinbeibre enjoined and directed." ' ' Section 119. If any lands or tenements shall be sold upon execution, as aforesaid, which at the time of such sale, or afterwards, shall be held or possessed by a tenant or lessee, or person holding, or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements shall upon receiving a deed of the same, as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like remedies to recover any rents or sums accruing subsequently to the acknowledgment of a deed to him, as aforesaid, whether such ac- cruing rent may have been paid in advance or not, if paid after the ren- dition of the judgment on which sale was made, as such defendant might have had, if no such sale had been made." " Section 120. If after notice shall be -given.of such sale, as aforesaid, such tenant, lessee, or other person shall pay any rent or sum accruing subsequently to the acknowledgment of such deed, notice given him as aforesaid, to. such defendant, such tenant, lessee, or other person, so pay- ing, shall nevertheless be liable to pay the same to the purchaser." 544. The supplementary act of 24th May, 1878,' is as follows: "Section 1. That so much of section one hundred and six of said act of Assembly as requires a purchaser of real estate at sheriff's sale to apply by petition to two justices of the peace or aldermen, be amended so that said section one hundred and six shall read as follows : If the defendant, or any person in possession under him, as aforesaid, shall refuse or neglect . to comply with the notice and requisition of the purchaser, as aforesaid, such purchaser, or his heirs or assignee, may apply by petition to any justice of the peace, alderman or magistrate, of the city, town, borough, or county where such real estate may be." " Section 2. That so much of section one hundred and seven of said act as requires two justices to issue a warrant to the sheriff to summon a jury and to hear the proceedings, be amended so that the said section one hundred and seven shall read as follows : If the application, as aforesaid, shall be verified by the oath or affirmation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said jus- ' Pamphlet Laws, 134. 308 NON-DELIVERY OF POSSESSION. [CHAP. X, tice, alderman, or magistrate is hereby enjoined or required forthwith to issue his warrant in the nature of a summons, directed to the sherifl' of the county, commanding him to summon a jury of six men of his bailiwick, to appear before said justice, alderman, or magistrate at a time and place to be specified, within not less than three nor more than eight days next after the issuing thereof, and also to summon the defendant or person in possession, as aforesaid, at the same time to appear before him and the said jury to show cause, if any he has, why delivery of the possession of such lands or tenements should not be forthwith given to the petitioner." 545. The act of 1878 then makes the following amendments to the former acts : (1.) One justice of the peace^ alderman, or magistrate is sub- stituted for two. (2.) Six jui'ors in place of twelve. (3.) The time of appearance is changed to not less than three days nor more than eight days next after the issuing of the writ, in place of four days thereafter. 546. The form and manner of obtaining possession as afore- said is the same all over the State of Pennsylvania, except in the county of Schuylkill, for which special provision is made by the act of 13th May, 1871,^ which provides that application may be made by the purchaser to the Court of Common Pleas instead of to a justice. 547. The act of 13th May, 1871,' is as follows: " Section 1. That whenever any lands or tenements shall be sold within the county of Schuylkill, by virtue of any execution directed to the sheriif or coroner of said county, issued upon any judgment entered upon the record of the Court of Common Pleas of said county, the pur- chaser of said estate may, after the acknowledgment of a deed therefor to him by the sheriff or coroner, give notice to the defendant, as whose property the same shall have been sold, or the person or persons in pos- session of such estate under him, by title derived from him subsequently to the judgment under which the same was sold, and require him or them to surrender the possession to him within three months from the date of such notice." " Section 2. If the defendant, or any person or persons in possession under him as aforesaid, shall refuse or neglect to comply with the notice and requisition of the purchaser as aforesaid, such purchaser or his heirs or assigns may apply by petition to the court aforesaid, or the president judge thereof in vacation, setting forth : " First. That he purchased the premises at a sheriff's or coroner's sale. 1 Pamphlet Laws, 820. SEC. VII.] ACT OF 1836. 309, " Second. That the person in possession at the time of such application is the defendant as whose property such real estate was sold, or that he came into possession thereof under him as aforesaid. " Third. That such person in possession had notice as aforesaid of such sale, and was required to give up such estate three months previous to such application." "■ Section 3. If the application as aforesaid shall be verified by the oath or affirmation of the petitioner, or if probable cause to believe the facts therein set forth be otherwise shown, the said court or judge is hereby enjoined and required forthwith to direct a rule to issue to the said defendant, or party or parties in possession as aforesaid, giving at least four days' notice to such defendant, or party or parties as aforesaid, to appear before the said court or judge as aforesaid, at a time and place to be specified, to show cause, if any he or they have, why delivery of the possession of such lands or tenements should not be forthwith given to the petitioner. " " Section 4. If at the time and place appointed for the hearing of the parties, the defendant, or person or persons in possession as aforesaid, shall fail to appear, the said court or judge shall require proof by oath or affirmation of the due service of such rule upon him or them, and of the manner of such service : Provided, That such serviceshall have been made three days before the return of said rule." " Section 5. If the defendant, or other person or persons in possession under him as aforesaid, shall be duly notified as aforesaid, or he or they shall appear, the said court or judge shall proceed to inquire : " First. Whether the petitioner or those under whom he claims has or have become the purchasers of such real estate at a sheriffs or coroner's sale as aforesaid, and a sheriffs or coroner's deed for the same duly acknowledged and certified shall be full and conclusive evidence of that fact before such court or judge. " Second. Whether the person in possession of such real estate was the defendant in the execution under which said real estate was sold, or came into possession thereof under him as aforesaid. " Third. Whether the person so in possession has had three months' notice of such sale previous to such application, and was required to give up such estate three months previous to such application." " Section 6. Upon the finding of the facts as aforesaid, the said court or judge shall make the rule as aforesaid absolute, and thereupon shall award the possession of such real estate to the petitioner.." " Section 7. In case of a finding for the petitioner as aforesaid, the said court or judge shall assess such damages as they or he shall think right against such defendant, person or persons, in possession for the unjust detention of the premises, and thereupon the said court or judges shall direct judgment to be entered upon the records of said court of which he is judge for the damages assessed and reasonable costs ; which damages and costs shall be deemed to have accrued by the tortious 310 NON-DELIVERY OF POSSESSION. [CHAP. X, act and wrongful holding over of the possession of such real estate by the said defendant, or those claiming under him, and shall be adjudged and collected as all other damages sounding in tort are now by existing laws recovered and collected ; and such finding and judgment as afore- said shall be final and conclusive to the parties." ' ' Section 8. The said court or judge shall thereupon direct a warrant to issue to the sheriff or coroner as aforesaid, commanding said sheriff or coroner forthwith to deliver to the petitioner, his heirs or assigns, full possession of such lands or tenements, and to levy the costs taxed by the said court or judge as well as the damages assessed by the said court or judge as aforesaid. " "Section 9. No certiorari which may be issued to remove such pro- ceedings to the Supreme Court shall be a supersedeas, or have any effect to prevent or delay the execution of the process aforesaid, or the delivery of the possession agreeably thereto." "Section 10. If the person or persons in possession of the premises shall make oath or affirmation before said court or judge, First. That he has not come into possession and does not claim under the defendant in the execution but in his own right ; or, " Second. That he has come into possession under title derived to him from the said defendant, before the judgment under which the execution and sale took place, and shall become bound in a recognizance, with one or more sufficient sureties, in the manner hereinafter provided, the said court or judge shall forbear to give the judgment aforesaid." "Section 11. If the person or persons in possession of the premises shall make oath or affirmation before said court or judge, that he does not hold the same under the said defendant, but under some other person or persons, whom he shall name, the said court or judge shall forthwith direct a summons to issue to such person or persons, requiring him or them to appear before said court or judge at a certain time therein named, not exceeding thirty days thence following ; and if at such time the said person or persons shall appear, and make oath or affirmation that he or they verily beUeve that he or they are legally entitled to the premises in dispute, and that he or they do not claim under the said defendant, but by a different title, or that he or they claim under the said defendant, by title derived before the judgment aforesaid, and shall enter into recog- nizance, with sureties, as aforesaid, in such case, also, the said court or judge shall forbear to give judgment. " " Section 12. The oath or affirmation which shall be administered to such claim shall be in the following form, to wit : I do (swear or affirm) that I verily believe that I am legally entitled to hold the premises in dispute against the petitioner ; that I do not claim the same by, from, or Tinder the defendant, as whose property the same was sold by title to me, subsequently to the rendition of the judgment under which the same was sold, but a different title." " Section 13. The recognizance aforesaid shall be taken in a sum fully SEC. VII.] ACT OF 1836. 311 sufficient to cover and secure, as well the value of the rents and mesne profits of such lands or tenements which may have and which may be expected to accrue before the final decision of the said claim, as well as all costs and damages, with condition that he shall appear at the next Court of Common Pleas of said County of Schuylkill, and then and there plead to any declaration in ejectment which may be filed against him, and thereupon proceed to trial in due course of practice ; and in case he shall fail therein, that he will deliver up the said premises to the pur- ■chaser, and to pay him the full value of the rents or mesne profits of the premises accrued from the time of such purchase." • "Section 14. If such recognizance shall be forfeited, the court or judge shall proceed to give judgment, and cause such real estate to be delivered up to the petitioner, in the manner hereinbefore enjoined and directed." " Section 15. Purchasers of real estate sold under orders of the Or- phans' Court, shall, after confirmation of the sale, and the execution and acknowledgment of the deed therefor, have the right to proceed to obtain possession of the purchased premises in the same manner as is herein provided, in relation to purchasers at sheriff's or coroner's sale." " Section 16. This act shall apply to all sales made as aforesaid in which the purchaser shall not have obtained possession of such real estate, agreeably to the provisions of this act, notwithstanding any legal proceed- ings which may have heretofore been instituted for the recovery of the same, and actual delivery not having been obtained of said lands and tenements, to which the petitioner is entitled under the provisions of this act, as shall appear by the judgment and record of the proceedings under this act." " Section 17. If any lands or tenements shall be sold upon execution as aforesaid, which at the time of such sale, or afterwards, shall be held or possessed by a tenant or lessee, or person holding or claiming to hold the same under the defendant in such execution, the purchaser of such lands or tenements shall, upon receiving a deed for the same as aforesaid, be deemed the landlord of such tenant, lessee, or other person, and shall have the like remedies to recover any rents subsequently to the acknowl- edgment of a deed to him as aforesaid, whether such accruing rent may have been paid in advance or not, if paid after the rendition of the judg- ment on which sale was made, as such defendant might have had if noi such sale had been made." " Section 18. If after notice shall be given of such sale as aforesaid, such tenant, lessee, or other person shall pay any rent or sum, subse- quently to such deed and notice given him as aforesaid, to such defend- ant, such tenant, lessee, or other person so paying shall nevertheless be^ liable to pay the purchaser ; and all or any part or parts of the act of Assembly , approved the sixteenth day of June, Anno Domini one thousand eight hundred and thirty-six, relating to proceedings to obtain possession of real estate purchased at sheriff's, coroner's or Orphans' Court sales,. 312 NON-DELIVERY OP POSSESSION. [CHAP. X. inconsistent with the provisions of this act, be and the same is hereby repealed, so far as the same might or could affect any sales of land made as aforesaid, lying or being within the County of Schuylkill, or the re- covery of such possession by proceedings as aforesaid." 548. A difference may be noticed between the provisions con- tained in section 1 of the act of 1802 and section 105 of the act of 1836, the former section extending to any execution whatever out of any court of record, the latter to any execution as aforesaid, referring to executions referred to in the said act. 549. The notice to quit to be given under the act of 1836 by the purchaser cannot be given before the acknowledgment and delivery of the sheriff's deed,' but this deed is full and conclusive evidence of the purchase,' and if the defendant in the execution be in possession of the premises sold at the time of the sale, he can make no defence, provided the sale be made under regular process.' The proceedings for obtaining possession by the pur- chaser will lie against a corporation.* 550. The purchaser may (since the act of 24th May, 1878) apply to one justice of the peace, alderman, or magistrate of the city, town, or county in which the real estate so sold lies, and must be prepared to prove as follows : (1.) That he purchased the property at sheriff's or coroner's sale. (2.) That the person in possession at the time of such applica- tion is the defendant, or came into possession under the defendant. (3.) That the person in possession being either the defendant or some one claiming by title derived from the defendant subsequent to the judgment under which the premises were sold, had received notice of such sale and was required to give up possession of the premises three months prior to the application of the purchaser to the justice, alderman, or magistrate, and has refused or neglected to surrender the possession. 1 Hawk V. Stouch, 5 Sergeant & Rawle, 157. 2 Dean v. Connelly, 6 Barr, 239 ; Drake v. Brown, 18 P. F. Smith, 223, and cases there cited. 3 Culbertson v. Martin, 2 Yeates, 448; Walker v. Bush, 6 Casey, 352 ; Dun- lap V. Cook, 6 Harris, 454; Snavely v. Wagner, 3 Barr, 275; Eisenhart v. Slaymaker, 14 Sergeant & Rawle, 153; Green v. Watrous, 17 Ibid. 393 ; Toung ■V. Algeo, 3 Watts, 223 ; Wetherill v. Curry, 2 Philadelphia, 98 ; Ferris v. Irons, 2Norris, 179. 4 Oakland Railway Company v Kcenan, 6 P. F. Smith, 198. SEC. VII.] ACT OF 1836. 313 551. This application having been verified by the oath or affir- mation of the purchaser, or probable cause being shown of the truth of the facts as stated, it is the duty of the justice, alderman, or magistrate to issue a warrant, in the nature of a summons, directed to the sheriff' of the county, commanding him to summon a jury of six men of his bailiwick to appear before the said justice, alderman, or magistrate, at a place or time specified, within not less than three nor more than eight days next after the issuing of the warrant, and also the defendant or person in possession at the same time to show cause why delivery of the possession should not first be given. 552. At the time and place of hearing if the defendant or party in possession fail to appear, the justice, alderman, or magistrate will require proof by oath or affirmation of the service of the warrant, and of the manner of making it, which service must have been made three days before the return. 553. If the defendant or party in possession has been duly summoned, or shall appear, the justice, alderman, or magistrate shall proceed to inquire as follows : (1.) Whether the petitioner, etc., has become the purchaser at sheriff's or coroner's sale, and of this the deed to such petitioner shall be full and conclusive evidence.^ (2.) Whether the party in possession was the defendant in the execution, or came into possession under him.^ (3.) Whether the person in possession has had three months' notice of such sale previous to such application.* If the inquest return that the purchaser gave due and legal notice, it is suf- ficient," and moreover the finding of the jury is conclusive on the question of notice. ° 554. Upon the finding of the facts the justice, alderman, or magistrate makes a record of the same and awards possession of 1 The sheriff himself is alone competent to select the jurors : McMullen ». Orr, 8' Philadelphia, 342 ; S. 0. 1 Legal Gazette Reports, 92 ; Pennsylvania Eailroad v. Heister, 8 Barr, 445 ; Ayres v. Novinger, Ibid. 414. ' Dean v. Connelly, 6 Barr, 239 ; Drake v. Brown, 18 P. F. Smith, 223, and cases there cited. 3 Brown v. Gray, 5 Watts, 170. ' Ibi. Kesley, 1 Barr, 183 ; Hale v. Henrle, 2 Watts, 143. » Walker v. Bush, 6 Casey, 352. 1 Brownfield v. Braddee, 9 Watts, 149. 316 NON-DELIVERY OF POSSESSION. [CHAP. X. 563. After the sale of the lands as aforesaid, where the judgment was prior in date to the lease, the purchaser after receiving his deed may elect to retain the tenant in possession as his tenant and may affirm his lease ; but prior to so doing such tenant is merely a tenant at sufferance, and the purchaser may re-enter peace- ably on him. But if he choose to disaffirm the lease, he can claim nothing under the terms of the lease.' 564. If the purchaser affirm the lease the tenant becomes his tenant under the tenure of the old lease, and the purchaser is entitled to all the rent falling due subsequent to the acknowledg- ment and delivery of the sheriff's deed, and has all the remedies for the collection of the same which the former landlord had.^ But he is not entitled to any rent which shall have become due prior to the acknowledgment and delivery of the sheriff's deed, even though it fall due subsequent to the day of the sale,^ and if by the terms of the lease the rent was payable in advance in the begin- ning of the year, a purchaser at sheriff's sale during that year is not entitled to it.* But if after notice of the sale the tenant pays to his former landlord any rent that became due after the ac- knowledgment and delivery of the sheriff's deed, he is liable for the same to the purchaser. 565. If the purchaser, who purchases under a judgment ante- dating the lease, does not affirm the lease but demands possession of the premises after the receipt of his deed, the tenant in pos- session becomes a tenant at will, and is entitled to the way going crop.^ But he does not become a tenant at will until the pur- chaser has notified him of his election to determine the tenancy.^ But if the party in possession be a tenant who is to pay rent for the land, with a certain quantum of the crop sown but not gathered at the time of the sheriff's sale, and the purchaser determine the 1 Farmers aiad Mechanics' Bank v. Ege, 9 Watts, 436. 2 Bank of Pennsylvania v. Wise, 3 Watts, 401 ; Braddee v. Wiley, 10 Ibid. 362; Hayden v. Patterson, 1 P. P. Smith, 261; Borrell v. Dewart, 1 Wright, 134; Boyd f). MoCombs, 4 Barr, 146 ; Menough's Appeal, 5 Watts & Sergeant, 432. s Garrett v. Dewart, 7 Wright, 342 * Farmers & Mechanics' Bank v. Ege, 9 Watts, 436; Fullerton v. Shaiiffer, 2 Jones, 220. 5 Bittinger v. Baker, 5 Casey, 65. 6 Adams v. McKesson, 3 P. F Smith, 81. SEC. VIII.J ACT OF 1849. 317 tenancy, the purchaser is entitle;! to the quantum reserved by the former landlord. If the party in possession be the defendant as whose land the same was sold, or be a mere cropper under the de- fendant, whose compensation is to be a share of the crop, and the crop has not been garnered, the purchaser is entitled to the whole crop.' 566. It has lately been decided that the tenant who holds over after notice given him of the sale and of the desire to gain pos- session of the premises, is a tenant at sufferance, and that the purchaser may maintain an action for use and occupation against him.' [For forms of procedure under the act of 1836, see Appendix.] SECTION VIII. ACT OF 1849. 567. The eighth remedy for the non-delivery of possession of demised premises after a sale by order of the Orphans' Court of the decedent's landlord's reversion, is the action provided by the sixteenth section of the act of 9th April, 1849,^ before two justices of the peace or two aldermen, in all parts of the State, except in Philadelphia, where, under the act of 5th February, 1875,* one magistrate has jurisdiction. 568. The act of 9th April, 1849, enacts as follows : " Section 16. That in all cases of honS, fide sales under the order of and confirmed by the Orphans' Court, the title of the purchaser shall not be affected by the subsequent revocation of the letters testamentary, or of administration of the executor or administrator making such sales ; and that purchasers of real estate sold under orders of the Orphans' Court shall, after the confirmation of the sale, and the execution and acknowl- edgment of the deed, have a right to proceed to obtain possession of the purchased premises, in the same manner as is now provided in relation to purchasers at sheriff's sales." ' Adams v. McKesson, 3 P. F. Smith, 81. 2 Mozart Building Association v. Prigdjen, 5 Weekly Notes, 143; Bush v. National Oil Company, Ibid. 318. ' Pamphlet Laws, 527. « Ibid. 56. 318 NON-DELIVERY OF POSSESSION. [CHAP. X. 569. The act of 5th February, 1875, provides as follows : " Section 12. The jurisdiction of each of said magistrates shall ex- tend throughoui the city and county of Philadelphia, and they shall be, by virtue of their office, ex-officio justices of the peace ; they shall have all the powers and shall exercise the same jurisdiction, civil and crimi- nal (except as herein otherwise provided), as is now by law exercised by aldermen of said city, and shall be liable to the same limitations and restrictions, pains and penalties that are now imposed upon aldermen by the laws of this commonwealth ; where by law two aldermen are now required to hear and determine any matter brought before them, the same jurisdiction shall be exercised by one magistrate." 570. The means of obtaining possession of demised premises under the act of 16th June, 1836, after the landlord's reversion has been sold at sheriff's sale, have already been discussed in the preceding section.' In referring to that section the reader must bear in mind that the acts of 24th May, 1878,' and 13th May, 1871," therein alluded to, do not apply to the recovery of possession of demised premises, after a sale by order of the Orphans' Court, and that, therefore, the purchaser must (except in Philadelphia and Schuylkill counties) apply to two justices of the peace, and the jury must consist of twelve jurors instead of six, and the time of appearance must be within four days next ensuing the issuing of the summons. 571. In regard to the effect of an Orphans' Court sale on the estate of a tenant for years of the premises so sold, there are few decisions to guide us. In the case of Simpson v. Thornton,* it was argued, first, that the act of 1849 had no application to cases of sales made by order of Orphans' Court in proceedings in partition ; second, that if the act was applicable to such, it was unconstitutional, because it im- paired the obligation of a contract; third, that a sale under pro- ceedings in partition, by order of the Orphans' Court, or in equity, by a master in chancery, was a proceeding inter partes, and did not aifect existing leases ; fourth, that a sale under proceedings in partition passes the title subject to the rights of existing lessees, who have an estate in the land, which cannot be divested by the sale, whether the lessee holds under the decedent or the heirs. But 1 Ante, page 302, et seq. ' Ibid. 134. 'a Ibid. 820. * 4 P. F. Smith, 391, 394. SBC. IX.] ACT OP 1863. 319 the Supreme Court decided otherwise, holding that the act of 1849 applies to the removal of tenants by purchasers at Orphans' Court sales under proceedings in partition, and that the appli- cation of the act of 1836 to proceedings under the act of 1849 did not render the latter act unconstitutional. In delivering the opinion of the Supreme Court Chief Justice Woodward, in re- ferring to the constitutional question, said : " The argument is founded on the assumption that the tenant was in possession under a lease for an unexpired term, but the inquisition which the cer- tiorari brought up finds no lease whatever, and no unexpired term. It finds that Thornton was in possession as tenant, but no demise or contract of any nature is found or alleged." Reasoning from the language of that decision it may be inferred that where the tenant is in possession under a lease from the decedent, the term of which has not expired, or where the lien of any debts of the decedent (for the payment of which the sale of the premises is decreed) is posterior to the date of the lease, the estate of the tenant is not extinguished by the sale, but continues until deter- mined by effluxion of time or by the happening of such contin- gency as might bring about an earlier determination. This in- ference is strengthened by the remarks of Chief Justice Gibson, in the case of Catlin v. Robinson,^ where he says : " It seems to have been thought that a sale on a levari facias divests all minor and derivative interests, without considering that a judicial sale extinguishes but liens and not estates." SECTION IX. ACT OF 1863. 572. The ninth remedy to which a landlord in Pennsylvania may resort for the non-delivery of possession of demised premises, at the end of the term, is the action before a justice of the peace, alderman, or magistrate, provided by the act of 14th December, 1863,^ and its supplementary acts hereinafter recited. The act of 14th December, 1863, enacts as follows : " Sectiost 1. That where any person, or persons, in this State, having » 2 Watts, 373. ' Pamphlet Laws of 1864, 1125. 320 NON-DELIVERY OF POSSESSION. [CHAP. X. leased, or demised, any lands, or tenements, to any person, or persons, for a term of one, or more, years, or at will, shall be desirous, upon the determination of said lease, to have again and repossess such demised premises, having given three months' notice of such intention to his les- see, or tenant, and said lessee, or tenant, shall refuse to leave and sur- render up the said premises, at the expiration of said term, in compliance with the terms of said notice, it shall be lawful for such lessor, his agent, or attorney, to complain thereof, to any justice of the peace, in the city, borough, or county, wherein the demised premises lie, whose duty it shall be to summon the defendant to appear at a day fixed, as in other civil actions, and, upon due proof being made, the tenant, having notice of the time and place of hearing, that the said lessor was quietly and peace- ably possessed of the lands, or tenements, so required to be surrendered up, and that he demised the same to the tenant in possession, or to some other person, under whom such tenant claims, and that the term, for which the same were demised, is fully ended, and that three months' pre- vious notice had been given of his desire to repossess the same, then and in that case, if it shall appear right and proper to the said justice, he shall enter judgment against the said tenant, that he forthwith give up the possession of the said premises to the said lessor ; and the said jus- tice shall also give judgment in favor of the lessor, and against the lessee, or tenant, for such damages as, in his opinion, the said lessor may have sustained, and for all the costs of the proceedings ; and he shall forth- with issue his warrant, to any constable in the county, commanding him, immediately, to deliver to the lessor, his agent, or attorney, full posses- sion of the said demised premises, and to levy the damages and costs, awarded and taxed by the said justice, of the goods and chattels of the lessee, or tenant, or other person in possession ; any law, custom, or usage to the contrary notwithstanding : Provided, That the defendant may, at any time within ten days after the rendition of judgment, ap- peal to the Court of Common Pleas, in the manner provided in the first section of an act relative to landlords and tenants, approved April 3d, 1830 : And provided further, That such appeal shall not be a supersedeas to the warrant of possession, aforesaid, but shall be tried in the same manner as actions of ejectment ; and if the jury shall find in favor of the tenant, they sliall also assess the damages which he shall have sustained by reason of his removal from the premises ; and for the amount found by the jury, judgment shall be rendered in his favor, with costs of suit, and that he recover possession of the premises, and he shall have the necessary writ, or writs, of execution to enforce said judgment : And pro- vided further, That the tenant may have a writ of certiorari, to remove the proceedings of the justice, as in other cases." 573. This act was supplemented by the first section of the act of 14th March, 1866/ which extended the act of 1863 to cases of » Pamphlet Laws of 1865, 6. SBC. IX.] ACT OF 1863. 321 rent reserved in services other than money ; but the supplement was repealed by the act of 28th April, 1868.' 574. The act of 1863 was also supplemented by the act of 24th March, 1865,^^ which enacted as follows : " Section 1. That in every proceeding, or suit, brought in the city of Philadelphia, under any of the several acts of this commonwealth, by landlords, to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said cer- tiorari shall be a supersedeas ; and the execution upon the judgment, in the said suit, or proceeding, shall be suspended until the final determina- tion of the certiorari, by the court out of which the same issues; and the said court, if the said determination shall be made adversely to the party at whose instance the writ of certiorari has issued, shall proceed to issue a writ of possession, directed to the sheriff of the county of Phila- delphia, directing him to deliver actual possession of the premises to the lessor ; and also to levy the costs on the defendant, in the same manner that costs are now, by law, levied and collected, on other writs of execu- tion : Provided, That the said certiorari shall be issued within ten days from the date of the judgment rendered in said proceedings, and upon oath of the party applying for the same, to be administered by the proihono- fcary of the Court of Common Pleas, that it is not for the purpose of delay, but that the proceedings, proposed to be removed, are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due ; a copy of which aflSdavit shall be filed in the prothonotary's office : And provided further, That the party applying for the same, shall give security for the payment of all costs that have accrued, or may accrue, and of the rent which has already, or may become due, up to the time of the final determination of said certiorari, in the event of the same being determined against him.'"' 575. The act of 1863 was also supplemented by the act uf 11th April, 1866,* which enacts as follows: " That the powers and jurisdiction conferred upon justices of the peace, by the act, entitled 'An act relative to landlords and tenants, ' approved on the fifteenth day of December, one thousand eight hundred and sixty- three, are hereby conferred upon the several aldermen, in this Common- wealth ; any one of whom may act, with the like effect, as may be done by any justice of the peace, by virtue of said act." 1 Pamphlet Laws of 1868, 104. '- Ibid. 750. ' In the case of De Coursey v. Guarantee Trust Co., 31 P. F. Smith, 217,, 230, S. C. 3 Weekly Notes, 65, it was held that this act did not apply to pro- cedings under section 12 of the act of 21st March, 1772; see also Guarantee Co. V. De Coursey, 10 Philadelphia, 88. * Pamphlet Laws, 97. 21 322 NON-DELIVERY OF POSSESSION. [CHAP. X. 576. The act of 1863 was also supplemented by the act of 30th April, 1866/ which provided as follows: ' ' That so muoli of the first section of the act of Assembly, approved the 14th day of December, 1863, entitled ' An act relating to landlords and tenants, ' as provides that such appeal shall not be a supersedeas to the warrant of possession, aforesaid, be and the same is hereby repealed, so far as the same relates to Crawford County." This provision was, however, repealed by the act of 28th March, 1870.' 577. The act of 1863 was also supplemented by the act of 20th February, 1867,^ which enacts as follows: "Section 1. That the provisions of an act, entitled 'An act relative to landlords and tenants, ' approved the fourteenth day of December , Anno Domini one thousand eight hundred and sixty-three, and the supplement thereto, approved the eleventh day of April, Anno Domini one thousand eight hundred and sixty-six, shall be so construed as to apply to cases, in which the owner or owners of the demised premises, have acquired title thereto, by descent or purchase, from the original lessor or lessors." 578. The act of 1863 was also supplemented by the act of 25th February, 1869,* which repealed the act of December, 1863, so far as it related to the borough of Easton. This supplementary act was, however, repealed by the act of 20th January, 1870.° 579. The act of 1863 was also supplemented by the act of 20th June, 1869,^ which enacts as follows: " Section 1. That so much of the first section of the act of Assembly, approved the fourteenth day of December, one thousand eight hundred and sixty-three, entitled 'An act relating to landlords and tenants,' as provides that such appeal shall not be a supersedeas as to a warrant of possession aforesaid , be and the same is hereby repealed, so far as the same relates to the city and county of Philadelphia." 580. The act of 1863 was also supplemented by the act of 6th March, 1872,' which enacts as follows: " Section 1. That from and after the passage of this act it shall not be lawful to commence or to prosecute any proceedings to obtain posses- sion of any lands or tenements under the provisions of the act of this General Assembly, entitled ' An act relative to landlords and tenants,' 1 Pamphlet Laws, 389. 2 Ibid. 604. s Ibid. 30. * Ibid. 262. s Ibid. 84. « Ibid. 1275. ' Ibid. 22. SBO. IX.] ACT OF 1863. 323 approved December fourteenth, one thousand eight hundred and sixty- three, unless such proceedings sliall be founded upon a written lease or contract in writing, or on a parol agreement in and by which the rela- tion of landlord and tenant is established between the parties, and a certain rent is therein reserved." 581. The act of 1863 was also supplemented by the Constitu- tion of 1874, article v, section 12,' which provides that: " In Philadelphia there shall be established, for each thirty thousand inhabitants, one court, not of record, of police and civil causes, with ju- risdiction not exceeding one hundred dollars ; such courts shall be held by magistrates whose term of office shall be five years, and they shall be elected on general ticket by the qualified voters at large ; and in the election of the said magistrates, no voter shall vote for more than two- thirds of the number of persons to be elected when more than one are to be chosen, they shall be compensated only by fixed salaries, to be paid by said county, and shall exercise such jurisdiction, civil and crim- inal, except as herein provided, as is now exercised by aldermen, subject to such changes, not involving an increase of civil jurisdiction or confer- ring political duties, as may be made by law. In Philadelphia the office of alderman is abolished." 582. The act of 1863 was also supplemented by the act of 5th February, 1875,^ which enacts as follows : "Section' 12. The jurisdiction of each of said magistrates shall ex- tend throughout the city and county of Philadelphia, and they shall be, by virtue of their office, ex officio justices of the peace ; they shall have all the powers and shall exercise the same jurisdiction, civil and criminal (except as herein otherwise provided), as is now by law exer- cised by aldermen of said city, and shall be liable to the same limitations and restrictions, pains and penalties that are now imposed upon alder- men by the laws of this Commonwealth ; where by law two aldermen are now required to hear and determine any matter brou-ht before them, the same jurisdiction shall be exercised by one magistrate." 583. Tlie act of 14th December 1863, was decided by the Su- preme Court to be constitutional,' and is to receive the same liberal interpretation and administration as the act of 21st March, 1772.* It provides a complete system for recovering possession ' Pamphlet Laws, 1874, page 15. ' Ibid. 56. 2 Haines v. Levin, 1 P. F. Smith, 412; S. C. McGregor v. Haines, 6 Phila- delphia, 62; Kinley v. McFillen, 6 Philadelphia, 35. * Snyder v. Carfrey, 4 P. F. Smith, 90, 93. 324 NON-DELIVERY OF POSSESSION. [CHAP. X. by a landlord.' Courts of equity cannot restrain a landlord from proceeding under the act.^ Compared with proceedings under section 12 of the act of 21st March, 1772, there is more conve- nience and simplicity in proceedings under the act of 1863. In the latter act the judgment of one justice of the peace is substi- tuted for two justices and a jury of twelve freeholders.' The act of 1772 only applies to tenancies where a certain rent is re- served -^ that of 1863 had no such restriction, until amended by the act of 6th March, 1872.^ 584. In proceedings under the act of 1863, in all tenancies, the notice to quit must be given three months "privr to the end of the term or current year.° Under the act of 1772 the notice to quit, in tenancies from year to year, must also be given three months prior to the end of the current year f but where the lease is for a fixed or definite period, and is to expire at a time certain, the notice to quit need not necessarily be given before the expiration of the term.* Where the tenancy is to end on a day certain, the landlord is entitled to recover possession under the act of 1772 three months after notice to quit has been served upon the tenant.' The notice can be given at any time before or after the expiration of the lease. To found proceedings the demand for possession must have been made three months before the application to the justices, and the term must be fully ended.'" Under either act the notice may be waived by the tenant." In giving notice it is not requisite that the notice should specify the date of the ex- piration of the term ; it is suiBcient if the tenant be notified to remove and leave the premises at the end of the term." . ' Brown's Appeal, 16 P. F Smith, 155. 2 Brown's Appeal, 16 P. F. Smith, 155, 157; see also Fitzpatrick v. Childs, 6 Philadelphia, 135. ' See Haines v. Levin, 1 P. F. Smith, 412. * Blashford v. Duncan, 2 Sergeant & Rawie, 480; Seott«. Fuller, 3 Penrose & Watts, 55 ; Steel v. Thompson, Ibid. 34. ^ Pamphlet Laws, 22. 8 Rich V. Keyser, 4 P. F. Smith, 86 ; Snyder v Carfrey, Ibid. 90, 94. ' Logan V. Herron, 8 Sergeant & Eawle, 461 ; Lesley v. Randolph, 4 Ertwle, 123; Fahnestock v. Faustenauer, 5 Sergeant & Rawle, 174; Lloyd v. Cozens, 2 Ashmead, 131 ; see also ante, page 293, yj 518. * Logan V. Herron, 8 Sergeant & Eawle, 459. ' Ibid. 1" Ibid. ; see also ante, page 292, ^ 516; Eich v. Keyser, 4 P. F. Smith, 86. " Gault V. Neal, 6 Philadelphia, 61; Hutchinson v. Potter, 1 Jones, 472; see also ante, page 294, ^ 520. " Kraft V. Wolf, 6 Philadelphia, 310 ; Snyder v. Carfrey, 4 P. F. Smith, 90; see also anie, page 293, ^ 519. SEC. IX.] ACT OP 1863. 325 585. To institute proceedings under tlie act of 1863, as has already been observed, a demand for repossession must have been made three months before the expiration of the term or current year.' The notice to quit need not, however, be given exactly three months preceding the expiration of the term ; for a notice served on the 10th day of January, 1866, when the term ended on the 14th day of May, 1866, which was more than a three months' notice, was held to be within the meaning of the act to justify proceedings before an alderman, commenced on the 2d day of June, 1866.'' But the notice to give up possession must be served at least three months before the ending of the term or cur- rent year. Thus, where the tenancy is for one year from April 1st, 1879, the term ends at midnight of March 31st, 1880,=* and the notice to quit must be given not later than January 1st, 1880. In the computation of time the law takes no account of fractions of a day. A notice served on a certain day is regarded as served on the first moment of that day. It follows then that in the above tenancy, where the term ends at the last moment of the 31st day of March, a notice to surrender possession at the expiration of the term, if served on the 1st day of January preceding, is such a three months' previous notice to the termination of the lease as is required by the act of 1863, for the party upon whom the notice is served has from the first moment of the first month to the last moment of the third month, which is a notice of three full months, namely, all of January, all of February, and all of March. In the case of Duffy v. Ogden,* where there was a tenancy for one year from the 25th day of March, 1868, a notice to deliver up possession was served on the 25th day of December, 1868, the Supreme Court held that such a notice was, under the act of 1863, a three months' previous notice to the ending of the term on the last moment of the 24th day of March, 1869. Where there was a demise on 12th May, 1866, for one year, a notice to quit the premises was given on 12th February, 1837, it was held that such a notice was served in time.* A notice served upon one of two 1 Eich V. Keyser, 4 P. P. Smith, 86 ; Snyder v. Carfrey, Ibid. 90, 94. 2 Snyder v. Carfrey, Ibid. 90, 94. 3 Marys v. Anderson, 12 Harris, 272 ; S. 0. 2 Grant, 446. * 14 P. F. Smith, 240; S. C. Ogden v. Duffy, 1 Legal G-azette Keports, 4. 5 MoGowen v. Sennett, 1 Brewster, 397.' 326 NON-DELIVERY OF POSSESSION. [CHAP. X. joint lessees is a good notice to both, and a mistake in the recital of the names of the lessees in the notice is immaterial.' 586. An attornment to the grantee of a lessor does not aifect the commencement or termination of the term ; it is not the creation of a new lease, and need not be set forth on the record of the justice.^ 587. Since the act of 11th April, 1866,' aldermen have the same power and jurisdiction, under the act of 1863, as justices of the peace have, and in Philadelphia magistrates have, by the act of 5th February, 1875, been substituted for aldermen.^ 588. The landlord having given the notice to quit three months prior to the end of the term, or the ending of the current year, and the tenant having failed to deliver up possession of the premises, the landlord, or his agent, complains thereof to any jus- tice or alderman, or in Philadelphia, magistrate, of the city, borough, or county wherein the demised premises are situated, who issues a summons to the tenant to appear on a day fixed, which summons should contain a brief statement of the grounds of its issuance.^ This may be served on the tenant personally, or by leav- ing a copy thereof at the tenant's dwelling-house, and making known to an adult member of the family the contents thereof* 589. On the day appointed for the hearing, the following proof must be given :' (1.) That the lessor had been quietly and peaceably possessed of the premises. (2.) That he demised them for a term of one or more years, or at will to the tenant in possession, or to some other person under whom the tenant claims. (3.) That a certain rent had been reserved. 1 Glenn v. Thompson, 25 P. P. Smith, 389. See ante, page 293, et seq., 1[ 519, for a farther discussion of the subject of notice. 2 Tilford V. Fleming, 14 P. F. Smith, 300; S. C. Fleming v. Tilford, 7 Philadelphia, 301 ; Mortimer ». O'Reagan, 10 Philadelphia, 500. 3 Pamphlet Laws, 97. * Ibid. 56. 6 McGinnis v. Vernon, 17 P. F. Smith, 149. 6 Snyder u. Carfrey, 4 Ibid. 90; Berrill v. Flynn, 8 Philadelphia, 239; Shroud V. Way, Ibid. 301. ' Uivens v. Miller, 12 P. F. Smith, 133 ; McGinnis v. Vernon, 17 Ibid. 149 ; see also Spotts v. Farling, 2 Pearson, 295; act of 6th March, 1872, ante, page 322, lj 580; Graver ». Fehr, 7 Weekly Notes, 429 ; Mortimer ». O'ileagan, 10 Philadelphia, 500. SEC. IX.] ACT OF 1863. 327 (4.) That the term for which the premises were demised is fully ended, (5.) That three months' notice of his desire to repossess the said premises had been given by the landlord, previous to the end of the term, or of the current year. (6.) That the tenant in possession has neglected or refused to comply with the notice to quit the premises. 690. Upon this proof, the justice of the peace, alderman, or magistrate, shall then enter judgment against the tenant, that he forthwith give up the possession of the premises to the said lessor, his assignee, devisee, or heir. In opposition to this it is not com- petent for the tenant to set up that the lessor was merely the agent of the owners of an undivided portion of the demised premises, who had revoked his agency.' A judgment for possession in favor of the lessor's agent, and for damages in favor of- the lessor is regular.^ Nor will a judgment be reversed because it is in favor of a person as agent of an estate.' Nor can a claim of title by a third person be interposed in proceedings under this act,* but the tenant may show that the landlord's title had come to an end by expiration, or been divested by his own act, or by descent from him.° 59J. The justice, alderman, or magistrate, must also give judg- ment in favor of the lessor, or his grantee, against the lessee for the rent in arrear, and such damages as, in his opinion, the lessor, or his grantee, may have sustained, and for the costs in the pro- ceedings. The record must show the entry of a judgment for this ; a mere assessment of damages is not sufficient." A formal judgment for rent cures an error in assessing it.' The judgment must be based on the legal evidence given in the case, and if it appear by the docket of the justice that there was not sufficient proof, the judgment will be reversed on certiorari.' 1 Holtw. Martin, 1 P.P. Smith, 499; see also Bedford v. Kelly, Ibid. 491. " Sterling v. Eichardson, 24 Legal Intelliger-cer, HO. 8 Stone B. Wimmill, 6 Philadelphia, 311. * Heritage v. Wilfong, 8 P. P. Smith, 137 ; Koontz v. Hammond, 12 P. P. Smith, 177 ; Bedford v. Kelly, 11 P. P. Smith, 491, and cases there cited. 6 Koontz ». Hammond, 12 P. P. Smith, 177; Heritagejj.Wilfong, 8Ibid. 137. 6 Dickensheets v. Hotchkiss, 6 Philadelphia, 156. ' Schulte V. McCormick, 6 Ibid, 313. » Connelly v. Arundell, 6 Ibid. 49 ; Bradfleld v. Kehm, Ibid. 135. 328 NON-DELITEKY OF POSSESSION. [CHAP. X. 592. The act does not require the justice to set forth in his judgment the date of the lease, the expiration of the term, or the date of the notice to quit.' But it is not enough, however, that he enter judgment for the landlord. He must make an inquest of the facts required to found the jurisdiction.^ His record must contain every essential to support the judgment, nor can anything be taken by intendment.' The averments in it must agree with those in the complaint,* and the complaint must be found to be true.* 593. The justice then issues a warrant to any constable in the county, commanding him immediately to deliver to the lessor, or his agent, full possession of the demised premises, and to levy the damages and costs awarded of the goods and chattels of the Irssee or tenant, or other person in possession. 594. It is provided, however, that the defendant may at any time within ten days after judgment appeal to the Court of Common Pleas in the manner provided in the first section of the act of 3d April, 1830,^ which is, that no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgment; and if within the said five days the tenant shall give good and absolute bail by recognizance for all costs that have accrued, and may accrue, in case the judgment be affirmed, and also for all rent that has accrued, or may accrue, up to the .time of final judgment, then the tenant shall be entitled to an appeal to the next Court of Common Pleas, which appeal shall be tried in the same manner as other suits are tried. But the appeal must be accompanied by an affidavit that it is not intended for delay .'^ 1 Kraft V Wolf, 6 Philadelphia, 310 ; Bedford*. Kelly, 11 P. P. Smith, 491. 2 McGrath v. Donally, 6 Philadelphia, 43. 3 Ibid.; Givens y. Miller, 12 P. P. Smith, 133; McGinnis v. Vernon, 17 Ibid. 149; Graver v. Fehr., 7 Weekly Notes, 429. * Speigel V. McFarland, 25 Legal Intelligencer, 165. 6 Skilton V. Mason, 23 Legal Intelligencer, 126; Bradfield v. Eehm, 6 Phila- delphia, 135. " Pamphlet Laws, 187. ' Carter v. Hess, 3 Weekly Notes, 325. It appears that this provision ap- plies only to Philadelphia (act of 27th of March, 1865, Pamphlet Laws, 794), Lancaster County (act of 22d of March, 1868, Ibid. 256), Dauphin County (act of 23d of February, 1870, Ibid. 221), Allegheny County (act of 18th of May, 1871, ? 1, Ibid. 938), Cameron County (act of 26th of March, 1868, Ibid. 495), Venango County (act of 11th of March, 1870, Ibid. 398; act of 5th of April, 1870, Ibid. 931), Erie County (act of 23d of March, 1872, Ibid. 524), and Columbia County (Ibid.).- SEC. ix.J ACT OF 1863. 329 When an appeal is thus taken, and the case is brought into the Court of Common Pleas, a declaration is unnecessary, as the tran- script of the justice is sufficient, and the defendant may be re- quired to plead to the statement contained in the transcript.' The plaintiff may, however, file a formal narr or statement.^ When he elects to stand on the transcript, it would be well, at the time of pleading, to apprise the defendant.' On such an appeal the plaintiff must show a tenancy, which is the foundation of the juris- diction, and the tenant may set up any defence of which he could avail himself in an action of ejectment by his lessor.^ 595. The appeal under this act is not, however (except in the county of Philadelphia),^ a supersedeas, that is, it does not prevent the justice from remitting the landlord into the possession of the demised premises, but the act provides that the case shall be tried in the same manner as an action of ejectment ; and if the jury shall find in favor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises, and for the amount found by the jury, judgment shall be rendered in his favor, with costs of suit, and that he shall recover possession of the premises, and he shall have the necessary writ or writs of execution to enforce said judgment. Where such an appeal is taken, and the landlord has regained possession, the case is to be decided by the jury in the court whence the appeal issues, just as if no prior decision had been made by the justice; and in such a case the landlord cannot suffer a non-suit.^ 596. In proceedings under the act of 1830, where an appeal was taken and the landlord and tenant compromised by the tenant's confessing judgment to the landlord, not embracing the rent ac- crued after suit brought, and the tenant was permitted to retain possession, it was held that the same was not such an affirmance as rendered the bail responsible.' However, a mere informality in the form of the bail bond will not release the security from his recognizance.^ ' Gibbons v. McGuigan, 6 Philadelphia, 108. " Ibid. 110. 3 Ibid. " Koontz V. Hammond, 12 P. P. Smith, 177, 182, and cases there cited. 5 See act of 20th of June, 1869, ante, page 822, If 579. 8 Koenig v. Bauer, 7 Ibid. 168. ' Hazen v. Culbertson, 10 Watts, 893. » Hardy v. "Watts, 10 Harris, 33 ; S. C. Watts v. Hardy, 1 Pittsburgh, 39. 330 NON-DELIVERY OF POSSESSION. [CHAP. X. 597. Prior to the act of 20tli June, 1869/ an appeal was a supersedeas in the city of Philadelphia, and prior to the act of 6th of March, 1872,^ proceedings might be held under the act, even where no rent was reserved. 598. It is further provided, in the act of 1863, that the tenant may have a writ of certiorari to remove the proceedings of the j ustice of the peace, alderman, or magistrate, as in other cases. The writ of certiorari is an order issuing out of the Supreme Court, by virtue of the Constitution of 1874,' to inferior courts of record, and out of the Courts of Common Pleas by virtue of the same* to justices of the peace and other inferior courts not of record, by which the proceedings before them are removed to the superior court, that the errors in law on the face of the record may be reviewed. The evidence is not brought up, it being only the regularity of the proceedings that are examined into.' The writ is a judicial one directed to the judge or officer who has charge of the record, and is a writ of error in every respect but form.* Ujion a certiorari specific errors are required to be filed, and the judges inspect the record and may hear testimony as to facts not appearing thereon.' It does not supersede or stay the proceedings, except in Philadel- phia by virtue of the act of the 24th March, 1865.' 599. The writ of certiorari must be issued within twenty days,^ or in Philadelphia, under the act of 1865, within ten days after the judgment is entered, except where the party applying for it makes his application within twenty days after the fact of the entry of the judgment came to his knowledge.^" The limitation does not apply where the justice has no jurisdiction." ' See ante, page 322, ^ 579. = See ante, page 322, If 580. ' Article V, section 3. * Article V, section 10. 5 Union Canal Oo. v. Keiser, 7 Harris, 137 ; Buchanan u. Baxter, 17 P. P. Smith, 348; Bedford v. Kelly, 11 P. P. Smith, 491 ; Wistar v. Ollis, 27 P. F. Smith, 291 ; McMillan v. Graham, 4 Barr, 140. 6 Cook V. Eheinhart, 1 Eawle, 317, 321 ; Welker v. Welker, 3 Penrose & Watts, 21, 24. ' Burginhofen ». Martin, 3 Teates, 479. 8 See ante, page 321, ^ 574; Stewart v. Martin, 1 Yeates, 49; Grubb v. Fox, 6 Binney, 460; De Coursey v. Guarantee Trust Co., 31 P. F. Smith, 217, 230 ; S. C. 3 Weekly Notes, 65, 68; 10 Philadelphia, 88; Buddy v. Hill, 3 Legal and Insurance Reporter, 69. » Dailey v. Bartholomew, 1 Ashmead, 135 ; Galley v. Davenport, Ibid. 149. '" Campbell v. Penn, Common Pleas, Philadelphia, March 19th, 1853; Stedman v. Bradford, 3 Philadelphia, 258. ". Graver v. Fehr, 7 Weekly Notes, 429. SEC, IX.] ACT OF 1863. 331 600. The 24th section of the act of 20th March, 1810/ does not apply to proceedings to obtain possession under the landlord and tenant acts.^ It enacts as follows : " That no writ of certiorari issued by or out of the Supreme Court, to any justice of the peace, in any civil suit or action, shall be available to remove the proceedings had before such justice of the peace." 601. The certiorari is issued by the prothonotary of the superior court upon the filing of a praecipe, and upon the party applying for it making an oath that it is not for the purpose of delay, but that in the opinion of the party applying for the same, the proceed- ings to be removed are unjust and illegal. A copy of such oath must be filed with the prothonotary, and the party making appli- cation for the certiorari must give security for the amount of the damages and costs. 602. If the judgment of the justice in favor of the landlord be reversed on an exception which has ceased to exist, and it be evident that other proceedings would result in favor of the land- lord, the court may in its discretion refuse a writ of restitution to the tenant.' 603. On the 24th of March, 1865,* an act was passed provid- ing, " That in every proceeding, or suit, brought in the city of Philadelphia, under any of the several acts of this Commonwealth, by landlords, to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas, and the execution upon the judgment, in the said suit, or proceeding, shall be suspended until the final determination of the certiorari, by the court, out of which the same issues." This act repeals that part of the act of 1863, which directs the magistrate to issue forthwith his warrant to dispossess the tenant f and as the act farther provides that the certiorari shall be issued within ten days from the date of the judgment, the tenant is limited to that space of time to obtain the ' 5 Smith's Laws, 172. " Graver v. Fehr, 7 Weekly Notes, 429, 431 1 Clark v. Yeat, 4 Binney, 185; see also Lenox v. McCall, 3 Sergeant & Eawle, 95 ; Clarke v. Patterson, 6 Binney, 28. 3 MuGee ®. Pesaler, 1 Barr, 126; see also Grant v. Eodgers, 6 Philadel- phia, 132. * Pamphlet Laws, 750. " Connelly v. Arundell, 6 Philadelphia, 38. 332 NON-DELIVEKY OF POSSESSION. [CHAP. X. writ, and no writ of possession can be issued until the expiration of the tea days.' And though in other cases a writ of error to the Supreme Court, accompanied by affidavit and a recognizance as required by law, is a supersedeas,' yet under this act of 1865 a writ of error from the Supreme Court to the Court of Common Pleas is not a supersedeas to the writ of possession directed by the said act when the determination shall be made adversely to the party at whose instance the writ of certiorari was issued/' Under the act of 1865 the recognizance must strictly conform with the act, so as to include all costs and accruing rent.* 604. The writ of certiorari in landlord and tenant cases derives its force from two sources :* first, from the common law, and as such applies to the acts of 21st March, 1772,^ and 25th April, 1825 ;' second, from the context of the acts of 3d April, 1830,' and 14th December, 1863." The act of 24th March, 1865,'° is supplementary to the latter acts but not to the former ; therefore the svrit is a supersedeas in Philadelphia only when the proceed- ings are brought either under the acts of 3d April, 1830, or 14th December, 1863." 605. To obtain a writ of certiorari under the acts of 1830 and 1863, it is not requisite that the tenant take the oath pre- scribed by the act of 1810.'^ Moreover a defendant cannot take both an appeal and a certiorari ;" but an ineffectual appeal will not prevent the tenant from availing himself of the privilege of a writ of certiorari.'* 606. The difference between an appeal and a certiorari is that in the former the merits of the case are tried anew before the 1 Connelly v. Arundell, 6 Philadelphia, 38. ^ Wright V. Glendenning, 6 Philadelphia, 329; S. C. 1 Brewster, 449; see also ante, page 800, \ 533. » Connelly v. Arundell, 6 Philadelphia, 59. * Hutchinson v. Vanscriver, 6 Ibid. 39. <> iSee ante, \ 279, 2, page 170, et seg. « 1 Smith's Laws, 370. ' 8 Smith's Laws, 411 ; Firteg v. Anderson, 1 Rawle, 73. 8 Pamphlet Laws, 187 ; see also ante, % 279, page 170, ei seq. 9 Pamphlet Laws of 1864, page 1125. «> Pamphlet Laws, 750 " De Coursey v. Guarantee Trust Company, 31 P. P. Smith, 217, 230; S. C. 3 Weekly Notes, 67 ; Duddy v. Hill, 8 Legal and Insurance Reporter, 59. " Bubicum v. Willi»m9, 1 Ashmead, 230. "City V. Kendrick, 1 Brewster, 406; Ward v Harligan, 1 Weekly Notes, 72. " Commonwealth v. Fiegle, 2 Philadelphia, 215. SEC. X.J ACT OF 1865. 333 court and jury to which the case is appealed; aud the decision is ruade just as if no prior decision had been given.^ In a certiorari tlie evidence is not brought up, but the regularity of the proceed- ings alone come up for examination.^ SECTION X. ACT OF 1865. 607. The tenth remedy for the non-delivery of possession of demised premises to which a landlord in Philadelphia may resort when he has lost his lease, and the tenant refuses to furnish him with the date of the commencement and termination of the ten- ancy, is the action provided by the act of the 28th February, 1865,' which enacts as follows : " Whereas, in the city of Philadelphia, great inconvenience and trouble have frequently arisen, from the loss of evidences of the com- mencement and termination of leases, and periods of letting of property, from year to year, the landlords, in such cases, being unable to give the requisite notice to quit, or to proceed in obtaining possession, and being deprived of the possession of the demised premises at the pleasure of the tenants ; therefore, " Section 1. Be it enacted, etc., That in all cases, in the city of Phila- delphia, where there is a lease, or verbal letting, of property, for a term of years, or from year to year, and the landlord, whether tlie owner, at the time of such lease, or letting, or by purchase, subsequent thereto, has lost the lease, or evidence of the beginning and conclusion of the term, or cannot produce proof of the same, it shall be lawful, at any time after the first year, or after the term of years, as the case may be, for the landlord, desiring to recover possession of the demised property, to give notice, in writing, to the tenant, that he has lost such lease, or is unable to make such proof, and requiring the tenant, within thirty days from the time of service of such notice, to furnish him, in writing, with the date at which his term of tenancy commenced, and such notice, if sup- ported by affidavit, shall be evidence of what it sets forth ; if the tenant 1 Kcenig v. Bauer, 7 P. F. Smith, 168. 2 Union Canal Company v- Keiser, 7 Harris, 134 ; Buchanan v. Baxter, 17 P. P Smith, 348; Bedford v. Kelly, 11 Ibid. 491 ; Wistar v. Ollis, 27 Ibid. 291, and cases there cited ; McMillan v. Graham, 4 Barr, 140. ' Pamphlet .Laws, 253. 334 NON-DELIVERY OF POSSESSION. [CHAP. X. shall furnish, in writing, the date, as required, such writing shall be evidence of the facts contained in it ; but if the tenant shall fail, or re- fuse, within thirty days, to comply with the said requirement, the land- lord may, at the expiration of that period, give to the tenant three months' notice to quit the premises occupied by him, and shall proceed, thereafter, in the same manner as is now provided in cases of the usual notice to quit at the end of the term : Provided, That if the tenant shall make affidavit, within the thirty days aforesaid, that he is unable to comply with the requirement of the landlord, stating the causes of such inability, the landlord shall give six months' notice to the tenant to remove from the demised premises, upon which he shall proceed, as pro- vided in cases of the three months' notice, as aforesaid." 608. We may then conclude that before a landlord in Phila- delphia can avail himself of the provisions of the act of 1865, the following circumstances must exist :^ (1.) That he has lost the lease or cannot produce evidence of the beginning and conclusion of the term for which the premises were demised. (2.) That there was a tenancy for a term of years, or from year to year. (3.) That the first year, if the tenancy was from year to year, or the term, if for years, is ended. (4.) That a certain rent had been reserved. 609. The assignee of an original lessor is entitled to the benefit of the act.^ 610. The act of 1865 is in derogation of the common law, and ought to be strictly construed. The summary jurisdiction pre- scribed by the act should be limited to the precise case contem- plated, and the proceedings under it sliould exhibit every essential which the act makes necessary to the jurisdiction.^ 611. The record of the magistrate made up under the act of 1865 should be full and precise, and must show at least as follows :* (1.) That there was a tenancy for years, or from year to year. (2.) That the first year of the term, or the term itself, is ended. 612. The notice given by the landlord to the tenant to supply a lost lease need not necessarily be supported by an affidavit of > McMullin V. MoCreary, 4 P. P. Smith, 280. 2 Dubasse v. Martin, 24 Legal Intelligencer, 92. 3 McMullin V. McCreary, 4 P. F. Smith, 2S0. ' McMullin V. McCreary, 4 P. P. Smith, 230, 232. SEC. X.J ACT OF 1865. 335 the loss ; but if it be so supported, it becomes evidence of what it sets forth.' 613. If the tenant fail or refuse for thirty days to comply with the landlord's demand he becomes liable to be proceeded against under the provisions of the act of 14th December, 1863, where- upon the landlord gives him three months' notice to quit and sur- render the possession of the demised premises, and after that time has elapsed he may dispossess the tenant according to the pro- visions of the act of 1863.^ ' Ibid. ; Gifford v. McDonald, 24 Legal Intelligencer, 92 et seq. 2 McMullin V. MoCreary, 4 P. F. Smith, 230, 232 ; Dubasse v. Martin, 24 Legal Intelligencer, 93 ; see ACT OP 1863, ante, page 319 et seq. 336 ADVERSE TITLE. [CHAP. XI. CHAPTER XI. Adveese Title. 614. The eighth wrong which a landlord may suffer from hig tenant is the setting up of a title in himself, or in another, adverse to that of the landlord. 615. It is a general rule that neither the tenant, nor one claim- ing under him, will be permitted to controvert the title of the landlord by showing a better title to the demised premises, either in himself or in a third party.' 616. To this rule there are, however, some exceptions, and th§ tenant may dispute the landlord's title under the following cir- cumstances : (1.) When he can show that the landlord had only a life estate in the premises, which has terminated by his decease.^ (2.) When he can show that the title of the landlord has expired.* (3.) When he can show that the landlord's reversion has been sold.* (4.) When he can show that the title to the premises has be- come vested in himself by the advice of the landlord/ (5.) When he can show that he was induced to accept a lease by the illegal behavior, fraud or misrepresentation of the landlord.^ (6.) When he can show that the landlord is holding in viola- tion of law.' ' 1 Cooper V. Smitli, 8 "Watts, 536 ; Kline v. Johnston, 12 Harris, 72; Gra- ham V. Moore, 4 Sergeant & Rawle, 467; Lessee of Galloway v. Ogle, 2 Bin- ney, 468; Rankin v. Tenbrook, 5 Watts, 386; Elliott v. Smith, 11 Harris, 131 ; Doe dem v. Long, 9 Carrington & Payne, 773 ; Doe dem v. Grubb, 10 Barnewall & Creswell, 816; Bacon's Abridgment, " Leases," T. 2 Heckart v. McKee, 5 Watts, 385 ; Newell v. Gibbs, 1 Watts & Sergeant, 496; Coke upon Littleton, 47, b. ; Treport's case, 2 Saunders, 418 n. » Newell?;. Gibbs, 1 Watts & Sergeant, 496; Heckart v. McKee, 385. * Elliott D. Smith, 11 Harris, 131; Nellis w. Lathrope, T2 Wendell, 121. 6 Hill V. Miller, 5 Sergeant & Kawle, 355. " Lessee of Hamilton v. Marsden, 6 Binney, 45; Miller «. McBrier, 14 Ser- geant & Rawle, 382; Hoekenbury v. Snyder, 2 Watts & Sergeant, 240; Brown d. Dysinger, 1 Rawle, 408; Robins v. Kitchen, 8 Watts, 390; Baskin V. Seechrist, 6 Barr, 154 ; Thayer v. Society of United Brethren, 8 Harris, 60 ; Mays V. Dwight, 1 Norris, 462. ' Satterlee v. Mathewson, 13 Sergeant & Kawle, 133. SEC. I.J INDICTMENT OF FORCIBLE DETAINER. 337 617. When a tenaut disclaims his landlord's title otherwise than under the foregoing exceptions, he forfeits the possession to the demised premises, and the landlord is entitled to them. SECTION I. INDICTMENT OF FORCIBLE DETAINER. 618. The first remedy to which a landlord may resort when his tenant sets up a title in himself, or in another, adverse to that of the landlord, is an indictment of forcible detainer, by the twenty- second section of the act of 31st March, I860,' which enacts as follows : " If any person shall by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the possession of any lands or tene- ments, whether the possession of the same were obtained peaceably, or otherwise, such person shall be deemed guilty of forcible detainer, and upon conviction thereof, shall be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make resti- tution of the lands and tenements unlawfully detained as aforesaid : Pro- vided, That no person shall be judged guilty of forcible detainer, if such person, by himself, or by those under whom he claims, has been in peace- able possession for three years next immediately preceding such alleged forcible detention."^ 619. The oflence of forcible detainer is distinct from that of for- cible entry, and though both be charged in the same indictment, the defendant may be convicted of the one and acquitted of the other.^ 620. By the act of 11th June, 1879,* the prosecutor in an in- dictment for forcible entry and detainer is made competent to tes- tify, notwithstanding there may be a sentence of restitution in case of conviction. 621. The act of 31st March, I860,' in sections 21 and 22, sup- 1 Pamphlet Laws, 385, 390. 2 See page 201 et seq. ; also Chapter v, section ii, T[1[ 241, 242, 243, 244, 245, page 1 52 et seq. ' Commonwealih v. Eogers, 1 Sergeant & Eawle, 124; Commonwealth v. Toram, 3 Clark, 346 ; S. C. 2 Parsons, 411. ' Pamphlet Laws, 149. " Ibid. 385. 22 338 ADVERSE TITLE. [CHAP. XI. plies,' in regard to the offences of forcible entry and detainer, not only the British statutes of 5 Richard II, chapter 7f 15 Richard II, chapter 2 ;= 8 Henry VI, chapter 9 ;" 31 Elizabeth, chapter 11 f 21 James I, chapter 15 f but also the act of the Province of Penn- sylvania of 17007 622. Forcible entry was an offence at common law, forcible de- tainer was not f but became such by statute 8 Henry VI, chap- ter 9,' and as that statute only applied to estates of freehold the statute of 21 James I, chapter 15,'° extended the provisions of it and of the other statutes to tenants for years. 623. Although all these British statutes are said to be supplied by the act of 31st March, 1860, sections 21 and 22," it may be well to refer to some of the many interesting decisions made prior to 1860. Thus it was decided in New York in the case of the People V. Rickert,'^ that the same circumstances of violence which will make an entry forcible will make a detainer forcible also, and whoever keeps in the house an unusual number of people, or un- usual weapons, or threatens to do some bodily hurt to the former jjossessor, if he dare return, shall be adjudged guilty of a forcible detainer, though no attempt be made to re-enter. It was, however, decided in England that where, a tenant at will merely refused the demand of his lessor to quit the house or denied the possession thereof, such is not a forcible holding within the meaning of the statute.'" A man who forcibly breaks open the door of his own dwelling-house, which is forcibly detained from him by one who claims the bare custody of it, is not guilty of forcible entry." It was also decided in thecaseof Torrence v. Commonwealth'* that, in a prosecution for forcible detainer, the estate of the prosecutor must be averred in the indictment, and that a bare assertion of possession was not enough. ' Report on the Penal Code, 16. 2 Eoberts's Digest, *283. » Ibid. *284. < Ibid. *285. 5 Ibid. *289. 6 Ibid. *290. ' 1 Smith's Laws, 1. 8 Commonwealth v. Toram, 3 Clark, 346; S. C. 2 Parsons, 411. 9 Roberts's Digest, *284. " Ibid. *290. " Pamphlet Laws, 385, 390. " g Cowen, 226. 1' Comyn's Digest, Forcible Detainer, b. 2; The King v. J. Wilson, 3 Adolphus & Ellis, 817. 1* Commonwealth v. Keeper of Prison, 1 Ashmead, 140. 1* 9 Barr, 184; see also Vanpool v. Commonwealth, 1 Harris, 391. SEC. II.] ACTION OF EJECTMENT. 339 624. The indictment must describe the premises with the same particularity as in an action of ejectment, and the quantum of land must be stated.' Thns an indictment describing the premises as "all that piece of land, containing seventy-six acres and one hun- dred and fifty perches, and the allowance of six per cent., it being a part of a large tract known as the Peter Jackson improve- ment, adjoining lands of David Henderson on the east, and the land of Sarah Black, being so seized," etc., was decided to be a sufficient description so as to warrant the court to award resti- tution.' SECTION II. ACTION OF EJECTMENT. 625. The second remedy to which a landlord may resort when his tenant sets up a title in himself or in another adverse to that of the landlord is the action of ejectment. This action has been treated of in Chapter x, section iii, page 233, et seq., to which the reader is referred. ' McNair v. Eempublicam, 4 Teates, 326 ; Dean v. Commonwealth, 3 Ser- geant and Eawle, 418; Commonwealth v. Jackson, 1 Grant, 262; Torrence v. Commonwealth, 9 Barr, 184 ; Vanpool v. Commonwealth, 1 Harris, 391, 393. * Vanpool V. Commonwealth, 1 Harris, 391, 393. 340 FORCIBLE ENTRr, [CflAP. XII. THE WKONGS AGAINST THE TENANT, AND THE REMEDIES THEREFOE. CHAPTER XII, Forcible Entry. 626. The first wrong a tenant may suffer from the action of his landlord, or the landlord's bailiff, is that of forcible entry. This wrong has already been considered in previous portions of the work, to which the reader is referred.^ 627. When a lease has been entered into between parties, it is the duty of the landlord to carefully avoid any act which may interfere with the tenant's enjoyment of the premises demised. He only has the right to enter peaceably on the same during the tenancy for the following purposes ; (1.) To demand the rent due.^ (2.) To distrain for the same.^ (3.) To examine any alleged waste.^ (4.) To cut trees reserved or excepted in the lease.® 628. But otherwise the landlord has no more right of entry thereon than a mere stranger has, and if he enter with force and threats he is a trespasser, and guilty also of the wrong of forcible entry, and the tenant may plead that he is evicted. SECTION I. INDICTMENT OF FORCIBLE ENTRY. 629. The first remedy to which a tenant may resort for the forcible entry by the landlord or his bailiff is an indictment of forcible entry under the twenty-first section of the act of 31st March, I860,* which provides as follows: ' See Chapter v, section ii, 1[T[ 241, 242, 243, 244, 245, page 152 et seq. " Proud V. Hollis, 1 Barnewall & Cresswell, 8. • Ibid. * Ibid. ; Hunt v. Dowman, Croke-Jac. 478. » Percy's Case, 13 Oolie, 60. 8 Pamphlet Laws, 382, 390. SBC. II.] THE ACTION OF TRESPASS. 341 "Section 21. If any person shall with violence and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows, or other parts of a house, or by any kind of violence or other circumstances of terror, or if any person after entering peaceably, shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and on •conviction, shall be sentenced to pajf a flue not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements entered as aforesaid." 630. By the act of 11th June, 1879,' the prosecutor in an in- dictment for forcible entry and detainer is made competent to tes- tify, notwithstanding there may be a sentence of restitution in case of conviction. The nature of an indictment and the proceedings thereunder have already been treated of in Chapter vii, section ii,^ to which the reader is referred. SECTION II. THE ACTION OF TRESPASS. I. Defined. 631. The second remedy to which a tenant may resort for the forcible entry by the landlord or his bailifi" is the action of tres- pass, by means of which the wrong committed may be redressed by damages. 632. This action is one of those mentioned in the Registrum Brevium, and it lies in three forms : 1st. Trespass vi et armis, which lies for damages for immediate injuries to the person, or to the personal ol- real property of another, accompanied with force, either actual or implied, whether the act be wilful or otherwise, or having been done at the command or subsequent approval of the defendant.' ' Pamphlet Laws, 149. 2 See page 201 et seq. ; and also Chapter v, section ii, ^[^ 241, 242, ^43, 244, 245, page 152 ei seq. » Strohl V. Levan, 3 Wright, 177, 185; Yergeru. Warren, 7 Casey, 319, 321; Sommert). Wilt, 4 Sergeant & Eawle, 19; Berry v. Hamill, 12 Ibid. 210, 212; E.R. Co. V. Wilt, 4 Wharton, 143, 147 ; Prantz v. Lenhart, 6 P. F. Smith, 365; Robinson u. Vaughton, 9 Carrington & Payne, 252; Van Brunt v. Schenck, 13 Johnson, 416. See ante, 1 328, page 193. 342 FOKCIBLE ENTRY, [CHAP. XII. 2d. Trespass de bonis asportatis, which lies for damages for injuries to, or for taking away, a chattel, of which the plaintiif has at the time either the actual or construotive possession." 3d. Trespass quare clausum /regit, which lies for damages arising from the wrongful entry upon the premises of another.^ The action may be brought in all these forms in the same case.^ II. British Statutes. 633. The British statutes relating to trespass with regard to costs* in force in Pennsylvania are : (1.) 6 Edward I, chapter 1.= (2.) 23 Henry VIII, chapter 15.« (3.) 4 James I, chapter 3.' (4.) 22 and 23 Charles II, chapter 9.« III. Synopsis of Acts of Assembly. 634. The acts of Assembly of the Province and State of Penn- sylvania relating to the action of trespass are : (1.) The act of 27th March, 1713,' which authorizes the de- fendant in an action of trespass quare elausum fregit, when he has disclaimed title to the land and has alleged that the trespass was involuntary or by negligence, to plead the disclaimer and negli- gence. (2.) The act of 21st March, 1772,''' which, in section 3, provides that when a distress and sale is made when no rent is in arrear the party distraining, his executors and administrators, shall be liable in an action of trespass or on the case to the tenant in double 1 North V. Turner, 9 Sergeant & Kawle, 244 ; Waldron v. Haupt, 2 P. F. Smith, 408 ; Weitzel v. Marr, 10 Wright, 463, and oases there cited ; Erisman V. Walters, 2 Casey, 467, 470. 2 Stultz (/. Dickey, 5 Binney, 285 ; 6 Bacon's Abridgment, 567 ; Boults v. Mitchell, 3 Harris, 371, and cases there cited. ' Mechanics and Tradesmen's Insurance Co. v. Spang, 5 Barr, 113, 115 ; Mayfield v. White, 1 Browne, 241, 248. * See Brightly on Costs, title. Trespass. ' Roberts's Digest, *107. " Ibid *120. ' Ibid. *129. » Ibid. *138. " 1 Smith's Laws, 77. '<> 1 Smith's Laws, 370, SEC. II.] THE ACTION OF TRESPASS. 343 the value of the goods or chattels so distrained and sold. It has been decided by the Supreme Court, in Wells v. Hornish,' and iu Fretton v. Karcher," that this penalty relates to the party making the distress and not to the party in whose name the distress was made, and it has also been decided in Rees v. Emerick,^ that the tenant may also bring an action of trespass quare dausum fregit at common law against the party who authorizes the distress. (3.) The act of 22d March, 1814,* which, in sections 1, 2, 3, 4, 5, and 7, relates to, and defines the powers of justices of the peace and referees in cases of trespass. (4.) The act of 26th March, 1814,« which, in sections 1 and 2, provides how any vacancy in the referees may be filled and how the oath or affirmation may be taken. (5.) The act of 13th February, 1816,^ which empowers the referees to decide and report the costs as well as the damages. (6.) The act of 29th March, 1824,' which, in section 3, pro- vides that where any one, either cuts down or employs others to cut down timber trees, on the lauds of another without the con- sent of the latter, he shall be liable in damages to double the value thereof, and if he convert the trees to his own use to treble, with costs of suit. (7.) The act of 8th April, 1833,' which, in section 10, provides that where suits are brought before a justice of the peace, under the act of 1824, and the title to the land comes in question, the same may be removed to the Court of Common Pleas. (8.) The act of 13th June, 1836,' which authorizes the sheriff of a county in which a trespass has been committed by a non- resident, to serve the process in an adjoining county. (9.) The act of 16th June, 1836,'° which, in section 17, relates to imprisoned insolvents. (10.) The act of 1st April, 1840," which extends the penalties contained in the third section of the act of 1824, to any one who may receive any timber-trees cut on the lands of another, or any lumber made thereout, knowing the said timber-trees to have' been so cut. 1 3 Penrose & Watts, 30. ^ 27 P. P. Smith, 423, 429.. » 6 Sergeant & Eawle, 286. ' 6 Ibid. 183. " Ibid. 206. 6 Ibid. 323. ' 8 Ibid. 282. 8 Pamphlet Laws, 224. e Ibid. 579. "> Ibid. 731. " Ibid. 217. 344 FORCIBLE ENTRY. [CHAP.XII. (11.) The act of 20th April, 1846/ which enables a plaintiff in an action of trespass quare clausum fregit, to recover damages for the taking without proving his title to the land. (12.) The act of 14t.h April, 1851,^ which relates to dogs that worry sheep. (13.) The act of 26t!i April, 1855,^ which provides that cases of trespass shall not go before referees without the consent of both plaintiff and defendant. (14.) The act of 30th March, I860,* which provides a punish- ment for malicious trespass. (15.) The act of 31st March, I860,* which, in section 152, makes it a misdemeanor for persons to cut down any timber-trees, know- ing the same to be growing on the lands of another, or to purchase or receive the same. (16.) The act of 17th April, 1861,' which extends the provisions of the act of 30th March, 1860, over the State. (17.) The act of 1st May, 1861,' which extends the provisions of the act of 30th March, 1860, to graperies, statues, foun- tains, etc. (18.) The act of 6th April, 1869,* which relates to where an action of ejectment has been brought. (19.) The act of 12th April, 1869,' which provides that the action of trespass shall not abate by the death of the party liable therefor. (20.) The act of 8th May, 1876,'" which provides that any person or corporation mining coal, iron, or minerals, on the lands of another, knowing the same to be such, shall be guilty of a misdemeanor, and shall be liable to such owner in trespass or trover for double the value of the coal, iron or minerals mined, and if the same be converted to the use of the offender to treble the value thereof. (21.) The act of 7th July, 1879," which enacts that aldermen, magistrates (except those in cities of the first class), and justices of the peace in this commonwealth, shall have concurrent jurisdic- tion with the courts of Common Pleas of all actions of trespass ' Pamphlet Lawa, 412. » Ibid, of 1852, 712. 3 Ibid. 304. . Ibid. 362. 6 ibid. 382. « Ibid. 322. ' Ibid 178. ' Ibid. 16. 8 Ibid. 27. lo Ibid. 142. " Ibid. 194. SEC. II.] THE ACTION OF TRESPASS. 345 wherein the sum demanded does not exceed three hundred dollars, certain cases excepted. IV. Aofs of Assembly. 635. The acts of Assembly relating to the action of trespass are given in full in the following paragraphs. 636. The act of 27th March, I713,i in section 3, enacts as fol- lows: "In all actions of trespass quare clausum /regit, hereafter to be brouglit, wherein the defendant or defendants shall disclaim, in his or their plea, to make any title or claim to the land in which tlie trespass is by the declaration supposed to be done, and the trespass be by ne"li- genee or involuntary, the defendant ot defendants shall be admitted to plead a disclaimer, and that the trespass was by negligence or involun- tary, and a tender or offer of sufficient amends for such trespass, before the action brought, whereupon, or upon some of them, the plaintiff or plaintiifs shall be enforced to join issue; and if the said issue be found for the defendant or defendants, or if the plaintiff or plaintiffs shall be non-suited, the plaintiff or plaintiffs shall be clearly barred from the said action or actions, and all other suits concerning the same." 637. The act of 21st March, 1772,^ in section 3, provides as follows : " Provided, That in case any distress and sale shall be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them, in whose name or names, or right, such dis- tress shall be taken as aforesaid, then the owner of such goods and chat- tels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of suit." 638. The act of 22d March, 1814,' enacts as follows: " Section 1. The justices of the peace of the several counties of this Commonwealth, and the aldermen of the city of Philadelphia, shall have jurisdiction of actions of trover and conversion, and of actions of tres- pass, brought for the recovery of damages for injury done or committed on real and personal estate, in all cases where the value of the property claimed, or the damages alleged to have been sustained, shall not exceed one hundred dollars. I 1 Smith's Laws, 77. " Ibid. 370. <> Paraph. Laws, 196. 346 FORCIBLE ENTRY. [CHAP. XII. " Section 1. It shall be the duty of the justice or alderman before whom any suit or action is brought, if the demand does not exceed ten dollars, to proceed to hear and determine as to him of whom justice and right shall appear to belong, but if the demand in controversy should exceed that sum then on the request of either party or his or her agent, three reputable citizens shall be chosen by the parties or their agents as referees ; or if they cannot agree, or if only one party or his or her agent should appeal, then the justice or alderman shall appoint the referees who shall be sworn or affirmed justly and truly to assess the damages alleged to have been sustained or the value of the property in dispute which they or a majority of them shall have power to assess ; Provided, That if both parties or their agents shall not prefer a referee, the justice or alderman shall proceed to hear and determine, and if the sum adjudged does not exceed five dollars and thirty-three cents, the same shall be final and conclusive, and each referee shall be entitled to receive one dollar for every day he shall have attended in each case. Provided, That if the defendant shall before the trial of the action make oath or afBrmation that the title to lands will come in question in the said action then the justice or alderman shall dismiss the same. And in case of such dismissal, the costs shall be paid in equal shares by the plaintiff and defendant ; Provided, always. That if the damages so found by the justice, alderman or referees shall not amount to more than one dollar the plaintiflf or plaintiffs shall not recover more costs than damages. " Section 3. Either party shall have the right of appealing to the Court of Common Pleas of the proper county where the judgment given by the justice or alderman alone shall exceed five dollars and thirty-three cents, and where the judgment given on the award of referees shall exceed twenty dollars. "Section 4. The process, return thereof, notices, awards, judgments, and appeals, and the proceedings of justices, constables, referees, and courts, and every proceeding necessary to carry this act into efiect, which is not herein specially provided for, shall be made and done, under and according to the provisions and regulations in similar cases contained in the act, entitled ' An act to amend and consolidate with its sup- plements the act, entitled An act for the recovery of debts and demands not exceeding one hundred dollars before a justice of the peace, and for the election of constables, and for other purposes.' " Section 5. Nothing in this act contained, shall be construed to extend to actions of ejectment, replevin or slander, actions on real con- tracts for the sale or conveyance of lands and tenements, actions for damages in personal assault and battery, wounding or maiming, or to actions for false imprisonment. "Section 6. The said justices of the peace and aldermen shall have original jurisdiction of all cases of rent, not exceeding one hundred dol- lars, to be recovered as debts of similar amount are recoverable. " Section 7. The said aldermen and justices shall take cognizance SEC. II.] THE ACTION OF TRESPASS. 347 by amicable suit of all causes of action within their jurisdiction, whether such jurisdiction arises i'rom this act, or from an act to amend and con- solidate, with its supplements, the act entitled ' An act for the re- covery of debts and demands not exceeding one hundred dollars, before a justice of the peace, and for the election of constables, and for other purposes.' " 639. The act of 26th March, 1814/ enacts as follows: "Section 1. If any referee appointed under the third section of the act to which this is a supplement, or under an act regulating the pro- ceedings of justices of the peace and aldermen, in cases of trespass, trover and rent, shall not attend at the time and place fixed for hearing the cause, it shall be the duty of the referee or referees present (where the parties cannot agree on the person or persons to supply the vacancy, or where only one of the parties attends) to appoint proper persons in place of those who may be absent, and the referees thus appointed shall have the same authority as those originally appointed. " Section 2. The said referees shall be sworn or affirmed by an alderman or justice of the peace, or they may swear or affirm each other, and then any of them shall have power to administer oaths or affirmations to witnesses in the cause before them, and the said referees, or a majority of them, shall have power to adjourn their meetings to any other time or place, and as often as they may deem proper." 640. The act of 13th February, 1816,^ in section 1, enacts as follows : "In all actions for the recovery of damages for any trespass, wrong, or injury done or committed against real or personal estate, brought before any justice of the peace or alderman of this Commonwealth, and referred agreeably to law, the referees are hereby empowered, in addition to their report of the damages, if any, sustained by the plaintiff, to de- cide and report also whether the plaintiff or defendant shall pay the costs of such action, or in what proportion they shall be paid by the plaintiflf or defendant respectively, on which report judgment shall be entered, as well for the costs as the damages, and execution shall issue as in other cases : anything in the second section of the act entitled ' An act regulating the proceedings of justices of the peace and aldermen, in cases of trespass, trover and rent,' passed the 22d day of March, 1814, or in any other act, to the contrary notwithstanding." 641. The act of 29th March, 1824,' enacts as follows : " Section 3. In all cases where any person, after the said first day of September, shall cut down or fell, or employ any person or persons to cut down or fell, any timber tree or trees, growing upon the lands of another, 1 Pamphlet Laws, 236. » Ibid. 53. ' Ibid. 152. 348 FORCIBLE ENTRY. [CHAP. XII. without the consent of the owner thereof, he, she or they so offending, shall be liable to pay to such owner, double the value of such tree or trees, so cut down or felled, or in case of the conversion thereof to the use of such offender or offenders, treble the value thereof, to be recovered with costs of suit, by action of trespass or trover, as the case may be, and no prosecution by indictment shall be any bar to such action." 642. The act of 8th April, 1833,' enacts as follows: " Sbctign 10. In all cases in which suits shall be brought before a jus- tice of the peace, to recover damages for the cutting of timber trees, under and by virtue of the third section of the act of the 29th of March, 1824, and the defendant shall offer to make oath or affirmation, agreeably to the second section of the act of the 22d of March, 1814, that the title to the land will come in question, the justice shall not receive the same until the defendant shall enter into recognizance before him, with one or more sureties, in such sum as the justice may direct to pay to the plain- tiff, such sum as shall be recovered against him in the said suit, when removed as hereinafter directed, together with costs, and on the said oath or affirmation being made, instead of dismissing the said suit, the justice shall transmit a copy of the record thereof, and of all the pro- ceedings therein to the Prothonotary of the Court of Common Pleas of his county, who shall enter the same on his docket, and the said suit shall then be proceeded in in the said court as if originally rightly brought there." 643. The act of 13th June, 1836,^ in section 37, enacts as fol- lows: " In cases where a trespass or a nuisance has been or may be com- mitted on real estate, by non-residents of the county wherein such real estate is situated, it shall be lawful for the sheriff to go beyond his baili- wick, into an adjoining county, for the purpose of serving any process which may be issued out of the court of the proper county, in suits in- stituted for the recovery of damages, or abatement of the nuisance and such service shall be as good and valid as if the same had been made by the sheriff within his bailiwick." 644. The act of 16th June, 1836,^ in section 17, enacts as fol- lows: " That if the petitioner shall be in custody or confinement at the time of such order, by virtue of process issued upon any judgment obtained against him in an action founded upon actual force, or upon actual fraud or deceit, or in an action for a libel or slander, malicious prosecution or conspiracy, or in an action for seduction, or criminal conversation where • Pamphlet Laws, 224. « Ibid. 579. » Ibid. 731, 734. SBC. II.J THE ACTION OF TRE-SPASS. 349 the damages found by the jury shall exceed the sum of one hundred dol- lars ; or if such petitioner shall be afterwards arrested by virtue of pro- cess issued upon any such judgment obtained against him previously to such order, he shall not be entitled to be discharged from such imprison- ment or arrest, until he shall have been in actual conflnement, during a term of at least sixty days." 645. The act of 1st April, 1840,' enacts as follows : " Section 1. All and singular the penalties and provisions of the three first sections of the act passed the 29th day of March, 1824, entitled, etc. , . . . shall be and they are hereby made applicable to any person or persons who shall purchase or receive any timber, tree or trees, knowing the same to have been cut or removed from the lands of another person without the consent of the owner or owners thereof : or who shall pur- chase or receive any planks, boards, staves, shingles, or other lumber made from such timber, tree or trees so, as -aforesaid, cut or removed, knowing the same to have been so made, and in all cases of suits brought before a justice of the peace under the third section of the act of the 29th day of March, 1824, to which this is a supplement, against any person or persons for purchasing or receiving such timber, tree or trees, or lumber made therefrom, and the defendant shall ofler to make oath or affirma- tion, agreeably to the second section of the act of the 22d March, 1814, that the title of the land will come in question, the same course of pro- ceeding shall be had as is provided in and by the tenth section of the act of the 8th day. of April, 1833, etc." 646. The act of 20th April, 1846,^ in section 6, enacts as fol- lows: " In all actions of trespass quare dausum f regit now pending, or which may hereafter be brought, in which, upon the trial of the cause, tlie value of any goods or property taken, and damages for such taking and deten- tion, only shall be claimed, if the legal right to such goods or property shall be found to be in the plaintiff or plaintiffs, he or they shall be en- titled to recover the value of such goods and property, and damages afore- said, in the same manner, as in actions of trespass for taking goods and chattefs without regard to the form of action, and notwithstanding the plaintiff may not have had the possession or title or claim to the land, in which the trespass is by the writ and declaration supposed to have been done." 647. The act of 14th April, 1851,' in section 8, enacts as fol- lows : " The owner or owners of any dog or dogs shall be liable for all damages done, or caused to be done, by any and every such dog or dogs, 1 Pamphlet Laws, 217. » Ibid. 412. > Ibid, of 1832, 712. 350 FORCIBLE ENTRY. [cHAP. XII. in an action of trespass vi et armis, in the name of the person or per- sons injured, to be sued for and recovered before any court or justice of the peace having jurisdiction of the amount so claimed." 648. The act of 26th April, 1855/ provides as follows: " Section 1. That after the 1st day of July next no action brought before a justice of the peace or alderman shall be referred to referees for trial unless by the agreement or express assent of both parties to the action or their agents, which agreement or assent shall be noted by such justice or alderman upon his docket." 649. The act of 30th March, I860,' provides as follows: " Section 1. The wilful taking and carrying away of fruit, vegetables, plants, fruits or ornamental trees, vines or shrubs, in the counties of Huntingdon, Washington, Allegheny, Berks, Lancaster, Lycoming, and Delaware, whether attached to the soil or not, shall be deemed, and the same is hereby declared, a misdemeanor, and may be prosecuted and punished as such, under the laws of this Commonwealth, and on convic- tion thereof in the Court of Quarter Sessions of said counties, shg,!! be fined, not exceeding fifty dollars, and imprisoned, not exceeding sixty days ; such fine or penalty to be appropriated as provided in the second section of this act. " Section 2. Any person or persons who shall wilfully enter or break down, through or over any orchard, garden or yard-fences, hotbed or greenhouse, or who shall wrongfully club, stone, cut, break, bark, or otherwise mutilate or damage any nut, fruit or ornamental tree, shrub, bush, plant or vine, trellis, arbor, hotbed, hot or greenhouse, or who shall wilfully trespass upon, walk over, beat down, trample, or in any- wise injure any grain, grass, vines, vegetables or other grooving crop, shall and may, on conviction thereof before any alderman or justice of the peace, or in any court of law in said counties, have judgment against him, her or them, in a sum not less than five, nor more than one hundred dollars, with costs of suit ; one-half the damage or penalty to go to the use of the informer, the other half of the damage or penalty to the occu- pant or owner of the premises on which the said trespass shall or may be committed ; and in default of payment of said fine or judgment, with costs of suit, the party convicted may and shall bp committed to the jail of said county, for not less than twenty, nor more than sixty days ; said complaint or action to be in the name of the Commonwealth, and the testimony of the owner or occupant of the premises shall be admitted as evidence to prove the trespass and damage sustained : Provided, That when the owner of the premises shaU become the informant, then one- half of the penalty shall be appropriated to the school fund of the dis- trict in which the trespass was committed." ' Pamphlet Laws, 304. = Ibid. 362. SEC. II.] THE ACTION OP TRESPASS. 351 650. The act of 31st of March, 1860 :' provides as follows : " Section 152. If any person shall cut down or fell any timber tree or trees, knowing the same to be growing or standing upon the lands of another person, without the consent of the owner, or if any person shall purchase or receive any timber tree or trees, knowing the same to have been cut or removed from the lands of another without the consent of the owner thereof, or who shall purchase or receive any planks, boards, staves, shingles or other lumber made from such timber tree or trees, so as aforesaid cut or removed, knowing the same to have been so made, the person so offending shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay such fine, not exceeding one thousand dollars, or to such imprisonment, not exceeding one year, as the court in their discretion, may think proper to impose." 651. The act of 17th April, 1861,^ provides as follows: "Sectiok 1. That the provisions of an act to protect fruit, etc., and punish trespass in the counties of Huntingdon, Washington, Allegheny, Berks, Lancaster, Lycoming, and Delaware, approved March 30th, Anno Domini one thousand eight hundred and sixty, be and they are hereby extended to the several counties of this Commonwealth." 652. The act of 1st May, 1861,' in section 2, provides as fol- lows: " The provisions of the first section of said act are hereby extended for the protection of graperies, statuary, vases, fountains, and all other useful and ornamental erections in public and private gardens, yards, grounds, parks, streets, and squares, the wilful trespass upon or injury to which is hereby declared a misdemeanor, which may be prosecuted and punished as such, as directed for the prosecution and punishment of the offences named in said act : Provided, That the second section of this act shall not apply to the county of Beaver." 653. The act of 6th April, 1869,* in section 1, enacts as follows : "Where an action of trespass quare elausum /regit, in which the plea shall be liberum tenementwm, and an action of ejectment shall have been brought successively by the same parties or their privies upon the same title and two judgments shall be rendered in succession for the plaintiff or defendant in said actions, no new ejectment shall be brought ; but where there maybe judgment against judgment in said actions, a second ejectment in such case, and a verdict and judgment rendered thereon shall be final and conclusive and bar the right." 1 Pamphlet Laws, 382, 419. j Ibid. 322. 3 Ibid. 478. ■- Ibid. 16. S52 FORCIBLE ENTRY. [CHAP. XII. 654. The act of 12th April, 1869,' in section 1, enacts as follows: " No action or right of action for mesne profits or for trespass against property, real or personal, shall abate by reason of the death of the per- son liable therefor, but suit may be brought and recovery had against the personal representatives of such deceased person, and if such death occur after suit brought, the personal representatives may be substituted for the decedent, and said suit prosecuted to judgment, and the estate of such deceased person shall be liable to the same extent as if he were living." 655. The act of 8th May, 1876/ enacts as follows: ' ' Section 1. If any person or corporation shall mine or dig out any coal, iron or other minerals, knowing the same to be upon the lands of another person or corporation, without the consent of the owner, the person or corporation so oifending shall be guilty of a misdemeanor, and being thereof convicted, shall be sentenced to pay such fine, not exceeding one thousand dollars, or to such imprisonment not exceeding one year as the court in their discretion may think proper to impose ; and the person or corporation so offending shall be further liable to pay to such owner double the value of said coal, iron or other minerals so mined, dug out or removed, or in case of the conversion of the same to the use of such offender or oiTenders, treble the value thereof, to be recovered with costs of suit, by action of trespass or trover as the case may be, and no prose- cution by indictment under this act shall be a bar to such action : pro- vided that the provisions of this act shall not apply to persons picking coal for their own domestic use. " 656. The act of 7th July, 1879,' enacts as follows : "SectioitI. That the aldermen, magistrates and justices of the peace, in this Commonwealth, shall have concurrent jurisdiction with the Courts of Common Pleas of all actions arising from contract, either express or implied, and of all actions of trespass and of trover and con- version, wherein the sum demanded does not exceed three hundred dol- lars, except in cases of real contract where the title to lands or tenements may come in question, or action upon promise of marriage. ' ' Section 2 and provided further, That nothing contained in this act shall apply to magistrates in cities of the first class." V. Requisites to support Trespass. 657. It may be said, in general, that in order to maintain and support the action of trespass the plaintiff, whether the property be real or personal, must have had, at the time the act complained of was committed, either actual possession or the right of immediate 1 Pamphlet Laws, 27. " Ibid. 142. a ibj^. 194 SEC. II.J THE ACTION OF TRESPASS. 353 actual possession flowing from the right of property.' The inter- est in real property should actually be vested in possession, and an actual entry upon the premises must have been granted, descended, devised or leased, and for an entry on plaintiff's land he must be able to show an actual, peaceable possession, obtained in a proper and legal manner.'' But the action may be maintained under an equitable title.' In the case of wild and unsettled lands the owner is considered in possession so as to maintain trespass until an ad- verse possession is clearly made out.'' The misuse of a highway will enable the owner of the soil over which it passes to maintain trespass.^ The general property of personal chattels draws to it the possession, which is sufficient to support trespass." The action will lie upon a constructive possession of goods.' VI. When the Action of Trespass vi et armis will lie. 658. The action of trespass vi et armis may be maintained as follows : (1.) By a tenant against one who distrains on chattels exempt by law and claimed as such, and sells the same.' (2.) By a tenant against one who distrains on Sunday or at night time." (3.) By one in the actual possession of land, however defeasible his title may be, against a stranger for cutting timber, or prostrat- ing houses.'" ' Lewis V. Carsaw, 3 Harris, 31, 34 ; King & Sehoenberger v. Baker, 1 Casey, 186; Weitzel u. Marr, 10 Wright, 463; Waldron v. Haupt, 2 P. F. Smith, 408; Eifener o. Bowman, 3 Ibid. 315; see also Penn i;. Preston, 2 Eawle, 14; Hughes V. Stevens, 12 Casey, 320 ; Fitler v. Shotwell, 7 Watts & Sergeant, 14 ; Ward ». Taylor, 1 Barr, 238. ' Zell V. Eeam, 7 Casey, 304; Addleman v. Way, 4 Teates, 218 ; Shenk v. Mundorf, 2 Browne, 106. " McCurdy v. Potts, 2 Dallas, 98. ■" Baker v. King, 6 Harris, 138, 144, and cases there cited. ^ Lewis V. Jones, 1 Barr, 336 ; Chambers v. Furry, 1 Teates, 167. " Ent'riken «. Brown, 8 Casey, 364; Mather v. Trinity Church, 3 Sergeant & Eawle, 509, 514. ' Dallam v. Fitler, 6 Watts & Sergeant, 323 ; Talmage v. Scudder & Scudder, 2 Wright, 517 ; North v. Turner, 9 Sergeant & Eawle, 244 ; Hower v. Gessa- man, 17 Ibid. 251 ; Meyers v. White, 1 Eawle, 353. 8 Freeman w. Smith, 6 Casey, 264; Wilson v. Ellis, 4 Ibid. 238; Wilson V. McEIroy, 8 Ibid. 82; Van Dressor v. King, 10 Ibid. 201, 202. » Mayfleia v. White, 1 Browne, 241. '" Coke upon Littleton, *37 a, note (2) ; Greber v. Kleokner, 2 Barr, 289, 291 and authorities there cited. 23 354 FORCIBLE ENTRY. [CHAP. XII, VII. When the Action of Trespass vi et armis will not lie. 659. The action of trespass vi et armis cannot be maintained as follows : (1.) Against a landlord for distraining for more rent than is due.' (2.) Against a master for the wilful or accidental injury com- mitted by his servant without the master's direction or assent.^ VIII. Ji'Tien the Aetion of Trespass de bonis asportatis will lie. 660. The action of trespass de bonis asportatis may be main- tained by a plaintiff, as follows : (1.) When a distress is made off the demised premises not clandestinely removed, or when made on the highway.' (2.) When made when no rent is due.* (3.) When made on the chattels of a stranger on the premises in the way of trade and the same are sold.^ (4.) When made on animals of a stranger taken by the tenant to be pastured.* (5.) When made on the goods of a stranger on the demised premises by the consent of the landlord as privileged from dis- tress.' (6.) When made on goods on the demised premises which have been sold by the former tenant to an innocent purchaser.* (7.) When the goods of a tenant are taken in execution, dis- trained on, and sold, the officer can hold the distrainor liable.' 1 McEinney v. Eeader, 6 "Watts, 34. 2 E.E. Co. V. Wilt, 4 Wharton, 142; see Little Schuylkill Navigation Co. V. Richards, 7 P. P. Smith, 142, 148. » Coke's Institutes, 131. ' Eees V. Emerick, 6 Sergeant & Eawle, 286 ; Smith v. Meaner, 16 Ibid. 375; Trettou v. Karcher, 27 P. F. Smith, 423; Hutchlns v. Chambers, 1 Bur- row, 579. " Nagle V, Mullison, 10 Casey, 48; Earns v. McEinney, 24 P. F. Smith, 387 ; Howe Sewing Machine Co. •?. Sloan, 6 Norris, 438; S. C, 6 Weekly Notes, 265. ' Brooks V. Olmstead, 5 Harris, 24 ; Cadwalader v. Tindall, 8 Harris, 422. ' Horsford v. Webster, 5 Tyrwitt's Exchequer, 409. 8 CliflFord v. Beems, 3 Watts, 246 ; Beltzhover v. Waltman, 1 Watts & Ser- geant, 416 ; Ex parte Grove, 1 Atkyns, 104 ; Eaton v. Southey, Willis, 131. ' Taylor v. Manderson, 1 Ashmead, 130. SEC. II.J THE ACTION OF TRESPASS. 355 (8.) When the goods of a stranger removed from the demised premises are followed, distrained on, and sold/ (9.) When the goods of a foreign ambassador are distrained on and sold.^ (10.) When the party distraining abuses or kills the distress.' (11.) By the tenant of the freehold for timber trees cut thereon without permission.* (12.) Against one who takes possession and appropriates the property of another without right and permission.' IX. When the Action of Trespass de bonis asportatis will not lie. 661. The action of trespass de bonis asfoi'tatis cannot be main- tained as follows : (1.) By a landlord, entitled to one-half of the crops, against the tenant for taking them out of his possession before the same have been divided.* (2.) By a landlord for goods seized and sold while under a lease.'' X. When the Action of Trespass quare clausum fregit will lie. 662. The action of trespass quare clausum fregit may be main- tained as follows : (1.) By one in the actual possession of land, however defeasible his title may be, against any party who has not the right of entry.' (2.) By a tenant against a landlord for an illegal entry on the demised premises." 1 Adams v. La Comb, 1 Dallas, 440; Sleeper v. Parrish, 7 Philadelphia, 247, and cases there cited. 2 Vattel, book 4, chapter 9 ; Hopkins v. De Eobeck, 3 Term Eeports, 80. 3 Six Carpenters' Case, 8 Coke, 146 ; S. C, Smith's Leading Cases, *216; Hopkins v. Hopkins, 10 Johnson, 373. < Tammany v. Whittaker, 4 Watts, 221 ; O'Eeiley v. Shadle, 9 Casey, 489. ' Erismau v. Walters, 2 Casey, 467, 470. ° Briggs V. Thompson, 9 Barr, 338. ' Filler v. Shotwell, 7 Watts & Sergeant, 14. ' Greber v. Kleckner, 2 Barr, 289, 291, and authorities there cited. ' Ancastero. Milling, 2 Dowling & Eyland, 714; Btherton v. Popplewell, 1 East, 139. 356 FORCIBLE ENTRY. [CHAP. XII. (3.) By the tenant against the landlord or his assignee for the obstruction or detention of an emblement.' (4.) By one tenant in common against his co-tenant for the dis- turbance of an easement.' (5.) By one tenant in common against his co-tenant for an ac- tual ouster.' (6.) By the tenant when the lessor has no longer a reversion- ary interest in the premises.'' (7.) "When the distress is made on Sunday or at night time.' (8.) When made by breaking through an outer door, window or gate.' (9.) When made when no rent is in arrear.' (10.) When made on more gold and silver than the rent amounts to.' (11.) When made after tender of the rent and costs before the distress, and afterwards the same is sold.' (12.) When the distress is retained an unreasonable time on the demised premises after the sixth day from making same.'" (13.) When, after the distress, tender is made of the rent due and costs of the levy and the same is refused, and the distress is sold." ' Stultz V. Dickey, 5 Binney, 285 ; Demi v. Bosler, 1 Penrose & Watts, 224 ; Biggs v. Brown, 2 Sergeant & Eawle, 14 ; Porsythe v. Price, 8 Watts, 282 ; Narewoodi). Wilhelm, 19 P. P. Smith, 64, 67, and authorities there cited. See also Poote «. Colvin, 3 Johnson, 222; Stewart v. Doughty, 9 Ibid. 113; Carter v. James, Ibid. 143. 2 Tranger v. Sassaman, 2 Harris, 514. > McGill V. Ash, 7 Barr, 397. " Hampton v. Henderson, 4 Clark, 438. ' Mayfield v. White, 1 Browne, 241 ; Coke upon Littleton, 142 ; Alden- burg V. Peaple, 6 Carrington & Payne, 212; Coke upon Littleton, 161. * Mayfield v. White, 1 Browne, 241 ; Brown v. Glenn, 2 English Law and Equity Eeports, 275; Gould v. Bradstock, 4 Taunton, 562 ; Coke upon Little- ton, 161. ' Eees V. Bmerick, 6 Sergeant & Eawle, 285 ; Pretton c;. Karcher, 27 P. F. Smith, 423 ; Smith v. Meanor, 16 Sergeant & Eawle, 375 ; Branscomb v. Bridges, 1 Barnewall & Cresswell, 46; Dyer ti. Leatherdale & Simpson, 3 Wilson, 20 ; Hutchins v. Chambers, 1 Burrow, 579. * Hutchins v. Chambers, 1 Burrow, 590. 8 Eees V. Emerick, 6 Sergeant & Eawle, 285 ; Vertue v. Beasley, 1 Moody & Eobinson, 21. 10 Griffin v. Scott, 2 Strange, 716 ; S. C, 2 Lord Raymond, 1424. As to what is an unreasonable time, see Waitt v. Ewing, 7 Philadelphia, 195. " Brisben v. Wilson, 10 P. P. Smith, 452. SEC. II.] THE ACTION OF TKESPASS. 357 (14.) "When made on fixtures and the same are sold.' (15.) When made on things of a perishable nature.^ (16.) When made on things in the actual use of the tenant.^ (17.) When made on animals ferod naturae..*' (18.) When made and no notice of the distress is served on the tenant and the distress is sold.' (19.) When the distress is appraised within five days from the time when taken.* (20.) When the distress is sold without being appraised.' (21.) When the distress is sold without being advertised.* (22.) When the distress is sold within six days after the ap- praisement.' (23.) When a second vexatious distress is made.'" (24.) When a stranger enters on the demised premises and commits waste." (25.) When a stranger enters on the demised premises and ousts the tenant.'^ (26.) When a party distraining enters the house of a stranger in search of the tenant's goods fraudulently removed and fails to find them therein." (27.) When the landlord has treated the tenant as a trespasser." 1 Thomas v. Pettit, 10 Queen's Bench, 101. 2 Gilbert on Distress, *26. -' Ibid. *37 ; Coke upon Littleton, 47. ♦ Coke upon Littleton, 47. " McKinney v. Eeader, 6 Watts, 34; Pretton u. Karcber, 27 P. P. Smith, 423, 428. 8 Kerr v. Sharp, 14 Sergeant & Eawle, 399 ; Brisben v. Wilson, 10 P. P. Smith, 452. ' Ibid. I Quinn ». Wallace, 6 Wharton, 460 ; Briggs v. Large, 6 Casey, 287. 8 Kerr «. Sharp, 14 Sergeant & Kawle, 899; Quinn u. Wallace, 6 Wharton, 460." 9 Pretton v. Karcher, 27 P. P. Smith, 423 ; Ward v. Taylor, 1 Barr, 238. ™ Wallis V. Saire, 2 Lutor, 1532 ; Hutchins ». Chambers, 1 Burrow, 579. " Herlakenden's Case, 4 Coke, 443, 626 ; Evans v. Evans, 2 Campbell, 491 Attersoll v. Stevens, 1 Taunton, 194 ; Welsh ii. Anthony, 4 Harris, 254 O'Eeilly v. Shadle, 9 Casey, 484; Watson v. Eynd, 26 P. P. Smith, 59 Hughes V. Stevens, 12 Casey, 320 ; Greber v. Kleckner, 2 Barr, 289, 291 ; see also Boults M. Mitchell, 3 Harris, 371, and cases there cited. 12 Craft V. Teaney, 16 P. P. Smith, 210 ; Weitzel v. Marr, 10 Wright, 463. w Hobbs V. Geiss, 13 Sergeant & Eawle, 417. 1* Bridgens v. Smith, 2 Moore & Payne, 741. See note, page 77. 358 FORCIBLE ENTRY. [CHAP. XII. XI. When the Action of Trespass quare dausvm /regit will not lie. 663. The action of trespass quare clausum /regit cannot be main- tained as follows : (1.) By a landlord where the premises are in possession of a tenant at will.' (2.) By a landlord where the exclusive possession is in the tenant.'' (3.) By a landlord against his tenant for a trespass committed pending the tenancy.' (4.) By a landlord against a stranger for cutting timber, pend- ing the tenancy, though a restriction be imposed upon the tenant not to cut timber.* (6.) By a tenant to recover treble damages, under the act of 1824, for cutting trees.* (6.) By a tenant at will against his landlord for dispossessing him with not more than necessary force.® (7.) Against one whose chattel has been wrongfully taken for entering upon the land of the taker for the purpose of retaking it.' (8.) By a tenant in common against his co-tenant for cutting and carrying away timber, unless there was an unequivocal ouster.' XII. The Declaration. 664. The declaration in the action of trespass should contain a concise statement of the injury complained of, whether to the per- son or to personal property, and should allege that such injury was committed vi et armis and contra pacemf and in trespass quare clausum /regit de bonis and asportatis it should specify clearly and precisely the articles taken," and when the particular nature ' Clark V. Smith, 1 Casey, 137. 2 Torrance v. Irwin, 2 Yeates, 210. '^ Williams v. Dougherty, 6 Philadelphia, 156. * Greber v. Kleckner, 2 Barr, 289. ' Tammany v. Whittaker, 4 Watts, 221. ' Overdeer v. Lewis, 1 Watts & Sergeant, 90. ' Chambers v. Bedell, 2 Watts & Sergeant, 225. 8 Filbert v. Hoflf, 6 Wright, 97. s 1 Chitty's Pleadings, *209 (16th Am. Ed.). "> Oystead v. Shed, 12 Massachusetts, 506, 512, 513. PEC. II.J THE ACTION OF TRESPASS. 359 and kind of them are omitted it will not be cured by a verdict, or by the act of 21st March, 1806, section 6,' which provides that "where any suit has been brought in any court of record within this Commonwealth, the same shall not be set aside for informality," etc' The declaration should moreover state that the same were the property of the plaintiff at the time of the taking.' In actions of trespass quare dausum fregit the premises should be described as they were at the time of the trespass, and not as they were at the time of the declaration,^ and if the plaintiff's close be not fully and precisely described in the declaration and the de- fendant has pleaded liberum tenementum, the plaintiff should new assign.' XIII. The Plea. 665. The general plea in trespass is not guilty as alleged.* A plea may also be entered of not guilty with leave, etc., yet it is only by consent that under this plea most matters in defence can be put in evidence, and the defendant maybe forced to plead specially. If the trespass be for assault and battery, in which the defendant has not beaten his adversary, this plea is good, otherwise not.' In either trespass de bonis asportatis or quare clausum fregit, if the defendant be not in fact guilty the general issue will suffice, and the same if when he did enter on the premises they were not lawfully in the possession of the plaintiff, or when he took the goods they did not belong to the plaintiff. But if the defence be of any other kind this general plea will not suffice. A defence that he entered with license, or that it was on the highway, cannot be introduced under the general issue, but may be pleaded or notice ' 4 Smith's Laws, 329. « Mayfield v. White, 1 Browne, 241. ^ Neale v. Clautiee, 7 Harris & Johnson (Md.), 372; Oystead u. Shed, 12 Massachusetts, 505. " Humfrey v. KR. Co., 12 English Law and Equity Reports, 554; 1 'Wil- liams's Saunders's Reports, 498 n. (f.). ' Collum V. Andrews, 6 Watts, 516. Per a full discussion of the declaration in trespass, see 1 Chitty's Pleadings, title Trespass, declaration in ; Williams's. Saunders's Reports, title Trespass ; 2 Brightly's Troubat & Haly's Practice, 63. 8 1 Chitty's Pleadings, *209 (16th Am. Ed.). ' 2 Brightly's Troubat & Haly's Practice, 64; 1 Chitty's Pleadings, *53S (16th Am. Ed.). 360 FORCIBLE ENTRY. [CHAP. XII. thereof given.' The defendant may disclaim title and assert tender of damages, under the act of 27th March, 1713,^ and if the plain- tiff be defeated or non-suited farther suit will be barred. The defendant may also plead liberum tenementwm? He may also plead an excuse or justification of the trespass.* XIV. Of the Verdict and Damages. 666. In trespass the jury may award damages not only for the value of the property taken, with interest, and punitive dam- ages for the force, but also for aggravating circumstances and the actual damages sustained.' In trespass quare clav,sum fregit they may find damages for a consequential injury. ° Where trespass vi et armis was brought for breaking and entering plaintiff's close, which resulted in the loss of his crop, it was held that he might prove the loss of the same to enhance the damages.'^ But in tres- pass de bonis asportaiis the damages found must be for interest on the value of the goods from the taking to the time of judgment.* By the act of 2d May, 1876,' the plaintiff must give fifteen days' notice before the trial, in order to recover damages up to the date of the same. Where the action is brought against several persons jointly for the same act, the damages must be assessed jointly, and the trial proceed upon a venire tarn quam}" Under the act of 29th March, 1824, § 3," giving double or treble damages, the jury assess the damages, but if they do not the court will award the dam- 1 2 Brightly's Troubat & Haly's Practice, 64, 65. 2 1 Smith's Laws, 76. = risher v. Morris, 5 Wharton, 360 ; Stevens v. Hughes, 7 Casey, 381 ; Col- lum V. Andrews, 6 "Watts, 516. * Oystead v. Shed, 12 Massachusetts, 506 ; 1 Chitty's Pleadings, *541 (16th Am. Ed.). For a general treatment of the pleas in trespass, see 1 Chitty's Pleadings (16th Am. Ed.), title Trespass, pleas in; 2 Brightly's Troubat & Haly's Practice, 64-66. ^ Johnson u. Packer, 1 Nott & McCord (S. Car.), 4; Nagle v. Mullison, 10 Casey, 48 ; Porter v. Seilor, 11 Harris, 424 ; Kobison v. Rupert, 11 Harris, 523, and cases there cited; McKnight v. Eatcliff, 8 Wright, 156; Trout v. Kennedy, 11 Wright, 387; Churchill v. Watson, 5 Day, 140; Worts. Jen- Ijins, 14 Johnson, 352. 6 Johnson v. Courts, 8 Harris & McHenry (Md.), 510; 2 McCord, 277. ' Hardin v. Kennedy, 2 McCord, 277. " Beals V. Guernsey, 8 Johnson, 446. ^ Pamphlet Laws, 95. " Bohun V. Taylor & Collins, 6 Cowen, 318. " 8 Smith's Laws, 283. SEC. II.] THE ACTION OF TRESPASS. 361 ages on a writ of inquiiy.^ In Pennsylvania, by double and treble costs or damages is meant twice or thrice the amount of single costs or damages.^ But the action of trespass to recover treble damages for cutting trees under the act of 1824, can be main- tained only by the owner of the land, whether it be rented or not.' The forty shillings damages enacted by statute 22 and 23 Charles II, as the minimum amount of damages which will entitle a plain- tiff to recover full costs in an action of trespass quare clausum fregit, are to be reckoned in Pennsylvania currency, and amount to IS-SSJ.* Whether the statute of 22 and 23 Charles II ap- plies to trespass quare clausum fregit, when there is an allegation of the taking of personal property, has been doubted." Where the action is for trespass to the person, or to real property, if the verdict be under forty shillings, the plaintiff will recover no more costs than damages.^ But where the trespass is to personal prop- erty, the law with regard to costs is otherwise.' Where this action is against several defendants, who sever in their pleas, and the verdict is found in favor of any of them, those who obtain a judg- ment will be entitled to their costs against the plaintiff.' Where an action is brought against two persons for several trespasses, and it cannot be proved that both were concerned in all of them, the plaintiff may proceed on those that were committed jointly, or if he elect to proceed against one separately, the other will be enti- tled to a verdict of acquittal.' If several verdicts are found the plaintiff may take judgment against all, upon the verdict he may choose.'" Where from the evidence the case is one for corapensa- 1 Welsh V. A.nthony, 4 Harris, 254, and authorities there cited ; Hughes v. Stevens, 12 Casey, 320; Morrison v. Gross, 1 Browne, 1. ' Shoemaker v. Nesbit, 2 Eawle, 201 ; Welsh v. Anthony, 4 Harris, 254, 256. ' Tammany v. Whittaker, 4 Watts, 221 ; Houston v. Sims, 2 Jones, 195 ; see also O'Reilly «. Shadle, 9 Casey, 489. * Chapman v. Calder, 2 Harris, 357 ; Brightly on Costs, 21, 22. 5 Chapman v. Calder, 2 Harris, 357. « 2 Brightly's Troubat & Haly's Practice, 69. ' Guffey V. Free, 7 Harris, 18 ; Clark v. MoKisson, 6 Sergeant & Eawle, 87. * G-alloway v. Pittman & Worbinger, 3 Massachusetts, 408 ; see also Maus V. Maus, 10 Watts, 87; Steele v. Lineberger, 22 P. P. Smith, 239, and cases there cited. 9 Weakly v. Koyer, 3 Watts, 464 ; Smith v. Bradley, 16 Legal Intelli- gencer, 188. '» Kennedy v. Philipy, 1 Harris, 408 ; Cox v. Cook, 1 J. J. Marshall (Ken.), 361. 362 FORCIBLE ENTRY. [CHAP. XII. tion merely, the court cannot instruct the jury that they may give vindictive damages.' In trespass quare dausum fregit, when the party cuts timber from ignorance of the true line, he is yet liable for treble damages, but the purchaser of such timber is not, unless he purchased with a knowledge of the trespass.'' In order to recover treble damages under the act, the plaintiff must declare under the act.^ If a plaintiff lays his damages at more than one hundred dollars and recovers less, he is entitled to costs without having filed an affidavit.* Under the act of 12th April, 1869, no action of trespass for damages abates by the death of the party defendant.* 667. An unsatisfied judgment against a joint trespasser is not a bar to a suit against his co-trespasser,* nor is a replevin.' But judgment for defendant in an action of trespass de bonis asportatis is a bar to an action of assumpsit.' So is a recovery in trespass vi et armis to an action of trover for the same goods.' 668. The jurisdiction of justices of the peace or magistrates In trespass is concurrent with that of the Court of Common Pleas.'" But the jurisdiction is limited to the sum of |300" in all pai-ts of the State, except in cities of the first class, where it is limited to $100." But the justices have no jurisdiction unless the damage forms an actual or immediate injury operating upon the body of the real or personal estate." [For forms of procedure in the action of trespass, see Ap- pendix.] ' Amer v. Longstreth, 10 Barr, 148; Rose v. Story, 1 Barr, 190. 2 O'Eeilly v. Shadle, 9 Casey, 489 ; Watson v. Kynd, 26 P. F. Smith, 59. " Hughes V. Stephens, 12 Casey, 320. * Clark V. McKisson, 6 Sergeant & Eawle, 87 ; Moyer v. Illig, 2 P. F. Smith, 444. 6 See ante, page 352. 8 Kennedy v. Philipy, 1 Harris, 409. ' JSTagle V. Mullison, 10 Casey, 48. " Eice V. King, 7 Johnson, 20. s Johnson v. Packer, 1 Nott & McCord (S. Car.), 4. •" Clark V. McKisson, 6 Sergeant & Eawle, 87 ; Moyer v. Illig, 2 P. F. Smith, 444 ; see acts of 22d March, 1814, Pamphlet Laws, 190, ante, page 345 j 7th July, 1879 ; Ibid. 90, ante, page 352. " Act of 7th July, 1879, Pamphlet Laws, 194, ante, page 352. '2 See act of 22d March, 1814, Pamphlet Laws, 190, ante, page 345. " Masteller v. Trimbly, 6 Binney, 83. SEC. I.] INDICTMENT OP FORCIBLE DETAINER. 363 CHAPTEE XIII. FoEciBLE Detainee. SECTION I. INDICTMENT OP FOECIBLE DETAINEE. 669. The second wrong which a tenant in PennsyTvania may suffer from the landlord or his bailiff is the unjust detention of the possession of the demised premises, and this may be either before or after the entry thereon of the lessee. If this detention be accompanied by force or threats, it is a forcible detainer. The nature of this wrong has already been treated of.^ 670. When a lease has been made between parties, it is the duty of the lessor to permit the lessee to enter into possession of the demised premises, and to grant him the quiet enjoyment thereof during the time agreed upon. If he fail to do this, and be him- self in possession, or if after giving the lessee possession thereof he enter and usurp the possession, and keep the tenant out by force or threats, he becomes guilty of the wrong of forcible de- tainer.'' 671. The first remedy for this wrong is by indictment, by vir- tue of the provisions of the twenty-second section of the act of 31st March, I860,' which has been quoted in a previous chapter.* The character of proceedings by indictment is given in Chapter vii, section ii, page 201 et seq. ' See Chapter xi, section ii, page 339. ' Common wealth v. Wisner, 8 Philadelphia, 612 ; Eespublica v. Devore, 1 Yeates, 501. s Pamphlet Laws, 382, 390. * Chapter xi, section ii, page 339 ; see also ante, page 552 ei seq. , ^[f 241 to 245. 364 FORCIBLE DETAINER. [CHAP. XIII. SECTION II. THE ACTION OP TRESPASS ON THE CASE. 672. The second remedy to which a tenant in Pennsylvania may resort for a forcible detainer is the action of trespass on the case/ in regard to which the reader is referred to Chapter vii, section i, page 192 et seq. By this action damages may be recovered by the tenant. SECTION III. THE ACTION OP EJECTMENT. 673. The third remedy to which a tenant in Pennsylvania may resort for a forcible detention is the action of ejectment, which is fully treated of in Chapter x, section iii, page 233 et seq. The object of this action is to regain possession of the demised premises. SECTION IV. THE ACTION OF COVENANT. 674. The fourth remedy to which a tenant in Pennsylvania may resort for a forcible detention is the action of covenant, which is treated of in Chapter v, section v, page 173 et seq. By resorting to this action damages may be recovered. 675. The word lease is a fair translation of the Latin word demisi, and from it is implied a covenant for quiet enjoyment.^ SECTION Y. THE ACTION OF ASSUMPSIT FOE ITSB AND OCCUPATION. 676. The fifth remedy to which a tenant in Pennsylvania may resort for a forcible detention is the action of assumpsit for use and occupation, which has been treated of in Chapter v, section vi, page 178 et seq. This is the proper action where there is an oral lease.' 1 Pitt V. Gainoe, I Salkeld, 10; Child v. Sands, Ibid. 31. 2 Maule V. Ashmead, 8 Harris, 482, 484. a Ibid. SBC. II.] INDICTMENT. CHAPTER XIV. Detention or Obstruction op an Easement. SECTION I. THE ACTION OF TRESPASS ON THE CASE. 677. The third wrong which a tenant in Pennsylvania may suffer from the action of- the landlord or his bailiff is the deten- tion or obstruction of an easement. 678. It has already been stated that easements are privileges, without profits, which the public or occupants of land have in the property of a neighbor.' These easements, therefore, pertain to the premises demised, and the lessee is entitled to their enjoyment.' If the lessor detain, disturb, or obstruct them, he commits a wrong against his tenant. 679. The first remedy for this wrong is the action of trespass on the case,' in regard to which see Chapter vii, section i, page 192 et seq. This action, however, only gives damages, and does not supply or restore the easement. SECTION II. INDICTMENT. 680. The second remedy to which a tenant in Pennsylvania may resort for the obstruction of an easement, such as a right of ' Chapter ii, section v, page 40. ' See Ibid, page 40 et seq. ' Jones V. Park, 31 Legal Intelligencer, 872 ; O'Keson v. Patterson, 5 Casey, 22; Union Petroleum Company v. Bliven Petroleum Company, 22 P. P. Smith, 178 ; Lindeman v. Lindsay, 19 lb. 93 ; Striohler v. Todd, 10 Sergeant & Eawle, 63 ; Ripka v. Sergeant, 7 Watts & Sergeant, 9. 366 OBSTEDCTION OF AN EASEMENT. [CHAP. XIV. way or water-course, is that by indictment, by virtue of the pro- visions of the seventy-third and one hundred and forty-sixth sec- tions of the act of 31st March, I860.' Section 73 provides as follows : "Any person who shall erect, set up, establish, maintain, keep up or continue, or cause to be erected, set up, established, maintained, kept up or continued, any public or common nuisance, shall be guilty of a misde- meanor, and on conviction, shall be sentenced to pay a fine, and suffer an imprisonment, or either, or both, according to the discretion of the court under the circumstances of the case ; and where the said nuisance shall be in existence at the time of the conviction and sentence, it shall be lawful for the court, in its discretion, to direct either the defendant or the sheriff of the proper county, at the expense of the defendant, to abate the same : Prcmided also, That all obstructions to private roads, laid out according to law, shall be nuisances, which would be nuisances in cases of obstructions to public roads or highways." Under this section it is seen that the court may, on conviction, order the obstruction to be abated. Section 146 provides as follows : "If any person shall unlawfully and maliciously break down or cut down, the bank or wall of any river, canal or marsh, whereby any land shall be overflowed or damaged, or be in danger thereof, such person shall be guilty of a misdemeanor, and being thereof convicted, be sen- tenced to pay a fine not exceeding one hundred dollars, and to undergo an imprisonment not exceeding one year." For indictment and proceedings thereunder, the reader is re- ferred to Chapter vii, section xi, page 201 d seq. SECTION m. BILL IN EQUITY FOR SPECIFIC PEEFOEMANCE. 681. The third remedy to which .a tenant in Pennsylvania may resort for the detention or obstruction of an easement'' is that by a bill in equity for specific performance.' ' Pamphlet Laws, 882, 402, 417. 2 See Chapter ii, section v, page 40 ei seq. ' For a full treatment of this subject the reader is refered to Bispham's Principles of Equity, a scientific and exhaustive treatise ; and to Fry on Specific Performance. SEC. Iir.J BILL IN EQUITY. 367 682. The power to enforce this equitable remedy is vested in the courts of Common Pleas by the Constitution of 1874 ;' and the principle governing the equity side of the court, is that the relief prayed for will only be granted where the courts of law can- not give a plain, adequate, and complete remedy.^ It rests, however, entirely in the sound discretion of the courts of equity, under certain rules, which have been well defined, to grant or refuse the relief.' The effort of a court of equity " always is to put the complainant in exactly the position he would have occu- pied had it not been for. the wrongful act of the defendant."^ I. When Equity will Entertain Jurisdiction. 683. The equitable remedy of specific performance will be ad- ministered wherever the dispensation of exact justice requires it/ and can be invoked under the following circumstances : (1.) Where the plaintiff is without a full remedy at law.° (2.) Where the application is based upon a valuable considera- tion.^ (3.) When the plaintiff comes into court with clean bands.' (4.) When the party seeking equity has shown himself ready, desirous, prompt, and eager.* (5.) Where the agreement is mutual, and its terms are certain, and its enforcement practicable.^" 1 Article v, section 20. " Clark's Appeal, 12 P. ¥. Smith, 447^450, and authorities there cited; Gilder v. Merwin, 6 Wharton, 522 ; Winter's Appeal, 11 P. P. Smith, 307 ; Long V. Cochran & Kussell, 9 Philadelphia, 267 ; Commonwealth v. Wells- boro & Tioga Plankroad Company, 11 Casey, 152 ; Patterson v. Lane, Ibid. 275 ; Farley v. Stokes & Tyrell, 1 Parsons, 422, 431, and cases there cited. s Oil Creek ER. Co. v. Atlantic & Great Western KE. Co., 7 P. F. Smith, 65 ; Bispham's Equity, ? 371. * Bispham's Equity, g 361. ' Ibid. § 371. ^ See authorities cited, ante, in note 2. ' Beddow v. Dewitt, 7 Wright, 326 ; Kennedy v. Ware, 1 Barr, 145. 8 Eankin o. Simpson, 7 Harris, 471, 476; Bleakley's ' Appeal, 16 P. P. Smith, 187, 191. ' Miller v. Henlan, 1 P. P. Smith, 265 ; Parrish v. Koons, 1 Parsons, 79; L»u Bois V. Baum, 10 Wright, 537. '" Bodine v. Glading, 9 Harris, 50 ; Meason v. Kaine, 13 P. P. Smith, 355 ; Philips B. Mining & Manufacturing Co., 7 Philadelphia,' 619; Hammer & Dauler B. McEldowney, 10 Wright, 334; Pussell v. Ehodes, 2 Philadelphia, 165 ; Backus's Appeal, 8 P. P. Smith, 186 ; Corson v. Mulvany, 13 Wright, 88. 368 OBSTRUCTION OF AN EASEMENT. [CHAP. XIV. (6.) When by the exercise of this remedy injustice will not be done.' 684. Moreover in Pennsylvania it is customary to enforce equity through the medium of the remedies and forms under the common law.'' By means of such common-law remedies exem- plary damages have been given in order to compel the defendant to fulfil the specific object sought. Thus in the case of Clyde v. Clyde' an action of assumpsit was brought for an interference with a water-course, and the court awarded exemplary damages, to be released on the rightful action of the defendant in securing the water-course to the plaintiff. In the case of Walker v. Buts,* an action of trespass on the case, for obstructing a water-course, was maintained with the same result. Among other common-law rem- edies that have been made the vehicle of equitable rights are the actions of debt, covenant, replevin, ejectment, and partition.* II. When Specific Performance will he Decreed, 685. Specific performance in landlord and tenant cases will be decreed by a bill in equity as follows : (1.) Where there is an agreement for a lease.* (2.) Where there is a covenant for a renewal of a lease.' (3.) Where there is a covenant to repair and it appears that damages will not aiford sufScient compensation.' (4.) In favor of an innocent lessee under a defective title.' 1 Miller v. Henlan, 1 P. P. Smith, 265, 266 ; Powell v. Lloyd, 2 Tounge & Jervis, 372. 2 For a full discussion see 1 Brightly'a Troubat & Haly's Practice, 14 to 32. 3 1 Yeates, 92. * Ibid. 574; S. C. 4 Dallas, 147. 6 I Brightly's Troubat & Haly's Practice, 15. 8 See Farley v. Stokes & Tyrell, 1 Parsons, 422 ; Furnival v. Crew, 3 At- kyns, 83. ^ ' Hyde v. Skinner, 2 Pere Williams, 196 ; Furnival v. Crew, 3 Atkyns, 83 ; Robinson v. Perry, 21 Georgia, 183. See also Steed v. Crough, 9 Modern, 43 ; Druce v. Dennison, 6 Vesey, 394 ; Eankin v. Lay, 2 De Gex, Fisher and Jones, 65, 72 ; Schroeder & Franklin v. Gemeinder, 10 Nevada, 355 ; Clark V. Clark, 9 California, 586. * Vallolin v. Seegnett, 2 Abbott's Practice, 121. But see Beck v. Allison, 45 New York, 366, and authorities there cited and reviewed. 9 Bigelow on Equity, 201 ; see also Blore v. Sutton, 3 Merivale, 237, 246 ; Shannon v. Bradstreet, 1 Sohoales & Lefroy, 52, 73. SEC. III.] BILL IN EQUITY. 369 (5.) In favor of a lessee who is given possession under an oral lease, for more than three years, and makes valuable improvements on the faith of such an oral agreement.^ (6.) In favor of a lessee or his assignee where the lease contains a stipulation which provides that he shall have the privilege of purchasing the premises for a fixed amount on or before the expi- ration of the term.^ (7.) In favor of an assignee of a lease for the performance of a covenant to renew the lease.^ (8.) In favor of a lessor where there is a covenant to use the demised premises only for a certain business.^ (9.) In favor of a lessor where there are covenants not to re- move manure or crops at the end of the terra, not to plough meadow, not to dig gravel, sand, or coal.^ III. When Specifio Performance will be Denied. 686. Specific performance, in landlord and tenant cases, by a bill in equity, will be denied as follows : (1.) Where the term of the lease has expired.^ (2.) Where the agreement to pay rent was obtained by the fraudulent representation of the lessor.^ (3.) Where the lessee contracts for a lease upon certain stipula- tions to be performed by him and enters upon the land, but fails to perform such stipulations.^ (4.) Where the enforcement of the contract operates inj uriously to the interests of other lessors.* (5.) Where there is a covenant to renew a lease in which the rent is not fixed.'" ' Farley v. Stokes & Tyrell, 1 Parsons, 422, and authorities there cited. 2 Hall w. Center, 40 California, 63; Schroeder & Franklin v. Gemeinder, 10 Nevada, 355, and cases there cited ; Kerr v. Day, 2 Harris, 112, and cases there cited; Napier ». Darlington, 20 P. F. Smith, 64; Corson v Mulvany, 13 Wright, 88 ; D' Arras v. Keyser, 2 Casey, 254. ■ Eobinson v. Perry, 21 Georgia, 183. * Steward v. Winter, 4 Sanford's Chancery, 587, and cases there cited. 5 1 Story's Equity Jurisprudence, 708, § 721. 8 Eaynal v. Stone, 2 Eden, 128. ' Beheeam v. Hearn, 7 Vesey, 219. ' Jones J). Koberts, 6 Call. (Va.), 187; Harvie ». Banks, 1 Randolph (Va.), 408. ^ Society for Establishing TTseful Manufactures v. Low, 17 New Jersey Equity, 19. "> Eobinson v. Kettletas, 4 C. Edwards (N. Y. Ch ), 67. 24 370 OBSTRUCTION OF AN BASEMENT. [CHAP. XIV. (6.) Where the lease contains a stipulation that when the prem- ises are offered for sale the lessor shall give the first offer to the lessee upon terms as favorable as they will be offered to any other person.' (7.) Where a lease contains an agreement upon the part of the lessor to rebuild or to repair damages caused by fire." 687. In England, in the case of Rayner v. Stone,' Lord Chan- cellor Worthington held, that specific performance would not be decreed to enforce the common covenants in a lease; but our courts have handed down no decision on the subject of such equi- table jurisdiction. IV. Of the Bill in Equity. 688. The bill in equity* for specific performance consists of: (1.) The address. (2.) The parties complaining. (3.) The statement of the essential facts of the case.® (4.) The general charge of confederacy. (5.) The pretences and charges. (6.) The general averment that the acts complained of are con- trary to equity, and that the complainant has not a complete rem- edy without the assistance of the court of equity. (7.) The interrogatories.^ (8.) The prayer for relief and for special orders. (9.) The prayer of process. 689. In a bill charging the obstruction of a drain or water- course, the plaintiff should aver the reservation or right of use of such easement.' 1 Elder v. Eobinson, 7 Harris, 364. 2 Beck V. Allison, 56 New York, 367, and authorities there cited and re- viewed ; 1 Story's Equity Jurisprudence, 714 et seq., §? 725 to 728; Eayner*. Stone, 2 Eden, 128, note page 130. s 2 Eden, 128, 130. See note to the case. 4 See rules of equity practice adopted by Supreme Court of Pennsylvania, •which govern the equity side of the courts of Common Pleas. 5 Winebrenner v. Colder, 7 Wright, 244. 8 As to the precision required, see The Trustees v. G-rubb, 5 Philadelphia, 41. ' Barry v. McAvoy, 30 Legal Intelligencer, 424 ; S. C, 6 Legal Gazette, 407. SEC. IV.] THE ACTION OF ASSUMPSIT. 871 SECTION IV. THE ACTION OF ASSUMPSIT. 690. The fourth remedy to which a tenant in Pennsylvania may resort for the obstruction of an easement is the action of assumpsit. 691. By this action exemplary damages may be awarded to compel the restoration of the privilege of the easement when such damages will be released.' The action of assumpsit is treated of in a previous chapter.' ' Clyde V. Clyde, 1 Yeates, 92 ; ante, page 368. ' See Chapter v, sec. vi, page 178, et sej. 372 DETENTION OF EMBLEMENT. [CHAP. XV. CHAPTER XV. Detention oh Obstruction of an Emblement. SECTION I. the action of trespass QtJAEE CLAUSUM FEEGIT. 692. The fourth wrong which a tenant in Pennsylvania may suffer from the action of the landlord or his bailiff is the detention or obstruction of an emblement. 693. Emblements, as has already been said, are those growing crops of annual growth to which at common law a tenant from year to year, or at will, or for life, is entitled after the ending of the tenancy.' In Pennsylvania, so far as relates to crops sown in the fall, custom has extended the right to tenancies for years."" It is the duty of a landlord, therefore, in such cases, to permit the tenant to return on the premises, after the determination of the tenancy, to harvest his fall crops, and if he deny him this right several remedies are open to the tenant. 694. The first remedy for this wrong is an action of trespass quare clausum fregit,^ in relation to which the reader is referred to Chapter xii, section ii, page 341 d seq., and page 355 et seq. SECTION n. the action of trespass on the CASE. 695. The second remedy to which a tenant in Pennsylvania may resort for the detention or obstruction of an emblement is ' See ante, ^ 64, page 51 ei seq. " Ibid. ' See Stultz v. Dickey, 5 Binney, 285; Demi v. Bossier, 1 Penrose & Watts, 224; Biggs V. Brown, 2 Sergeant & Eawle, 14; Forsythe v. Price, 8 "Watts, 282; Narewood v. Willielm, 19 P. P. Smith, 64, 67, and authorities there cited. See also Foote ». Colvin, 8 Johnson, 222; Stewart u. Doughty, 9 Ibid. 113; Carter v. James, Ibid, 143. SEC. III.J THE ACTION 01' DETINUE. 373 the action of trespass on the case,' which has been treated of in Chapter vii, section i, page 192 et seq. SECTION ni. THE ACTION OF DETINUE. G96. The third remedy to which it is possible a tenant in Penn- sylvania may resort for the detention or obstruction of an emble- ment is the action of detinue. But this action will only lie when the emblement has been cut and detached from the realty. 697. The action of detinue is one of those mentioned in the Registrum Brevium, and also in Fitzherbert's Natura Brevium.^ In Pennsylvania it is practically obsolete, and but few references to it can be found in our reports.' It was alluded'^toras an ap- propriate remedy in the case of North America Insuranc&xQom- pany v. Levy,* which was an action of trover brought for tb^e recovery of a policy of insurance for cancellation, on the ground of having been fraudulently obtained. The District Court of Philadelphia County there held that trover could not be sus- tained, but if any common-law remedy can be supported it would seem to be detinue. In Woods v. Nixon,^ it was said that the assignee of the purchaser of a chattel may bring detinue against the seller, though he has never had possession. 698. The objection to this action is that the defendant is per- mitted to wage his law, that is, to exculpate himself by oath. In England wager of law has been abolished by statutes 3 and 4 William IV, chapter 42, section 13; and the action of detinue is sometimes resorted to in that country in cases of illegal distress.* The action of replevin is, however, much more effectual, as by it possession of the chattels is at once obtained, whereas in detinue the right to obtain them must await the judgment, and the de- ' Stultz V. Dickey, 5 Binney, 285, 293. ' Page 323. " North American Insurance Co. v. Levy, 5 Clark, 223, 226 ; Woods u. Nixon, 1 Addison, 131, 133. « 5 Clark's Cases, 223, 226. = 1 Addison, 131, 133. * See WoodfaU's Landlord and Tenant, 490 (11th edition). 374 DETENTION OP EMBLEMENT. [CHAP. XV, fendant may even then substitute the value of the chattels for the specific articles. 699. As a general rule it is laid down in the books that detinue will only lie under the following conditions : First. When the identity of the chattels can be ascertained by some certain means.' Second. When the plaintiff has an absolute general or special property in the chattels, and the right to the immediate posses- sion thereof, although he never had the actual possession.^ Third. When the defendant has acquired the possession of the chattels rightfully, but detains them wrongfully.^ But with re- gard to this latter condition considerable difference of opinion exists, as appears in Chitty's work on Pleading.* 700. There is little doubt that an action of detinue will lie where a distrainer, having rightfully distrained on goods for ar- rears of rent, has refused a tender of the rent made before the impounding, yet still retains the distress. Nor does there seem to be much doubt but that detinue will lie where the distress becomes void by the illegal acts of the distrainer committed at any time after the distress. However, as already stated, the action of deti- nue has fallen into disuse, and is by no means a desirable rem- edy. We have therefore treated but briefly of it, and would refer the reader to other works for a full and general treatment.^ SECTION ly. THE ACTION OF TEOVEE AND CONVERSION. 701. The fourth remedy to which a tenant in Pennsylvania may resort for the detention or obstruction of an emblement, is the ac- tion of trover and conversion,* which will, however, only lie when the emblement has been detached from the realty. 1 Chitty's Pleading, *137. 2 Ibid., "Woods v. Nixon, 1 Addison, 131, 133. ' Ibid. * Ibid. *137. s Chitty's Pleading, *136 ei seq. ; Comyn's Digest, title Detinue ; Ste- phen's Pleading, title Detinue; 2 Brightly's Troubat & Haly's Practice, 36 et seq. * For a full and general treatment, see Selwyn's Nisi Prius, title, Trover ; 1 Chitty's Pleading, title. Trover; 2 Brightly's Troubat & Haly's Practice, title, Trover. SBC.IV.J THE ACTION OF TROVER AND CONVERSION. 375 I. Its Nature. 702. The action of trover and conversion is an action of tres- pass on the case, and springs from the statute 13 Edward I, chap- ter 24,' in force in Pennsylvania. This action lies to recover dam- ages against any one who has without right converted to his own use personal chattels in which the plaintiff has either a general or special property. For a wrongful taking of goods trover will generally lie wherever trespass will,^ though trespass cannot always be maintained where trover can." Thus if a man have our goods by delivery to keep for us, and he afterwards refuse to deliver them upon our demand, we may have an action of trover against him, but not trespass, as here there was no wrongful taking;* but when the taking is wrongful we may have either action, and in such a case judgment in one action is a bar to the other .^ So where the taking is lawful or excusable, trespass will not generally lie, but trover may be maintained.^ 703, The word trover is taken from the French word trouver, to find, and the action was originally based upon a supposed find- ing and appropriation by the defendant ; but it now reaches all cases where one man has obtained personal chattels of another, by any means, and has either used or sold them without the assent of the owner, or has refused to restore them on demand.^ It was remarked in the case of Mather v. Trinity Church," that the ac- tion would not lie for damage to real property, even where there was a severance of a part from the freehold, unless there was like- wise an asportation;' but in the later case of Sanderson v. Haver- stick,"" it was held that the cutting of timber alone was a con- version. 1 Eobert's Digest, *157 ; see Chapter vii, section i, page 192 ; Chapter vii, Bection v, pages 178 and 179. ' G-lenn v. Garrison, 17 New Jersey (2 Harrison), 1 ; Prescott ». Wright, 6 jVIas«acbusetts, 20; Pierce i). Benjamin, 14 Pickering, 356. 3 VVilbraham v. Snow, 2 "Williams's Saunders, 47 u, 47 p; Foulds v. "Wil- loughby, 1 Cowling (New Series), 86 ; Ireland v. Horseman, 65 Missouri, 51.. ^ Put t>. Eawsterne, Sir T. Eaymond, 472; 2 Williams's Saunders, 47, p. 6 Ibid. * 1 Chitty's Pleadings, *181. ' Stultz V. Dickey, 5 Binney, 291 ; Shipwicki;. Blanchard, G Term Reports,. 289; Bacon's Abridgment, title Trover (A.); Boyco v. Brockway, 31 New York, 490. * 3 Sergeant &Kawle, 515. 1 Chitty's Pleadings, *165. '" 8 Barr, 294. 376 DETENTION OF EMBLEMENT. [cHAP. XV. 704. In Pennsylvania this action is transitory,' and is barred by a replevin in which a claim-property bond has been given. ^ 705. Although the title to real estate cannot be tried in an action of trover/ yet it may be incidentally brought in question and admitted in evidence.* 706. A tenant cannot maintain the action for fixtures which have become inseparable from the freehold,^ but if wrongfully severed and removed by the tenant the action will lie in favor of the landlord.* 707. Another criterion in regard to the action appears to be the right to the possession ; thus it was held that a lessor could not maintain trover against a lessee of a piece of land taken for a salt manufactory, for oil which ascended from the salt-well, and which was sold by the lessee.'' Nor can a lessor maintain the action against a sheriff, pending the term, where he let a house and fur- niture for a term, and the furniture was wrongfully taken in exe- cution by him.* While property is leased to a third person, the general owner cannot sustain trover ; for the right to the posses- sion is in the lessee.' To sustain trover the claimant must show a, prima faoie right to possession and of property,'" and there must previously have been either a tortious taking or a tortious with- holding of the goods." 708. Although the general rule is that trover will not lie be- tween the joint owners of a chattel,'^ yet in Bartley v. Williams,'^ 1 Mather v. Trinity Church, 3 Sergeant & Rawle, 515; Wright v. Guier, 9 "Watts, 172. 2 Kockey v. Burkhalter, 18 P. F. Smith, 221. ' Mather v. Trinity Church, 3 Sergeant & Rawle, 515; Powell v. Smith, 2 Watts, 126 ; Baker v. Howell, 6 Sergeant & Eawle, 481 ; Brown v. Caldwell, 10 Ibid, 114. < Clement v. Wright, 4 Wright, 250, 254 ; Elliott v. Powell, 10 Watts, 453, 455. * White 1). Arndt, 1 Wharton, 90, 94; Overtone. Williston, 7 Casey, 155. ' Morgan v. Negloy, 3 Pittsburg, 33. ^ Kio V. Peterson, 5 Wright, 357. 8 Gordon v. Harper, 7 Term Reports, 9; 1 Chitty's Pleadings, *171. 8 Forth V. Pursley, 82 Illinois, 152. 1° Purdy V. MeCuUough, 3 Barr, 466 ; Castor v. McShaffery, 12 Wright, 437. " Bunting v. Dessau, 9 Philadelphia, 31. " Shamburg t). Moorehead, 4 Brewster, 92; Trout v. Kennedy, 11 Wright, .387, 390; Walworth v Abel, 2 P. P. Smith, 370. '3 16 P. F. Smith, 329, 331. SEC. IV.] THE ACTION Off TROVER AND CONVERSION. 377 where two partners agreed to dissolve the partnership and divide the goods on hand, and one of the partners refused the delivery, it was decided that the other partner might bring trover for the same. It is also settled that where one tenant in common destroys or misuses the property and refuses to apply it to the purposes for which it was designed, trover will lie against him by his co-tenant.' So also by one owner in common against a stranger, wrongfully in possession, without the joinder of the other owner.' 709. Though trover is a proper remedy for the wrongful appro- priation of the property of another, and will therefore lie when chattels are stolen, yet it has often been held that in these cases the action is suspended until the crimiaal prosecution for the theft has been sustained.' The Statute of Limitations is also suspended until the termination of the public prosecution for the offence.^ 710. In the case of Aureatz v. Porter,^ where a purchaser of land under an agreement had won a suit in ejectment, and had paid the purchase-money into court iu gold, which was deposited by the prothonotary with a banker previous to the passage of the legal tender act, and afterwards the defendant upon being offered payment, refused legal tender notes, and brought an action of trover for the gold, it was held that it would not lie. 711. In the case of Caldcleugh v. HoUingsworth,^ the Supreme Court decided that trover cannot be maintained in favor of the owner of chattels privileged from distress when some two years had elapsed from the date of the leaving of same, and the require- ments of the act of 21st March, 1772,' had been complied with. In that case Chief Justice Gibson fortified the opinion of the Court by quoting the case of Walter v. Rumball,* where one Walter was the owner of cattle agisting on the premises demised, and Rum- ball as bailiff distrained on the same, gave notice to Walter, and sold the cattle, no notice being served on the tenant, and other defaults were alleged to have been committed. Rumball brought trover for the cattle, alleging the fact that notice of the distress 1 Given v- Kelly, 4 Norris, 309 ; Agnew v. Johnson, 5 Harris, S73 j 1 Chit- ty's Pleading, *n5. ' Shrewsbury v. Moorehead, 4 Brewster, 92. ' Hutchinson v. Merchants' and Mechanics' Bank of "Wheeling, 5 Wright, 42, and cases there cited. * Ibid. « 6 P. F. Smith, 115. ^ 8 Watts' & Sergeant, 302. ' 1 Smith's Laws, 370. * 4 Modern Keports, 390. 378 DETENTION OF EMBLEMENT. [CHAP. XV. not having been served in compliance with the English statute, on the tenant, the distress was void ; but the Court held that notice to the owner was sufficient. In Caldcleugh v. Hollingsworth, supra, the notice was served on the tenant, but not on the owner of the chattel, the Court held that the tenant should have trans- mitted it to the owner, whose agent, for that purpose, he was, and the requirements of the act of 1772 having been complied with, trover would not lie, but replevin should have been resorted to.' 712. Trover will lie for goods distrained and sold collusively to the constable distraining,^ and for a chattel left with a me- chanic to be repaired and by him pawned.^ 713. If a tenant's chattels be taken on a distress illegally made or conducted, and he be compelled to pay money to redeem them, he may maintain trover against the wrong-doer.* He can also sustain the action where a valid distress for rent is made, on account of the commission of a subsequent irregularity.' 714. In Pennsylvania the action is an equitable one, and if the defendant prove a lien on the chattels it is good.' 715. The action abates on the death of the defendant.' 11. British Statute. 716. The only British statute in force in Pennsylvania which ' Although this decision was commented on in Briggs v. Large (6 Casey, 291), it has never been overruled, and yet it seems to have been erroneous. The chattel was one left with a mechanic to be repaired, and was therefore privileged from distress. It was a, trespass to distrain on it, and as trover generally lies wherever trespass does, it would seem to have been a proper remedy. In the case of Sassman v. Brisbane & Griifith (7 Philadelphia, 159), Judge Stroud, in delivering the opinion of the District Court, aUo commented on Caldcleugh v. Hollingsworth, but went still farther, in deciding that in cases of an unlawful distress replevin was the only remedy where the pro- visions of the act of 21st March, 1772, had been complied with. But see note, page 77, et seq., where the authors maintain that replevin is not the tenant's only remedy. 2 Lutz V. Neely, 1 Weekly Notes, 285. ^ Gallaher v. Cohen, 1 Browne, 43. • Shipwick V. Blanohard, 6 Term Reports, 829. " Brisben v. Wilson, 10 P. F. Smith, 452; Kimball v. Adams, 8 New Hampshire, 182, ' Stoughton V. Rappalo, 8 Sergeant & Rawle, 563. ' Hench v. Metzer, 6 Sergeant & Rawle, 272, SEC. IV.J THE ACTION OF TROVEE AND CONVERSION. 379 relates to this action is the statute of 13 Edward I, chapter 24, the text of which has already been given.' III. Acts of Assembly. 717. The acts of Assembly relating to it are the following : The act of 27th March, 1713,^ which, in section 1, provides that the action must be brought within six years next after the cause thereof. ri8. The act of 22d March, 1814,= which gives justices of the peace and aldermen of the city of Philadelphia jurisdiction of actions of trover and conversion, etc., in all cases where the value of the property claimed, or the damages alleged to have been sus- tained, shall not exceed one hundred dollars, and also provides for the duty of the aldermen or of referees provided for in the act. 719. The act of 26th March, 1814,* which provides how vacan- cies in the referees may be provided for. 720. The act of 13th February, 1816,' which enacts that the referees may assess the costs and divide as to the proportional parts to be paid by plaintiff or defendant. 721. The act of 29th March, 1824," which enacts that where timber is cut on the lands of another, the offender, if he convert the same to his own use, shall be liable for treble the value thereof in an action of trover. 722. The act of 8th April, 1833,^ which enacts that in cases before a justice of the peace for the penalty for cutting timber under the provisions of the act of 29th March, 1824, when the defendant shall make oath that the title to the laud will come in question, and shall enter into sufficient recognizance, the case may be transferred to the Court of Common Pleas. 723. The act of 1st April, 1840,* which extends the provisions of the 3d section of the act of 29th March, 1824, and the act of 8th April, 1833, to the purchasers or receivers of timber trees (or of the lumber made out of them), cut on the lands of another, the said purchasers or receivers knowing the said timber thus to have been so cut. This act is partially repealed by the act of 31st March, I860.' ' See ante, page 178, et seq. 2 Ibid. ' Ante, page 345. * Ibid. 347. « Ibid. 6 Ibid. ' Ibid. 348. 8 Ibid. 349; Ibid. 351. ' See ante, page 350. 380 DETENTION OF EMBLEMENT. [OHAP. XV. 724. The act of 26th April, 1855/ which enacts that no action brought before a justice of the peace or alderman shall be referred to referees for trial unless by the consent of both parties. 725. The act of 8th May, 1876,' which enacts that any person mining coal or minerals on the lands of another, knowing the same to be such, shall be guilty of a misdemeanor, and shall be liable to such owner in trespass or trover for double the value of the coal and iron so mined, and, if converted to the use of the offender, to treble the value thereof 723. The act of 7th July, 1879,^ enacts that aldermen, magis- trates, and justices of the peace in this Commonwealth, except magistrates in cities of the first class, shall have concurrent juris- diction with the courts of Common Pleas of all actions of trover and conversion, wherein the sum demanded does not exceed three hundred dollars. IV. When the Action of Trover and Conversion will Lie. 727. The action of trover and conversion will lie in Pennsyl- vania as follows : (1.) In favor of a former tenant for the recovery of emble- ments detained.* (2.) In favor of a cropper entitled to a share of the grain against the owner of the land, who cuts the grain and refuses to deliver it up.' (3.) For chattels distrained by a landlord who has no rever- sionary interest in the demised premises.* (4.) For chattels distrained off the demised premises or on the highways, and not clandestinely removed.' (5.) For chattels distrained on Sunday or at night time.' (6.) For chattels distrained by breaking through an outer gate, or door, or window.' (7.) For chattels distrained when no rent is in arrear.^" 1 Ibid. 352, 2 Ibid. 352. ' See ante, page 852. * Biggs V. Brown, 2 Sergeant & Eawle, 14. 6 Stafford v. Ames, 9 Barr, 343 ; Forsythe v. Price, 8 Watts, 282. ' Prescott V. De Forest, 16 Johnson, 159. ' Smith V. Shepherd, Croke's Elizabeth, 710. 8 Coke's Institutes, 140 a. » Mayfield v. White, 1 Browne, 241. >" See Smith v. Meaner, 16 Sergeant & Bawle, 375 ; Quin v. Wallace, 6 SEC. IV.J THE ACTION, OF TROVER AND CONVERSION. 381 (8.) For chattels distrained for more rent than is due.* (9.) For chattels distrained and sold after tender of the rent.^ (10.) For chattels distrained and retained an unreasonable time on the demised premises.' (11.) For chattels distrained and retained after tender of the rent in arrear, and the costs of the distress.* (12.) For chattels removed by a distrainer that had originally been included in the distress.^ (13.) For chattels of a perishable nature distrained and sold." (14.) For chattels distrained while in the actual use of the tenant.^ (15.) For animals, /ercE naturae, distrained and removed.' (16.) For chattels distrained on and sold without notice of the distress given to either tenant or the ownei;.' (17.) For chattels distrained on and sold without being ap- praised.'" (18.) For chattels distrained on and sold without being ad- vertised.'^ (19.) For chattels of a lodger taken on an excessive distress.'^ (20.) For goods privileged from distress, but distrained and sold.'^ (21.) For fixtures of a tenant distrained and severed." Wharton, 452; Eees v. Emeriok, 6 Sergeant & Eawle, 286. (It seems doubt- ful whether trover will lie. The act of 1772 gives the remedies of trespass and case against the distrainer.) ■• Bransoomb v. Bridges, 1 Barnewall & Cresswoll, 145. 2 Eees V. Emeriok, 6 Sergeant & Eawle, 285 ; Quinn o. "Wallace, 6 Whar- ton, 452; West v. Nibbs, 4 Common Bench, 172. ' Griffin v. Scott, Lord Eaymond, 1424 ; Brisben v. Wilson, 10 P. F. Smith, 452. * Ibid. 6 Bishop V. Bryant, 6 Carrington & Payne, 484. " Connah v. Hale, 23 Wendell, 462 ; Taylor's Landlord and Tenant, § 739. ' Taylor's Landlord and Tenant, ? 739. ' Araory v. Flynn, 10 Johnson, 102. 9 McKinney v. Eeader, 6 Watts, 32. '" Briggs V. Large, 6 Casey, 291 ; Brisben v. Wilson, 10 P. F. Smith, 452. " Ibid. '2 Fisher v. Algar, 2 Carrington & Payne, 374. " Coke upon Littleton, 47, a. See reasoning in Joule v. Jackson, 7 Meeson &Welsby,455; and in Muspratt d. Gregory, 1 Ibid. 633. " Clarke 4. Holford, 2 Carrington & Kirwan, 540; Dalton v. Whittem, 3 Queen's Bench, 961. 382 DETENTION OP EMBLEMENT. [CHAP. XV. (22.) For fixtures of a tenant which a reversioner refused to permit him to remove.' (23.) In favor of a lessor against a tenant or his vendee, for fixtures wrongfully severed by a tenant." (24.) In favor of the owner of cattle who leases them with a farm, under an agreement that at the end of the term the lessee may either return the cattle or pay a stipulated price for them, and the lessee sells them before the expiration of the term. The action may be maintained against both seller and purchaser.' (25.) For trees blown down on the demised premises, and re- moved or converted by another.* (26.) For any specific chattel.' (27.) For coal mined on the land of another by mistake.' (28.) In favor of a landlord or owner of land for timber cut by a trespasser and removed.' (29.) For timber cut, but not removed.' (30.) For a certificate of stock, but not for shares of stock. ' (31.) For a chattel left with a mechanic and by him pawned.'" (32.) For a lost deed." (33.) For a note of hand." This action will lie in many other instances which do not come "vithin the scope of this work. ' Wansborough ». Maton, 4 Adolphus & Ellis, 884. 2 Morgan v. Negloy, 3 Pittsburg, 33, and cases there cited. ' Grant v. King, 14 Vermont, 367 ; Billings v. Tucker, 6 Gray, 368 ; Mor- gan V. Negley, 3 Pittsburg, 33, 38. * Shult V. Barker, 12 Sergeant & Eawle, 272. ■> Willet V. Willet, 3 Watts, 277. ' Forsyth v. Wells, 5 Wright, 291, and cases there cited. ' Young V. Herdic, 5 P. I". Smith, 172, and cases there cited; Wright v. Guier, 9 Watts, 172; Morgan v. Negloy, 3 Pittsburg, 33, 37, and authorities there cited. 8 Sanderson v. Haverstick, 8 Barr, 294. " Sewell V. Lancaster Bank, 17 Sergeant & Bawie, 285. 1" Gallaher v. Cohen, 1 Brown, 43. " Weiser v. Zeisinger, 2 Yeates, 637. •' Sylvester v. Girard, 4 Kawle, 186. SKO. IV.J THE ACTION OF TROVER AND CONVERSION. 383 V- When the Action of Trover and Conversion will not lie. 728. The action of trover and conversion will not lie as follows : (1.) For property to which the right has been determined by an action of trespass.' (2.) In favor of a lessor of a furnished house to recover the furniture tal^en in execution during the term.^ (3.) For chattels taken, which upon the facts proved appear to have been taken feloniously.* (4.) For chattels seized by virtue of legal process, and in the custody of the law.* (5.) For shares of bank stock." (6.) In favor of a discharged insolvent -who has assigned his property under the laws of another State." (7.) In favor of a joint owner of a chattel against his fellow owner/ (unless the latter has misused the chattel).' (8.) For fixtures annexed to the realty.' (9.) In favor of an assignee in his own name when the conver- sion occurred before the date of the assignment." (10.) In favor of one who had not a special or general property in the chattel at the time of its conversion, and also the right of possession.' (11.) For oil which has risen naturally on lands leased for the manufacture of salt." 1 Putti!. Eoster, 2 Modern, 320; Lechmore v. Toplady, 1 Showers, 146. * Wilbraham v. Snow, 2 Saunders, 47 j Gordon v. Harper, 7 Term Reports, 9. '' Anoymous, Lofft, 601. * Jenner v. Joliffe, 9 Johnson (N. T.), 381 ; Pettigru v. Sanders, 2 Bailey (S. C.),549. 5 Sewall V. Lancaster Bank, 17 Sergeant & Eawle, 285. ' Teetor v. Eobinson, 7 Sergeant & Eawle, 182. ' Walworth v. Abel, 2 P. P. Smith, 370. ' Given v. Kelly, 4 Nori^is, 309 ; Agnew v. Johnson, 5 Harris, 378 ; 1 Chit- ty's Pleadings, *175. s White V Arndt, 1 Wharton, 90, 94 j Overton v. Williston, 7 Casey, 155. w Ibid. >^ Morgrave v. Negley, 3 Pittsburg, 33; Castors. Shaffery, 12 "Wright, 437. Lehr v. Taylor, 9 Weekly Notes, 401. " Kier v. Peterson, 6 Wright, 357. 384 DETENTION OF BMBLKMENT. [OHAP. XV. VI. Prerequisites in the Action of Trover and Conversion. 729. To support the action a demand for, and refusal of, the chattels must be proved when the original possession of the de- fendant has been lawful, but not when that possession was ob- tained by fraud or force.' When the demand is made the plaintifif must be on the ground at the time prepared to remove the chattel.'^ A demand and refusal need not be shown in trover against an agent, who refuses to permit the owner of the chattel to exercise any control over it.' The plaintiff having demanded the chattel, and the defendant refused to deliver the same, the former is not subsequently bound to accept it in a deteriorated condition ; the subsequent tender does not deprive the plaintiff of his right of action.* VII. Of the Declaration. 730. The declaration in trover and conversion should set out: (1.) That the plaintiff was lawfully possessed of the chattels in question as of his proper goods and chattels.^ (2.) That being so possessed he casually lost them.^ (3.) That the defendant found them.^ (4.) That the defendant afterwards converted them.' 731. As the conversion is the gist of the action, it should be averred in the declaration.^ The wrongful exercise of dominion over property is in itself a conversion ;'" and the refusal to deliver the chattels is a conversion." ' Teager v. "Wallace, 7 P. P. Smith, 365. 2 Miller v. Smith, 1 Philadelphia, 173. ' Shamburg v. Moorehead, 4 Brewster, 92. * Whitaker v Houghton, 5 Norria, 48; S. C, 5 "Weekly Notes, 94. As to demand and refusal, see 1 Chitty'a Pleading, *176 to *181. ' Harrison v. Bottomley, 2 Lord Raymond, 1529. 8 2 Solwyn's Nisi Prius, *1379. ' Isaack v- Clark, 2 Bulstrode, 306. 8 Tesmond v. Johnson, Cro. Jao., 428 ; Brown v. Hedges, 1 Salkeld, 290. » Isaack v. Clark, 2 Bulstrode, 306; Hall v. Amos, 5 T. B. Monroe (Ken.), 39. i" Sanderson v. Haverstick, S Barr, 294. 1' Jacoby v. Laussatt, 6 Sergeant & Kawle, 300; Wagenblast v. McKean, 2 Grant, 293 ; Prentiss v. Hannay, 4 Wharton, 508. SEC. IV.] THE ACTION OP TROVER AND CONVERSION. 885 VIII. Of the Pleas. 732. In trover and conversion the usual plea is the general issue, not guilty of the premises. Under this plea the plaintifiF is required to make out his case fully, and the defendant can defeat the plaintiff's recovery by showing title in himself or a third per- son.^ But the defendant cannot set up an alleged lien in favor of a third party under whom the possession is claimed.^ IX. Of the Judgment and Damages. 733. The judgment is for damages and costs, and the latter may be recovered if the plaintiff", in his declaration lay his dam- ages at more than one hundred dollars, though he recover less.^ The measure of damages in trover and conversion is the market price at the time of conversion with interest;* but the jury may go beyond this where there is an aggravation of the injury, such as an outrage in the taking, or vexation and oppression in the detention.' Under such a circumstance the jury may award damages in addition, as a compensation to the injured party and a punishment to the wrongdoer.® Where damage has been in- flicted on land by the trover and conversion, this also must be included.' After the jury has heard the testimony and the ar- gument of counsel, and the court is ready to proceed with the charge, it is too late for the defendant to make a tender of the chattel in mitigation of damages.' [ For forms of procedure in the action of trover and conversion, see Appendix.] ' Sylvester v. Girard, 4 Eawle, 185 ; S. C, 3 Clark, 440 ; King v. Eichards, 6 Wharton, 418. ' Bean v. Bolton, 2 Philadelphia, 87. See also Humphreys v. Reed, 6 "Wharton, 435; Passmore v. Insurance Company, 8 Sergeant & Eawle, 66; Payne v. Davis, 2 Philadelphia, 364. For pleas in trover, see 1 Chitty'a Pleading, * 630 to * 533; 2 Brightly's Troubat & Haly's Practice, 54. ' Clark V. McKisson, 6 Sergeant & Eawle, 87. * Hill V. Canfield, 6 P. P. Smith, 454; Backenstoss v. Stahler, 9 Casey, 251. ' Ibid. ; Harger v. McMains, 4 Watts, 418 ; Dennis v. Barber, 6 Sergeant & Eawle, 420. ^ Taylor v. Morgan, 3 Watts, 333, and authorities there cited; McDonald V. Scarfe, 1 Jones, 381, 386. ' Lyken's Valley Coal Company v. Dock, 12 P. F. Smith, 232. 8 Tracy v. Good, 1 Clark, 472 ; see 2 Brightly's Troubat & Haly's Prac- tice, 55 et aeq. 25 S86 DETENTION OF EMBLEMENT [CHAP. XV. SECTION V. THE ACTION OF REPLEVIN. 734. The fifth remedy to which a tenant in Pennsylvania may resort for the detention or obstruction of an emblement is the ac- tion of replevin. I. Its Origin and Definition. 7-35. This action is one of the earliest known to the laws of England, and its origin is unknown.' It is referred to, and the writ is given by Glanville in his work entitled Tractatus de Legi- bus et Consuetudinibus Regni Anglice,^ written during the reign of Henry II. In the statute of Marlbridge, 52 Henry III, A.D. 1267, we find the first record of replevin as a part of the written law. Replevin is defined by Spelman, who lived during the time of King James I, to be "a justicial writ to the sheriff, complain- ing of an unjust taking and detention of goods or chattels; com- manding the sheriff to deliver back the same to the owner upon security given to make out the injustice of such taking, or else to return the goods and chattels."^ This definition still applies to the action in England, and in many of the United States, where in order to support replevin, whether in cases of distress for rent or otherwise, there must be an unlawful taking, as well as an unjust detention.* In some of the States replevin can be maintained for a wrongful detention, though the taking was not tortious or ille- gal.' Our Supreme Court as early as 1785 decided that in Penn- ' For historical sketch, see Wells on Replevin, 1 to 20 ; Morris on Replevin, 53 to 75 (3d ed.). " Beame's Glanville, 294. ' Spelman's Glossary, 485; Gilbert on Replevin, *85. * Mellor i\ Leather & Clough, 18 English Law and Equity, 230 ; Ex parte Chamberlin, 1 Schoales & Lefroy, 320; Pangburn v. Patridge, 7 Johnson (N.Y.), 140; "Bjrd v. O'Hanlin, 1 Constitutional Reports (S.C.), 401; Rector 1). Chevalier, 1 Missouri, 345; Daggett v. Robbins, 2 Blackford (Ind.), 415; Wright V. Armstrong, Breese (111.), 130; Bruen v. Ogden, 6 Halsted (N. J.), 370; Drummond v. Hopper, 4 Harrington (Del.), 327. ' Simpson v. McFarland, 18 Pickering (Mass.), 427; Badger v. Phinney, 15 Massachusetts, 359; Burrage «. Nelson, 48 Mississippi, 237 ; Logan d. Stout- enburgh, 7 Ohio, 133; Seaver «. Dingley, 4 Greenleaf (Maine), 306; Smith V. Lyon, 44 Connecticut, 175; CuUum v. Beavans, 6 Harrington & Johnson (Md.), 469; Soxton v. McDowd, 38 Michigan, 148. SEC. v.] THE ACTION OP REPLEVIN. 387 sylvania replevin will lie for the unjust detention in all cases where one man claims personal property in the possession of another, without any regard to the manner in which the possession of the latter was acquired,' and this whether the claimant has ever had possession thereof or not,^ and whether his property in the goods be absolute or qualified, provided that he have the right to the possession.' In such cases the claimant may follow the goods through successive transfers and replevy' the same wheresoever he may find thera,' and this he may do even if the form of the chattels be changed, as, for example, for timber cut into cord- wood, rails or posts, or worked into shingles f for hides tanned into leather f for leather made into shoes f for grain mixed with other grain f for a certain number of feet of timber logs floated ' Weaver v. Lawrence, 1 Dallas, 157 ; Keite v. Boyd, 16 Sergeant & Eawle, 301; Snyder ». Vaux, 2 Rawle, 42 ; Shearick o. Huber, 6Binney, 3 ; Mulholm •17. Cheney, Addison, 301; Lecky v. McDermott, 8 Sergeant & Eawle, 500; Eapp V. Palmer, 3 V^atts, 178; Harris v. Smith, 3 Sergeant & Eawle, 20; Stoughton V. Eappalo, Ibid. 562; Pearce v. Humphrey, 14 Ibid. 25; English a. Dalbrow, 1 Miles, 160; Bower v. Tallman, 5 Watts & Sergeant, 561 ; Eob- erts V. The Dauphin Deposite Bank, 7 Harris, 71 ; Young v. Kimball, 11 Ibid. 193; Craig v. Kline, 15 P. F. Smith, 399; Boyle v. Eankin, 10 Harris, 168, 170; Herdic v. Young, 5 P. F. Smith, 176. See also. Minutes of Provincial Council, vol. 1, page 441, September 24th, 1698. ' Woods V. Nixon, Addison, 134 ; Harlan v. Harlan, 3 Harris, 507, 513, and cases there cited; Wilkinson, Garter & Co. v. Stewart, 4 Norris, 255, 259; S. C, 5 Weekly Notes, 70. » Harris v. Smith, 3 Sergeant & Eawle, 20; Mead v Kilday, 2 Watts, 110; Seibert v. McHenry, 6 Ibid. 303 ; Lester v. McDowell, 6 Harris, 91 ; Lee v. Gould, 11 Wright, 398; L. S. and M. S. Eailway Company v. Ellsey, 4 Nor- ris, 283; S. C, 4 Weekly Notes, 548. * Prom replegiare, which according to Sir Edward Coke, is compounded of re and plegiare, as much as to say, as to redeliver, upon pledges or sureties. Coke upon Littleton, 145, b. ' Woods V. Nixon, Addison, 131 ; Hosaeh v. Weaver, 1 Yeates, 478; Hardy V. Metzgar, 2 Ibid. 347; Easton v. Worthington, 5 Sergeant & Eawle, 130; Harrisu. Smith, 3 Sergeant & Eawle, 20; Lecky «. Smith, 8 Ibid. 500; Snyder w. Vaux, 2 Eawle, 423; Mead v. Kilday, 2 Watts, 110; Young v. Kimball, II Harris, 193 ; Lester v. McDowell, 6 Ibid. 91 ; Lee v. Gould, 11 Wright, 318 ; Gillespie v. Goddard, 1 Pittsburg, 306; Comait ». Stanley, 3 Clark, 889; Macky v. Dillinger, 23 P. F. Smith, 85; Quin v. Davis, 28 P. P. Smith, 15. « Snyder v. Vaux, 2 Eawle, 423, 427. ' Lee V. Gould, 11 Wright, 398. 8 Snyder •». Vaux, 2 Eawle, 423, 427. ' Henderson v. Lauok, 9 Harris, 359. 388 DETENTION OE EMBLEMENT. [CHAP. XV. into a boom and mixed with other logs ;' for a certain number of gallons or barrels of oil commingled with other oil in a tank or pipe line ;' or for iron made into bars.' II. Exceptions to General Rule, and when Replevin will not lie. 736. There are, however, many exceptions to the foregoing gen- eral rule in Pennsylvania that replevin lies wherever one man claims goods in the possession of another. Thus, the action of replevin will not lie as follows : (1.) For goods or chattels levied, seized, or taken in execution, or by distress, or otherwise, by any sheriff, naval officer, lieutenant or sub-lieutenant, constable or collector of public taxes, or other officer, acting in their several offices under the authority of the State, for fines and penalties legally incurred and due to this Commonwealth.* (2.) For goods seized for non payment of taxes.' (3.) For goods and chattels taken in execution while in the hands of a sheriff, constable or marshal, yet so soon as sold re- plevin may lie for them when in the possession of the purchaser, since they then cease to be in eustodia legis.^ (4.) For any stray cattle, horse, or sheep, taken up and sold in accordance with law.'^ (5.) For horses seized and sold for horse-racing in Philadelphia, in accordance with the act of 22d March, 1817.* (6.) For any gambling instruments seized by virtue of sections 60 and 61 of the act of 31st March, I860.' ' Young V. Herdic, 5 P. ¥. Smith, 172 ; Brewer v. Fleming, 1 Ibid. 102, and eases there cited. 2 Wilkinson, Carter & Co. v. Stewart, 4 Norris, 255 ; S. C, 5 Weekly Notes, 70; Hutchinson v. Commonwealth, 1 Norris, 472. ' See Snyder v. Vaux, 2 Eawle, 423, 427, and cases there cited. * Act of 3d April, 1779, 1 Smith's Laws, 470 ; infra, page 404 ; Shearick v. Huber, 6 Binney, 2; S. C, 2 Browne, 160; Pott u Oldwine, 7 Watts, 173. 5 Stiles V. Griffith, 3 Yeates, 82 ; Marriott v. Shaw, Comyn's Reports, 275. « Shearick v. Huber, 6 Binney, 2; Winegardner v. Hafer, 3 Harris, 144; Shaw V. Levy, 17 Sergeant & Eawle, 99; Ward and others v. Taylor, 1 Barr, 238 ; Flint v. Marsh , 2 Weekly Notes, 67 ; Freeman v. Howe, 24 Howard, 450. ' Act of 13th April, 1807, 4 Smith's Laws, 473 ; infra, page 405, ^ 753 ; see Patterson v. McVay, 7 Watts, 482. « Act of 22d March, 1817, 6 Smith's Laws, 432; infra, page 406, f 755. » Pamphlet Laws, 882. 6EC. v.] THB ACTION OP REPLEVIN. 389 (7.) For chattels sold on execution or distress for rent, after a claim of exemption under the act of 1849 has been made, and re- fused by the officer or distrainer selling.' (8.) For chattels in the possession of an assignee in bank- ruptcy.^ (9.) For chattels sold by a vendee who obtained them fraudu- lently, and afterwards sold and transferred them to a bond fide purchaser ignorant of the fraud.' (10.) For timber cut off land sold for non-payment of taxes during the date of the treasurer's deed, and the time of the re- demption of the land by the former owner." (11.) For chattels consigned to a commission merchant or agent and sold by him ; the consignor cannot replevin.'' (12.) For chattels in actual use or articles of personal ornament worn by, or carried on the person of the defendant.* (13.) For land, although in an action of replevin the title to land may be incidentally inquired into and admitted in evidence where the title to chattels depends on the ownership of the land.'' (14.) For anything if six years have elapsed since the begin- ning of the unjust detention.® (15.) For indentures of lease or title-deeds relating to the realty, as between the parties.' (16.) For fixtures or things while attached to the realty.'" ' Bonsall v. Comly, 8 Wright, 442 ; Barrow v. Holloway, 7 Philadelphia, 125. 2 Barnes's Appeal, 26 P. P. Smith, 51. ' Mackinley v. McGregor, 3 Wharton, 396 ; Knowles v. Lord, 4 Wharton, 500; Smith v. Smith, 9 Harris, 369, 37,3, and cases there cited j Thompson ®. Lee, 3 Watts & Sergeant, 479 ; McMahon v. Sloan, 2 Jones, 229, 233, and cases there cited ; Hildeburn & Bro. v. Nathans, 1 Philadelphia, 567 ; see infra, page 393, T[ 737. * Cromeli«n w. Brink, 5 Casey, 522, 526. 5 Shaw V. Levy, 17 Sergeant & Rawle, 101. 6 Maxham ». Day, 16 Gray (Mass.), 213; Wells on Eeplevin, 42. ' Brown v. Caldwell, 10 Sergeant & Eawle, 117, and cases there cited; Powell V. Smith, 2 Watts, 127 ; Snyder v. Vaux, 2 Rawle, 423; Harlan v. Har- lan, 3 Harris, 507 ; Green v. Ashland Iron Company, 12 P. F. Smith, 97, 102, and cases there cited ; Clement v. Wright, 4 Wright, 250. « Act of 27th March, 1713, 1 Smith's Laws, 76; infra, page 402, \ 749. s Clark V. Nevill, 1 Philadelphia, 28 ;' Roberts v. Dauphin Deposite Bank, 7 Harris, 71. '" Roberts t). Dauphin Deposite Bank, 7 Harris, 71; Harlan «. Harlan, 3 Harris, 507 ; Snyder v. Vaux, 2 Rawle, 423. 390 DETENTION OF EMBLEMENT. [CHAP. XV. (17.) For chattels, such as timber, minerals, etc., taken from land by a person in possession under a claim of title to the land.' (18.) For chattels replevied in another State and delivered to the plaintiif.^ (19.) For animals /erce naturce if they are unreclaimed.^ (20.) In favor of one joint owner of a chattel without the join- der of the other joint owner.* (21.) In favor of several person.s, having separate and distinct interests in the chattels.^ (22.) In favor of a mere servant who, as such, has only the charge or custody of goods.° (23.) In favor of a plaintiff for the goods of a stranger taken from the custody of the plaintiff.' (24.) In favor of a landlord who has demised a farm at a rental in grain to be delivered in the bushel, for the grain in the sheaf.* The Court held that the landlord had no interest whatever in the grain until it was actually delivered. (25.) In favor of a landlord for a certain number of bushels of corn when the crop is standing ungathered in the field.' (26.) In favor of a landlord where a share of the crop is re- served as rent, until his share is ascertained and set apart from the tenant's." Thus where a landlord leased premises in considera- 1 Snyder v. Vaux, 2 Kawle, 423 ; Powell v. Smith, 2 "Watts, 126 ; Brown v. Caldwell, 10 Sergeant & Eawle, 114; Cromelien v. Brink, 5 Casey, 522. 2 Lowry v. Hall, 2 Watts & Sergeant, 129. ' 2 Eolls's Abridgment, 430 ; see Pierson v. Post, 3 Gaines (N. Y ), 175, and authorities there cited; Buster v. Newkirk, 20 Johnson (N. Y.), 75. * Buller's Nisi Prius, 58 ; 2 Saunders, 116 ; Decker v. Livingston, 15 John- son, 479 ; Wilson v. Gray, 8 Watts, 36 ; Hart v. Fitzgerald, 2 Massachusetts, 509 ; Clark v. Nevill, 1 Philadelphia, 28 ; McDonough v. Bullock, 2 Pearson, 191, 193 ; Keinheimer v. Hemingway, 11 Case}', 432, 438 ; McArthen v. Lane, 15 Maine, 245 ; see infra, page 395, ][ 738. ^ Coke upon Littleton, 145, b. ; Hart a. Fitzgerald, 2 Massachusetts, 509; Gardner v. Dutch, 9 Ibid., 427; Wilkinson's Replevin, 4. ^ Harris v. Smith, 3 Sergeant & Kawle, 20. ' Templeman v. Case, 10 Modern, 25; Lowry v. Hall, 2 Watts & Sergeant, 129, 133. 9 Price V. Wright, 4 Legal Opinion, 432. 8 Jones jj. Dodge, 61 Missouri, 368. '"' Lacy V. Weaver, 49 Indiana, 373, and cases there cited ; Sargeant ». Cour- rier, 66 Illinois, 245; Alwood v. Ruckman, 21 Ibid. 200; Dixon d. Brodrick, 39 Ibid. 372 ; Daniels v. Brown, 34 New Hampshire, 454. SEC. v.] THE ACTION OF REPLEVIN. 391 tion that the tenant would pay him one-half of the wheat as rent, to be delivered in the bushel on the premises at threshing time, for the remaining portion of the half of the wheat the tenant having delivered only one-third thereof, the court decided that the wheat remained the property of the tenant until it was threshed, measured, and one-half of it set apart for the landlord and de- livered to him, and before that was done the landlord was not an owner or entitled to the possession of any specific or ascertained wheat.' (27.) In favor of a plaintiff not in possession of land, for a crop of grain cut and removed by the defendant, though the grain was sowed by the plaintiff, and he was unlawfully ousted by the defendant.^ (28.) In favor of the owner of land for crops raised thereon by others who are holding the possession of the land adversely to him.' (29.) In favor of a plaintiff to recover personal property in the possession of the defendant under an agreement giving the latter a special property therein.* (30.) In favor of a seller of a chattel who delivered it under an unconditional bill of sale on the ground that the price had not been paid.^ (31.) In favor of the purchaser of a chattel unless it is sepa- rated or can be ascertained and designated from others.* (32.) In favor of the purchaser of a chattel unless delivery has taken place and all the terms of contract of sale have been per- formed.' (33.) In favor of one claiming to have purchased a chattel, of which he neither had the possession nor the right to possession, for enforcing the completion of the contract of sale.' ' Lacy V. Weaver, 49 Indiana, 373. 2 Elliott V. Powell, 10 Watts, 454; see Leliman v. Kellerman, 15 P. F. Smith, 492; Demott v. Hageman, 8 Cowen, 220; Brown v. Caldwell, 10 Ser- geant & Eawle, 114 ; Mather v. Trinity Church, 3 Ibid. 509 ; Kerley v. Hume,, T. B. Monroe (Ken.), 182. ' Pennybecker v. McDougall, 46 California, 661. * Lytle D. Crum, 50 Iowa, 37. " McNail V. Ziegler, 68 Illinois, 224. « See Hutchinson v. Hunter, 7 Barr, 140 ; Kaufman v. Schilling, 58 Mis- souri, 218. ' Sneathen v. Grubbs, 7 Norris, 147 ; S. C. 6 Weekly Notes, 342, ' Haverstick v. Fergus, 71 Illinois, 105. 392 DETENTION OP EMBLEMENT. [CHAP. XV. (34.) Against one taking forcible possession of his own chat- tels, the right of possession at the time of seizure being in him, his trespass does not debar him from such possession, nor does it vest the other party with the right to retake the goods. ^ (35.) In favor of the surety in a replevin bond for the prop- erty replevied by the plaintiff in a suit, against one wrongfully dispossessing such plaintiff.'' (36.) In favor of the winner of a wager for the stake, against the stakeholder.' (37.) In favor of a creditor who has proved a claim against a bankrupt's estate, as for goods sold and delivered to the bank- rupt, for the goods by proof that he did not sell them to the bankrupt.* (38.) In favor of a common carrier when upon payment of the freight the goods had been delivered to the consignee, though it appear that conditions precedent to the delivery had not been complied with. The surrender of the goods after payment of freight discharged the carrier's lien.' (39.) For the recovery of money, unless specifically described, and the plaintiff shows himself entitled to the possession of the specific money as described." (40.) For an undivided interest in personal property, as such an interest is not susceptible of delivery without the whole, and since the execution of the writ will operate to deprive a co-tenant whose title is undisputed of his right of possession.' (41.) For chattels which cannot be followed, identified, and as- certained, though the form may be changed.* 1 Wells on Replevin, 36, and cases there cited. ' Jimmerson v. Greene, 7 Nebraska, 26. ' Merchants' Savings Loan & Trust Co. v. Goodrich, 75 Illinois, 534 ; see also ante, page 388, T[ 736, (6). * Ormsby v. Dearborn, 116 Massachusetts, 386. ' Lake Shore and Michigan Southern Kailway Co. v. Ellsey, i Norris, 283 ; S. C. 4 Weekly Notes, 548. ' Sagpr V. Blain, 44 New Tork, 445. ' Kindy v. Green, 32 Michigan, 310; Kimball v. Thompson, 4 Cushing (Massachusetts), 441,447; Hart v. Fitzgerald, 2 Massachusetts, 509; Kein- heimer v- Henningway, 11 Casey, 432, 438. « Snyder v. Vaux, 2 Rawle, 427 ; .see cases cited ante, page 387 et seg., note 6 ■ei seg. ; see also Brown v. Sax & Kimball, 7 Cowen (N. T.), 95, 97, and cases ihere cited. SEC, V.J THE ACTION OF REPLEVIN. 393 (42.) For property manufactured to order, before it Is com- pleted and delivered. ' (43.) For chattels not in esse, of tangible or appreciable form, and not subject to manual delivery.^ Thus replevin cannot be maintained for a colt before being foaled, though it was agreed that the expected progeny should belong to the plaintiff.' (44.) For chattels which were dead or destroyed at the time of the issuance of the writ.* Thus replevin will not lie for a corpse, since there is no property in a corpse ; nor for a coffin and its contents when those contents are a corpse.^ (45.) For property rightfully in the hands of a receiver of court. Such property is in the custody of the law." (46.) For removing papers or documents which have been filed in a proper public office. Such instruments are in the custody of the law.' (47.) In favor of an appointee to an office for the delivery of his commission, after it has been duly executed. A mandamus is the proper remedy.* 737. With regard to the general rule in Pennsylvania that re- plevin lies wherever a plaintiff claims goods in the possession of another, it was shown in the ninth exception that replevin will not lie for chattels sold by a vendee who obtained them fraudu- lently, and afterwards sold and transferred them to a bond fide purchaser ignorant of the fraud." Under such circumstances the doctrine of caveat emptor has no application. It is by reason of the course of trade that such an exception prevails, and when the ' Pettingill v. Merrill, 47 Maine, 109 ; Updike u. Henry, 14 Illinois, 878 ; Beckwith v. Philleo, 15 Wisconsin, 223. 2 Wells on Replevin, 79. ' Ibid. ; McCarty v. Blevins, 5 Yerger (Tenn.), 195. * Burr & Co., v. Dougherty, 21 Arkansas, 559, and cases there cited ; Lind- sey V. Perry, 1 Alabama, 203 j Scott v. Elliott, 63 North Carolina, 215. 5 Guthrie v. Weaver, 1 Missouri Appeal, 137 ; see also Wynkoop v. Wyn- koop, 6 Wright, 293. 8 Wiswall V- Sampson, 14 Howard, 52; Noe v. Gibson, 7 Paige (N. T.), 513,515; Parker v. Browning, 8 Ibid, 388; Robinson v Atlantic & Great Western Railway Co., 16 P. F. Smith, 160. ' Brent v. Hagner, 5 Cranch (Circuit Court), 71. 9 Marbury J). Madison, 1 Cranch (United States), 137, 173, > See ante, page 389 (9), 391 DETENTION OF EMBLEMENT. [CHAP. XV. owner of chattels suffers another to obtain possession of them under circumstances which imply a right to sell, then a sale or trade by such person binds the original owner.' In such cases replevin will not lie, nor will it lie for chattels sold under the acts of 13th April, 1807 ;2 22d March, 1817 f or under sections 60 and 61 of the act of 31st March, I860.* And, moreover, in Shaw V. Levy,' Mr. Justice Rogers, in delivering the opinion of the Supreme Court, held that, " Wherever there is a sale of property, and no actual possession delivered, it remains at the risk of the purchaser: as between him, and the vendor, the property is his; but when it passes into the hands of a bond fide purchaser, without notice, it would be against sound policy to permit a recovery. The maxim caveat emptor, does not apply. I hold the law to be the same, whether the possessor be the immediate purchaser from the original vendor or from his fraudulent vendee." But as be- tween the parties when the chattels have been obtained by fraudu- lent representations, or where the terms of a sale of chattels are cash and the buyer after obtaining possession refuses to pay, the seller may recover them by an action of replevin ; but if any past consideration have been paid, whether of money or goods, the vendor must, before bringing his action of replevin, proffer to the vendee the restoration of such consideration.' In all other cases the principle of caveat emptor obtains. Thus, where a wagoner by whom goods were sent to be delivered to A., sold them to B., it was held that the sale vested no property in the purchaser, and that replevin would lie in favor of the original owner;' and where a chattel was borrowed and afterwards sold, it has been de- cided by the Supreme Court of Ohio that the original owner could 1 Eapp V. Palmer, 3 Watts, 178; McMahon v. Sloan, 2 Jones, 229, 233, and cases there cited ; Dyer v. Eemsen, 3 Barnewall & Cresswell, 38 ; Irving v. Motley, 7 Bingham, 543; Boysonw. Cobs, 6 Maule & Selwyn, 23. 2 4 Smith's Laws, 473, infra, page 405. 3 6 Smith's Laws, 432, infra, page 406. - Pamphlet Laws, 382, infra, page 408. * 17 Sergeant & Rawle, 101. 6 PearsoU V. Chapin, 8 Wright, 12; McKinley v. McGregor, 3 Wharton, 870 ; Knowles v. Lord, 4 Wharton, 500 ; Backentoss v. Speioher, 7 Casey, 324. ' Lecky v. McDermott, 8 Sergeant & Eawle, *500; Rapp v. Palmer, 3 Watts, 178; see also, Thomas v. Hoss, 1 Yeates, 499. SEC. v.] THB ACTION OF REPLEVIN. 895 recover the same by an action of replevin wheresoever lie might fiud it.' 738. In the twentieth exception it is stated that replevin will not lie in favor of one joint owner of a chattel without the join- ing of the other, and the English^ and many American'' decisions are to the effect that a tenant in common, or joint tenant, or partner, cannot maintain replevin against his co-owner for taking the common property ; yet cases occur in which it seems probable that he can. Thus the act of 22d April, 1850,* enacts that a ten- ant or other person in possession of lands, after the service of a writ of estrepement, shall not remove any timber trees, though cut down before the issuance of the writ; and all timber trees re- moved after service of such writ may be replevied, provided the removal prove to be injurious to the owner of the land or to his creditor. Under such circumstances 'replevin may be brought, and yet the party in possession may have an interest in the timber. 739. Moreover, the act of 4th May, 1869,' enacts as follows : "SectioitI. That from and after this date it shall be unlawful for any owner or owners of any undivided interest in timber land within this Commonwealth, to cut or to remove, or to cause to be cut or re- moved, from the said land any timber trees, without first obtaining the written consent of all co-tenants in said premises." "Sec. 2. That no sale of any timber cut or received from such undi- vided lands, before or without such consent, shall pass any title thereto ; and the parties injured shall have every remedy in law and equity for the recovery of the said timber trees, and of all square timber, boards, lumber, ties, shingles, and other articles whatsoever manufactured there- from ; and also for the recovery of damages for the cutting or removing of the same, which they now have against an entire stranger to the title. ' ' " Sec. 3. Upon the violation of the provisions of the lirst section of this act, it shall be lawful for any of the parties in interest to sue out a writ of estrepement, to prevent any further cutting thereon, or the re- moval of any timber then already cut, or both ; which said writ shall be ' Roland v Gundy, 5 Ohio, 202 ; see also Connor v. Comstock, 17 Indiana, 90 ; see also, McMahon v. Sloan, 2 Jones, 229. 2 Coke upon Littleton, 145, b; Buller's Nisi Prius, 53. ' McEldnrry v. Flannagan, 1 Harris & Gill (Md), 308 ; Prentice v. Ladd, 12 Connecticut, 331; Eich v. Eyder, 106 Massachusetts, 308; VVhitesides v. Collier, 7 Dana, 283; Rogers v. Arnold, 12 Wendell, 30; Wilson v. Gray, 8 Watts, 36; see also McDonough v. Bullock, 2 Pearson, 191, 193. * Pamphlet Laws, 549, infra, page 407, T[ 758. ' Ibid. 1251. 396 DETENTION OP EMBLEMENT. [CHAP. XV. of force until the interests of the parties shall be set out in severalty, or the writs dissolved by the court, or the action of partition in reference to said land finally ended ; and the said writ of estrepement shall be ob- tained by affidavit, and allowed in the same manner and with like pro- ceedings as to its service and dissolution as are now by law allowed and authorized in cases of estrepement issued pending actions of ejectment for real estate." 740. The act of 4th May, 1869/ as has just been observed, makes it unlawful for one co-tenant in timber lands to cut or remove the timber thereon without the assent of his co-tenants, and permits a writ of estrepement to issue, and states that the par- ties injured shall have every remedy in law or equity for the recovery of said timber trees. What remedy is, then, more ap- plicable than replevin; for if the defendant plead property he must give a claim property bond, which secures the plaintiff in damages ; whereas in trover, detinue, or other action the plaintiff has no immediate security, but must await the decision of the case, by which time the defendant may be insolvent. In the case of Swift et al. v. Morrison,^ it was decided that Morrison, who was employed to cut and deliver Swift's timber, with a lien on the same for his wages, could maintain replevin against Swift and his vendee for the timber so cut and delivered. Was not iSIorrison a co-owner in the timber, so far as the lien went, with Swift? Moreover, co-owners of chattels may agree that while the right of property shall be in both, the right of possession may be in one, when replevin may undoubtedly be maintained.' 741. In the case of Wilson v. Gray* where the defendant plead property in the plaintiff and himself, the decision was in favor of the defendant ; but the strongest reason in favor of the de- fendant was that he had a lien on the chattels, and there was no evidence of a wrongful intent in his conduct. 742. It is admitted that in England, in their courts of common law, replevin will not lie in favor of one co-tenant or partner against his co-tenant or partner for a chattel which is the joint property of both plaintiff and defendant ; but in Pennsylvania the action of replevin cannot always be measured by decisions in Eng- 1 Pamphlet Laws, 1251. 2 2 "Weekly Notes, 699. 5 See Newton v. Gardner, 24 Wisconsin, 232 ; Corbett ji. Lewis, 3 P. P. Smith 822; Kable v. Sneed, 9 Ibid. 388. * 8 Watts, 86. SEC. v.] THE ACTION OF REPLEVIN. 397 land, where the right of maintaining it depends on the tortious taking, while here it does not alone lie for a tortious taking, but for a tortious detention ; and when the detention is tortious on the part of one co-tenant or partner to the damage of the other, our courts, which are of equity as well as of law, may well support the replevin, where the possession of the defendant is one tending to a wrong to the plaintiff. III. British Statutes. 743. The British statutes, passed prior to 1705, which relate to replevin, and which seem to be in force in Pennsylvania, are the following : The statute of Gloucester, 6 Edward I, chapter 1, section 2,' provides as follows : "And whereas before time damages were not taxed, but to the value of the issues of the land ; it is provided, that the demandant may recover against the tenant the costs of his writ purchased, together with the damages aforesaid. And this act shall hold place in all cases where the party is to recover damages. And every person, from henceforth, shall be compelled to render damages, where the land is recovered against him upon his own intrusion, or his own act." 744. The statute of 2d Westminster, 13 Edward I, chapter 2,a which provides as follows : "1. Forasmuch as lords of fees, distraining their tenants for services and customs due unto them, are many times grieved, because their tenants do replevy the distress by writ or without writ. And when that lords at the complaint of their tenants, do come by attachment into the county, or unto another court, having power to hold pleas of withernam, and do avow the taking, good and lawful, by reason that the tenants disavow to hold aught, nor do claim to hold anything of him (which took the distress, and averred it), he that distrained is amerced and the tenants go quit, to whom punishment cannot be assigned for such dis- avowing by record of the county, or of other courts having no record." 1 Roberts's Digest, *107. 2 Pulton's Collection of British Statutes, 47, not reported in Roberts's Di- gest as in force in Pennsylvania; but it seems that the statute 'applies to our action of replevin. See 2 Brightly 's Trouhatand Haly's Practice, 369, ? 2043. 898 DETENTION OF EMBLEMENT. [CHAP. XV. "2. It is provided and ordained from henceforth, that where such lords cannot obtain justice in counties, and such manner of courts against^ their tenants, as soon as they shall be attached at the suit of their tenants, a writ shall be granted to them to remove the plea before the justices, afore whom, and none other where, justice may be ministered unto such lords. And the cause shall be put in the writ, because such a man distrained in his fee for services and customes to him due. Neither is this act prejudicial to the law commonly used, which did not permit that any plea should be moved before justices at the suit of the de- fendant ; for though it appear at the first shew that the tenant is plain- tiff, and the lord defendant, nevertheless having respect to that, that the lord hath distrained and sueth for services and customes being behind, he appeareth indeed to be rather actor or plaintiff than defendant. And to the intent the justices may know upon what fresh seizin the lords may avow the distress reasonable upon their tenants. From henceforth it is agreed and enacted, that a reasonable distress may be avowed upon the seizin of any ancestor, or predecessor since the time that a writ of novel disseizin, hath run. And because it chanceth sometimes that the tenant, after that he hath replevied his beasts, doth sell or alien them, whereby return cannot be made unto the lord that distrained if it be adjudged." "3. It is provided that sheriffs or bailiffs from henceforth shall not only receive of the plaintiffs pledges, for the pursuing of the suit, before they make deliverance of the distress, but also for the return of the beasts, if return be awarded ; and if any take pledges otherwise, he shall answer for the price of the beasts, and the lord that distraineth shall have his recovery by writ that he shall restore unto him so many beasts or cattle ; and if the bailiff be not able to restore, his superiour shall re- store. And forasmuch as it happeneth some time, that after the return of the beasts is awarded unto the distrainor, and the party so distrained after that the beasts be returned doth replevy them again, and when he seeth the distrainor appearing in the court ready to answer him, doth make default, whereby a return of the beasts ought to be awarded again imto the distrainor, and so the beasts be replevied twice or thrice, and indefinitely, and the judgments given in the king's courts take no effect in this case, whereupon no remedy hath been yet provided. In this case such process shall be awarded, that so soon as return of the beasts shall be awarded to the distrainor, the sheriff shall be commanded by a judiciall writ to make return of the beasts unto the distrainor, in which writ it shall be expressed that the sheriff shall not deliver them without writ, makmg mention of the judgment given by the justices, which cannot be without a writ issuing out of the rolls of the said justices before whom the matter was moved. Therefore when he cometh unto the justices and desireth replevin of the beasts he shall have a justiciall writ, that the sheriff taking surety for the suit, and also of the beasts or cattell to be returned, or the price of them (if return be awarded) shall deliver unto SEC. V.J THE ACTIOK OF REPLEVIN. 399 him the beasts or cattell before returned, and the distrainor shall be at- tached, to come at a certain day before the justices afore whom the plea was moved in the presence of the parties. And if he that replevied make default again, or for another cause return of the distress be awarded, being now twice replevied, the distress shall remain irreplevi- able. But if a distress be taken of new, and for a new cause, the pro- cess abovesaid shall be observed in the same new distress." 745. The statute of 7 Henry VIII, chapter 4,' which provides as follows: "1. Whereas, divers as well noblemen as other the king's subjects , have suffered recoveries against them of divers their manors, lordships, lands, and tenements, for the performance of their wills, or for the surety of their wives jointures, or for the jointure of their sons and heirs apparent, and their wives, or of any other person or persons, according to their covenants and agreements, and those persons that so have recovered the said manors by the course of the common law, had no remedy, nor may have, to compel the farmers, freeholders, and tenants, which held of the same manors by rents, services, or customs, to attorn to them ; nor could by the order of the law attain to the said rents, services, or cus- toms (if they were denied) by distress or action, without they could once attain to the possession of the same rents, services, and customs, by pay- ing or doing the said rents, services, or customs by the same freeholders, farmers, and tenants ; which to do, divers and many of them have often- times refused, and yet do, to the great offence and charge of their con- science, not only to the disinheritance of the said recoverers, but also in breaking of the last wills of them against whom such recovery is had, and also to the disinheritance of the said husband and wife, or other to whose use the same recovery was so had." "2. Be it therefore enacted by this present Parliament and by the au- thority of the same, that the recoverers in all such recoveries, their heirs and assigns, may from henceforth distrain for the foresaid rents, services, and customs, so being due and unpaid, and make avowry, or justify the same, as those persons against whom the said recovery is, should have done if the said recovery had not been had ; and also have like remedy for the recovering of the said rents, services, and customs by avowry • and also a quare iinpedit for the said advowson if any dis- turbance be made ; as those persons against whom the said recoveries were had mit^ht or should have had by the course of the common law afore the said recovery, if any such rents, services, or customs had been denied them, or any such disturbance had been had in their limes." " 3. And, also, that every avowant, and every other person or persons that make avowry, conusance, or knowledge or justify, as baily, to any other person or persons in any replegiari, or second deliverance for any I 1 Boberts's Digest, 117. 400 DETENTION OF EMBLEMENT. [CHAP. XV. rent, custom, or service, if their avowry, conusance, or justification be found for them, or the plaintiffs in said actions otherwise barred, shall recover their damages and costs that they have sustained, as the plain- tiffs should have done, if they had recovered in the said replevins." 746. The statute of 4 James I, chapter 3/ which provides as , follows : " Whereas, in the three and twentieth year of the reign of King Henry the VIII, of famous memory, a good and profitable law was made, whereby it was enacted that in cases where the plaintiff in any action, bill, or plaint, of debt, trespass upon the case, detinue, account, and in some other actions therein especially mentioned, should become nonsuit, or a verdict should be had against the said plaintiff; that then in such cases the defendant should have judgment to recover his costs against every such plaintiff, as by the said law appeareth : Which law hath been found to be very good and beneficial for the commonwealth, and thereby many have been discouraged from bringing frivolous and unjust suits, because such parties are to make recompense to the parties unjustly vexed, for the said unjust vexations." "2. And forasmuch as actions of trespass, and actions of ejectione Jirmce, and many other actions, real and personal, are within the same mischief as the said other actions were at the common law, and yet were omitted out of the provision of the said law : For remedy whereof. Be it enacted by the king's most excellent majesty, the lords spiritual and temporal, and the commons, in this present Parliament assembled, and by the authority of the same, That if any person or persons, at any time, after the end of this present session of Parliament, shall commence or sue in any court of record, or in any other court, any action, bill, or plaint of trespass, or ejectione Jirmoe, or any other action whatsoever, wherein the plaintiff or defendant might have costs (if in case judgment should be given for him), and the plaintiff or plaintiffs, demandant or de- mandants, in any such action, bill, or plaint, after appearance of the defendant or defendants, be nonsuited, or that any verdict happen to pass by any lawful trial against the plaintiff or plaintiffs, demandant or demandants, in any such action, bill, or plaint, that then the defendant and defendants, in every such action, bill, or plaint, shall have judgment to recover his costs against every such plaintiff and plaintiffs, demandant and demandants, to be assessed, taxed, and levied in manner and form as costs in the said recited actions are to be assessed, taxed, and levied, in and by said law of the three and twentieth year of King Henry the VIII." 747. The statute of 17 Charles II, chapter 7,^ which provides as follows : • 1 Koberts's Digest, *129. ' Eoberts's Digest, *176. SEC. v.] THE ACTION OF REPLEVIN. 401 "1. Forasmuch as the ordinary remedy for arrearages of rents is by distress upon the lands chargeable therewith ; and yet, nevertheless, by reason of the intricate and dilatory proceedings upon replevins, that remedy is become ineffectual." " 2. For remedy thereof, it is enacted by the king's most excellent majesty, with the advice and assent of the lords spiritual and temporal, and commons in this present Parliament assembled, and by authority of the same : That whensoever any plaintiff in replevin shall bo nonsuit before issue joined in any suit of replevin by plaint or writ lawfully re- turned, recovered, or depending in any of the king's courts at Westmin- ster, that the defendant making a suggestion i;a the nature of an avowry or cognizance for such rent, to ascertain the court of the laws of dis- tress, the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken, to inquire by the oaths of twelve good and lawful men of his bailiwick, touching the sum in arrear, as to the time of such distress taken, and the value of the goods or cattle dis- trained, and thereupon notice of fifteen days shall be given to the plaintiff or his attorney in court of the sitting of such writing ; and thereupon the sheriff shall inquire of the truth of the matter contained in such writ by the oaths of twelve good and lawful men of his county ; and upon the return of such inquisition, the defendant shall have judg- ment to recover against the jilaintiff the arrearages of such rent, in case the goods and cattle distrained with that value, and in case they shall not amount to that value, then so much of the value of the said goods and chattels so distrained shall amount unto, together with his fall costs of suit; and shall have execution thereupon hy fieri facias, or elegit, or otherwise as the law shall require : and iu case such plain- tiff shall be nonsuit, after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff, then the jurors that are impanelled as returned to inquire of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods or cattle distrained, and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same hy fieri facias, or elegit, or otherwise as the law shall require." "3. If any judgment in any of the courts aforesaid be given upon de- murrer for the avowant, or him that maketh cognizance for any rent, the court shall, at the prayer of the defendant, award a writ to inquire of the value of such distress, and upon the return thereof judgment shall be given for the avowant, or him that makes cognizance as aforesaid, for the arrears alleged to be behind in such avowry or recognizance, if the goods or cattle so distrained shall amount to that value ; and in case they shall not amount to that value, then for so much as the said goods or cattle so distrained amount unto, together with his full costs of suit, and shall have like execution as aforesaid." 26 402 DETENTION OF EMBLEMENT. [CHAP. XV. "4. Provided, always, that in all cases as aforesaid, where the value of the cattle distrained, as aforesaid, shall not be found to be of the full value of the arrears distrained for, that the party to whom such arrears were due, his executors, or administrators, may from time to time dis- train again for the residue of the said arrears." Though this statute is not included in the Report of the Judges of the Supreme Court, made in 1808/ as in force in Pennsylvania, yet its provisions have been repeatedly recognized as a part of the common lavr of the State.' IV. Acts of Assembly. 748. The acts of the Province and State of Pennsylvania which relate to replevin are the following : The act of 1705/ which in section 12 enacts as follows: " That it shall and may be lawful for the justices of each county in this Province to grant writs of replevin in all cases whatsoever, where re- plevins may be granted by the laws of England, taking security as the said law directs, and make them returnable to the respective Courts of Common Pleas, in the proper county, there to be determined according to law." 749. The act of 27th March, 1713,* which limits actions of replevin to six. years, enacts as follows : " Section 1. That all actions of trespass quare clausum fregit^ all actions of detinue, trover, and replevin, for taking away goods and cattle, all actions upon account and upon the case (other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants), all actions of debt, grounded upon any lending, or contract without specialty, all actions of debt, for arrearages of rent, except the proprietaries quit-rents, and all actions of trespass, of assault, menace, battery, wounding and imprisonment, or any of them, which shall be sued or brought at any time after the flve-and-twentieth day of April, which shall be in the year of our Lord one thousand seven hun- dred and thirteen, shall be commenced and sued within the time and limitation hereafter expressed, and not after ; that is to say, the said actions upon the case, other than for slander, and the said actions for 1 See Appendix to 3 Binney, *393 ; Eoberts's Digest of British Statutes, xiii. 2 See Rosenthal v. Lehman, 6 Weekly Notes, 559, where Peirce, J., reviews all the authorities ; see &\so post, page 641, Tf 1147. » 1 Smith's Laws, 44. ' Ibid. 76. SBC. v.] THE ACTION OF REPLEVIN. 403 account, and the said actions for trespass, debt, detinue and replevin, for goods or cattle, and the said actions of trespass quare clausum /regit, within three years after the said live and twentieth day of April next or within six years next after the cause of such actions, or suit, and not after." 750. The act of 21st March, 1772,' which enacts as follows : " Where any goods or chattels shall be distrained for any rent reserved and due, upon any demise, lease or contract whatsoever, and the tenant or owner of the goods so distrained, shall not, within five days next after such distress taken, and notice thereof, with the cause of such taking, left at the mansion-house or other most notorious place on the premises charged with the rent distrained for, replevy the same with sufficient security to be given to the sheriff, according to law ; then and in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff, under-sheriff, or any constable in the city or county, where such distress shall be taken (who are hereby required to be aiding and assisting therein), cause the goods and chattels so distrained, to be appraised by two repu- table freeholders, who shall have and receive for their trouble the sum of two shillings per diem each, and shall first take the following oath or affirmation: J, A. B., will well and truly, according to the best of my understanding, appraise the goods and chattels of CD., distrained on for rent hy E. F. ; which oath or affirmation such sheriff, under-sheriff, or constable are hereby empowered and required to administer ; and after such appraisement shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, for and towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement and sale, leaving the overplus, if any, in the hands of the said sheriff, under-sheriff or constable, for the owner's use." " Sectiou' VII. It shall and may be lawful to and for every lessor or landlord, lessors or landlords, or his, her or their bailiff, receiver, or other person or persons empowered by him, her or them, to take and seize, as a distress for arrears of rent, any cattle or stock of their respec- tive tenant or tenants, feeding or depasturing upon aU or any part of the premises demised or holden ; and also to take and seize all sorts of corn and grass, hops, roots, fruits, pulse or other product whatsoever, which shall be growing on any part of the estate or estates so demised or holden, as a distress for arrears of rent, and to appraise, sell, or other- wise dispose of the same, towards satisfaction of the rent for which such distress shall have been taken, and of the charges of such distress, ap- praisement and sale, in the same manner as other goods and chattels may be seized, distrained and disposed of, and that the purchaser of any » 1 Smith's Laws, 370. 404 DETENTION OP EMBLEMENT. [CHAP. XV. such corn, grass, hops, roots, fruits, pulse or other product, shall have free egress and regress to and from the same where growing, to repair the- fences from time to time, and when ripe to cut, gather, make, cure, and lay up and thresh, and after to carry the same away, in the same manner as the tenant might legally have done, had such distress never been made." " Section 10. It shall and may be lawful for all defendants in replevin to avow and make conusance generally, that the plaintiflf in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise, at such a certain rent or ser- vice, during the time wherein the rent or service distrained for incurred, which rent or service was then and still remains due, without further setting forth the grant, tenure, demise or title, of such landlord or land- lords, lessor or lessors, any law or usage to the contrary notwithstanding ; and if the plaintiff or plaintiffs, in such action, shall become nonsuit, discontinue his, her or their action, or have judgment given against him, her, or them, the defendant or defendants in such replevin shall recover double costs of suit." " Sectiok 11. And to prevent vexatious replevins of distresses taken for rent. Be it enacted, TUat, from and after the publication of this act, all sheriffs and other oflflcers, having authority to serve replevins, may and shall, in every replevin of a distress for rent, take in their own names from the plaintiff, and one responsible person as surety, a bond in double the value of the goods distrained (such value to be ascer- tained by the oath or affirmation of one or more credible person or per- sons, not interested in the goods or distress ; which oath or affirmation the person . serving such replevin is hereby authorized and required to administer) and conditioned for prosecuting the suit with effect, and with- out delay, and for duly returning the goods and chattels distrained, in case a return shall be awarded before any deliverance be made of the distress ; and that such sheriff or other officer as aforesaid, taking any such bond, shall, at the request and cost of the avowant or person making conusance, assign such bond to the avowant or person aforesaid, bj- in- dorsing the same, and attesting it under his hand and seal, in the pres- ence of two credible witnesses ; and if the bond so taken and assigned be forfeited, the avowant or person making conusance may bring an action, and recover thereupon in his own name ; and the court where such action shall be brought may, by a rule of the same court, give such relief to the parties upon such bond, as may be agreeable to justice and reason ; and such rule shall have the nature and effect of a defeasance to such bond." 751. The act of 3d April, 1779,' which enacts as follows: " Section 1. Whereas divers writs of replevin have of late been granted and issued for goods and chattels taken in execution, and for ' 1 Smith's Laws, 470 6E0. V.J THK ACTION OF REPLEVIN. 405 fines and penalties legally incurred and due to this commonwealth, to the delay of public justice, and to the great vexation of the officers concerned in taking and levying the same : "Section 2. Be it enacted and declared, and it is hereby enacted and declared, That all writs of replevin granted or issued for any owner or owners of any goods or chattels, levied, seized or taken in execution, or by distress, or otherwise, by any sheriff, naval officer, lieutenant, or sub- lieutenant, of the city of Philadelphia, or of any county, constable, or collector of the public taxes, or other officer, acting in their several offices under the authority of the State, are irregular, erroneous and void ; and all such writs may and shall, at any time after the service, be quashed (upon motion) by the court to which they are returnable, the said court being ascertained of the truth of the fact by affidavit or other- wise." " Section 3. The court, besides quashing the said writs, may and shall award treble costs to the defendant or defendants in such writs ; and also, according to their discretion, order an attachment against any prothono- tary or clerk, who shall make out or grant any such writ, knowing the same to be for goods or chattels taken in execution, or seized as afore- said." 752. The eighth section of the act of 13th April, 1791,' which is however supplied by act of 24th February, 1834/ and which in section 32 enacts as follows : " No action, or other legal proceeding, commenced by or against ex- ecutors or administrators, shall be abated or otherwise defeated, by reason of the death, dismissal, resignation or renunciation of any one or more of them, nor by reason of the annulling or revoking of the letters or powers granted to them, or any of them ; but such suit or proceeding may be prosecuted to flnal judgment or decree, by or against such other person or persons as may have been joined with them in the administra- tion, or by or against such person or persons as may be their successors therein, in all cases, in like manner as if no such change had occurred or act been done ; and in all cases of the vacancy of the administration as aforesaid, the successors therein shall be made party to such action or proceeding, in the manner provided by the twenty-sixth and twenty- seventh sections of this act." 753. The act of 13th April, 1807^ (relating to stray cattle, horse, or sheep), which enacts as follows : 1 3 Smith's Laws, 30. 2 Pamphlet Laws, 73. * 4. Smith's Laws, 474. 406 DETENTION OF EMBLEMENT. [CHAP. XV. " Section 4. If no owner shall appear, within thirty days after any such stray shall have been taken up, it shall be the duty of the person taking up the same, to cause an advertisement particularly describing such stray, to be published at least in one newspaper in the proper county, if any there be, but if otherwise, to publish the same, by written or printed advertisements, which shall be put up at six or more public places in the county ; and if no owner shall appear and make out his or her property in the said stray or strays, within ninety days after the pub- lication of such advertisements as aforesaid, the person taking up the same, shall make application to any justice of the peace in the said town- ship, who is hereby authorized and required to issue his warrant to any constable within the township as aforesaid, and cause him to expose the said stray or strays to public sale, first giving at least ten days' notice in three or more public places in the said township, and after he shall have sold the same, he shall make a return thereof to the said justice, who shall, after the payment of all reasonable charges and damages, and cost of keeping as aforesaid, pay over the surplus, if any there be, of such sale, to the county treasurer. But if the owner of such stray or strays shall appear within one year after such sale, and prove his, her, or their property, to such stray or strays, the said justice, or any other in the county, shall certify the same to the county treasurer, who shall pay to the said owner the whole amount of such surplus afofesaid, but if no owner shall appear within the time limited, as aforesaid, he or she shall be thereafter barred from all right to the same, and the money aforesaid may be applied to such purposes as other moneys in the treasury usually are. '" 754. The act of 20th March, 1810' (giving the jurisdiction of justices of the peace) was supplemented by the act of 22d March, 1814/ so that both acts are to be construed together. The latter act provides as follows : "Section 5. Nothing in this act contained shall be construed to ex- tend to actions of ejectment, replevin or slander, actions on real contracts for the sale or conveyance of lands and tenements, actions for damages in personal assault and battery, wounding and maiming, or to actions for false imprisonment." 755. The act of 22d March, 1817* (prohibiting horse-racing upon the public roads within the city and county of Philadelphia), which enacts as follows : ■" Thisact was further supplemented by the acta of 5th March, 1819, 7Smith's Laws, 160, and by 5th March, 1858, Pamphlet Laws, 78. 2 6 Ibid. 161. * 6 Ibid. 183. * 6 Ibid. 432. SBC. V.J THE ACTION OP REPLEVIN. 407 "Sectiok 7. No action shall be brought against any person for seiz- ing, detaining, or selling any horse, mare or gelding, by virtue of this act, until it shall have been finally determined by the proper court, whether such horse, mare or gelding be or be not forfeited ; and no writ of re- plevin shall issue for any horse, mare or gelding which may h-ive been seized, detained and sold as aforesaid: Provided, however, That if no proceedings be instituted for the recovery of the forfeiture, during the term of the Court of Common Pleas next succeeding the time of the seizure, then and in such case any person aggrieved by the said seizure and detainer, may have and maintain his action therefor ; and in case of a sale having taken place, such person, upon satisfying the court that at the time of the seizure, he was the true owner of such horse, mare or gelding, shall be permitted to take out of the court the proceeds of such sale. " 756. The act of 12th April, 1845,^ which provides that a suit of an unmarried woman shall not abate by her marriage, enacts as follows : "Sbctiok 1. That no suit or other legal proceeding in any court of this commonwealth, brought by a feme sole, now, or hereafter pending, shall abate by the marriage of the plaintiff or petitioner, contracted after the commencement of the same ; but the husband of such plaintiff or petitioner shall have the power to become a party thereto, and prosecute the same to final judgment or decree." 757. The act of 9th April, 1849,' which enacts as follows: " Sbctioit 13. In all actions now pending in any of the courts of this commonwealth, or which hereafter may be brought, in which executors or trustees, appointed by or under the authority of any last will and tes- tament, with power oiter the real or personal estate of the testator, are plaintiffs, and any one or more of such plaintiffs shall have died or re- signed, or been removed, or shall die, resign or be removed, such action shall not thereby abate, but it shall be the duty of the court in which such action is or shall be pending, to substitute upon the record in places of the executor or executors, trustee or trustees, whose death, resigna- tion, or removal shall have caused the vacancy, any executor or execu- tors, trustee or trustees, who shall have been or shall be legally ap- pointed to supply the same, and the suit or action shall be proceeded in to trial, judgment and execution, in the same manner as if the plain- tiffs had been originally entitled to maintain the action." 758. The act of 22d April, 1850'^ (relating to trees cut down, 1 Pamphlet Laws, 386. ' Ibid. 527. ^ ibid. 549. 403 DETENTION OF EMBLEMENT. [CHAP. XV. by a party in possession of lands, after the service of a writ of cstrepement), enacts as follows : " Section 3. It shall not be lawful for any tenant or other person in possession of any lands within this conimonwealth, after the service of a writ of estrepement to prevent waste on the lands of which he or she is possessed, to remove therefrom any timber trees, although cut down before the issuing of said writ ; and all timber removed from said lands after the service of such writ, may be replevied by the party on whose behalf it issued, who shall be entitled to recover and hold the same : Provided, The removal thereof shall prove to be injurious to him or her, either as owner of the premises or as a creditor of the owner, or other- wise. " 759. The act of 31st March, I860,' which enacts as follows : " Section 60. It shall and may be lawful for any sheriff, constable or other officer of justice, with or without warrant, to seize upon, secure, and remove any device or machine of any kind, character or descrip- tion whatsoever used and employed for the purposes of unlawful gaming as aforesaid, and to arrest, with or without warrant, any person settiug up the same. And it shall be the duty of such sheriff, constable or other officer, to make return, in writing, to the next Court of Quarter Sessions of the proper county, setting forth the nature and description of the de- vice or machine so seized upon, and the time, place and circumstances under which such seizure was made ; and the said court, upon hearing the parties, if they should appear, if satisfied that such device or ma- chine was employed and used for the purpose of unlawful gaming as aforesaid, shall adjudge the same forfeited, and order it to be publiclj' de- stroyed, and at the same time order such reasonable costs and charges to the seizing officer as they shall deem adequate and just, to be paid by the owner or possessor of such device or machine, oi^in case of his default, or in case he cannot be found, to be paid as costs are now by law paid upon indictments ; and such adjudication shall be conclusive evidence to establish the legality of such seizure, in any court of this common- wealth, in any cause in which the question of its legality shall arise ; and in any case in which a decree of forfeiture shall not be pronounced, if said court shall, upon the evidence, be satisfied that there was probable cause for the seizure, they shall certify the same, which certificate shall be a bar to any action brought against the officer for or on account of such seizure, iu those cases in which the said officer returns, or offers to return such device or machine ; and in all cases shall prevent a recovery in damages, for any sum beyond the real value of the device or machine ■seized. " ' Pamphlet Laws, 385. SEC. v.] THE ACTION OF REPLEVIN. 409 " Section 61. No writ of replevin shall issue for any device or ma- chine, seized as aforesaid, nor shall any action be instituted for or on account of such seizure, until the court shall have i'lrst adjudicated upon the premises ; but such writ or action shall forthwith, on motion, be quashed and abated by the court in which it shall be sued or brought." 7oO. The act of 15th May, 1871/ which enacts a-, foUowd : "That in all actions of replevin now pending or hereafter brought to recover timber, lumber, coal, or other property severed from, realty, the plaintiff shall be entitled to recover, notwithstanding the fact that the title to the land from which said property was severed, may be in dis- pute : Provided, said plaintiff shows title in himself at the time of the severance." 761. The act of 19th May, 1871' (relieving the sheriff of Alle- ghany County from responsibility in taking bonds of indemnity), enacts as follows : " Section" 1. That hereafter all bonds given to the sheriff of Alle- ghany County, in his ofiBcial capacity, as indemnity for executing writs of replevin, foreign attachments, and all other bonds of indemnity, shall be justified before the prothonotary of the proper court, and when the prothonotary shall certify said justification to the sheriff, shall become the property of the successful party in the original suit without recourse to the sheriff, who may have executed said process or received said bond as indemnity." 762. The act of 10th April, 1873' (relieving the sheriff of Phila- delphia from responsibility), enacts as follows: " Section 1. That hereafter all bonds given to the sheriff of the city and county of Philadelphia, in his official capacity, as indemnity for ex- ecuting writs of replevin, foreign, domestic and other attachments, and all other bonds of indemnity given in any cause, shall be justified before the judge of the proper court and approved by said judge, and when the prothonotary shall certify said justification and approval to the sheriff, shall become the property of the successful party in the original suit, without recourse to the sheriff who may have executed said process or received said bond as indemnity." 1 Pamphlet Laws, 268, » Ibid. 986, ^ ibjd. 776. 410 DETENTION OF EMBLEMENT. [CHAP. XV. V. Its Nature. 763. In Pennsylvania replevins do not issue either under the statute or common law of England, but are by force of the act of 1705.^ 764. In replevin the plaintiff, unless the defendant interpose a claim-property bond, recovers the specific property of which he is deprived, and damages for the taking, and unjustly detaining, with full costs,^ as in trespass or trover.' Nor does this action abate by the death of either of the parties,* but by virtue of the acts of 13th April, 1791,^ and of 24th February, 1834 (section 26),* the legal representative of the decedent may be substituted.' 765. As was said by Chief Justice Lewis: "Replevin, in its inception, is a mixed action. It is a demand for the thing itself, and also for damages for the taking and detention. The defendant has his election to deliver the property on the writ, when the sheriff calls for it, or to retain it on giving security. If the prop- erty be delivered to the plaintiff, the defendant is answerable in damages for the taking and detention up to the time of delivery. If the property be retained, he is answerable, in addition, for the full value. In either case, the action thenceforth proceeds for damages alone. The property itself can in no event be recovered at law from the defendant ; nor can he tender it afterwards, in discharge of the action, or even in satisfaction pro tanto of the damages claimed. That part of the bond usually given by the de- fendant which provides for a return of the property is a nullity.'" 1 Smith's Laws, 4i,ante, p. 399, 1[ 748; Weavers Lawrence, 1 Dallas, 156; Pearoe v. Humphreys, 14 Sergeant & Kawle, 23, 25; Tihbal v. Cahoon, 10 Watts, 232, 234 ; Baird v. Porter, 17 P. P. Smith, 105, 107. 2 Taylor v. The Adams Express Company, 9 Philadelphia, 272; Herdic v. Young, 5 P. ¥. Smith, 176 ; Eastonv. Worthington, 5 Sergeant & Eawle, 130, 132; Snyder v. Vaux, 2 Eawle, 423, 427; Powell v. Hinsdale, 5 ITassachu- eetts, 843. ' See ante, p. 385, T[ 733. * Keite v. Boyd, 18 Sergeant & Kawle, 300; Keist v. Heilbreuner, 11 lb. 131. 6 2 Smith's Laws, 30. 8 Pamphlet Laws, 77. ' Keist V. Heilbrenner, 11 Sergeant & Rawle, 131 ; Keite v. Boyd, 16 Ser- geant & Kawle, 300. 8 Fisher v. Whoollery, 1 Casey, 197, and cases there cited. SEC. v.] THE ACTION OF REPLEVIN. 411 766. But where goods or chattels have been taken upon a dis- tress for rent, the defendant (landlord) in an action of replevin for the same cannot retain them by giving a claim-property bond as in other cases of -replevin. The landlord has neither a general nor special property in goods distrained for rent, nor right to their possession after service of the writ of replevin. It is his duty to deliver them under the replevin and to look to the bond which the sheriff was required to take before executing the writ as his security for the rent.' 767. Replevin is the most usual remedy for an unlawful dis- tress. In Sassman v. Brisbane & Griffith,^ the District Court of Philadelphia, even held that replevin was the only remedy for an unlawful distress, where the provisions of the act of 1772 had been complied with. But the authors have already shown that there are other remedies in such cases.' The action also extends to cases of distress for ground-rent.* 768. The action is so far transitory that it may be brought in any county in which the defendant has had the goods or chattels since the taking.^ Thus, where cattle were taken in one county and driven into another, it was held that the plaintiff might bring his replevin in either county.^ It may be well to observe that the terms " goods " and "chattels" are used interchangeably, and that they have the same signification, including all species of animate and inanimate movable, tangible property.' 769. The statute of limitations of 1713 applies to the action of replevin ; the writ must therefore issue within six years from the beginning of the unjust detention.^ 770. "Where goods or chattels have been distrained for rent, re- plevins may be obtained for them so long as they have not actu- 1 Baird v. Porter, 17 P. P. Smith, 105, 107. 2 7 Philadelphia, 159. 3 See ante, p. 77, note. ' Pranciscus v. Keigart, 4 Watts, 98. 6 Doetrina Placitendi, 315; Fitzherbert's Natura Brevium, 69, I; Wil- kinson's Eeplevin, 40; see also Brown v. Caldwell, lOSergeant & Eawle, 114, 118; Elliott B. Powell, 10 Watts, 454. 6 Fitzherbert's Natura Brevium, 69, I; Gilbert's Eeplevin, 124; Wilkin- son's Eeplevin, 5. ' Eddy V. Davis, 35 Vermont, 247 ; Graff v. Shannon, 7 Iowa, 508. 8 Act of 27th March, 1713, ante, p. 399, T[ 749. 412 DETENTION OF EMBLEMENT. [CHAP. XV. ally been sold.' The tenant's or owner's right to replevy does not cease after the expiration of the five days, when, under the act of 1 772/ an appraisement of the distress shall be made.' Such an appraisement does not change the property so that it can no longer be replevied. Nor does the removal of the distress from the demised premises take away the right to replevy the same.* 771. The action of replevin is of two sorts : 1st. In the detlnet, which is applicable while the goods or chattels are still in the hands of the defendant to recover the value thereof and damages.* This form is particularly adapted to instances where the title to the property is in dispute, and where the defendant gives a claim-property bond to the sheriff, and still retains the goods. 2d. In the detinuit, which is applicable where the goods have been delivered to the plaintiff by the sheriff, and this form is gen- erally resorted to in cases of landlord and tenant;" and to be effec- tual the writ must be taken before the goods are sold under a distress.' 772. In England both these modes of proceeding are in rem, i. e., to have the goods again.* But in Pennsylvania replevin is not altogether a proceeding in rem, but is a proceeding also against the defendant in the writ personally, with a summons to appear.' If a defendant in replevin by his conduct prevent the officer from replevying the property or make its delivery to the plaintiff im- practicable, by reason of having eloigned or improperly disposed of it, the latter may declare in the detinet and recover damages for the full value of the goods, as also for the detention thereof." I See Brisben v. Wilson, 10 P. ¥. Smith, 452, 458, per Sharswood, J.; Whitcomb v. Lawrence, 11 Weelfly Notes, per Allison, P. J. ; Jacob t>. King, 5 Taunton, 451 (1 English Common Law Keports, 154); Smith & Solden's Landlord and Tenant, 172; Griffiths v. Stevens, 1 Chitty's Reports, 196 a; Woodfall's Landlord and Tenant, 455 (eleventh edition). ' See ante, p. 403, 1[ 750. ' lb. * Jacob V. King, 5 Taunton, 451 (1 English Common Law Reports, 154). " Marsh v. Pier, 4 Wharton, 273, 290. 6 See Baird v. Porter, 17 P. P. Smith, 105, 107. ' See ante, 1[ 770. 8 Fletcher 1). Wilkins, 6 East, 286 ; 1 Chitty's Pleading, *182 (16th Am. ed.) 8 Bower v. Tallman, 5 Watts & Sergeant, 556, 561 ; Weaver v. Lawrence, 1 Dallas, 157 ; Baldwin i>. Cash, 7 Watts & Sergeant, 425, 426. 10 Bower v. Tallman, 5 Watts & Sergeant, 556, 561 ; Baldwin v. Cash, 7 lb. 425, 426. SEC. v.] THE ACTION OF REPLEVIN. 413 773. A recovery in replevin is a bar to an action of trespass on the case.' 774. In replevin no set-off can be made by the plaintiff to the rent unless the same be actually connected with the occupation of the premises, and a breach by the landlord of one of tlie covenants in the lease, constituting part of the consideration of the rent.'' 776. Replevin differs from all other actions in many points : (1.) In other actions the plaintiff is not put into possession of the articles demanded until after a trial and decision in his favor; but in replevin he is put into possession by the sheriff unless the defendant claims the ownership of the chattels, and within a rea- sonable time gives the sheriff an obligation called a claim-prop- erty bond."" (2.) A return of the articles is made to the defendant whenever he proves himself entitled to such. (3.) In order to have such return the defendant's pleas must call for such return. (4.) It follows that the defendant is an actor pleading on two grounds: 1st. In avowing or justifying his taking or retaining. 2d. Claiming as landlord or plaintiff by demanding the pos- session of the articles in dispute, but though an actor the land- lord avowing cannot have a rule to discontinue,^ and if he reside out of the jurisdiction of the court he must give security for the costs.* 776. Replevin differs from detinue in this, that in the latter the thing in question is not recovered until after judgment; in replevin (when the subject-matter is a distress for rent), it is 1 Phillips V Berryman, 3 Douglass, 286. 2 Anderaon v. Reynolds, 14 Sergeant & Rawle, 439; Beyer v. Fenster- macher, 2 Wharton, 95; Peterson v. Haight, 3 Wharton. 150; Fairman v. Fluck, 5 Watts, 516; Ashton d, Clapier, Brightly, 481; Gray'v Wilson, 4 Watts, 39. ' Hockeri,. Strieker, 1 Dallas, 225; Pearce «. Humphreys, 14 Sergeant & Eawle, 25 ; Miller v. Foutz, 2 Teates, 418. * 5 Dane's Abridgment, 514; 2 Brightly's Tronbat & Haly's Practice, 154. 6 Long V. Buckeridge, 1 Strange, 106 ; 2 Brightly's Troubat & Haly's Prac- tice, 154. « Selly V. Cruchley, 1 Broderip & Bingham, 505; 2 Brightly's Troubat & Haly's Practice, 154. 414 DBTENXION OF EMBLEMENT. [CHAP. XV. recovered before judgment. In detinue the defendant may deliver the thing or its value. In replevin he has no option. He must either deliver the property or make claim to it, and when he claims the property and gives a claim-property bond, if judgment goes against him, he pays in damages for the value of the thing at the time when claimed in replevin. VI. Parties in Replevin. (1.) In whose Favor Replevin mil Lie. 777. The action of replevin will lie in Pennsylvania as follows : (1.) In favor of any person of full age not under any disability, who has either a general ownership or a special or qualified prop- erty in a personal chattel and is entitled to the possession thereof,^ against any person unlawfully detaining the same, whether he claims it as owner, agent, administrator, trustee, custodian, or in any other capacity.^ (2.) In favor of the person whose goods are taken against him who took them, or against him who commanded the taking, or against both." (3.) In favor of a tenant for goods distrained for rent by the landlord.* (4.) In favor of the executors or administrators of a decedent, even for chattels taken in the lifetime of such decedent.* 1 Lake Shore and Michigan Southern Railway Company u. Ellsey, 4 Norris, 283 ; Lester v McDowell, 6 Harris, 91 ; Mead v. Kilday, 2 Watts, 110 ; Weaver V. Lawrence, 1 Dallas, 157 ; Snyder v. Vaux, 2 Rawle, 428; Stoughton v. Eap- palo, 3 Sergeant & Eawle, 559 ; Bower v. Tallman, 5 Watts & Sergeant, 561 ; Eoberts v. The Dauphin Deposit Bank, 7 Harris, 71; Young v. Kimball, 11 Harris, 193 ; Coke upon Littleton, 145 b. ; Dunham v. Wyckoff, 3 Wendell (N. Y.), 280; Waterman ». Robinson, 5 Massachusetts, 303; Perleyu. Foster, 9 lb. 112. 2 Rose V. Cash, 58 Indiana, 278 ; Stevenson v. Taylor, 2 Michigan {IS. P.), 95. ' Wilkinson's Replevin, *5; 2 Roll's Abridgment, 431. < Baird v. Porter, 17 P. P. Smith, 105, 107; Phipps v. Boyd, 4 P. P. Smith, 342 ; Towns v. Boarman, 23 Mississippi, 186. 6 Act of 24th February, 1834, sections 28 and 29, Pamphlet Laws, 78; McKnight v. Morgan, 2 Barbour, 171 ; Taunton v. Oostar, 7 Term Reports, 431. SEC. v.] THE ACTION OF EEPLEVIN. 415 (5.) In favor of the appointed guardian of an infant, or of the natural guardian of such.' (6.) In favor of a married woman for the recovery of her sep- arate property ; but in such case the husband should join.^ (7.) In favor of a married woman for her own property without joining her husband, when he has deserted her and fails to pro- vide for her.' (8.) In favor of a/eme sole trader.* (9.) In favor of the lessee, during the continuance of the lease, for personal property which has been leased, and not in favor of the lessor who is not entitled to the possession.* (10.) In favor of one having a lien upon property when the same is forcibly or clandestinely taken from his custody.^ (11.) In favor of the joint owners of a chattel or of coparceners jointly.' (12.) In favor of several owners of chattels or of tenants in common severally.' (13.) In favor of the owner of bees which have flown away, so long as he can keep them in sight and identify them." (14.) In favor of the owner of chattels illegally taken in exe- cution and sold by a sheriff or constable, against the vendee of a sheriff or constable.'" (15.) In favor of the vendor of goods on their way to the ven- dee, though the same have been seized in the hands of the trans- porter by a writ of foreign attachment." (16.) In favor of the assignee of the purchaser of a chattel i Kneas v. Fitler, 2 Sergeant & Eawle, 263 ; Smith v. ■Williamson, 1 Harris & Johnson (Md.), 147. * Act of 11th April, 1848, Pamphlet Laws, 536; Act of 25th April, 1850, section 39, Pamphlet Laws, 756. 3 Musser v. Gardner, 16 P. F. Smith, 242, 246 ; Black v. Tricker, 9 Ibid. 13, 16. * ™ Roe V. Sharp, 1 P. F. Smith, 26; see Patterson v. Stevenson, 2 Pearson, 205, 206. " Patterson v. Stevenson, 2 Pearson, 205. « Bower v. Tallman, 5 Watts & Sergeant, 556, 561. ' Lecky v. MoDermott, 8 Sergeant & Eawle, 500 ; Eapp v. Palmer, 8 Watts 178. 8 Ralston v. Black, 15 Iowa, 47. ' Harris x,. Smith, 3 Sergeant & Rawle, 20,24; see Meade v. Kilday, 2 Watts, 110 ; see also Hopper v. Miller, 76 North Carolina, 402. " McMahon v. Sloan, 2 Jones, 229; Rowland v. Gundy, 5 Ohio, 202; Con- nor V. Comstock, 17 Indiana, 90. SEC. v.] THE ACTION 01 REPLEVIN. 417 (26.) In favor of one employed to cut logs and deliver the same, and who was to have a lien on them until his wages were paid, against the purchaser of said logs — his wages being unpaid.' (27.) In favor of the claimant of timber logs floated into a boom, for so many feet of the logs marked as may equal the amount he claims.'' (28.) In favor of the plaintiff to recover "timber, lumber, coal, or other property severed from realty," though the title to the land from which such property was severed be in dispute, if he can show title in himself at the time of severance.' (29.) In favor of the equitable owner of land who has the con- structive possession, against the party holding the legal title, for timber severed from the land.* (30.) In favor of the owner of premises or of the creditor of such owner against the tenant or person in possession of such premises, for timber trees cut and removed from the said prem- ises after the service of the writ of estrepement to prevent waste.' (31.) In favor of a mortgagee against a mortgagor in possession for wood and timber cut upon the mortgaged premises in waste of the same and in substantial diminution of the stipulated security of the mortgagee.^ (32.) In favor of a vendor of wild land against a third .person for timber removed from the premises in possession of the vendee under articles of agreement, while the purchase-money remains unpaid.' (33.) In favor of the landowner for a building wrongfully re- moved from the premises.' (34.) In favor of one whose property has been replevied by a writ against his agent or his bailee, against the plaintiff in the replevin even during the pendency of the action. The property is not in the custody of the law after the sheriff has completed the transfer.' ^ 1 Swift V. Morrison, 2 Weekly Notes, 699. 2 Herdic v. Young, 5 P. F. Smith, 76. ' Actof 15th May, 1871, ante, page 409, 1[ 760. * Brewer v. Fleming, 1 P. P. Smith, 102, 115, and cases there cited, s Act of 22d April, 1850, Pamphlet Laws, 549, ante, page 404, f 758. ^ Waterman v. Matteson, 4 Ehode Island, 539. ' Coomalt V. Stanley, 3 Clark, 389. 8 Huebshmann v. McHenry, 29 Wisconsin, 655; Ogden v. Stock, 34 Illinois, 522 ; see Spencer v. Darlington, 24 P. F. Smith, 286. ° White V. Dolliver, 113 Massachusetts, 400 j Frey v. Leeper, 2 Dallas, 131. 27 418 DETENTION OF EMBLEMENT. [CHAP. XV. "VII. For what Property Replevin will Lie. 778. Although the general rule of law in Pennsylvania is that the action of replevin will lie whenever one person claims personal property in the possession of another that is susceptible of seizure by an officer and of delivery to the plaintiff, it may be well to particularize cases in order to show the purposes for which it will lie. The action can therefore be maintained as follows : (1.) For emblements detained from an ex-tenant.' (2.) For wheat, rye and oats in shocks.^ (3.) For " all sorts of corn and grass, hops, roots, fruits, pulse, or other product whatsoever," growing on the land and authorized to be distrained on by the Act of 21st March, 1772.' (4.) For chattels distrained when the distress is for any reason wrongful. (5.) For chattels distrained when the lessor has no reversionary interest in the demised premises.'* (6.) For chattels distrained off the demised premises and not clandestinely removed.^ (7.), For chattels distrained on Sunday or at night time." (8.) For chattels distrained by breaking through an outer door or window.' (9.) For chattels distrained when no rent is due.^ (10.) For chattels distrained for more rent than is due.' 1 Diffendorfer v. Jones, Nisi Prius, Lancaster, 1782, cited in Stultz v. Dickey, 5 Binney, 289. * Miller v. Foutz, 2 Teates, .418 ; Wilkinson's Replevin, 4. > See ante, page 403, 1[ 750; Hellings «. Wright, 2 Harris, 373; Wilkinson's Replevin, 3, 4. * Weaver v. Lawrence, 1 Dallas, 156 ; Meade v. Kilday, 2 Watts, 110 ; Par- menter v. Weller, 2 Moore, 656. 5 Weaver v. Lawrence, 1 Dallas, 156 ; Meade v. Kilday, 2 Watts, 110. * Weaver v. Lawrence, 1 Dallas, 156 ; Keite v. Boyd, 16 Sergeant & Rawle, 300 ; Cotre upon Littleton, 160 ; Mayiield v. White, 1 Browne, 241 ; Peirce u. Hill, 9 Porter (Alabama), 151. ' Ibid. ; see also i. Coke's Institutes, 140 ; Wilson v. Hobday, 4 Maule & Selwyn, 121 ; Rees v. Emerick, 6 Sergeant & Rawle, 286. ' See Weaver ii. Lawrence, 1 Dallas, 156 ; Bishop t. Montague, Croke — Elizabeth, 824; Woodfall on Landlord and Tenant (11th ed.), 455. 9 Bee Weaver v. Lawrence, 1 Dallas, 156. BBC. v.] THE ACTION OP REPLEVIN. 419 (11.) For gold and silver distrained when excessive in quan- tity and value, with regard to the rent in arrear.' (12.) For chattels distrained after a tender of the rent, and the same are sold." (13.) For chattels distrained and retained on the premises an unreasonable time after the sixth day from the distress.' (14.) For chattels distrained before the tender of the rent, but sold after the tender.^ (15.) For fixtures distrained and sold.* (16.) For things of a perishable nature distrained and sold.° (17.) For chattels or articles distrained while in the actual use of the tenant.' (18.) For chattels vexatiously distrained a second time.^ (19.) For chattels distrained and sold without notice of the dis- tress being served on the tenant." (20.) For chattels distrained and impounded in several places.'" (21.) For chattels distrained and impounded out of the county." (22.) For chattels distrained and appraised within five days after the distress." (23.) For chattels distrained and not appraised in accordance with the provisions of the act of 21st March, 1772." (24.) For chattels distrained and sold without being appraised." (25.) For chattels distrained and sold without being advertised." • See Hutohins v. Chambers, 1 Burrow, 590. 2 4 Coke, 43.5; 3 Ibid. 152; Gilbert's Eeplevin, 61 ; Weaver «. Lawrence, 1 Dallas, 156 ; Woodfall's Landlord and Tenant (lltb ed.), 455 ; see also Hilson V. Blain, 2 Bailey (S. C), 168. ' See Weaver v. Lawrence, 1 Dallas, 156 ; Winterbourne v. Morgan, 11 East, *395. * Six Carpenters Case, 1 Smith's Leading Cases, *216 ; see note, ante, page 77. ' Heaton't). Pinlay, 2 Jones, 304; see note, ante, page 77. ° See ante, page 106 ; see also Weaver v. Lawrence, 1 Dallas, 156. ' Maxham o. Day, 16 Gray (Mass.), 213 ; 3 Blackstoae's Commenta- ries, *9. 8 Quinn v. Wallace, 6 Wharton, 452. 9 Ward V. Comly, 1 Barr, 238. IK Gilbert's Distresses and Eeplevin, 49 (2d ed.). 11 Ibid. 12 See Fretton v. Karcher, 27 P. P. Smith, 423. IS Ibid. 1* Ibid. ; see also Johnson ■». Black, 9 Weekly Notes, 438. 15 Ibid. ; Jacob v. King, 5 Taunton, 451 ■ see also Brisben v. Wilson, 10 P. P. Smith, 452. 420 DETENTION OP EMBLEMENT. [CHAP. XV. (26.) For chattels distrained and sold within six days after the appraisement.* '-(37.) For chattels distrained which had been put in the posses- sion of the tenant in the course of his business by those with whom he dealt, or by those who employed him.^ (28.) For the chattels of a stranger on the premises of the ten- ant, in the way of trade, on storage and illegally distrained.' (29.) For goods intrusted to an agent to be sold on commis- sion, which have been distrained for rent due by the agent.* (30.) For goods of a guest, boarder or lodger, which were in his actual use when distrained for rent due by the innkeeper or keeper of the boarding-house.^ (31.) For cattle of a stranger on demised premises to be pas- tured and distrained.^ (32.) For chattels on the demised premises by consent of the lessor and distrained.'^ (33.) For chattels formerly belonging to the tenant, but sold to an innocent purchaser and distrained on,^ (34.) For chattels of a stranger removed from demised premises, yet followed and distrained.' (35.) For chattels of a deceased tenant distrained and sold.'" (36.) For chattels of a foreign ambassador or official dis- trained." 1 See Ward v. Taylor, 1 Barr, 238 ; Jacob v. King, 5 Taunton, 451. 2 Earns c. McKinney, 24 P. P. Smith, 387, and cases there cited; Howe Sewing Machine Co. u Sloan, 6 Norris, 438, 441 j s. c, 6 Weekly Notes, 265. s Brown v. Sims, 17 Sergeant & Kawle, 138; Briggs v. Large, 6 Casey, 287 ; Gadwalader v. Tindall, 8 Harris, 422; Eiddle v. Welden, 5 Wharton, 9. * Howe Sewing Machine Company v. Sloan, 6 Norris, 438 ; s. c, 6 Weekly Notes, 265. " Eiddle v. Welden, 5 Wharton, 9; Earns v. McEinney, 24 P. P. Smith, 889; Jones v. Goldbeck, 8 Weekly Notes, 533. « Cadwalader v. Tindall, 8 Harris, 422. ' Powkes V. Joyce, 2 Vernon, 129, 131. 8 Clifford V. Beems, 3 Watts, 246 ; Beltzhoover v. Waltman, 1 Watts & Ser- geant, 416. 8 Sleeper v. Parrish, 7 Philadelphia, 247 ; Grant & McLane's Appeal, 8 Wright, 477 ; Adams v. La Comb, 1 Dallas, 440. '» Mickle V. Miles, 3 Grant, 820 ; Hoskins v. Houston, 2 Clark, 489 ; see Weaver v. Lawrence, 1 Dallas, 156. " See ante, page 108. SEO. V.J THE ACTION OF REPLEVIN. 421 (37.) For chattels detained as a distress, after the detention thereof has ceased to be rightful.' (38.) For animals /erce naturw when reclaimed by the art and power of man, if they have been distrained or taken out of the custody of the owner.^ (39.) For deer kept in an inclosed ground when distrained.' (40.) For the progeny of animals distrained born during the , impounding of the distress.'' (41.) For animals taken in one county and carried into another, in favor of the plaintiff in either county.* (42.) For bees when hived and reclaimed." (43.) For domesticated animals and their progeny since the wrongful detention.'^ (44.) For the increase in the wool of sheep shorn since the wrongful detention.' (45.) For chattels the form of which has been changed, as, for example, for timber cut into rails or posts, or worked into shingles f for hides tanned into leather ;'° for leather made into shoes ;" for grain mixed with other grain •" for a certain number of feet of timber logs floated into a boom and mixed with other logs ;'' for a certain number of gallons or barrels of oil com- 1 Osgood II. Green, 10 Foster (N. H.), 210. " 2 Roll's Abridgment, 430 ; Gilbert's Eeplevin, 121 ; Wilkinson's Re- plevin, *4; GtoSv. Kilts, 15 Wendell (N. Y.), 551. " Dayies v. Powell, Dunford's Wille's Reports, 46 ; Wilkinson's Ee- plevin, *4. 4 ritzherbert's Natura Brevium, 69, D ; Gilbert's Distresses and Replevin, 123 (2d ed.) ; Wilkinson's Eeplevin, *5. 5 Pitzherbert's Natura Brevium, 69, I; Gilbert's Distresses and Eeplevin, 124 (2d ed.); Wilkinson's Eeplevin, *5. " Pitzherbert's Natura Brevium, 68; Goff v. Kilts, 15 Wendell (N. T.), 551. ' Easton v. Worthington, 5 Sergeant & Eawle, 130; Hossaok v. Weaver, 1 Yeates, 178; Bunker o. MoKenney, 63 Maine, 529; Buckley v. Buckley, 12 Nevada, 423 ; Arundel v. Trevil, Siderfiu, 81. 8 Buckley v. Buckley, 12 Nevada, 423. 9 Snyder v. Vaux, 2 Eawle, 423, 427 ; Young «. Herdic, 5 P. P. Smith, 172 ; Brewer v. Fleming, 1 Ibid. 102, and cases there cited. 1° Lee V. Gould, 11 Wright, 398. '1 Snyder v. Vaux, 2 Eawle, 423-427. " Henderson j;. Lauck, 9 Harris, 359; Kaufman v. Schilling, 58 Missouri, 218. ]3 Young V. Herdic, 5 P. F. Smith, 172. 422 DETENTION OP EMBLEMENT. [CHAP. XV. mingled with other oil in a tank or pipe line ;' or for iron made into bars.^ (46.) For a chattel lent to another and sold by him.' (47.) For recovery of a bag of money which was deposited with the defendant and wrongfully detained by him after demand therefor.* (48.) For recovery of a promissory note, which upon payment by the maker to the holder, the latter promised to deliver up, but afterwards refused to deliver.^ (49.) For a fixture severed from realty when severed by a trespasser or wrongdoer." (50.) For property tortiously severed from the realty, otherwise properly itself realty.^ (51.) For such articles as "mills, barns, steam-engines, ofBces, and sheds," when they are fixtures not attached to the realty.' (52.) For goods to be delivered by a wagoner, and by him sold in the street before delivery.' (53.) For property which had once been in the possession of the defendant, but had been parted with wrongfully by him be- fore the institution of the suit.'" 1 Wilkinson, Carter & Co. i;. Stewart, 4 Norris, 255; s. c, 5 Weekly Notes, 79; Hutchinson J). Commonwealth, 1 Norris, 472. 2 See Snyderi). Vaux, 2 Kawle, 423-427, and cases there. cited. 5 Eowland v. Gundy, 5 Ohio, 202 ; see also Conner v. Comstock, 17 Indi- ana, 90; MoMahon «. Sloan, 2 Jones, 229. * Skidmore v. Taylor, 29 California, 619. ' Savery v. Hays, 20 Iowa. 25. « Snyder i;. Vaux, 2 Kawle, 423; Young a. Herdic, 5 P. P. Smith, 172 Harlan v. Harlan, 3 Harris, 507 ; Powell v. Smith, 2 Watts, 126; Coomalt v. Stanley, 3 Clark, 389; Green v. Ashland Iron Company, 12 P. F. Smith, 97 Hellings v. Wright, 2 Harris, 273 ; Clement u. Wright, 4 Wright, 250 Heaton v. Pindlay, 2 Jones, 304; Bremer v. Fleming, 1 P. F. Smith, 102 Corbit V. Lewis, 3 Ibid., 322; Elliott v- Powell, 10 Watts, 454; Layman v. K-ellerman, 15 P. F. Smith, 489. ' Graff t Shannon, 7 Iowa, 608 ; Congregational Society v. Fleming, 11 Ibid., 533; Cresson v. Stout, 17 Johnson (N. Y.), 116. 8 Brearley v. Cox, 4 Zabrislde (N. J.), 287 ; see also Chicago and Alle- gheny Oil and Mining Company v. Barnes, 12 P. P. Smith, 445. 9 Lecky v. McDermott, 8 Sergeant & Kawlo, 500, and cases there cited j see also Thomas v- Hess, 1 Yeates, 479. i" Brockway v- Burnap, 16 Barbour (N. Y.), 309. SBC. v.] THE ACTION OF REPLEVIN. 423 (54.) For goods wrongfully taken in execution and sold, in the hands of the sheriff's or constable's vendee.' (55.) For chattels sold by the vendor on fraudulent representa- tions made by the vendee, but after a tender by the vendor of the consideration paid.'^ (56.) For chattels wrongfully sold by the sheriff against the sheriff's vendee, unless when under the act of 1849 goods exempt from levy and sale are sold." (57.) For chattels sold for cash, if the purchaser, after acquiring possession, does not pay for them.* (58.) For timber, lumber, coal, or other property severed from realty, though the title to the land be in dispute, provided the plaintiff show title in himself in the property so severed.' (59.) For grain hauled to the mill of an intended purchaser and there mixed with other grain ; the mixture does not prevent the reclamation.^ (60.) For a ship.^ (61.) For a cargo where the master of the ship wrongfully re- fuses to proceed on the voyage.' VIII. Of the Proceedings in Replevin. (1.) The Prceoipe. 779. The proceedings in replevin are commenced by the attor- ney of the plaintiff addressing a note or praecipe to the prothono- tary of the Court of Common Pleas of the county in which the chattels lie, directing him to issue a writ of replevin for the 1 Shearick v. Huber, 6 Binney, 2; B. o. 2 Browne, 160; Quinn v. Davis, 28. P. P. Smith; Ward v. Taylor, 1 Barr, 238 ; McMahon v. Sloan, 2 Jones, 229. " Shearick ■;;. Huber, 6 Binney, 2; Bonsall v. Oomly, 8 "Wright, 442; Pear-, soil V. Chapin, 8 Wright, 12. s Hatch V. Bartle, 9 Wright, 166. * Harris v. Smith, 3 Sergeant & Eawle, 20; Henderson v. Lauck, 9 Harris,. 359 ; Miller v. Munhall, 34 Legal Intelligencer, 321 (1877). See ante, p. 416,. H 777, (17). 6 Act of 15th May, 1871, Pamphlet Laws, 268, supra, f 760. ' Henderson v. Lauck, 9 Harris, 359 ; see also Kauffman v. Schilling, 58; Missouri, 218. ' Taylor v. The Koyal Saxon, Wallace, Jr., 311. s Portland Bank v. Stubbs, 6 Massachusetts, 422. 424 DETENTION OF EMBLEMENT. [CHAP. XV. articles specified in the inventory accompanying the prascipe, which should also state the value. A direction to replevy " the goods and chattels following, viz., the contents of a grocery store," the store being described and the person by whom the goods were taken and detained being named, was held to be a sufficient iden- tification.' In an action of replevin for six oxen, a description merely, as " six oxen " was held to be sufficient,' so a description of " fifteen hundred pounds of seed cotton " is sufficiently descrip- tive of the article and of the quantity.' The praecipe sets forth the names of the parties in the ordinary form, and where the chattels have been distrained for non-payment of rent the amount of rent should be stated. The party in possession of the articles is made defendant.* Where the replevin is for the purpose of trying the title to the property, the value of the article replevied is the real matter in dispute, and should be set forth.^ (2.) The Writ. 780. In accordance with the praecipe the prothonotary issues the writ, which is justicial, and is addressed to the sheriff of the county, commanding him, if the plaintiff make him secure of prosecuting his claim with effect against the defendant, to replevy the goods, and to summon the defendant to appear upon the return of the writ." The writ should issue against the person having at the time the actual possession of the goods claimed.' 781. The amount of rent claimed, or the value of the articles to be replevied, if the replevin be to test the title, should be stated, and an inventory of the chattels and the names of the parties set forth, as in the praecipe.^ The writ is tested and made returnable like other writs of original process. It may also be amended like other writs.® In Pennsylvania it is a mixed writ, partly in personam, ' Litohman v. Potter, 116 Massachusetts, 371 ; see also Ellsworth v. Hen- shall, 4 Greene (Iowa), 417. 2 Fawcett v. Fox, 18 Michigan, 166. " Hill V. Robinson, 16 Arkansas, 90. * English V. Dalbrow, 1 Miles, 160. ' Peyton v. Eobertson, 9 Wheaton, 527. * See Weaver v. Lawrence, 1 Dallas, 156. ' English V. Dalbrow, 1 Miles, 160. 8 See ante, page 423, f 779. ° Jaques «. Sanderson, 8 Gushing (Mass.), 271. SEC. v.] THE ACTION OP REPLEVIN, 425 i. e., a proceeding against the defendant perdonally,with a summons to appear, as well as in rem;^ but in the fee bill it is not ranked under the term summons, but under the phrase other writs.'' 782. A replevin bond' being furnished the writ should be served upon the defendant as other writs are served.* A delivery of a copy of the writ to the agent of the defendant, the latter being out of the State, is not a service.^ The sherifp should be accom- panied by some one who can point out the chattels mentioned in the writ; for if he do not succeed in finding them he may return that no one came to show him the goods.* He has a right to enter defendant's house in search of them, and if they are not found there he is not a trespasser.'^ A writ against the furniture of a large hotel is served from the time an officer is placed in pos- session.' The writ must be served by the sheriff or his deputy, and if the officer be the plaintiff in the writ he cannot execute it.' 783. The sheriff's return is "replevied, summoned, and de- livered," when the writ has been duly served. The return should however also show that he gave to the defendant a true and attested copy of the writ with his return indorsed thereon. If he cannot deliver the chattels to the plaintiff the return is "eloigned,"'" whereupon the plaintiff may have an alias writ, and if that should fail he may have a pluries writ." If the sheriff find that the goods have been destroyed he should so return." When part of the prop- erty has been eloigned and part remain, he should also so return. And if the defendant interpose a claim-property bond, the acceptance should be noted by the sheriff on the writ. The sheriff cannot on the trial of the cause be allowed to contradict his return. " ' See ante, p. 412, 1[ 773. ' Baldwin v. Cash, 7 Watts & Sergeant, 425. ' See infra, page 427, f 790. 4 See ante, p. 272, 1[ 476. 6 Gaffield v. Avery, 43 Vermont, 668. « Kneas v. Filler, 2 Sergeant & Rawle, 263, 266 ; Dalton's Sheriff, 556 ; Moore V. Clipsam, Aleyn, 32; Burn v. Mattain, Cases Time Hardwick, 119 j 1 Lord Kaymond, 613. ' Kneas v. Pitler, 2 Sergeant & Eawle, 263, 264, 266. 8 Kneas v. Pitler, 2 Sergeant & Rawle, 263. » Barbour v. White, 37 Illinois, 164. "> Taylor v. The Adams Express Company, 9 Philadelphia, 274; Bent v. Bent 43 Vermont, 42. " Wilkinson's Replevin, 20. 12 Bro. Bet. Breviuro, pi, 125, '» Heffner v. Rsed, 3 Grant, 245. 426 DETENTION OF EMBLEMENT. [CHAP. XV. (3.) ITie Writ de Homine Heplegiando. 784. The common law writ de homine replegiando is in force in Pennsylvania, and was issued in several cases of fugitives from slavery in the Southern States prior to 1861.' However, as sla- very is now abolished, and as the custom of apprenticeship has become almost obsolete, it is not likely to be again called into requisition, and therefore may be regarded as antiquated. 785. This writ was in frequent use in England prior to the statute of 31 Charles II, chapter 2,^ commonly called the great habeas corpus act, but the numerous exceptions to when it would issue, rendered it only available in certain cases. For example, it would not issue when the party was imprisoned by order of the king, nor in many other cases set forth in Fitzherbert's Natura Srevium^ nor will it issue in favor of a wife or her prochein amy against the husband.* But it will issue on behalf of an infant against his testamentary guardian,* or on that of a young woman taken from her parents' custody and married against her parents' consent.^ 786. The original writ is vicontiel, and as no addition is re- quired to the defendant's name therein such need not be inserted in an alias or pluries writ.^ 787. When this writ is issued the sheriff cannot make a return of non Gepit.^ If the party be removed from the county, or hid- den away, his return must be " eloigned,"^ and, where such is the case, the eloigner is in contempt of court and may be com- mitted." 1 Cowperthwaite v. Jones, 2 Dallas, 55; Ex parte Lawrence, 6 Binney, 304; Wilson v. Belinda, 8 Sergeant & Kawle, 396; Wright v. Beacon, 5 Ibid. 62; Alexander «. Stokely, 7 Ibid. 299; Morgan ». Realdrt, 4 Clarke, 6. See also remarks of Judge Lowry in Passmore Williamson Case, 2 Casey, 9. 2 3 Statutes at Large, 897. Not in force in Pennsylvania, but the suh- stance thereof is supplied by act of 13th of February, 1785 ; 2 Smith's Laws, 275. ' Page 66, where the form of the writ u given. * Chitty's Precedents, 492. « Treblecock's Case, 1 Atkins, 633. e Caldthrop v. Astel, 3 Modern, 169. ' Lord Banbury v- Wood, 6 Modern, 84. ' Tarbet v. Dassigney, Showers, 232. » De La Bastide v Keynell, 4 Modern, 183. "> Bex V- Lord Grey, 2 Showers, 218. SBC. v.] THE ACTION OF REPLBVIJT. 427 788. This writ was issued out of our Supreme Court in No- vember, 1863' (during the suspension of the writ of habeas cor- piis), to recover the freedom of a minor who had been drafted into the army of the United States. However, the minor escaped in the interval and the return was " eloigned." 789. In England, when the sheriff makes such return a writ of capias in Withernam may issue and the body of the defendant be taken.' But in Pennsylvania the latter writ is not in use.' Where one is thus taken on a capias in Withernam he cannot be released by a writ of habeas corpus, until the return of the writ and a plea of non oepit* It seems needless to treat at length of a writ which is of but little use, while the writ of habeas corpus is in force. (4.) Jlie Replevin Bond and Proceedings thereon. 790. On the receipt of the usual writ of replevin, where the same issues for replevying a distress for rent, the act of 1772 requires the sheriff or his deputy to take from the plaintiff a replevin bond, executed by the plaintiff and one responsible person as surety ,° for double the value of the goods distrained, such valuation to be as- certained by one or more credible appraisers not interested in the replevin, who shall first make oath before the officer serving the replevin. The replevin bond is made to the sheriff, and is condi- tioned for the prosecution by the plaintiff of his suit against the defendant with effect and without delay, and to return the goods in case the decision of the said suit shall result in favor of the defendant for a return of the chattels distrained.^ The words prosecuting " with effect " mean with success, and extend to one continued prosecution from the commencement to the end of the suit, and a right of action accrues to the defendant even if the plaintiff is succassful in the Court of Common Pleas, and the judgment below be reversed by the Supreme Court and no venire ' Supreme Court, January Term, 1864, Docket No. 124. 2 De La Bastide v. Eeynell, 4 Modern, 183. ' Morris on Replevin, 32. * Moore v. Watts, 1 Lord Eaymond, 613. ' The sheriff generally requires two sureties, but a bond with but one surety is good at common law. Saeltzer o. Ginther, 2 Miles, 86. 6 See act of 1772, section 11, ante, p. 404, T[ 750. 428 DETENTION OF EMBLEMENT. [CHAP. XV. de novo be awarded.' A failure to return the writ, after service, either through the negligence of the plaintiff or of the officer, is a failure to prosecute to effect.'' Upon the failure of the plaintiff to prosecute his suit with effect, the law presumes title to the prop- erty in the defendant, and to recover restitution he need only prove the amount of his damages.' In all cases of replevin other than of a distress for rent, the act of 1705 directs the sheriff to take security as the law of England prescribes.'' 791. The replevin bond is taken at the risk of the sheriff in all parts of the State* except in Philadelphia County, where the sheriff is relieved of responsibility for the sufficiency of the sureties by the act of 10th April, 1873,° which requires {inter alia) such bonds to be approved of by the judge of the proper court, and in Alleghany County, where the sheriff is relieved of the same responsibility by the act of 19fch May, 1871,' which requires the bond to be justified before the prothonotary of the proper court. Such liability of the sheriff for the sufficiency of the sureties ex- tends to the determination of the replevin, and it will not avail the sheriff that the sureties were sufficient when they were taken.^ 792. The sheriff has a right to require that the sureties be resi- dents of his county." And in Philadelphia the defendant has a right to notice of an application to approve the sureties.'" 793. If the plaintiff fail to furnish the replevin bond with surety, the sheriff may return the writ to the prothonotary with an indorsement to that effect. He is not bound to take any step ' Gibbs V. Bartlett, 2 Watts & Sergeant, 29 ; see also Commonwealth o. Kees, 1 Miles, 330, 837 ; Balsley v. Hoffman & Buehler, 1 Harris, 603, 607. 2 Allen V. Woodford, 3 Connecticut, 143. ' Eickner v. Dixon, 2 Greene (Iowa), 591. * See act of 1705, ante, p. 402, \ 748 ; see also Taylor «. The Adams Express Company, 9 Philadelphia, 272 ; Balsley v. Hoffman & Buehler, 1 Harris, 603, 606. ' Oxley V. Cowperthwaite, 1 Dallas, 349, and cases there cited ; Pearce w. Humphries, 14 Sergeant & Eawle, 23; Neville v. Williams, 7 Watts, 421, 431. 5 Pamphlet Laws, 776, see ante, p. 409, \ 762. ' Pamphlet Laws, 986, see ante, p. 409, If 761. * Murdock v. Will, 1 Dallas, 341 ; Oxloy v. Cowperthwaite, Ibid. 349 ; Pearca ». Humphries, 14 Sergeant &Bawle, 23; Meyers v. Clark, 3 Watts & Sergeant, 535; Commonwealth v. Eees, 1 Miles, 330; s. o., 3 Wharton, 124, 127. » Commonwealth b. Vandyke, 7 P. F. Smith, 34. 10 Smith V. Kerr, 2 Weekly Notes, 222. SEO. v.] THE ACTION OF REPLEVIN. 429 in the execution of the writ until the bond, which is a condition precedent, is delivered to him/ If the writ is served without a replevin bond being taken, a service of the defendant as a sum- mons is void, and he is not bound to appear and plead ;' and should an appearance be entered, the irregularity of the service is not cured.' And if the sheriff execute a writ of replevin and make deliverance of a distress without having taken a bond from the plaintiff therein, he becomes liable to the defendant in the re- plevin for a return of the goods distrained, or the value thereof* 794. This bond, when the replevin is of a distress for rent in arrear, may, under the act 21st March, 1772,* be sued out by the assignee in his own name ; but where the replevin is for the pur- pose of testing the right of property, the action on the replevin bond, even after assignment, must be in the name of the sheriff." 795. In McMiohael v. Harper' it was held that an action on a replevin bond for goods distrained for rent, which had been as- signed to the avowant before suit brought, must be brought in his name and not in the sheriff's ; but when the replevin is to try title, the bond must be sued on in the name of the sheriff for the use of the party interested.' 796. By taking an assignment of the bond the defendant in the replevin does not release the sheriff for taking insufficient sureties, and therefore after proceeding against the sureties until they are found to be insolvent, he may bring an action against the sheriff.' A return of nulla bona to an execution upon a judgment against a surety, is not conclusive evidence of his insufficiency.^" In such action the defendant cannot recover the expenses of his suit against the sureties, unless he has given the sheriff notice." The defend- ant's action against the sheriff is however suspended pending the ' Taylor v. The Adams Express Company, 9 Philadelphia, 272. 2 Ibid. » Ibid. " Neville v. Williams, 7 "Watts, 431. 6 1 Smith's Laws, 370 ; see ante, p. 404, ^ 750. » Balsley ■!;. Hoffman & Buehler, 1 Harris, 603 ; Tibbal v. Gaboon, 10 Watts, 232. ' Brightly's Pardon's Digest (10th ed.), 1266. 8 lb. ; Balsley v. Hoffman & Buehler, 1 Harris, 603, 611, 612. « Commonwealth v. Rees, 3 Wharton, 124, 127 ; s. C, 1 Miles, 330; Meyers V. Clark, 3 Watts & Sergeant, 535, 539. w Meyers v. Clark, 3 Watts & Sergeant, 535. " Baker v. Garratt, 13 Bingham, 56. 430 DETENTION OP BMBLEMENX. [CHAP. XV. proceedings against the sureties ; and as the replevin bond is for the security of the sheriff, as well as of the defendant, the latter must not impair or depreciate it by taking judgment against one surety and discharging the other.' 797. In case of a replevin of goods distrained where there are two defendants, one who avows and the other who makes cogni- zance, both may take an assignment of the replevin bond and sue jointly on it, and in that action the extent of the penalty may be recovered.^ Or in the case of goods distrained the bond may be assigned to the avowant only, and he may sue without joining the party who made cognizance.' But where there is no avowant on record, the action should be brought by him making cognizance.* If the successful defendant in replevin of goods seized for rent give time to the plaintiff, the sureties are not discharged.^ 798. Where the replevin is of goods distrained for rent in arrear, the court cannot release the sureties in the replevin bond upon payment into court of the amount therein stated.^ The security required by the act of 1772 is that of persons, not money, and therefore the bond is not conditioned for the payment of a sum of money alone, but also for the return of the property.' 799. In actions of debt under a replevin bond, where the sub- ject of the replevy is a distress for rent, the jurisdiction is con- trolled by the amount of rent due, and not by the amount of the bond ; that is, if the amount of rent found to be due does not ex- ceed three hundred dollars, the jurisdiction is before an alderman, magistrate, or justice of the peace, in all parts of the State, ex- cept in cities of the first class.^ 800. When the writ of replevin is taken out for goods dis- trained for rent in arrear the distrainer should be notified, as otherwise if he sell after the sheriff has replevied no action will lie against him.' ' Commonwealth v. Kees,3 Wharton, 124, 127; s. c, 1 Miles, 830. ' Phillips V. Price, 3 Maule & Selwyn, 180; 2 Archbold's Practice, 64. ' Page V. Earner, 1 Bosanquet & Puller, 381. * lb. 387. 5 Moore w. Bowmaker, 6 Taunton, 379. 6 Cummings v. Gann, 2 P. F. Smith, 484. ' Cummings v. Gann, 2 P. F. Smith, 484, 489. * Act of 7th July, 1879, Pamphlet Laws, 194, ante, p. 252, ^ 656. » Mounsey v. Dawson, 6 Adolphus & Ellis, 752. SEC. v.] THE ACTION OF REPLEVIN. 431 801. If a surety for rent has to pay the penalty, and upon a distress previously made the lessee replevied the goods, the surety is entitled by subrogation to the security of the replevin bond, and can prosecute the action to final judgment.^ 802. One who has become surety in a replevin bond does not secure such an interest in the property replevied as entitles him to maintain an action of replevin for it.'' 803. The plaintiff in the actiou of replevin having failed to prosecute his action of replevin with effect,' the defendant in the action of replevin, having taken from the sheriff an assign- ment of the replevin bond,* may then proceed to collect from the plaintiff in the action of replevin, or from the sureties in the re- plevin bond the damages he has suffered, and in so doing his counsel sets forth in his declaration as follows : (1.) The proceedings in the action of replevin.^ (2.) The conditions contained in the replevin bond." (3.) Where the replevin was for goods distrained for rent in 1 King V. Blackmore, 22 P. F. Smith, 347 ; Burns v. Huntingdon Bank, 1 Penrose & "Watts, 395 ; Pott v. Nathans, 1 Watts & Sergeaat, 155 ; Arm- strong's Appeal, 5 Watts & Sergeant, 352. * Jimmeson v. Green, 7 Nebraska, 26. 2 See supra, T[ 790; see also Wright u. Quirk, 105 Massachusetts Keports, 44 ; Oxford V. Perritt, 4 Bingham, 556; Harrison v. "Wardle, 5 Bavnewell & Adolphus, 146; Perrin u. Bevan, 5 Barnewell & Cress well, 284; Jackson v. Hanson, 8 Meeson & Welsby, 477. * This assignment is, when the replevin is for chattels distrained for rent in arrear, authorized by the 11th section of the act of 2l3t March, 1772. When the replevin is made to test the title to the property, the action on the bond must be in the name of the sheriff for the use of the defendant in replevin (supra, T[ 794) ; therefore no assignment is made. When there are two defend- ants in the action of replevin, one the landlord and the other the bailiff, either may take an assignment of the replevin bond and proceed thereon ; supra, % 797. The wording of the act of 1772 infers that the assignment of the bond from the sheriff to the avowant or cognizor should be made prior to the for- feiture of the bond, but it seems that the assignment of the bond may be taken before or after the forfeiture without in any way affecting the rights of the defendant in replevin. When the bond has been assigned by the sheriff, it is error to bring the action in his name. McMichael v. Harper (Sharswood, J.), District Court, Philadelphia, July, 1848. The assignment should be witnessed by two persons. See supra, yj 750. * Morris on Keplevin (3d edition), 292. Glover v. Coles, 1 Bingham, 6 ; Halstead v. Abrams, 3 Taunton, 81. 432 DETENTION OF EMBLEMENT. [CHAP. XV. arrear, the assignment of the bond from the sheriff to the defend- ant in replevin.^ (4.) The failure on the part of the plaintiff in replevin to fulfil the conditions contained in the bond.' 804. In response to the declaration of the defendant in replevin (now the plaintiff in the action on the replevin bond) the late plaintiff in replevin, or his surety or sureties in the replevin bond, may make the following pleas : (1.) Non est factum (which is the general issue).' (2.) Non damnificatm (when the condition of the bond is to save harnaless).* The plea of non damnifioatus is an improper one when the condition in the bond is to acquit the plaintiff in replevin from liability.^ (3.) Fraud (in case the defendant in the action on the bond be the surety who alleges in his declaration that there was collu- sion between the plaintiff in replevin and the defendant therein to defraud the sureties on the bond).^ (4.) Other matters of defence which may be specially pleaded.' 805. Where in an action on the replevin bond the defendant (plaintiff in the action of replevin) pleads that the action of re- plevin is still pending, it is for the plaintiff in the action on the bond to show in what matter the plaintiff in replevin had failed to prosecute his action of replevin with effect.' 806. If the plaintiff in the action of replevin be a bailiff, such fact should be mentioned in the declaration.' 807. Where the replevin was of chattels taken as distress for rent in arrear, it is not error to enumerate growing crops in the declaration, as part of the property distrained on, because, though growing crops are realty for other purposes, they are chattels under the statute authorizing the distress.'" 1 Morris on Replevin (3d edition), 292. 2 ii,i|j_ ' Zeigler v. Sprenlde, 7 Watts & Sergeant, 175; Stephens on Pleading, 116. * Neville v. Williams, 7 Watts, 421 ; see also Sherry w. Forseman and Earl, 6 Blackford (Indiana), 56. » Neville v. Willianas, 7 Watts, 421. » Moore v. Bowmaker, 7 Taunton, 97 ; Morris on Beplevin (3d edition), 294. ' Morris on Replevin, 273. " Brackonbury v. Pell, 12 East, 595 ; see also Morris on Replevin (3d edition), 286. » Dias V. Freeman, 5 Term Reports, 195. '" Glover v. Coles, 1 Bingham, 6. SBC. v.] THE ACTION OF H,EPLBVIN. 433 808. The declaration in the action on the bond need not, how- ever, set forth the goods distrained.' Nor need it, when made by- two, i. e., by landlord and bailiff, state that the latter distrained as bailiff." 809. It was decided in Dannels v. Fitch,^ that a surety in a re- plevin bond could not be a witness on behalf of the principal in the replevin bond; but since that decision the legislature has passed the act of 15th April, 1869,^ which authorizes parties to be witnesses in cases in which they are interested. 810. In case of the death of one of the sureties in a replevin bond p&nding the action, it seems that his estate is exonerated. The act of 11th April, 1848,° provides for the liability of the es- tate of a decedent obligor after judgment has been obtained, but makes no provision for a case where the death occurs pending the action.' 811. In an action on the replevin bond the plaintiff cannot take judgment for want of an affidavit of defence/ 812. Proceedings in an action on a replevin bond will not be stayed unless the application be made on the part of the sureties.' 813. Where the replevin bond has been assigned to the defend- ant in replevin, the assignment must be produced.' (5.) Neglect of the Sheriff to take a Sufficient Replevin Bond. 814. If the sheriff neglect to take a replevin bond the service of the summons on the defendant in replevin is void,'" and if the sheriff execute the writ without having taken a bond he becomes liable to the defendant in replevin." 815. In all parts of the State, excepting Philadelphia and Alle- ghany counties, the sheriff is liable to the defendant in case of the insufficiency of the surety," and this liability is to the same ' Phillips V. Price, 3 Maule & Selwyn, 180. " Ibid. " 8 Barr, 495. * Pamphlet Laws, 30. ^ Pamphlet Laws, 536. ' Pinney v. Cochran, 1 Watts & Sergeant, 112 ; Walter v. Ginrich, 2 Watts, 204. ' McPate V. Shallcross, 1 Philadelphia, 40; Sands v. Fritz, 3 Weekly Notes, 531. ' Wharton v. Blaoknell, 12 Meeson & Welsby, 558. 9 Jeffrey v. Bastard, 4 Adolphus & Ellis, 823. «• See supra, ^ 793. " See supra, f 793. " Supra, Tf 791. 28 434 DETENTION OP EMBLEMENT, [CHAP. XV. extent as that of a surety in a replevin bond.' In either case the proper action against him is the action on the case/ or an action on his official bond.' But no action can, in the case of an insuf- ficient surety, be brought against the sheriff until the surety be proven to be insolvent.* 816. "Where the replevin is other than of goods distrained for rent, it is doubtful whether the sheriff is required to take a re- plevin bond. It is, however, customary for him to do so.' 817. As to the proof of the execution of the replevin bond, it is for the sheriff to furnish it.^ 818. The responsibility of the sheriff as to the sufficiency of the sureties in all parts of the State, excepting Philadelphia and Alleghany counties, exists to the termination of the action on the replevin bond.' 819. In Philadelphia, since the act of 10th April, 1873,Hhe sureties must justify before the judge of the proper court, a cer- tificate of which will exonei'ate the sheriff.' 820. Evidence of the sufficiency of the sureties may be derived as follows: (1.) From their own statements.' (2.) From their general local reputation.'" (3.) From particular acts of default." 821. In an action against the sheriff for taking insufficient sureties, it is not requisite for the plaintiff to prove the execution > Tibbal v. Cahoon, 10 Watts, 232. ' Tesseyman v. Gildart, 4 Bosanquet & Puller, 292 ; 2 Coke's Institutes, 340 ; Myers v. Clark, 3 Watts & Sergeant, 539. ' Myers v. Commonwealth, 2 Watts & Sergeant, 60; Commonwealth «• Eees, 8 Wharton, 124 ; Act of 21st March, 1803 {4 Smith's Laws, 45) ; Act of 14th June, 1836 (Pamphlet Laws, 637). * Commonwealth v. Bees, 3 Wharton, 124. ^ Morris on Keplevin, 298 (3d ed.); see also Cummings v. Q-ann, 2 P. F. Smith, 484; Pearoe v. Humphreys, 14 Sergeant & Kawlo, 23; Balsleyu. Hoff- man and Buehler, 1 Harris, 606. • Baxter v. Graham, 5 Watts, 418. ' Supra, \ 790 ; Myers v. Clark, 3 Watts & Sergeant, 535 ; Pearce v. Hum- phreys, 14 Sergeant & Eawle, 23 ; Oxley v. Cowperthwaite, 1 Dallas, 349. 8 Pamphlet Laws, 776 ; ante, p. 409, "ff 762. 9 Myers v. Clark, 3 Watts & Sergeant, 535 ; Archbold on Landlord and Tenant, 250. '» Scott V. Warthman, 3 Stark, 168 ; Saunders o. Darling, Bull's Nisi Prius, 60. " Gwyllim v- Sholey, 6 Espinasse, 100. SEC. v.] THE ACTION OF REPLEVIN. 435 of the bond by the sureties, proof of the assignment of the bond by the sheriff is sufficient.' 822. Where the defendant in replevin, where there was a dis- tress for rent, brings an action against the sheriff, the declaration should state as follows :' (1.) The distress. (2.) The replevin. (3.) The proceedings in the replevin suit. (4.) The insufficiency of the sureties. (6.) The Claim-property Bond, 823. The writ having issued, and the replevin bond been given, the sheriff, accompanied by the plaintiff, or some one in his be- half, to point out the goods to be replevied, proceeds to the prem- ises where they are located, and to reach them may enter defend- ant's house for the purpose of searching for them; and, if. the goods are not found therein, the officer and the plaintiff do not become liable as trespassers.' If the property be concealed the sheriff may, after a demand for deliverance, break open the house of the defendant in order to execute the writ." The sheriff having reached the place where the chattels were reported to be may find that they have been removed to some place unknown, or beyond his bailiwick, in which case he may make return of the writ with the indorsement of " eloigned," or he may be more explicit and indorse the circumstances more fully, particularly when part of the chat- tels have been eloigned and part remain.^ But the goods being found, they are valued by the appraisers as already mentioned,^ and put into the absolute possession of the plaintiff, a symbolical possession not being sufficient without the assent of the plaintiff.^ But the sheriff cannot deliver more property than is named in the writ.^ 824. Where the replevin is other than of goods distrained for rent the defendant may, however, retain the goods and prevent their 1 Barnes v. Lucas, Eyan & Moody, 264. 2 Morris on Replevin (3d edition), 300. " Kneas v. Filler, 2 Sergeant & Rawle, 263. * See Ibid. 264, 265. " Por further particulars as to sheriflF's return, see ante, page 425, f 783. 8 See ante, page 427, If 790. ' Hays v. Lusby, 5 Harris & Johnson, 485. " Devitt V. Morris, 13 Wendell (N. Y.), 496 ; Gardner v. Lane, 9 Allen (Mass.), 492. 436 DETENTION OF EMBLEMENT. [CHAP. XV. delivery to the plaintiff by interposing a claim of property.' In which case he must give to the sheriff, within a reasonable time," a claim-property bond, with security,' in double the value of the goods, conditioned that the defendant shall deliver up the goods to the plaintiff in replevin if the property thereof shall be ad- judged on the trial of the cause to be in him, and that he will abide by the judgment of the court and indemnify the sheriff.* 825. The manner and form of the bond is not prescribed by statute.* It follows, then, that if it contains some conditions con- trary to law, and some that are good and lawful, those against law are void ah initio, and the others will stand good. Thus, where one of the conditions of a claim-property bond was that the de- fendant "should make return of the same goods and chattels, if return thereof should be adjudged by law," the Supreme Court held that this condition was illegal, since the judgment in favor of the plaintiffs on a claim-property bond could not, according to law, possibly be that the defendant return the property to the plaintiff, but can only be for damages, as well for the value of the goods as damages for their detention and costs ; and further, that part of the bond being illegal and void, did not prevent the plain- tiff's recovery for breach of the condition, which was good and lawful.® A bond with a warrant of attorney to confess judgment is valid and binds the obligors.' 826. The claim-property bond in our practice supplies the judi- cial writ de proprietate probanda, which does not issue in Penn- sylvania.' According to our practice the claim of property does not defeat the writ of replevin and suspend further proceedings until the plaintiff purchase the writ de proprietate probanda, as is ' See ante, page 425, f 783. ^ Hays v. Lusby, 5 Harris & Johnson, 485. 3- Miller v. Foutz, 2 Yeates, 418. ' See form of bond in Appendix. 6 qhaffee v. Sangston, 10 Watts, 265, 268. 5 Chaffee v. Sangston, 10 Watts, 265; see also Easton v. Worthington, 5 Sergeant & Eawle, 130 ; Etter v. Edwards, 4 Watts, 63 ; Marsh o- Pier, 4 Eawle, 273 ; Moore v. Shenk, 3 Barr, 13, 20 ; Hicks v. McBride, 3 Philadel- phia, 357 ; Pigot's Case, 11 Coke, 27. ' See Neville v. Williams, 7 Watts, 421, 431 ; Gingell v. TurnbuU, 3 Bing- ham (N. C), 881; Short v. Hubbard, 2 Bingham (N. T.), 348; Shaw v. To- bias, 3 Comstook (K. Y.), 189. * Weaver v- Lawrence, 1 Dallas, 156,157; Easton v. Worthington, 5 Ser- geant & Kawle, 130, 131 ; Pearce v. Humphreys, 14 Ibid. 23, 25. SBC. V.J THE ACTION OF REPLEVIN. 437 the case in England.' The giving of the bond merely prevents the delivery of the goods to the plaintiff, and its effect is to give a good title to the defendant to the chattels, as even if he be unsuccessful in his defence he is not called on to deliver the chattels.' The claim-property bond so vests the property in the defendant that even if the plaintiff recover in the suit on the bond he has no right to the goods, nor can he maintain the action of trover for them.* Nor can the defendant tender the property in discharge of the action, or even in satisfaction pro tanto of the damages claimed.* When a claim-property bond is given, the plaintiff's right of property is turned into a chose in action, and his property in the thing itself is absolutely gone; and in such a case, \¥here a defendant, after he had given a claim-property bond, caused the chattel to be seized and sold under a judgment against the plaintiff (former owner), and purchased it at the sale, it was ad- judged that he thereby acquired no better title than he had before, the plaintiff having previously been deprived of his property.' 827. An action on a claim-property bond must be brought in the name of the sheriff, as the same is not within the purview of the act of 28th March, 1715.« 828. The sheriff must allow the defendant a reasonable time to find the security for his claim-property bond before removing the goods, otherwise he cannot in an action of trespass justify under the writ of replevin.' 829. The sureties of the claim-property bond are liable not merely for the value of the chattels in controversy, but to the full amount of the penalty of their bond.' 830. In an action on a claim property bond the plaintiff cannot take judgment for want of an affidavit of defence,' 1 Ibid.; Wilkinson's Keplevin, 17. " See oreie, page 410, ^ 765. s Eockey v. Buikhalter, 18 P. P. Smith, 221. * Fisher v. Wboollery, 1 Casey, 197; Sehofleld ». Ferrers, 10 Wright, 438. 5 Fisher v. Whoollery, 1 Casey, 197 ; Eockey v. Burkhalter, 18 P. F. Smith, 221. « Thompson!). Shoefleld, District Court C. P., 1848; Tibbal v. Cahoon, 10 Watts, 232; Balsley v. Hoffman, 1 Harris, 613. ' Hocber v. Strieker, 1 Dallas, 245 ; Pearc© v. Humphreys, 14 Sergeant & Eawle, 23, 25. 8 Miller ». Foutz, 2 Yeates, 418 ; Taylor v. Royal Saxon, 1 Wallace, Jr., 327. s Elliott V. Kunszig, 9 Weekly Notes, 542. 438 DETENTION OP EMBLEMENT. [OHAP. XV. (7.) Appearance of Defendant. 831. After the goods are replevied, it is the duty of the plaintiff to fulfil the conditions contained in the replevin bond, that is, to prosecute his suit against the defendant to a successful issue. But before commencing this it is the duty of the defendant, in re- sponse to the summons in the writ, to enter an appearance by the return day of the writ, which he generally does through counsel. If he fall to do this, the plaintiff, having filed his declaration, may file a common appearance for the defendant and proceed in the case by ruling him to plead as in other cases.' The plaintiff can- not take j udgment at once for want of an appearance, as the act of 13th June, 1836, defining proceedings in default of appearance, does not seem to embrace the action of replevin.' (8.) The Plaintiff's Declaration or Narr. 832. The defendant having appeared, the plaintiff files his dec- laration,' in which should be stated, first, the unjust detention of the chattels by the defendant; secondly, the time and place where taken ; and, thirdly, the value of the goods and the damage claimed.* 833. It is important that the declaration be drawn with care, and particularly so when the action is for goods distrained for rent in arrear. The place of taking must be accurately set forth f if in a city, the street and number of the house, and whether the same be a dwelling-house, store, or factory; and if it be on a farm, some words of description so as to easily identify the location, such as the road on which it is located.* But in a declaration for cattle impounded it is sufficient to allege the town where they were taken without setting forth the particular spot of the taking.' The ownership of the plaintiff should be stated,* and the descrip- 1 Court Rules, Philadelphia County, Nos. XXXIV, § 114; X5XV, ? HS; Lynd v. Benjamin, 2 Miles, 172; Crofut v. Chichester, 3 Philadelphia, 457. 2 Crofut V. Chichester, 3 Philadelphia, 457. ' See form in Appendix. * Fa<'eti;. Brayton, 2 Harris & Johnson (Md.), 350. 6 Gilbert on Replevin, 124 ; Gardner v. Humphrey, 10 Johnson (S. Y.), 53 ; Strong V. Lawler, 37 Connecticut, 177 ; Stoker v. Crane, 46 Missouri, 264. 6 Potter V. Bradley, 2 Moore & Payne, 78. ' Strong V. Lawler, 37 Connecticut, 177. 8 Pattison v. Adams, 7 Hill, 126 ; Hill v. Denis, 7 Ibid. 426. SBC. v.] THE ACTION OF REPLEVIN. 439 tion and valuation of the chattels seized should be accurately enough given^ that the sheriff may be able to know, if a writ of retorno habendo must be executed, what goods to return.^ The declaration must be certain to a general intent.' But in a re- plevin of goods not distrained for rent, and founded on a claim of property, it is suiBcient to lay the place of taking as being in the county.* And in such a case the defendant has no reason for objecting to indefiniteness of description of the goods, since by in- terposing a claim of property he has individuated them.* 834. Moreover, if the declaration be too vague and liable to be ill on demurrer, it may be cured by the defendant avowing, as thereby both parties confess what the goods are f and when the defendant prevails, and a writ of retorno habendo issues, it is the duty of the defendant to show the sheriff the goods to be redeliv- ered, and if he fail to do so, the sheriff may make return to that effect.' 835. The declaration is of two forms : 1st. In the detinet when the goods are still detained by the defendant by giving a claim- property bond, or when the goods are claimed or the sheriff has been unable to deliver them to the plaintiff. This form, as has already been said, is adapted to cases where the title is in dispute, and under it the defendant cannot be admitted to avow that the goods were taken by distress for rent in arrear.' 2d. In the de- tinuit, when the goods have been delivered to the plaintiff. This is the general form in cases where there has been a replevin of a distress for rent. The two forms may be combined where a por- tion of the goods are delivered and the balance not.' ' See Vanderburgh v. Van Valkenburgh, 8 Barbour (N. Y.), 217; Warner V. Aughenbaugh, 15 Sergeant & Eawle, 9; "Wilson . Sellers, 5 Norris, 486; s. c. 5 Weekly Notes, 518; Whetwell v. Wells, 24 Pickering (Mass.), 25; Shutter V. Page, 11 Johnson (N. Y.), 196; Martin ti. Day, 1 Blackford (Ind.), 291. ' Wilkinson's Replevin, *50; Gilbert's Distresses and Replevin, 147 (4th edition) ; Williams's Saunders's Reports, 637 ; 1 Saunders, 347 b. ; Strong ». Lawler, 37 Connecticut, 177. 8 Williams's Saunders's Reports, 637 (edition of 1871). » Ibid. SEC. V.J THE ACTION OF EEPLEVIN. 445 The plaintiff cannot traverse any matter in the avowry or cogni- zance, but must take issue on the traverse of the place.' 853. "What may be shown under the various pleas we will dis- cuss under Evidence.'' (11.) Avowry by Defendant or Landlord, or Cognizance by the Bailiff. 854. The plaintiff or tenant having filed his declaration, the defendant or landlord, instead of pleading to the declaration, may respond as follows : (1.) By an avowry. (2.) By a cognizance when the distress is made by a bailiff. 855. In some cases an avowry and cognizance are both requi- site. Thus where the action is, against the principal or landlord and the bailiff or servant, the former avows and the latter makes cognizance ; or where one joint tenant or tenant in common, dis- trains for the rent due for all the shares, and replevin is brought against the distrainer, he must avow for his own share, and for the others make cognizance as bailiff of his co-tenant.' 856. An avowry is the defendant's or landlord's answer, in which he admits the taking of the chattels, and setting forth the cause thereof claims a right to do so.* It is, in fact, a declaration setting forth the nature and merits of the defendant's or landlord's case by showing :^ (1.) The demise or letting to the tenant. (2.) The rent or service incurred. (3.) The chattels taken as a distress. (4.) That they were taken during the occupation or right of occupation of the tenant, or after a fraudulent removal if the goods were the tenant's, as the case may be. ' Poot's Case, Salkeld, 93 ; Wilkinson's Beplevin, *50, *81 j Williams's Saunders' Reports, 637 (edition of 1871). '■Infra, page 458, f 874, and sequents. 3 See PuUen v. Palmer, 6 Modern, 73. * 4 Bouvier's Institutes, 8571 ; Gilbert on Distresses and Eeplevin, 176 ; (Joke upon Littleton, 320; Bwing o. Vanarsdall, 1 Sergeant & Eawle, 370. 5 Hill V. Miller, 5 Sergeant & Eawle, 355, 357; Phipps. v. Boyd, 4 P. P. Smith, 342; Waltman v. Allison, 10 Barr, 464; Barr v. Hughes, 8 Wright, 516 ; Burr v. Van Buskirk, 3 Cowen (N. T.), 263 ; Adams v. Laoomb, 1 Dallas, 440. 446 DETENTION OP EMBLEMENT. [CHAP. XV. 857. la fact the avowry should, in replevin of a distress for rent, distinctly state every fact necessary to show that the distress was lawful ; the existence of every fact not traversed is admitted.' 858. A cognizance is a declaration similar to an avowry, differ- ing only by being made by the bailiff of the defendant or landlord, acknowledging the taiiing of the chattels, and alleging the right to distrain to be in the person by whose command he acted.^ 859. la maiiing an avowry or cogaizance upon a distress for rent, it is not necessary ia Peuosylvauia, under the provisions of the act of 21st March, 1772, section 10, to set forth the claim of title of the lessor or of the ground-landlord,' but if the avowant be au executor or administrator, he must show that the rent be- came due before the death of the testator, as rent accruing after the death goes to the heir.* 860. An agreement for a lease, no rent having been paid, will not support an avowry or cognizance that the plaintiff held by virtue of a demise; for there is no demise either expressed or im- plied.' But where rent has been paid such an avowry or cogni- zance can be maintained.* 861. Although the Supreme Court has in many decisions ad- mitted of great looseness in the form of avowries,^ yet other decisions require more exactness, and, since an avowry partakes of the nature of a declaration, it is advisable that it be drawn with precision, showing the nature and merits of the defendant's case, as we have already observed.' Though an avowry is sufficient in 1 Hill V. Miller, 5 Sergeant & Eawle, 355, 357; per Gibson, J., "Williams V. Smith, 10 Ibid. 202, 205. ^ 4 Bouvior's Institutes, 3571 ; 3 Blackstone's Commentaries, 149. " 1 Smith's Law, 370, ante, page 404, f 750 ; Franoiscus v. Reigart, 4 Watts, 98, 476 ; Jones v. Gundrim, 3 Watts & Sergeant, 534 ; McCurdy v. Randolph & Greer, 2 Clark, 323; see also Fredericks v. Royal, 7 Weekly Notes, 64. * Wright V. Williams, 5 Cowen (N. T.), 338 ; Act of 24th February, 1834, sec. 29 ; Pamphlet Laws, 78. ' Hegan v. Johnson, 2 Taunton, 148 ; Dunk v. Hunter, 5 Barnewell & Al- derson, 322 ; 7 English Common Law Reports, 115. « Knight V. Bennett, 3 Bingham, 361 ; 13 English Common Law Reports, 8. ' See Albright v. Pickle, 4 Yeates, 264 ; Smith v. Aurand, 10 Sergeant & Rawle, 92; Weidelti. Roseberry, 13 Ibid. 180 ; Barr v. Hughes, 8 Wright, 516. 8 See ante, f 856 ; Ewing u. Vanarsdall, 1 Sergeant & Rawle, 370; Hill V. Miller, 6 Sergeant & Rawle, 355. SEC. v.] THE AOTIOK OP REPLEVIN. 447 form, yet if it is not also so in substance, advantage may be taken of the objection under u special demurrer. If an avowry allege that the goods were taken on demised premises for which rent was in arrear, it is good in form, though it does not set forth that the distress was taken for that rent. Such an avowry would also be good in substance if the plaintiff had declared in the detinuiV In Kensel v. Chambers," where the goods of a stranger which had been distrained for rent were afterwards replevied, and the lessor in his avowry omitted to set forth the tenant's name, the District Court of Philadelphia County held that the question was whether rent was in arrear on the premises where the distress was made, and not of the person who owed it. But by going on to trial informalities in an avowry for rent in arrear are cured.' 862. Where the landlord avows the distress, he may recover a less amount of rent than he alleges to be due,* but if he have title to only two third parts of the land out of which the rent issues his whole avowry falls.^ The avowry should, however, state accurately the amount of rent reserved, for that is descriptive of the demise f but the amount of rent in arrear need not be set forth, for that is not the foundation of the landlord's claim.' 863. An avowry is not abated by the payment of rent into court ; if the legality of the caption be established the defendant is entitled to damages and costs.' But where a distress has been made in several places, in some of which the landlord had no right to distrain, he will be allowed to pay into court the damages for taking in the places in which he had no right.^ And, more- over, a man may take a distress for one cause and avow for another.^" 1 Baird v. Porter, 17 P. P. Smith, 105, 107, and cases there cited. 2 5 Philadelphia, 64. » Kessler ». McConachy, 1 Kawle, 434. * Barr v. Hughes, 8 Wright, 516 ; Porty v. Imber, 6 East, 434 ; Cobb v. Bryan, 3 Bosanquet & Puller, 348. 5 Duppa V. Mayo, 1 Saunders, 284. 6 Phipps V. Boyd, 4 P. P. Smith, 344 ; Barr v. Hughes, 8 Wright, 516 ; Brown 11. Sayoe, 4 Taunton, 820. ' Ibid. 8 Eowley v. Gibbs, 14 Johnson (N. T.), 385; Chambers's Landlord and Ten- ant, 646; Wright ». Williams, 2 Wendell ^N. T.), 632. 9 Lambert v. Hepworth, 2 Gale & Davidson, 112. 10 Groenvelt u. Burwell, ComynJs Reports, 78 ; Woodfall's Landlord ami Tenant, 435 (11th ed.). 448 DETENTION OF EMBLEMENT. [CHAP. XV. 864. In regard to the parties to an avowry it may be said that any one may avow who can distrain. Joint tenants and copar- ceners must join in the avowry, or one can avow for his part only, and for the residue he may make cognizance as bailiff to his com- panions, but if either avow for his individual share it will be fatal.' Tenants in common must sever in an avowry for rent in arrear, and the avowry of each must be for his proportionate share ;' and in general he may make cognizance for his co-tenant.' Tenants in common, who make a joint lease to a tenant for years, may make a joint avowry.* If one tenant in common should release the rent, it is not a discharge as to the others.* 865. In replevin against several, if defendants appear by at- torney and make cognizance, and one of them is an infant, yet it is no error ; for they all make but one bailiff and appear in autre droit.^ But where several defendants join in an avowry, a demise by all, or a title deduced from the original lessor to all, must be shown.'' Under such an avowry, and the plaintiff's plea of non demiserunt, they cannot stand upon an authority from the real landlord as if they had made cognizance.' (12.) Plaintiff's or Tenant's Pleas to the Avowry or Cognizance. 866. The defendant, having avowed, as landlord, or made cognizance as bailiff, becomes as it were a plaintiff in prosecuting his remedy by distress, and showing his right thereto. The plain- tiff in the replevin is regarded in the character of a defendant, and therefore entitled to plead in bar of the avowry or cognizance as many separate pleas as he deems proper;' there is no general 1 Stedman v. Bates, 1 Lord Raymond, 64 ; Pullen v. Palmer, 5 Modern, 72 ; Leigh V. Sheppard, 2 Broderip & Bingham, 465. 2 4 Colte upon Littleton, 198; Cully «. Spearman, 2 H. Blackstone, 386; Harrison D. Barnby, 5 Term Reports, 249; Decker ij. Livingstone, 15 John- son (N. Y.), 479. ' Harrison v. Barnby, 5 Term Reports, 246. 4 Jones V. Gundrim, 3 Watts & Sergeant, 521. 6 Decker v. Livingston, 15 Johnson (N. Y.), 479. « Ooan V. Bowles, 1 Showers, 165; Cowne v. Bowles, 1 Salkeld, 93. ' Chicago and Allegheny Oil and Mining Company v. Barnes, 12 P. P. Smith, 445; Swing v. Vanarsdall, 1 Sergeant & Rawle, 370. « Ibid. » "Wilson 0. Gray, 8 Watts, 25, 37. See also Ewing v. Vanarsdall, 1 Ser- geant & Rawle, 370 ; Weber v. Sherman, 6 Hill (N. Y.), 31 ; McPherson and Crane v. Melhinch, 20 Wendell (N. Y.), 671 ; Wilson v. Ames, 5 Taunton, 840 (1 English Common Law Reports, 127). SEC. V.J THE ACTION OF REPLEVIN. 449 issue, and some special point must be traversed.' To an avowry or cognizance on a distress for rent the plaintiff or tenant may, then, plead in bar one or more of the following pleas : (1.) That the defendant or avowant did not demise, which in form is non demisit, or where there is more than one avowant non demiserunt.^ (2.) That he did not hold as a tenant to the defendant, which in form is non tenuit modo et forma or non tenure.^ It has been held that with this a plea of infancy may be pleaded.* (3.) That the avowant had parted with his estate in the de- mised premises, the plea averring that such estate was one for years.* (4.) Non est factum, where a lease is specially stated in the avowry.* This plea puts in issue the execution of the lease only, and the breaches are admitted.' (5.) That the lessor had induced him to take the lease by fraudulent representations.* (6.) That there was no rent in arrear, which in form is riens en arrere? This plea admits the tenancy, and puts the defence on 1 Hill V. Miller, 5 Sergeant & Eawle, 355. * Chicago and Alleghany Oil and Mining Company v. Barnes, 12 P. F. Smith, 445 ; Hill v. Miller, 5 Sergeant & Rawle, 355 ; Kobins v. Kitchen, 8 Watts, 390; Beaumont v. Wood, 10 Sergeant & Kawle, 433 ; Bwing v. Vanarsdall, 1 Ibid. 370; DunkTj. Hunter, 5Barnewall & Alderson, 322 (7 English Common Law Eeports, 115) ; Hayward v. Haswell, 6 Adolphus & Ellis, 265 (33 English Common Law Eeports, 79); Mann v. Lovejoy, Eyan & Moody, 355 (21 English Common Law Eeports, 454) ; Eogers v. Pitcher, 1 Marshall, 541. 3 Bloomer v. Juhel, 8 Wendell (N. Y.), 448; Meyers v. Gowen, 36 Legal Intelligencer, 164 (1879); Hoporaft v. Keys, 9 Bingham, 613 (23 English Common Law Eeports, 728); Lewis v. Payn, 4 Wendell (N. Y.), 423; Wil- son V. Ames, 1 Marshall, 74; Eogers v. Pitcher, 6 Taunton, 541 ; Gregory v. Doidge, 11 Moore, 394; Helliugs v. Wright, 2 Harris, 373. ' Wilson V. Ames, 1 Marshall, 174. 6 Manuel v. Eeath, 5 Philadelphia, 11 ; Hill v. Miller, 5 Sergeant & Eawle, 355 ; Meyers v. Gowen, 36 Legal Intelligencer, 164 (1879) ; Hopcraft v. Keys, 9 Bingham, 613 (23 English Common Law Eeports, 728) ; Eogers v. Pitcher, 6 Taunton, 202 (1 English Common Law Eeports, 355). " Adam v. Duncalfe, 5 Moore, 475. ' Bloomer v. Juhel, 8 Wendell (N. Y.), 448, 451. * Eobins v. Kitchen, 8 Watts, 390 ; Gregory v. Doidge, 11 Moore, 394. » Hill V. Miller, 5 Sergeant & Eawle, 355 ; Williams v. Smith, 10 Ibid. 205 ; Anderson «. Eeynolds, 14 Ibid. 439 ; Quinn v. Wallace, 6 Wharton, 452 ; 29 450 DETENTION OF BMBLBMBNT. [OHAP. XV. matters subsequent.' But if the plea be accompanied hy a plea of non tenure, then the title of the defendant is denied.* (As to what matter the plaintiff may avail himself of under the short plea of riens in arrere, see evidence under that plea.') (7.) That he has a defalcation arising from payments made of taxes under acts of Assembly.* Such a set-off cannot however be pleaded where the replevin was of a distress for ground rent re- served in a conveyance in fee simple.* (8.) That the lessor had, in the lease, covenanted to make repairs to the demised premises and had failed to do so.® (9.) That the lessor had evicted him from the demised premises before the rent became due.'' Eviction has no operation on rent already due; it merely suspends rent running on at the time of eviction,^ but the plea must set forth an actual eviction, merely setting forth the trespass being insufficient. In Pennsylvania actual physical expulsion is not necessary to constitute an eviction, but any interference with the tenant's beneficial enjoyment of the de- mised premises will amount to such an eviction as will suspend ensuing rent* Where there is a plea of eviction by a stranger under title paramount, it must aver that the eviction was, by title Alexander v. Harris, 4 Cranch, 299, 303; Jones v. Morris, 3 Exchequer, 742 (Welsby, Hurlston & Gordon, 742) ; Sapsford v. Fletcher, 4 Term Eeports, 511; Taylor v. Zamira, 6 Taunton, 524 (1 English Common Law Eeports, 472) ; Dyer v. Bowley, 2 Bingham, 94 (9 English Common Law Eeports, 333) ; Eairman v. Eluck, 6 "Watts, 516 ; Beyer v. Eenstermacher, 2 Wharton, 195; Hunter v. Lecoute, 6 Cowen (N. T.), 728; Cobb ». Bryan, 3 Bosanquet & Puller, 348; Lewis v. Payn, 4 "Wendell (N. Y.), 437; Taylor v. Zamira, 2 Marshall, 220; Kessler v. McConaehy, 1 Eawle, 435; Eush v. Plickwire, 17 Sergeant & Eawle, 82. \ Hill V. Miller, 5 Sergeant & Eawle, 355 ; Williams v. Smith, 10 Ibid. 203 ; Alftxander v. Harris, 4 Cranch, 299, 303 ; Hill v. Wright, 2 Espinasse, 669. 2 Bloomer v. Juhel, 8 Wendell (N. T.), 448. ' Infra, page 458 and sequents. * See acts of 6th April, 1802 (3 Smith's Laws, 516) ; 3d April, 1804 (4 Ibid. 203) ; 15th April, 1834 (Pamphlet Laws, 518) ; 6th April, 1879 (Ibid. 24). " Franciscus v. Eeigart, 4 Watts, 119. » Warner v. Caulk, 3 Wharton, 193 ; Fairman v. Fluck, 5 Watts, 516. ' Lewis V. Payn, 4 Wendell (N. T.), 423 ; Naglee v. Ingersoll, 7 Barr, 185 ; Kessler v. McOouachy, 1 Eawle, 435. " Kessler v. McConaehy, 1 Eawle, 485. » Hceveler v. Fleming, 8 Weekly Notes, 65, and cases there cited ; Doran V. Chase, 2 Ibid. 609. SBC. v.] THE ACTION OF EBPLBVIN. 451 existing before the demise, and that there had been an entry by the evictor.' (10.) That the defendant was a trespasser ab initio by having distrained without right, or by having committed some irregularity in conducting the distress subsequent to making it.^ (11.) That the bailiff had no authority to distrain.' (12.) That the lessor had distrained after treating him (the tenant) as a trespasser.* (13.) That a former distress had been made.' This plea need not allege that the former distress was sufficient to pay the rent in arrear.* (14.) That the distress was made off the demised premises, which in form is hors de son fee.'' (15.) That the distress was made on Sunday, or at night, i. e., from sunset to sunrise.' (16.) That the distress was made by breaking through an outer door, gate, or window.* (17.) That the distress was made after tender of the rent;" a tender of rent takes away the right to distrain till a subsequent demand and refusal." The plea of tender need not say tout temps prist, nor make a proffer of the money in court." 1 Nagleei). Ingersoll, 7 Barr, 185, 206. 2 Kimball v. Adams, 3 New Hampshire, 182. See also Brisben v. Wilson,. 10 P. I". Smith, 452. s Franciscus v. Reigart, 4 Watts, 98. See Bloomer v. Juhel, 8 Wendell, (N. T.), 448,451; Trevillian v. Pine, 11 Modern, 112; s. c. 1 Salkeld, 107; Bobinson v. Hoffman, 4 Bingham, 562 (15 English Common Law Reports, 73) ; 1 Williams's Saunders's Reports, 641 (edition of 1871) ; Wilkinson on Re- plevin, 83; Earl of Bedford's Case, Croke Elizabeth, 14. « Bridges v. Smith, 2 Moore & Payne, 740. ' Quinn v. Wallace, 6 Wharton, 452, and cases there cited. « Ibid. ' Sherrard v. Smith, 2 Modern, 103; 9 Coke's Reports, 34; 2 Coke's Insti- tutes, 131. 8 Mayfield v. White, 1 Browne, 241 ; Aldenburgh v. Peaple, 6 Carrington & Payne, 212 (25 English Common Law Reports, 361 ) ; Coke upon Littleton , 142 a; 9 Gould V. Bradstock, 4 Taunton, 552 ; Brown v. Glenn, 2 English Law and Equity Reports, 275 ; Coke upon Littleton, 161 ; Mayfield v. White, 1 Brown, 241. 1" Hunter v. Le Conte & Ellis, 6 Cowen (N. Y.), 728, and authorities there cited; Woodfall's Landlord and Tenant, 377 (11th ed.) ; Pilkington Case, 5 Coke, 76 a; Six Carpenters' Case, 1 Smith's Leading Cases, *216. " Hunter v. Le Conte & Ellis, 6 Cowen (N. T.), 728; Pimm v. Grevill, 6 Espinasse's Reports, 95. '* Hunter v. Le Conte & Ellis, 6 Cowen (N. Y.), 728. 452 DETENTION OP EMBLEMENT. [CHAP. XV. (18.) That after the distress and before the impounding thereof the rent in arrear and the costs of the distress were tendered.' (19.) That the goods distrained were retained on the demised premises an unreasonable time after the sixth day from the date of the distress.' (20.) That the distress was made on things of a perishable na- ture." (21.) That the distress was made on fixtures.* (22.) That the distress was made on chattels that had been placed in the possession of the tenant in the course of his busi- ness, by those with whom he dealt or by those who employed him.' (23.) That the distress was made on chattels deposited on stor- age with the tenant in the way of trade.^ (24.) That the distress was made on chattels intrusted to the tenant as agent to be sold on commission.' (25.) That the distress was made on goods of a guest, boarder, or lodger for rent due by the innkeeper or keeper of the board- ing-house.' ' Ibid. ; Six Carpenters' Case, 1 Smith's Leading Cases, *216. 2 Quinn v. Wallace, 6 Wharton, 452 ; Waitt v. Ewing, 7 Philadelphia, 195. ' See Morley v. Pincombe, 2 Exchequer, 101 (Welsby, Hurlston & Gordon). • * Coke upon Littleton, 47 h; Simpson v. Hartopp, 1 Smith's Leading Cases, *527; Dalton v. Whittem, 3 Queen's Bench, 961 (43 English Common Law Reports, 1056) ; Clarke v. Holford, 2 Carrington & Kerwin, 540 (61 English Common Law Reports, 539) ; Hellawell i>. Eastwood, 6 Exchequer, 295 (Welsby, Hurlston & G-ordon) ; Gorton v. Palkner, 4 Term Reports, 567 ; Brook's Abridgment, title Distress; Niblet ». Smith, 4 Term Reports, 504; Darley v. Harris, 1 Queen's Bench, 895 (41 English Common Law Reports, 828); Pitt V. Shew, 4 Barnewall & Alderson, 206 (6 English Common Law Reports, 402) ; Clarke v. Gaskarth, 8 Taunton, 431 (4 English Common Law Reports, 154) ; Spencer v. Darlington, 24 P. F. Smith, 286. ' Karns i>. McKinuey, 24 P. F. Smith, 387, and cases there cited ; Howe Sewing Machine Company u. Sloan, 6 Norris, 438, 441; s. c, 6 Weekly Notes, 266 ; BiegfenWald v. Winpenny, 9 Ibid., 542 ; Nass v. Winpenny, Ibid. 6 Brown v. Sims, 17 Sergeant & Eawle, 138; Briggs v. Large, 6 Casey, 287; Cadwalader ». Tindall, 8 Harris, 432; Riddle o. Welden, 5 Wharton^Q. ' Howe Sewing Machine Company v. Sloan, 6 Norris, 438; s. c,, 6 Weekly Notes, 266. ' Riddle v. Welden, 5 Wharton, 9 ; Karns v. McKinney, 24 P. F. Smith, 389 ; Jones v. Goldbeck, 8 Weekly Notes, 533 ; Erb v. Sadler, Ibid. 13. SEC. v.] THE ACTION OF EBPLBVIN. 453 (26.) That the distress was made on the cattle of a stranger which were on the demised premises to be pastured.' (27.) That the distress was made on chattels of a stranger which were on the demised premises by the consent of the lessor as privileged from distress.^ (28.) That the distress was made for rent due by a former ten- ant on chattels formerly belonging to the said ex-tenant, but which were honestly sold to the tenant in possession,' (29.) That the distress was made for rent due from a former tenancy by one of two joint tenants on goods on the demised premises belonging to both.* (30.) That the (Jistress was made upon the chattels of a stranger by following the same after removal thereof from off the demised premises." (31.) That the distress was made on the chattels of a deceased tenant.^ (32.) That the distress was made on the chattels of a foreign ambassador or official.' (;'3.) That the distress was made on animals, /er« natures, which had been reclaimed.* (34.) That the distress was made on chattels while in the actual use of the tenant or of his family.' (35.) That the distress was made on implements of husbandry when there was other sufficient distress."* (36.) That after the seizure of the distress the distrainer had damaged or used it." 1 Cadwalader v. Tindall, 8 Harris, 426. 2 Fowkes V. Joyce, 2 Vernon, 129, 131 ; Clifford v. Beems, 3 "Watts, 246 • see also Beltzhoover v. Waltman, 1 Watts & Sergeant, 416. » Clifford V. Beems, 3 Watts, 246. * Beltzhoover v. Waltman, 1 Watts & Sergeant, 416. ' Sleeper v. Parish, 7 Philadelphia, 249 ; Grant & McLane Appeal, 8 Wright, 477; Adams v. Lacomb, 1 Dallas, 440. 8 Mickle V. Miles, 3 Grant, 320; Houston v. Hoskins, 2" Clark's Cases, 489. ' See ante, chapter v, page 108, ][ 130. 8 2 Eolle's Abridgment, 430 ; Gilbert's Distresses and Keplevin, 12 ■ Wil- kinson's Replevin, 4. ^ Coke upon Littleton, 47 ; Simpson v. Hartopp, 1 Smith's Leading Cases, 527 ; Gorton v. Paulkner, 4 Term Eeports, 565. "> Ibid. See ante, chapter v, section 1, page 107. " Hopkins ». Hopkins, 10 Johnson, 869, 373 j Osgood v. Green, 10 Poster (N. H.), 210. 454 DETENTION of' KMBLEMENT. [OHAP. XV.' (37.) That the chattels were distrained in the highway. (38.) That the chattels were impounded out of the county, or in a pound covert out of the township, or in several places. 867. With regard to the thirty-seventh and thirty-eighth pleas, namely, that the chattels were distrained in the highway, and that the chattels were impounded out of the county, or in a pound co- vert out of the township, or in several places, our courts have handed down no decisions as to whether such pleas are good in bar of an avowry or not. The seizing of a distress in the public highway is prohibited by the statute of Marlbridge (52 Henry III, chapter 15), but it is said by Lord Coke that the tenant can- not plead a distress made in the highway in bar of the avowry, nor can he bring an action of trespass against the distrainer, as the proper action is a special action on the case upon that statute, as were it otherwise the king would lose his fine.' The impounding of the distress out of the county was prohibited by the same stat- ute in chapter 4 ; the impounding in a pound covert out of the township and the impounding in several places were prohibited by statute 1st and 2d Philip and Mary, chapter 12. The rea- soning of Lord Coke in the case of distraining in the highway is applicable to the other cases^ and probably of equal force, but it does not seem to apply to Pennsylvania. Here there is no fine to be lost to the commonwealth in case the tenant brings an action of trespass vi et armis, instead of an action of trespass on the case, and the authors can see no good reason why any of the prohibited offences just mentioned should not make the distrainer a tres- passer ab initio, and liable as such. (13.) Pleas not admissible to the Avowry or Cognizance. 868. The plaintiff or tenant cannot plead the following pleas in answer to an avowry or cognizance: (1.) Nil habuit in tenementis (which admits the existence of the lease) cannot, since the act of 21st March, 1772, be pleaded to an avowry, yet the plaintiff may traverse the tenancy.' ' Coke upon Littleton, 160 b ; 2 Coke's Institutes, 131 ; Gilbert's Distresses and Keplevin, 40 (2d edition), 51 (4th edition) ; Woodfall's Landlord and Tenant, 413, 415. ^ Woodcroft u. Thompson, 3 Levinz, 48. 3 Hill V. Miller, 5 Sergeant & Eawle, 355, 357. SEC. v.] THE ACXION OP REPLEVIN. 455 (2.) De injurid svA proprici absque tali causS, which is bad upon special demurrer.' (3.) That the distress was for more rent than was due.'' Where any rent is in arrear the landlord may enter and distrain, for the distress is lawful in part for the rent actually due.' IX. Of the Trial 869. At the trial it depends on the tenor of the plaintiff's dec- laration, or the defendant's pleas thereto, or the pleas of the plain- tiff to the defendant's avowry or cognizance, whether the plaintiff or the defendant has a right to begin and conclude, it being the part of the affirmant to do so.* The court should consider what is the substantive fact made out and on whom it lies to make it out. It is not so much the form of the issue which is to be re- garded, as the substance and effect of it.* Another test is to con- sider which party would be entitled to the verdict, if no evidence were given on either side, as the burden of proof must lie on the adverse party .° (1.) Amendments in Pleading. 870. It may be well to observe here that in the action of re- plevin amendments in the pleadings are allowable at any time during the trial, if the ends of justice will thereby be promoted ; the determination of which contingency must be left in a great meas- 1 Fredericks v. Eoyal, 7 Weekly Notes, 64 ; Jones v. Kitchen, 1 Bosanquet & Puller, 76; Lytle». Lee & Eugles, 5 Johnston (N. T.), 112; Hopkins v. Hopkins, 10 Ibid. 364; Crogate's Case, 1 Smith's Leading Cases, *200; s. c, 8 Coke, 66. 2 McKinney -a. Reader, 6 Watts, 34, 41 ; Earns v. McKiuney, 24 P. P. Smith, 387, 391; McElroy u. Dice, 6 Harris, 163; Taylor v. Hennicker, 12. Adolphus & Ellis, 448 (40 English Common Law Reports, 488). » Earns v. McKinney, 24 P. F. Smith, 387. ■• Curtis V. Wheeler, 1 Moody & Malkin, 493; Bills v. Vose, 7 Poster (N.. H.), 212; Belknap v. Wendell, 1 Ibid. 175. ' Ibid ; Soward v. Leggath, 7 Carrington & Payne, 613 (32 English Com- mon Law Reports, 654). 6 Leete v. Gresham Life Insurance Society, 7 English Law and Equity Re- ports, 578 ; see also Roscoe's Evidence, 218 (10th edition). 456 DETENTION OF EMBLEMENT. [CHAP. XV. ure to the discretion of the court.' Thus in Hellings v. Wright,' an owner of land left the possession, and a trespasser entered upon and farmed the land, which was afterwards sold on a judgment against the owner obtained after grain was sown by the tres- passer ; the purchaser issued a landlord's warrant, under whiuh the grain was levied on, whereupon the trespasser replevied, and the purchaser avowed for rent in arrear, when the trespasser (the plaintiff in the action) pleaded non tenuit and no rent in arrear. It was held by the Supreme Court that the purchaser (defendant in the action) was not estopped from adding the plea of property, and claiming as purchaser the grain levied upon. But where the parties in replevin were at issue, under the plea of property, the court refused to allow the defendant to withdraw his plea and substitute that of non cepit, changing the issue.' And the act of 10th of May, 1871,* confers additional powers of amendment upon the courts. It enacts as follows : " That in all actions pending or hereafter to be brought in the several courts of this commonwealth, said courts shall have power, in any stage of the proceedings, to permit an amendment or change in the form of action, if the same shall be necessary for a proper decision of the cause upon its merits ; the party applying to pay all costs up to the time of amendment, and the cause to be continued to the next court if desired by the adverse party." 871. If either party be taken by surprise by a change in the pleas he is entitled to a continuance.® (2.) When the Plaintiff should Commence. 872. The plaintiff in the action of replevin should commence in the following cases : (1.) Where the defendant pleads property the burden of proof is upon the plaintiff, and he must prove his right to replevy by 1 Hellings v. Wright, 2 Harris, 373, 376, per Coulter, J. ; see also Ewing ■a. Vanarsdall, 1 Sergeant & Eawle, 370. 2 2 Harris, 373, 376. ' McDaniels v. Train, 1 Browne, 846. * Pamphlet Laws, 265 ; see also Eoyse v. May, 9 Weekly Notes, 104. « Hellings u. Wright, 2 Harris, 373, 375; see also Johnson v. Hulsehart, 3 Philadelphia, 379. SEC. v.] THE ACTION OF REPLEVIN. 457 showing property in himself, and the right df exclusive posses- sion.' (2.) Where the defendant denies the taking {non cepit), it is for the plaintiff to prove the detention.^ (3.) Where the defendant pleads cepit in alio loco the burden of proof is upon the plaintiff to show that the goods or cattle were taken in the place mentioned in the declaration, or that they were in the defendant's possession there.' (4.) Where the plaintiff declares that he was induced to take the lease by fraudulent representation, it is for him to prove the fact.* (5.) Where the plaintiff pleads no rent in arrear he admits the tenancy, and must prove payment.' (6.) Where the plaintiff pleads that the defendant became a trespasser ab initio, by distraining without right or by conduct- ing the distress illegally, he must prove the trespass.^ (7.) Where the plaintiff pleads an eviction the burden of proof is upon him.' (8.) In England, where the plaintiff pleads that the distress was not made within twenty years after the time when the right to distrain occurred, it is for the plaintiff to show the time at which the distress was made,' but in Pennsylvania the statute of 2 and 3 William IV, chapter xxvii (which extinguished rent by lapse of twenty years), is not in force, and having no act of As- sembly analogous thereto, the landlord's (defendant) right to dis- 1 Clemson v. Davidson, 5 Binney, 397; Marsh v. Pier, 4 Rawle, 273, 283 ; Seibert v. McHenry, 6 Watts, 303 ; Mackinley v. McGregor, 3 Wharton, 398; Eeinheimer v. Hemingway, 11 Casey, 432; Matthias v. Sellers, 5 Nor- ris, 486, 492; s. c, 5 Weekly Notes, 518. ' Mackinley v. McGregor, 3 Wharton, 398; Knowles v. Lord, 4 Whar- ton, 500, 504; Johnston v. Wollyer, 1 Strange, 507. 3 Wilkinson's Replevin, *81 ; Williams's Saunders's Reports, 637 (edition of 1871). ♦ Robins v. Kitchen, 8 Watts, 390. ■^ Hill V. Miller, 5 Sergeant & Rawle, 357; Barr v. Hughes, 8 Wright, 516, 518; Hungerford v. Burr, 4 Oranch (Cir. Ct.), 349; Alexanders. Harris, 4 Cranch (S. C), 299, 303. ' Kimball v Adams, 3 New Hampshire, 182. ' Bills 0. Vose, 7 Poster (N. H.), 212; Curtis v. Wheeler, 1 Moody & Malkin, 493 ; see also Kessler v. McConachy, 1 Rawle, 435. 8 Collier v. Clarke, 5 Adolphus & Ellis (N. S.), 467 (48 English Common Law Reports) ; Owen v. De Beauvoir, 16 Meeson & Welsby, 647. 458 DETENTION OF EMBLEMENT. [CHAP. XV; train continues without limitation as to time, so long as rent re- mains in arrear, and he retains title to the demised premises, though the tenancy be ended.' (3.) When the Defendant should commence. 873. The defendant in the action of replevin should commence in the following cases : (1.) Where the defendant pleads property in a third person and issue is taken thereon, the -burden of proof is upon him.^ (2.) Where the plaintiff pleads that he does not hold {non tenuit) under the defendant, it is for the defendant to prove the tenancy.' (3.) Where the plaintiff pleads non demisU, it is for the defend- ant to prove the demise.* (4.) Where the plaintiff pleads non est factum, when a lease is specially stated in the avowry, the burden of proof of the execu- tion of the lease is upon the defendant.' (5.) Where the plaintiff pleads that the defendant is not bailiff the burden is upon the defendant to show his authority .' (6.) When the plaintiff pleads a former distress it is for the defendant to prove that it was insufficient to pay the rent.' (7.) Where the proceedings are under the statute of 17 Charles II, chapter vii, the defendant must prove the rent in arrear and the value of the distress.* (4.) The Evidence, where the Replevin is of a Distress for Rent. A. On the part of the Plaintiff or Tenant. (a) Under an Avowry or Cognizance. 874. Where the replevin is of chattels taken on a distress for ' Moss's Appeal, 11 Casey, 162; Lewis's Appeal, 16 P. F Sniith, 314. ' Colstone v. Hiscolbs, 1 Moody & Kobinsou, 301 ; Kern „. Potter, 71 Il- linois, 19. ' Ewing V. Vanarsdall, 1 Sergeant & Rawle, 370 ; Chicago and Alleghany Oil and Mining Company v. Barnes, 12 P. P. Smith, 445; Myers v. G-owen, 86 Legal Intelligencer, 164 (1879). * Hill V. Miller, 5 Sergeant & Kawle, 355. 5 Adams v. Dunealfe, 5 Moore, 475 j Bloomer v. Juhel, 8 Wendell (N. T.), 448, 451. » Wilkinson's Replevin, *83. » Quinn v. Wallace, 6 Wharton, 442. ' See ante, page 401, ^ 747. SEC. V.J THE ACTION OF KEPLEVIN. 459 rent in arrear, the avowry if the defendant be the landlord, or the cognizance if the defendant be bailiff, admits as follows :' (1.) The existence of the chattels. (2.) The capture thereof. (3.) The property of the plaintiff therein. Of these matters the plaintiff or tenant need give no evidence. (6.) Under the Plea of Non Demisit. 875. When the plaintiff pleads non demiM he may prove as follows : (1.) That the defendant has parted with the reversion, as where he (the tenant) purchased the demised premises by and with the advice and assent of the defendant.'' (2.) That the defendant's title to the premises has expired, and that he has been compelled to pay rent to another.' (3.) That the defendant induced him to accept the lease by fraud or misrepresentation, and that at the time of the execution of the lease he, the plaintiff, was really the owner of the land.* 876. Under the tenant's plea of non demisit the defendant is com- pelled to prove the demise. In so doing, proof by the defendant of a mere agreement to let will not suffice,* unless the plaintiff has entered and remained on the demised premises more than a year,' thus becoming a tenant from year to year,' or, having paid the defendant rent, thereby acknowledges the tenancy.* More- 1 Espinasse on Evidence, 172; Clarke v. Davies, 7 Taunton, 72 (2 English Common Law Reports, 30). 2 Hill V. Miller, 5 Sergeant & Eawle, 355; see also Beaumont «. Wood, 10 Sergeant & Kawle, 433, ' Knight I). Bennett, 3 Bingham, 361 (13 English Common Law Reports, 9). Eobins v. Kitchen, 8 Watts, 390. 6 Dunk V. Hunter, 5 Barnewall & Alderson (7 English Common Law Re- ports, 115); Hegan v. Johnston, 2 Taunton, 148; Hayward v. Haswell, 6 Adolphus & Ellis, 265 (33 English Common Law Reports, 79). 6 Knight ». Bennett, 3 Bingham, 361 (13 English Common Law Reports, 9). ' Ibid. ; Mann v. Lovejoy, Ryan & Moody, 355. e Harrison v. Barnby, 5 Term Reports, 246. 460 DETENTION OF EMBLEMENT. [OHAP. XV. over, in these cases, the defendant must prove the tenancy as stated in the avowry, since a variance therefrom will be fatal.' (c.) Under the PUa of Nbn Tenuit Modo et Forma. 877. Where the plaintiff's plea to the avowry or cognizance is non tenuit modo et forma, he may adduce evidence to prove as follows : (1.) An eviction from the demised premises before the rent dis- trained for became due.'' (2.) Where the defendant, having only a defeasible title, de- mised to plaintiff f(5r years ; before the first quarter's rent was due he was evicted by title paramount to the defendant's, and re- mained out of possession for some time; he then entered again under a new lease with the person who had evicted him by title paramount. Lord Chief Justice Tindall held that the defendant was not entitled to distrain, and that the eviction might be given in evidence on the issue of non tenuit.^ (3.) Where the tenant did not lease from the defendant, but was induced by misrepresentation or fraud to acknowledge the latter as his landlord, he may prove the facts.* (4.) Where the plaintiff did not originally lease from the de- fendant, he may (though he has paid the latter rent) rebut the defendant's title thereto, by evidence of payment under circum^ stances which did not entitle the latter to the rent.^ (5.) Where A. leased premises to B., who (after entry under the lease and after payment of rent) abandoned the same, whereupon A. assigned the lease to C ; D. entered into possession of the premises under a claim of ownership ; C distrained for rent due by B. on D.'s chattels, who pleaded non tenuit, it was held by the Court that the profert of the lease and assignment thereof was no evidence of O.'s title." ' Brown v. Sayce, 4 Taunton, 820. ^ H'oporaft v. Keys, 9 Bingham, 613 (23 English Common Law Keports, 728) ; Hunt v. Cope, 1 Cowper, 242 ; Lewis v. Payn, 4 Wendell (N. T.), 423, 428. » Hoporaftt). Keys, 9 Bingham, 613 (23 English Common Law Reports, 728). * Gregory v. Doidge, 11 Moore, 394 ; and see Claridge v. Mackenzie, 4 Man- ning & Granger, 143 (43 English Common Law Reports, 82). ' Rogers v. Pitcher, 6 Taunton, 202 (1 English Common Law Reports, 855). 8 Myers v. Qowan, 86 Legal Intelligencer, 164. SEC. v.] THE ACTION OF REPLEVIN. 461 (d.) Under Plea of Eiens in Arrere. 878. Where the plaintiff pleads riens in arrere, he admits the title of the defendant as stated in the avowry, and the tenure of the plaintiff does not come into the question.' The plea of riens in arrere puts in issue nothing but the fact of the rent being in arrear. " It is in words," as was said by Mr. Justice Strong, " an affirmative averment that nothing remains unpaid ; in substance it is a plea of payment The burden of maintaining it, as pleaded, is upon the plaintiff. For this reason it is that the de- fendant is entitled to a verdict, unless the plaintiff succeed in proving that all the rent avowed for has been paid and satisfied."^ The plea admits the tenancy and puts the defence on matter sub- sequent.' It in fact admits every allegation in the avowry, except that the rent is in arrear.* 879. Under this plea the plaintiff may show as follows: (1.) Payment to the defendant of the rent distrained for;' but where the replevin is by a sub-lessee for goods taken by the para- mount landlord, a receipt for rent given by the immediate lessee to the plaintiff in the action is not admissible on the part of the plaintiff.' (2.) Payment of the rent by payment made to a ground land- lord or other incumbrancer having claims paramount to that of the immediate landlord making the distress.' In alluding to the cases establishing this principle, Chief Baron Pollock said: "The ground of these decisions is that the compulsory payment by the tenant of ground-rent or other like charge is in truth partial evic- tion, and the landlord is presumed to authorize the payment by 1 Hill V. Miller, 5 Sergeant & Eawle, 356; Williams ». Smith, 10 Ibid 204; Bloomer v. Juhel, 8 Wendell (N. Y.), 448, 451 ; Hill v. Wright, 2 Bspinasie, 669. ' Beaumont v. Wood, 10 Sergeant & Eawle, 433. ' Williams v. Smith, 10 Sergeant & Kawle, 202, 205, and cases there cited Hill V. Miller, 5 Ibid. 355. * Ibid. 5 Jones V. Morris, Welsby, Hurlston & Gordon, 742 and 747 (3 Exchequer, 740, 746). « Quinn v. Wallace, 6 Wharton, 452. ' Sapsford v Fletcher, 4 Term Keports, 511; Taylor b. Zamira, 6 Taunton, 624 (1 English Common Law Reports, 472) ; Pyer v. Bowley, 2 Bingham, 94 (9 English Common Law Reports, 833) ; Graham v. Allsopp, Welsby, Hurl- ston & Gordon, 186, 198 (3 Exchequer, 185, 197). 462 DETENTION OF EMBLEMENT. [CHAP. XV. the tenant of his rent to those who have a claim on the landlord paramount to his own, and against which (as being a partial evic- tion) he is bound to protect the party holding under him. If at the time of the demise, it had been expressly stipulated that the tenant might so apply his rent, or a competent part of it, no question could arise; and even though no such stipulation has been made in express terms, yet the law considers it as implied in every contract of a demise.'" (3.) Payment of an annuity charged on the land prior to the demise to himself." (4.) Payment, by payment of taxes, under acts of 6th of April 1802,' 3d of April, 1804,* 15th of April, 1834,= and 16th of April, 1879.° (5.) Payment by damages sustained by the failure of the de- fendant, or those under whom he claims, to fulfil some covenant in the lease bearing on the landlord.' Thus in Fairman v. Fluck,' in delivering the opinion of the Supreme Court, Mr. Justice Sergeant says: "In the present instance the lease was of a tavern and wagon-yard ; on the one hand, the tenant agrees to pay $250 per quarter, rent, and the landlord covenants to put sufficient cinders and gravel on the wagon-yard as soon as practicable. This it is alleged he neglected to do, though fre- quently requested, and damage ensued therefrom. It is reasona- ble to suppose that the rent was enhanced in consequence of the landlord's undertaking to put the premises in better order for the tenant's use. It would be unjust for the landlord to re- cover his whole rent, when a covenant material to the beneficial enjoyment of the premises, and forming a part of the considera- tion for the rent stipulated, was knowingly violated ; and it is a good defence for the tenant to the amount of the damage suffered, not by way of defalcation or set off, for that is inadmissible, but ' .Tones v. Morris, Welsby, Hurlston & Gordon, 742, 747 (3 Exchequer, 740, 746). * Taylor v. Zamira, 6 Taunton, 524 (1 English Common Law Reports, 472). » 3 Smith's Laws, 616. * 4 Ibid. 203. « Pamphlet Laws, 518. » Ibid. 24. ' Fairman v. Fluck, 5 Watts, 516 j Beyer ». Fenstermaoher, 2 Wharton, 95; Anderson v. Eeynolds, 14 Sergeant & Rawle, 439. 8 5 Watts, 516, 517. SBC. v.] THE ACTION OF REPLEVIN. 463 as a failure of the consideration for the rent, by the act and de- fault of the landlord, in the non-performance of his part of the contract, and therefore exempting the tenant from an equivalent portion of the rent. The court below admitted the evidence on these principles, and we think correctly." (6.) A release of the rent.' (7.) Tender of the rent to the defendant, or to his agent duly authorized to accept it.^ (8.) A former distress for the rent distrained for. It behooves the defendant to prove that the distress first taken was insufficient.' (9.) That the rent distrained for was not due at the time of the distress.* (10.) That he was evicted from the demised premises before the rent distrained for became due.^ (11.) That rent was due for a less time than stated in the avowry.^ 880. Where the defendant makes cognizance as bailiflF, and sets forth that A. held the lands as tenant under a demise at a yearly rent and rent accrued, and plaintiff pleads non demisit and riens in arrere, the plaintiff may, without previous notice of special matter, give in evidence that A. took the land for a certain period, and paid the rent in advance. It may be said generally, if evi- dence be proper under any of the issues joined by the pleadings, it is admissible without notice of special matter.' 881. The plaintiff cannot give in evidence a set-off against the defendant unless it be connected with the rent, or with the occu- pation of the premises.* But the tenant may show a failure of the consideration for the rent by the landlord's neglect or refusal to fulfil his part of the covenants of the lease, which operates as an exemption of the tenant from so much of the rent as is equivalent ' Cooper V. Eobinson, 26 Meeson & "Welsby, 694. « Pimm V. Grevill, 6 Espinasse, 95 ; Hunter v- Le Conte and Ellis, 6 Cowen, 728. a Quinn v. Wallace, 6 Wharton, 452, and cases there cited. * Cobb V. Bryan, 3 Bosanquet & Puller, 348. 5 Lewis V. Payn, 4 Wendell (N. T.), 23. See also Naglee v. IngersoU, 7 Barr, 185, 206 ; Hunter v. Cope, 1 Cowper, 242. « Porty V. Imber, 1 East, 434. ' Beaumont v. Wood, 10 Sergeant & Eawle, 433. 8 Beyer v. Penstermacher, 2 Wharton, 95 ; Anderson ». Reynolds, 14 Ser- geant & Bawle, 435 1 Pairman v. Pluck, 5 Watts, 516. 464 DETENTION OF EMBLEMENT. [CHAP. XV. to the loss sustained by him.' But notice of set-off, or this special matter, should however be given, though the evidence being offered had been given on a former trial of the cause before arbitrators.^ (e) Under Plea of Eviction. 882. Where the plaintiff pleads an eviction he may be called on to prove as follows : (1.) That an eviction actually took place. A mere trespass or disturbance by a stranger, or even by the landlord himself, with- out interfering with the tenant's lawful enjoyment of the demised premises is not an eviction suspending the ensuing rent.' Nor is the erection of a party-wall by a stranger, whereby the windows in the demised premises are obstructed, an eviction by the lessor.* And in Pennsylvania it has been held that an actual physical ex- pulsion of the tenant is not necessary to constitute an eviction.^ In the recent case of Hceveler v. Fleming, in delivering the opinion of the Supreme Court, Mr. Justice Paxson says : " Any act of the landlord, which deprives the tenant of that beneficial enjoyment of the premises to which he is entitled under the lease, will amount to an eviction, and suspend the rent."^ Thus where the landlord refused to allow an undertenant to enter the demised premises under threats of suit for the rent, by which the lessee was deprived of the right of underletting, the court held that this was such an interruption of the tenant's rights as amounted to an eviction and suspended the accruing rent.' Where the tenant left the premises and the landlord put another person in possession and refused to permit the assignee or agent of the 1 Pairman v. Pluck, 5 Watts, 516. ' Beyer v. Penstermacher, 2 "Wharton, 95. ' Bennet v. Bittle, 4 Eawle, 338, and cases there cited ; Noble v. Warren, 2 Wright, 340. * Hazlett V. Powell, 6 Casey, 293. ' McClurg V. Price & Sims, 9 P. P. Smith, 420, 428 ; Briggs v. Thompson, 9 Barr, 388, 340 ; Pier v. Carr, 19 P. 1. Smith, 326 ; Doran v. Chase, 2 Weekly Notes, 609. 6 8 Weekly Notes, 65, 66 ; S. 0. 10 Norris, 322. ' Doran v. Chase, 2 Ibid. 609, 610. SEC. v.] THE ACTION OF REPLEVIN. 465 tenant to occupy them during the residue of the term, it was con- sidered an eviction.^ Where the landlord retains possession of a portion of the demised premises, under an agreement to deliver it to the tenant upon demand, his refusal to do so constitutes an eviction which suspends the rent.'' Where, without the consent of the tenant, the landlord enters for the purposes of rebuilding premises destroyed by fire, it is an eviction.* And an eviction from a part of demised premises suspends the accruing rent for the whole premises so long as the tenant is not restored to the whole possession.* But where a tenant is evicted, under a title paramount to that of his landlord, from a part only of the de- mised premises, and continues in possession of the residue, it is not such an eviction as will work a suspension of the whole rent. As was said by Mr. Justice Mercur :' " He (the tenant) remains liable to the payment of such proportion of the rent as the value of the part retained bears to the whole. On having been evicted from a part, he might have removed from the residue, and thereby wholly relieved himself from the payment of future rent ; failing to do so, he became liable to a just apportionment." (2.) If the eviction was by a stranger, the plaintiff must show that the former had lawful title existing before the demise.® (/) Under Plea of Trespass. 883. Where the plaintiff pleads matters in the making or con- ducting of the distress which render the defendant a trespasser, ab initio, the former must prove the trespass.' 1 Briggs V. Thompson, 9 Barr, 338. ' McClurg V. Price & Sims, 9 P. P. Smith, 420. 3 Magraw v. Lambert, 3 Barr, 444 ; Hoeveler v- Fleming, 8 Weekly Notea, 65 ; S. C. 10 Norris, 322. * Kessler v. McConachy, 1 Eawle, 435, 442 ; Wolf v. Weiner, 2 Brewster, 524; s. c, 7 Philadelphia, 274; Bauer v- Boden, 3 Ibid. 214; Qarris v. Moore, 1 Ibid. 282. 5 Seabrook o. Moyer, 7 Norris, 417, 419, and authorities there cited; s. c, 7 Weekly Notes, 139 ; see also Allegaert v. Smart, 10 Ibid., 29. 8 Naglee v. Ingersoll, 7 Barr, 185, 206. ' Kimball v. Adams, 3 New Hampshire, 182. See also Brisben v. Wilson, 10 P. P. Smith, 452 ; Woodfall's Landlord and Tenant, 466 (11th edition). 30 466 DETENTION OF EMBLEMENT. [CHAP. XV. {g) Under Plea of Cepit in alio loco. 884. Where in answer to the plaintiff's declaration the defend- ant pleads cepU in alio loeo, the plaintiff must show as follows :' (1.) Either that the chattels were distrained on in the place mentioned in the declaration ; (2.) Or that they had been in the defendant's or bailiff's pos- session in the place stated in the declaration. 885. If the defendant, to his plea of oepit in alio loco, have added an avowry or cognizance for a return, the plaintiff cannot traverse any matter in the avowry or cognizance, but must take issue on the traverse of the place or amend his declaration.^ {B.) Evidence on the Part of the Defendant or Landlord. (a.) Under Plea of non demisit or non tenuit. 886. When the replevin is of chattels distrained for rent in arrear, and the plea of the tenant in bar of the avowry or cog- nizance is either non demisit or non tenuit, the defendant must prove as follows : (1.) The fact of the relation of landlord and tenant having ex- isted between himself and the plaintiff at the time of the distress, and the tenancy as alleged in the avowry.' (2.) The defendant must prove the holding as alleged, and a variance as to the amount of the rent reserved will be fatal.* A misstatement as to the day on which the rent became due is also fatal.^ But a misstatement as to the amount of rent in arrear is not fatal when what is due can be proven.^ • Wilkinson's Replevin, *50; Gilbert's Distresses and Replevin, 147 (4tli edition) ; 1 Williams's Saunders's Reports, 637 (edition of 1871) ; 1 Saunders, 347 b. I Strong v. Lawler, 37 Connecticut, 177 ; Williams i. Welch, 5 Wen- dell (N. Y.), 290; 1 Chitty's Pleading, *591. 2 1 Chitty's Pleading, *591 ; Foot's Case, 1 Salkeld, 93 ; Wilkinson's Re- plevin, *50, *81 1 Williams's Saunders's Reports, 637 (edition of 1871). 3 Helser & McGrath «. Pott & Shreiner, 3 Barr, 179, 184; Bspinasse on Evidence, 173; Bristow v. Wright & Pugh, 2 Douglas, 665; Cossey v. Dig- gons, 2 Barnewall & Alderson, 546; Phillips v. Boyd, 4 P. P. Smith, 8<:5. * Cossey v. Diggons, 2 Barnewall & Alderson, 546 ; Brown v. Sayce, 4 Taun- ton, 320; Ryder v- Malbon, 3 Carrington & Payne, 594 (14 English Common Law Reports, 470) ; see also Page v. Chuck, 10 Moore, 264 ; Hargrave v. Sher- win, 6 Barnewall & Creswell, 34 (13 English Common Law Reports, 102). » Starkie on Evidence, 716. 6 Burr i) Hughes, 8 Wright, 516; Cobb v. Bryan, 3 Bosanquet & Puller, 348 J Forty v. Imber, 6 East, 434. SEC. V.J THE ACTION OF REPLEVIN. 467 (3.) Where the tenancy is evidenced by a lease it must be pro- duced and proved, or the nou-production of it must be accounted for by proving that it is lost or destroyed, or is in the posses- sion of the plaintiff.^ (4.) Where the tenancy was by an oral lease the defendant may prove the same either by evidence of the payment of rent as such, or by the evidence of a witness acquainted with the facts.' (5.) The defendant may show, though the plaintiff entered into possession under an oral agreement for a lease that the latter had remained on the premises more than a year, thus becoming a tenant from year to year.' (6.) Where in replevin there are several defendants, one of whom makes cognizance and the others avow, proof that the demise was made by all must be adduced to support the issue ;* and where several defendants join in an avowry, a demise by all must be shown, or a title deduced from the original lessor to all, if they claim derivatively by assignment.* (b.) Under Plea of Hors de Son Fee. 887. Where the distress was made off the demised premises, unless where the goods were those of the tenant, and had been fraudulently and clandestinely removed for the purpose of avoid- ing the distress, and within thirty days from the date of the same, the plaintiff may plead hors de son fee, which will throw the burden of proof on the defendant that the distress was made on the demised premises. But if the distress was made in the high- way it is doubtful how far this will go to render the distress ille- gal, as Lord Chief Baron Gilbert^ says: "Yet this shall not be taken to make the distress illegal, so as to give an advantage ' Espinasse on Evidence, 173 ; see also Smith v. Woodward, 4 East, 585. 2 Espinasse on Evidence, 173. 3 Knight V. Benuet, 3 Bingham, 361 (13 English Common Law Reports, 8) ; see also Staniforth v. Fox, 7 Ibid. 590 (20 Ibid. 249) ; Chapman v. Black, 4 Bingham's New Cases, 187, 188; Hamertin v. Stead, 3 Barnewall & Cress- well, 478 (10 English Common Law Reports, 159) ; Mann v. Lovejoy, 1 Eyan & Moody, 355 (21 English Common Law Reports, 454). 4 Ewing V. Vanarsdall, 1 Sergeant & Eawle, 370. ' Chicago & Allegheny Oil and Mining Co. v. Barnes, 12 P. P. Smith, 445, per SiiAESWOOD, J. « Distresses and Replevin, 40 (2d edition), 51 (4th edition) ; see also 2 Insti- tutes, 131. 468 BETENTION OF EMBLEMENT. [CHAP. XV. thereof in a bar of the avowry ; but to this purpose only, that if the landlord distrain in the highway, the tenant may have an action against him upon this statute.'" (c.) Under Plea denying Bailiff's authority to Distrain. 888. When the cognizance asserts the taking for rent in arrear, the tenant may deny that the bailiff had authority to distrain.'' This denial will compel the bailiff to prove the authority given to him previous to the distress, or that the landlord had after the distress assented to it.^ And this authority or assent may be oral.* If a distrainor makes cognizance as bailiff to a landlord when he really is not, the tenant may bring an action of trespass against the bailiff.* (d) Under Plea of Nan Est Factum. 889. When the avowry of the defendant specially sets forth a lease, the plaintiff may plead in bar to the avowry non est factum, which will compel the defendant to prove the execution of the lease.® (e.) Under Plea of Eviction. 890. If to the avowry or cognizance of the defendant the plain- tiff pleads an eviction, and adduces evidence that after the letting the defendant had claimed and used certain privileges upon the demised premises against his will, it is incumbent upon the de- ^ndant to show that he had reserved them in the demise, other- wise the rent is suspended from the time of the interference with the tenant's enjoyment of the demised premises.' » Statute of Marlbridge, 52 Henry III, chapter 15 ; post, page 592, 1[ 1079 (2). ' Wilkinson's Replevin, *83; see also Gilbert's Distresses and Replevin, 163 (4th edition) ; Williams's Saunders's Reports, 643 (edition of 1871) ; Fran- ciscus V. Reigart, 4 Watts, 98, 113, 119; Trevellian v. Pine, 11 Modern, 112; Robinson v- HoflFman, 4 Bingham, 562. 8 Ibid. * Franoisous v. Reigart, 4 Watts, 98, 113, and cases there cited; Jones ». Gundrum, 3 Watts & Sergeant, 531. 6 The Earl of Bedford's Case, Croke Elizabeth, 14; see also Wilson v. Ames, 1 Marshall, 74, 75. 6 Adam v. Duncalfe, 5 Moore, 475. '' Vaughan v. Blanohard, 1 Yeates, 175; b. c, 4 Dallas, 124; see also Gar- rett V. Cummins. 2 Philadelphia, 207. SBC. V.J THE ACTION OF REPLEVIN, 469 (5.) The Evideixce where the Replevin is Founded on a Right of Property. A. On the Part of the Plaintiff. (a) Under the Plea of Property. 891. "When the replevin is of chattels on a claim of property, and to the plaintiff's declaration, the defendant pleads property, the burden of proof is upon the plaintiff. " The plea of prop- erty," says Mr. Justice Kennedy,' " although it be the only plea put in by the defendant, cannot be considered as an admission by him that the plaintiff ever had possession of the goods so as to give him even the color of title, much less the right of property, to enable him to support his action." The plaintiff may then be called upon to prove as follows : (1.) That he has either a general or special property in the chattels replevied, and a right to the immediate and exclusive possession thereof^ The plaintiff need not necessarily show own- ership by an absolute title,' though he must recover on the strength of his own title and not on the weakness of that of his adver- sary.^ Where the plaintiff in replevin was engaged in lumbering on a tributary of the West Branch of the Susquehanna River, and had marked his logs in accordance with the provisions of the act of 10th April, 1862,* gave evidence of this, also that no other logs had been known to be so stamped, and that no other person had ever claimed from the Boom Company logs so stamped, the Supreme Court held that this was presumptive evidence of own- ership.* In proving property the plaintiff may put in evidence an execution, in which he is defendant, and under which the prop- erty was delivered to him on a forthcoming bond, without pro- ducing the judgment.' ' Marsh v. Pier, 4 Eawle, 273, 283. 2 Eeinheimer v. Hemingway, 11 Casey, 432; Clemson v. Davidson, 5 Bin- ney, 397 ; Mackinley v. McGregor, 3 Wharton, 369, 398 ; Mathias v. Sellers, 5 Norris, 486; s. c, 5 Weekly Notes, 518; Lake Shore and Michigan South- ern Eailway Company v. Ellsey, 4 Norris, 288 ; s. C, 4 Weekly Notes, 548. s Johnson v. Camley, 6 Selden (N. Y.), 570, 678. t Eeinheimer v. Hemingway, 11 Casey, 432. " Pamphlet Laws, 383. ^ Weiler v. Coleman, 21 P. F. Smith, 346. ' Lynch & Bowman v. Welsh, 3 Barr, 294. 470 DETENTION OF EMBLEMENT. [CHAP. XV. (2.) The existence of the chattels at the time of the commence- ment of the action, together with a sufficient identification of them, so that a judgment de retorno habendo may be executed in case a return be ordered.' (3.) The act or acts, whether legal or otherwise, through or by which the defendant came into possession of the chattels replevied.' (4.) The damages sustained by the plaintiff in consequence of the unjust detention of the chattels replevied.' (6) Under Plea of Non Cepit. 892. Where the replevin is founded on the right of property, and the defendant pleads non cepit modo et forma to the plaintiff's declaration, this merely asserts that the defendant did not take or detain the chattels in the manner and form set forth in the decla- ration.* Under this plea the^ property is admitted to be in the plaintiff, and the issue is limited to the taking or unlawful deten- tion,* and to this the evidence should relate, as follows: (1.) The plaintiff must show the caption or unlawful detention substantially as set out in the declaration.* (2.) If the taking was rightful, or excusable, the plaintiff may show that the detention was wrongful.' For the purpose of show- ing an unlawful detention on the part of the defendant, a general order, before the commencement of the suit, to his servant not to deliver the goods to the plaintiff, is admissible.* B. Evidence on the Part of the Defendant, {a) Under the Plea of Property. 893. Under his plea of property the defendant is at liberty to show as follows : ' See Sager v. Blain, 44 New York, 445. - Moore v. Shenk, 3 Barr, 14 ; Hunter ». Hudson Eiver Iron and Machine Company, 20 Barbour (N. Y.), 493; Bliss v. Cottle, 32 Ibid. 322. 8 HerdicD. Young, 4 P. F. Smith, 176; Etter v. Edwards, 4 Watts, 63; Moore v. Shenk, 3 Barr, 13; Fisher v. Whoollery, 1 Casey, 197. * Mackinley v. McGregor, 3 Wharton, 370, 398. = Mackinley v. McGregor, 3 Wharton, 370, 398 ; Buckley i.. Handy, 2 Miles, 449. 5 Mackinley v. McGregor, 3 Wharton, 370, 398. ' Mackinley v. McGregor, 3 Wharton, 370, 398. 8 Johnson v. Howe, 2 Gilman (111.), 342. SBC. v.] THK ACTION OP REPLEVIN. 471 (1.) Either a general or special property in himself, and this by bill of sale, delivery from the plaintiff, contract or otherwise, without notice to the plaintiff of such claim.' (2.) A special interest in or lien upon the goods replevied, with- out previous notice to the plaintiff of the nature of such special property.^ 894. Where the defendant interposes a claim property bond he is precluded from showing that the number of pieces of goods actually replevied was less than that mentioned in the writ of replevin, and also from showing that divers pieces of goods men- tioned in the writ were sold before the issuing of the writ.' Cre- dence must be given to the sheriff's return, and no evidence will be admitted to contradict it.* (6.) The Verdict, [a) For the Plaintiff. 895. Where the jury find a verdict for the plaintiff they award such damages as he is entitled to recover. Under the head of " The Recovery of Damages " we shall treat of them.'* 896. The effect of a verdict in favor of the plaintiff for dam- ages, where the defendant prevented the delivery of the goods by interposing a claim to the property, is to transfer the title to the goods, and the right of the plaintiff thereto is absolutely gone." 897. Where on a plea of non cepit and property in a stranger, the jury find a verdict for the plaintiff, an entry upon the record of a finding for the plaintiff on both issues is warranted by the verdict.' The verdict should apply to all the issues^ unless in the course of the trial any of them become immaterial.' Thus, where. ' Murray v. Paisley, 1 Teates, 197. 2 Mathias v. Sellers, 5 Norris, 486; s. c, 5 Weekly Notes, 518. ' Knowles v. Lord, 4 Wharton, 500. * Ibid. ; see also Phillips v. Hyde, 1 Dallas, 439. ' See post, page 473, f 898. " Herdic v. Young, 5 P. P. Smith, 176; Fisher v. Whoollery, 1 Casey, 197,. 199; Marsh v. Pier, 4 Kawle, 270, 286, 290. ' Rhodes & Eider v. Brunts, 21 Wendell (N. T.), 19. 8 Wilkinson's Replevin, *85; Cossey v. Diggons, 2 Barnewall & Alder- Bon, 547. 472 DETENTION OP EMBLEMENT. [CHAP. XV. to an avowry for rent the plaintiff pleaded, first, non tenuit; sec- ond, riens in arrere, and the jurj found the first plea for the plaintiff, it was held that the second plea thereby became imma- terial, and that the jury need not consider it, but that if any ver- dict was found it should be for the plaintiff.^ (6.) For the Defendant 898. If the plaintiff fail to establish a right to the possession of the goods replevied, the jury must find a verdict for the de- fendant and also assess such damages for him as he is entitled to recover. Of them we shall treat in a succeeding section.^ 899. Where the goods were delivered on the replevin to the plaintiff, and the defendant pleads property which is found for him, the verdict should be a general one, with damages for the taking or detention of the goods on the writ, and not for damages to the value of the property.' Where in such a case the jury rendered a verdict " for the defendant, twenty-eight dollars and seventy-five cents," it was held that such a verdict was a finding for the defendant, generally, with damages for the only matter within the scope of their inquiry, the detention.* 900. Where the replevin was of a distress for rent, if the de- fendant proceed upon the statute of 17 Charles II, chapter 7, sec- tion 3,* the jury must find the amount of rent in arrear, and the value of the distress." Where the defendant avows for rent in arrear and the plaintiff replies that no rent is in arrear, the jury in ascertaining the sum due to the avowant for rent are not con- fined to the value of the goods distrained, but may allow interest on the rent from the time of the distress.' Where the jury on a verdict for the avowant or defendant ascertain the amount of the rent in arrear, and the value of the goods, no writ of inquiry need issue.' But if the jury neglect to make an inquiry into the ^ Wilkinson's Eeplevin, *85; Cossey v. Diggons, 2 Barnewall & Alderson, 547. ' See posi!, page 473, f 902. ' Easton v. Worthington, 5 Sergeant & Rawle, 130. * Huston V. Wilson, 3 Watts, 287. ' See ante, page 401, ^ 747. 6 Howard v. Johnson, 1 Ashmead, 58 ; Williams v. Smith, 10 Sergeant & Bawle, 202, 206. ' Albright v. Pickle, 4 Yeates, 264. e u,id. SEC. v.] THE ACTION OF REPLEVIN. 473 amount of the rent in arrear and the value of the goods dis- trained, no writ of inquiry can afterwards issue to supply the omission.' If the jury render a verdict for the defendant for a sum certain without iinding, pursuant to the statute, the amount of the rent in arrear and the value of the goods distrained, the defendant must resort to the common law judgment de retorno habendo, which may be entered.^ If the finding of the jury simply is " verdict for the defendant," without finding the value of the goods or the amount of rent in arrear, judgment for the defendant may be entered thereon." If the jury give a defective verdict by only finding damages to the amount of the rent claimed in the avowry, and judgment be entered for the damages assessed, such judgment is erroneous and cannot be amended into a judg- ment under the statute of 17 Charles II, chapter 7.* 901. Where the replevin was of a distress for rent, and on the plea of no rent in arrear, a verdict was found for the defendant for $1117.79 damages and 6 cents costs, on which the court en- tered judgment that the defendant have a return of the goods replevied, and that he recover the damages assessed and also the costs, the Supreme Court held that the verdict and judgment were regular.'' (7.) The Beoovery of Damages. (a.) For the Plaintiff. 902. Where the goods have not been taken by way of a distress, the plaintiff in the action of replevin (if he prevail), is entitled to recover damages, the jury assessing them, as follows : (1.) Where the goods were delivered to the plaintiff, he may recover damages — ' Williams v. Smith, 10 Sergeant & Eawle, 202, 206; Sheapa v. Uulpeper, 1 Levinz, *255. ' Ibid. ; Weidel v. Eoseberry, 13 Sergeant & Eawle, 178 ; Kessler v. MeConachy, 1 Eawle, 434; Gather v. Bray, 5 Norris, 52; Wilkinson's Ee- plevin, *88, *89. 8 Gather v. Bray, 5 Norris, 52 ; 8. c, 5 Weekly Notes, 142. * Williams v. Smith, 10 Sergeant & Eawle, 202, 206; Weidel v. Eose- berry, 13 Ibid. 178 ; Eees v- Morgan, 3 Term Eeports, 349 ; see ante, page 401 , T[747. 5 Smith V. Aurand, 10 Sergeant & Eawle, 92 ; see also Albright v. Piokla, 4 Yeates, 264. 474 DETENTION OP EMBLEMENT. [CHAP. XV. 1st. For the deterioration in the value of the goods while un- lawfully detained.' 2d. For the unjust caption or detention, which will include full costs, and any damage which the plaintiff can prove was occasioned through the act of the defendant.'' (2.) Where the goods were not delivered to the plaintiff, but are detained on account of the interposition by the defendant of a claim to the property, or for other causes, he may recover dam- ages — 1st. For the value of the goods at the place and time the writ of replevin was executed.' But if the trespass be unintentional and inadvertent, and the market value of the goods has been en- hanced by a conversion or by a removal, then an allowance must be made for the costs of such conversion or removal. Thus where the defendant in replevin, mistaking his true boundary, cut logs on the adjoining tract of the plaintiff, and transported them to a boom, the measure of damages was held to be the value of the logs in the boom, less the cost of cutting and transportation.* 2d. If the taking be attended with circumstances of aggrava- tion, the plaintiff may recover such exemplary damages in addi- tion as the jury may conclude,^ and this though the declaration contain no count claiming special damage, nor any averment set- ting forth the tortious taking ; but if consequential damages are claimed, not necessarily or naturally resulting from the trespass, they must be specially alleged.^ Under a verdict giving damages for the value of the property detained, and for the tortious caption and detention, the defendant cannot satisfy the judgment in the replevin by giving up the property and paying the damages assessed 1 Gordon v. Jenney, 16 Massachusetts, 465, 470 ; Noble v. Epperby, 6 Indi- ana, 468 ; Russell v. Smith, 14 Kansas, 366. " Easton v- Worthington, 5 Sergeant & Rawle, 130, 133 ; Etter ». Edwards, 4 Watts, 63, 68;"Pisherij. Whoollery, 1 Casey, 197, 199. 8 McDonald v. Scaife, 1 Jones, 381, 385, and cases there cited ; Herdio v. Toung, 5 P. P. Smith, 176; Warner v. Aughenbach, 15 Sergeant & Raiwle, 9 ; Moore v. Shenk, 8 Barr, 13 ; Fisher v- Whoollery, 1 Casey 197, 199 ; Craig &Blanchard«. Kline, 15 P. F. Smith, 400; Brindle v Adams, 3 Weekly Notes, 5. * Herdic v. Young, 5 P. F. Smith, 176. ^ McDonald v. Scaife, 1 Jones, 381, and cases there cited ; Schofleld v. Fer- rers, 10 Wright, 438. 6 Sohoaeld V- Ferrers, 10 Wright, 438. SEC. v.] THE ACTION OF REPLEVIN. 475 for the unlawful taking and detention. There is no retomo ha- bendo unless where goods have been replevied and the judgment is for the defendant.' 3d. For the unjust detention, which is usually the interest on the highest value of the goods from the time of taking till the rendering of judgment, but under peculiar circumstances of out- rage, vexation or oppression, the jury may go beyond it and award exemplary damages.^ 903. Where the goods have been taken by way of a distress for rent, and returned on the replevin to the plaintifp, he is entitled to recover (if he prevail) such damages as he has sustained, by the unlawful taking or detention, and also the costs of suit which he has expended.' A writ of inquiry is awarded to inquire what the damages are.* (6.) For the Defendant. 904. The defendant in the action of replevin (if he prevail), is entitled to recover as follows : (1.) Where the goods were distrained for rent and delivered on the replevin to the plaintiff — 1st. The full amount of the rent in arrear with interest thereon up to the rendering of judgment.^ 2d. Double costs of suit under the act of 1772.^ 3d. If the verdict be for a sum certain for damages and costs, a judgment de retomo habendo may be rendered.' (2.) Where the goods are delivered on the replevin to the plaintiff, on a claim of property, and the plea of property is found for the defendant, the latter is entitled — ' McDonald v- Scaife, 1 Jones, 385; Herdie v. Toung, 5 P. P. Smith, 176 ; Craig & Blanchard v. Kline, 15 P. F. Smith, 400; Schofield v. Perrers, 10 Wright, 438 ; Btter v. Edwards, 4 Watts, 63, 68 ; see also Patterson v. Ste- venson, 2 Pearson, 205. ' Jennings 1). McKay, 4 Weekly Notes, 421 ; Schofield v. Ferrers, 10 Wright, 438 ; Moore v. Shenk, 3 Barr, 13, 20, and cases there cited. "Gilbert's Practice of Distresses and Replevin, 160; Woodfall's Landlord and Tenant, 478 (11th edition) ; Savile v. Eoberts, 1 Lord Raymond, 380. * Gilbert's Practice of Distresses and Replevin, 160. 5 Albright v. Pickle, 4 Yates, 26"4 ; Smith v. Aurand, 10 Sergeant & Rawle, 92; Balsley v. Hoffman, 1 Harris, 603. 6 See ante, page 404, f 750. ' Smith V. Aurand, 10 Sergeant & Rawle, 92 ; Williams v. Smith, Ibid. 204. 476 DETENTION OP EMBLEMENT. [CHAP. XV. 1st. To a general finding, on which there is judgment ^ro re- torno habendo ; but if the property cannot be returned, the defend- ant may have judgment for damages to the value of the same at the time of taking, with interest thereon to the rendering of the verdict.' 2d. To damages for the taking or detention of the goods on the writ, which damages generally consist of the interest on their value from the time of taking till the judgment rendered, but where the taking or detention has been accompanied with peculiar wrong and outrage, or vexation and oppression, the jury may go further by giving exemplary damages as in the action of trespass.'' They may consider the presence or absence of malice or wantonness in the caption or detention as elements of damage. But the defend- ant is not entitled to special damages which he may have sustained by being interrupted in his business, in consequence of his depriva- tion of the property under the replevin.' (3.) Where the goods are not delivered on the replevin to the plaintiff, but are retained by the defendant under a claim of prop- erty, the latter is entitled to recover such damages and costs to which he has been put by reason of the action.* (4.) Where the plaintiff sues out the writ of replevin fraudu- lently and without color of right, the jury may give the defendant exemplary damages, as in case of an action of trespass for a wan- ton or malicious trespass.^ (5.) Where the property replevied is found to be only in part in the defendant, he can only recover damages in proportion to the extent of his ownership.* ' Moore v. Kepner, 7 Nebraska, 291 ; Clark v. Adair, 3 Harrington (Del.), 113 ; Dwight v. Enos, 9 New York (5 Selden), 470; see also Easton v. Worth- ington, 5 Sergeant & Eawle, 130, 131 ; Wilson v. Gray, 8 Watts, 25, 36. 2 McCabo V. Morehead, 1 Watts & Sergeant, 513, and cases tbere cited ; McDonald v. Scaife, 1 Jones, 381, and cases there cited ; Schofield v. Ferrers, 10 Wright, 438 ; Herdic v. Toung, 5 P. F. Smith, 176, and cases there cited. 3 Brizee v. Maybee, 21 Wendell (N. Y.), 144; McCabe v. Morehead, 1 Watts & Sergeant, 513, 516. * See Balsley v. Hoffman & Buehler, 1 Harris, 603, 610; Tibball v. Gaboon, 10 Watts, 232, 235. 6 Brizee v Maybee, 21 "Wendell (N. Y.), 144; McCabe v. Morehead, 1 "Watts & Sergeant, 513, 516. Crabtreej). Clapham, 67Maine,326; Poor «. "Woodburn, 25 "Vermont, 234, 239, and cases there cited ; Clark v. Keith, 9 Ohio (Hammond), 72. SEC. v.] THE ACTION OF REPLEVIN, 477 (8.) The Costs. 905. The costs in the action of replevin are regulated by British statutes, and acts of the Assembly of Pennsylvania, as follows : (1.) Statute of 6 Edward I, chapter ], section 2.' (2.) Statute of 7 Henry VIII, chapter 4, section 3.* (3.) Statute of 4 James I, chapter 3.' (4.) Statute of 17 Charles II, chapter 7.* (5.) Act of 21st of March, 1772, section 10.* (6.) Act of 3d April, 1779, section 3." 906. The statute of 6 Edward I, chapter 1, section 2, gives the plaintiff in replevin the right to costs in the action where he re- covers damages, but gives no right to the defendant.' Where the plaintiff in replevin prevails, he recovers the whole in damages, which includes his costs.* 907. The statute of 7 Henry VIII, chapter 4, gives the defend- ant a right to recover damages and costs in all cases where he avowed, made cognizance, or justified as bailiff in the action for any rent, custom or service, if his avowry, cognizance, or justifica- tion be found for him, or if the plaintiff be otherwise barred, as the plaintiff should have recovered had he prevailed in the re- plevin.' 908. By the statute of James I, chapter 3, a defendant in any action whatsoever, obtaining judgment upon verdict or nonsuit, is entitled to recover costs wherever the plaintiff might have done so if he had succeeded in the action.'" 909. None of these three statutes extend to costs for the defendant in replevin where the suit abates." 910. The statute of 17 Charles II, chapter 7, gives full costs to the defendant when he proceeds under it." But a successful ' See ante, page 397, 1[ 743. ^ Ibid., page 399, 1[ 745. 8 Ibid., page 400, 1[ 746. * Ibid., f 747. 5 Ibid., page 404, f 750. » Ibid., f 751. ' Ibid., page 397, \ 743. « ChaflFee v. Sangston, 10 Watts, 265, 267 ; Moore ». Shenk, 3 Barr, 13, 20. » Ibid., page 399, If 745. ' '» Ibid., page 400, \ 746. " Smith V. Walker, 2 Lord Raymond, 788. " Morris on Replevin (3d ed.), 243. 478 DETENTION OP EMBLEMENT. [CHAP. XV. defendant cannot, under this statute, recover the costs for making the distress.' 911. The act of 21st March, 1772, section 10,' however, gives the defendant in replevin of a distress for rent, double costs of suit in cases where the plaintiff becomes nonsuit, discontinues, or has judgment given against him. But the judgment must be a final one. Thus where the defendant has avowed for rent in arrear, and arbitrators have made an award in his favor, the plain- tiff on appeal need not pay double costs.' The act of 1772 being penal, must be strictly construed, and the defendant is not entitled to double costs unless the judgment is coextensive with his avowry. If the verdict in favor of the landlord is for less than the amount claimed, and interest, he cannot recover double costs.* 912. The act of 8d April, 1779,' relating to illegal replevin, gives treble costs to the defendant. 913. The costs to be paid by the unsuccessful plaintiff are the double (or under the act of 1779,* the treble) of those which his antagonist may have paid to the court officers. Fees paid for ser- vices rendered in the progress of the cause are not incluoed in the taxing of the costs.' The sureties in the replevin bond are liable for the costs.' When the defendant in replevin resides out of the jurisdiction of the court, he maybe compelled to give security for costs.' 914. In several of the States it has been held that where the replevin is for several articles, and the jury find as to part for plaintiff and part for defendant, assessing to each the proper dam- ages, the court will enter separate judgments in favor of each with full costs." And in England it has been adjudged that the defend- ant must be allowed the costs of the pleadings, and also of those issues which are found in his favor out of the general costs of the ■ Jamieson v. Trevelyan, 10 Exchequer (Hurlstoue & Gordon), 748. 2 See ante, page 404, f 751. » Hartley v. Bean, 1 Miles, 168. ' Prescott V. Otterstatter, 4 Norris, 534. 6 See ante, page 400, 1[ 751. « Ibid. ' Musser v. Good, 11 Sergeant & Kawle, 247 j see also Shoemaker v. Nesbit, 2 Kawle, 201. 8 Tibbal v. Gaboon, 10 Watts, 232. 3 Selby V- Crutchley, 4 Moore, 280. 10 "Wright V. Funclf, 9 Weekly Notes, 248; Clark v. Keith, 9 Ohio (Ham- mond), 72 ; Powel v. Hinsdale, 6 Massachusetts, 343 ; Poor v. Woodburn, 25 Vermont, 234, 239 | Brown v. Smith, 1 New Hampshire, 343. SEC. v.] THE ACTION OF KEPLEVIN. 479 verdict, unless the court certify that the plaintiff had probable cause for pleading the matter on which the issues are joined.' (9.) The Judgment. (as.) Far the Plaintiff. 915. If the jury, on the issue of property, find a verdict in favor of the plaintiff in the replevin, the judgment is as follows : (1.) Where the goods were delivered on the replevin to the plaintiff, he is given judgment for the damages found by the jury for the unlawful caption or detention, with full costs.'' (2.) Where the goods were not delivered to the plaintiff, but are detained by the defendant, by interposing a claim to the property, judgment is given in favor of the former for the whole in damages as assessed by the jury, which damages include as well the value of the goods, as damages for the unlawful caption or detention, and also costs.' In such a case there can be no judg- ment pro retornx) habendo, for " only the defendant," as was said by Chief Justice Gibson, "can have judgment de retorno habendo, because from him only can the property be taken to be delivered to the opposite party ; and even he can have it only where he has not prevented the execution of the writ in the first instance by interposing a claim to the property."* The effect of the foregoing judgment for damages is to transfer the property in the goods to the defendant.' 916. If the jury, where goods were taken on a distress and after- wards replevied, find in favor of the plaintiff in the repleviuj 1 Brooke „. Willet, 2 H. Blackstone, 435; Dodd v. Joddrell, 2 Term Eeports, 235; Oooke v. Green, 5 Taunton, 594 (1 English Common Law Reports, 200). ' Easton v. Worthington, 5 Sergeant & Eawle, 130, 132 ; Fisher v. Whool- lery, 1 Casey, 197, 198; Chaffee v. Sangston, 10 Watts, 265, 267. ' Easton v. Worthington, 5 Sergeant & Eawle, 130, 131 ; Warner v. Aug- henbaugh, 15 Ibid. 9, 12 ; Moore?;. Shenk, 3 Barr, 13, 20; Fisher v. Whool- lery, 1 Casey, 197, 198; Etter v. Edwards, 4 Watts, 63, 68; Chaffee v. Sang- Bten, 10 Ibid. 265, 267; Marsh v. Pier, 4 Eawle, 273, 290. * Moore v- Shenk, 3 Barr, 13, 20 ; see, also, Schofield v. Ferrers, 10 Wright, 438 ; Marsh ». Pier, 4 Eawle, 273, 290. 6 Herdic v. Young, 5 P. F. Smith, 176 ; Fisher v. WhooUery, 1 Casey, 197, 199 ; Marsh v. Pier, 4 Eawle, 270, 286, 290. 480 DETENTION OF EMBLEMENT. [CHAP. XV. judgment is entered for his damages, as assessed by the jury, and for the costs of suit.' If there be a judgment for the plaintiff on a demurrer, etc., a writ of inquiry will be awarded to a.scertain what damages he has sustained, as well by reason of the distress as for his costs and charges. Upon the return of the inquisition the plaintiff has final judgment for the amount of damages and costs so ascertained.'' (b.) For the Defendant. 917. After a verdict for the defendant where the replevin is founded on the right of property, the judgment is as follows : (1.) Where the goods were delivered on the replevin to the plaintiff, and the defendant pleads property, which is found for him, the latter is given judgment pro retorno hahendo, and for the damages by the jury assessed for the taking or detention of the goods on the writ, with costs.' Thus, where on the plea of prop- erty, the jury rendered a verdict " for the defendant, twenty-eight dollars and seventy-five cents," and the court below, striking out the " twenty-eight dollars and seventy-five cents," entered judg- ment de retorno habendo and awarded execution for costs, the Supreme Court held that such a verdict was a finding for the defendant, generally, with damages for the only matter within the scope of their inquiry.'' But where there is no other plea than non cepit, the defendant is not entitled to a judgment of retorno habendo.^ (2.) Where the goods were not delivered to the plaintiff on account of a claim to the property by the defendant, the latter is given judgment, if he prevail, for the damages assessed by the jury, for the unlawful taking and detention, with costs." (3.) If there is a judgment for the defendant on demurrer on a plea of property, the plaintiff takes nothing by the writ, and the defendant goes without day and has judgment p?'o retorno ha- bendo of the goods irreplevisable, and damages for the unjust caption and detention as ascertained by the jury, with costs.' ' Gilbert's Practice of Distresses and Eeplevin, 160, 161. ' Ibid. 161. ' Baston v. Wortbington, 5 Sergeant & Eawle, 130, 132; McCabe v. Morehead, 1 Watts & Sergeant, 513, 515; Harker v. Addis, 4 Barr, 515. « Huston V. Wilson, 3 Watts, 287. 6 The People v. Niagara, C. S., 4 Wendell (N. Y.), 217. 8 Easton v. Wortbington, 5 Sergeant & Eawle, 130, 133. ' Ibid. 130, 132. SEC. v.] THE ACTION OF REPLEVIN, 481 918. After a verdict for the defendant, where the replevin is founded on a distress for rent in arrear, the judgment is as fol- lows : (1.) If there is a general verdict for a sum certain, with costs of suit, without a finding of the value of the goods distrained, the judgment de retorno habendo at common law is entered, where- by the defendant has a return of the goods irreplevisable.' The judgment cannot be a judgment under the statute of 17 Charles II, chapter 7; for that statute requires a finding by the jury not only of the amount of rent in arrear, but also the value of the goods distrained.^ The defendant cannot enter up his judgment according to that statute, and have execution by fieri facias, or otherwise as the law shall require. He must either sue out his writ de retorno habendo or proceed on the replevin bond.^ In the case of Weidel v. Roseberry et al.,'' which was a replevin of goods distrained for rent, the jury, on the issue of no rent in arrear, found " for defendants one hundred and twelve dollars and ninety- five cents judgment," on which judgment was entered generally, i. e., "judgment," by the clerk of the court, and upon appeal to the Supreme Court was affirmed. In delivering the opinion of the Court, Mr. Justice Duncan said : " If this judgment can be supported, it is because it is a common-law judgment, a judgment de retorno habendo. , The judgment here cannot be enforced by execution for the amoutit of rent. The defendant's remedy is on the replevin bond, where there can be no recovery beyond the value of the goods, and where it may be less than the value, for the rent may be inferior in value to the goods, because by paying the rent the distress would be satisfied, which is considered as im- pounded to enforce the payment of the rent. The general judg- ment is a clerical act, and not a judgment of the Court strictly directing what judgment shall be entered, and might be moulded, even now if necessary, by sending back the record to the Court of Common Pleas. But I consider this general judgment as a judg- ' Williams v. Smith, 10 Sergeant & Eawle, 202; WeideV v. Eoseberry, 13, Ibid. 178, 181; Albright v. Pickle, 4 Yeates, 264; Kessler v. McConachy, 1 Bawle, 435. ' Ibid. ; see ante, page 401. 3 Williams v. Smith, 10 Sergeant & Eawle, 202, 206 ; Weidel v. Rose- berry, 13 Ibid., 178, 181 ; Albright u. Pickle, 4 Teates, 264. <■ 13 Sergeant & Eawle, 178, 181. 31 482 DETENTION OF BMBLBMENT. [CHAP. XV. ment for the defendants for the sum found in arrears ; not a judg- ment that the plaintiff shall pay that amount, but a finding of the issue in favor of the defendants, for the rent in arrear ; the issue which the jury was sworn to try ; for that issue was, whether any, and what rent was in arrear, and therefore it was incumbent on them to ascertain it. The judgment of retorno habendo was inserted for the defendants as a matter of course. They are bound to issue that writ, but may proceed on the replevin bond. In this way the judgment can be supported, and in this way jus- tice requires that it should." (2.) If the defendant has proceeded under the statute of Charles II, chapter 7 (extending to cases:- 1st, where a plain- tiff in replevin, whose goods had been distrained for rent, is non- suited before issue joined ; 2dly, where the plaintiff is nonsuited, after cognizance or avowry, and issue joined ; 3dly, where there is a verdict against the plaintiff; and, 4thly, where there is judg- ment on demurrer against the plaintiff), and the amount of the rent in arrear and the value of the goods distrained have been ascer- tained by the jury, where there is a verdict against the plaintiff, or where the nonsuit is at the trial, or by a writ of inquiry, where the plaintiff is nonsuited before issue joined, the defendant then has judgment to recover the rent in arrear, if the distress amounts to the value of it; if not, then to recover the value of the distress with full costs. If the goods distrained be- not found to equal the value of the arrears, then other distresses may be made for the residue.' If the judgment be given upon demurrer against the plaintiff, the writ of inquiry need be only of the value of the goods distrained, and not of the rent in arrear.' Sl9. The statute of 17 Charles II, chapter 7, has not suspended the judgment de retorno habendo at common law. Notwithstand- ing the statute, the defendant may proceed as at common law, and have the judgment de retorno habendo entered, upon which he sues out his writ p7'o retorno habendo, or proceeds upon the replevin bond.' The statute has not altered the judgment at common law, for it is that judgment which enables the avowant to look to the ' See anie, p. 401. 2 Ibid. 402. ' Williams v Smith, 10 Sergeant & Eawle, 202, 206, and cases there cited; Gilhert's Distresess and Replevin, 164. SEC. v.] THE ACTION OF REPLEVIN. 483 pledges of the plaintiff, but has only given a further remedy to the avowant.' On a verdict for the avowant, the jury ascertain the damages, and then no writ of inquiry need issue ; but the judgment is entered that the defendant have a return of the goods distrained, and that he recover against the plaintiff his damages assessed by the jury, and also his charges and costs.' (c.) For the Plaintiff and Defendant. • 920. Where, in a replevin of several articles, the jury, on the issue of property, find for the plaintiff as to some of the articles, and for the defendant as to the others, assessing to each the proper damages, the Court will enter separate judgments in favor of each for the damages, with full costs.' The form of the judgment will, of course, depend upon the character of the replevin ; whether the goods were delivered to the plaintiff on the replevin, or de- tained by the defendant by the interposition of a claim to the property. (10.) The Execution. (a.) For the Plaintiff. 921. After judgment for the plaintiff for the damages assessed by the jury, and for costs, he may have execution for the same as in other cases where judgment for damages and costs is rendered, by- (1.) The writ o? fieri facias. (2.) The writ of capiat ad satisfaciendum. (b.) For the Defendant. 922. After judgment in favor of the defendant he may have execution as follows : (1.) Where the defendant is awarded the common-law judgment 1 Easton v. WortWngton, 5 Sergeant & Eawle, 130, 132; Albright v. Pickle, 4 Teates, 264, 265, and authorities there cited. 2 Albright v. Pickle, 4 Teates, 264, 265, and authorities there cited. ' Wright V. Punck, 9 Weekly Notes, 248 ; Clark v. Keith, 9 Ohio (Ham- mond), 72 ; Powell v. Hinsdale, 5 Massachusetts, 843 ; Poor v. Woodburn, 25 Vermont, 234, 239 ; Brown v. Smith 1 New Hampshire, 343. 484 DETENTION OF EMBLEMENT. [CHAP. XV. de retorno habendo, he shall have execution by the writ de retorno habendo, which commands the sheriff to cause a return of the goods replevied to be made to the defendant, to hold to him irre- plevisable forever, and by writ o? fieri facias for his damages and costs.' In practice a clause of fieri facias is generally incorporated with the former writ, instead of issuing the latter separately.' Under the writ de retorno habendo, the sheriff can take the goods that were replevied from the plaintiff only. If they have changed property and possession since the replevin, he is not justified in seizing them. After goods have been delivered to the plaintiff in replevin, they are open to execution, or a new distress, where the replevin was of a distress, or to any disposition which he desires to make of them.' And the sheriff is not obliged to execute the writ, unless some one attend on behalf of the defendant to show the goods he is to deliver.* If the sheriff is unable to effect an execution of the writ, he returns that the goods were eloigned. In that event the defendant proceeds against the pledges on the replevin bond. The defendant, however, is not bound to sue out his writ de retorno habendo (and he seldom does), though a judg- ment of return is entered for him, as a matter of course, when the verdict is rendered in his favor, but may at once proceed on the replevin bond.' (2.) Where the judgment awarded the defendant is for the damages assessed by the jury with full costs, under the statute of 7 Henry VIII, chapter 4,° he may have execution by writ of fieri facias, or of capiat ad satisfaciendum.'' (3.) Where the replevin is of a distress for rent, and the de- fendant has obtained judgment under the statute of 17 Charles II, chapter 7,* he is entitled to execution by the writ of fieri facias. ' Easton jj. Worthington, 5 Sergearit & Eawle, 130, 132; Williams v. Smith, 10 Ibid. 202, 206; "Weidel v. Eoseberry, 13 Ibid. 178, 181; 2 Arohbold's Practice, 84. ' 2 Brightly's Troubat & Haly's Practice, 187, J1766. » Prey,». Leeper, 2 Dallas, 131; Woglam v. Oowperwaite, Ibid. 68; Wilk- inson's Eeplevin, *110. * Warner v. Aughenbaugh, 15 Sergeant & Eawle, 9, 12. » Albright v. Pickle, 4 Yeates, 264, 265 ; Weidel v. Eoseberry, 13 Sergeant & Eawle, 178, 181 ; Wilkinson's Eeplevin, *110. 6 See ante, p. 399, f 746. ' Wilkinson's Eeplevin, *111. • See ante, p. 400, f 747 ; see also Eosenthal v. Lehman, 6 Weekly Notes, 559. SBC. v.] THE ACTION OF RBPLBVISr. 485 Though the statute gives the^defendant execution " hy fieri facias, or ekgit, or otherwise, as the law shall require," yet the writ of fieri facias seems to be his only execution in Pennsylvania, as here the writ of elegit is not known, nor is it at all settled either here or in England that he is entitled to a writ of capias ad satis- faciendum.^ [For forms of procedure in replevin see Appendix.] • Wilkinson's Eeplevin, *70, *111 ; see also Williams v. Smith, 10 Sergeant & Bawle, 202, 206. 486 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. CHAPTER XVI. Breach op Implied Covenants. SECTION I. NATURE OF IMPLIED COVESTANTS. 923. The fifth wrong a tenant may suffer from is the failure on the part of the landlord to perform the covenants implied in the lease as obligatory upon him. 924. Implied covenants are those which depend for their exist- ence on the intendment and construction of law, and are such as the law raises, either from the relation of the parties to each other, or from the use of particular words establishing that relation, in the absence of such words which of themselves import an ex- press covenant.' Thus, in a lease for years, the word of leasing, "demise" or any equivalent term, creating an actual demise, such as " demisi" " concessi," " demiserunt," "grant," "rent," " lease," or " let," imports on the part of the lessor implied cove- nants for title, namely : first, a covenant that he has power to demise ; and, secondly, a covenant for quiet enjoyment.^ 925. Where there is an oral lease for a term of years, a cove- nant for quiet enjoyment is implied from the very relation of land- 1 Bacon's Abridgment, title Covenant (B) ; Piatt on Covenants, *40 ; Spencer's Case, 1 Smith's Leading Cases *116. ' Maule V. Ashmead, 8 Harris, 482, 484, and authorities there cited ; Haz- lett V. Powell, 6 Casey, 293, 295; Hemphill u. Eckfeldt, 5 Wharton, 274, 278; Duff ». Wilson, 19 P. P. Smith, 31, 35; Lanigan c,. Kille, 9 Weekly Notes, 481, S. C. 1 Outerbridge; Spencer's case, 1 Smith's Leading Cases, *115; Grannis v. Clark, 8 Cowen (N. Y.), 36 ; Barney v. Keith, 4 Wendell (N. Y.), 502 ; Black v. Gilmore, 9 Leigh (Va.), 448 ; The Mayor of New York City v. Mabie, 3 Kernan (N. Y.), 151 ; Coleman «. Sherwin, 1 Salkeld, 137, S. C. 1 Showers, 79 ; Piatt on Covenants, *47 ; Bawle on Covenants for Title, 457, 461 (4th ed.), and authorities there cited. SEC. I.] KATURfi OF IMPLIED COVENANTS. 487 lord and tenant created by the letting/ but as is said by Mr. Rawle, in his learned work on Covenants for Tide,' " it seems to be at least doubtful whether a covenant that the lessor has the power to demise will be so implied." 926. An implied covenant may be raised from what appears to be the general intent of the parties.' An agreement to let raises an implied covenant on the part of the lessor that he has the power to demise.* But a mere agreement for a lease does not imply a covenant for quiet enjoyment during the term of the in- tended letting.* And where there is a lease for years from a future day, and in describing the property it is stated therein that the premises are occupied by a third person, no promise is implied on the part of the lessor that he will deliver possession to the lessee. In such a case, if the lessee is prevented from entering at the commencement of his terra by the unlawful holding over of the former tenant, it is not an eviction by good title, and the lessee cannot maintain an action against the lessor on the implied cove- nant for quiet enjoyment.^ 927. The law will not raise an implied covenant where there is an express one, and the latter may restrain, enlarge, or qualify the former, if of the same nature. Thus where the covenant for quiet enioyment is implied from the word " demise," or any equiv- alent terra of leasing, and an express limited covenant to the effect " that the lessee shall quietly enjoy against the acts of the lessor, or any claiming or to claim by, from, or under him," appears in the same lease, the former will be qualified and restrained by the latter, for it is a maxim of the law that " expressum, facit cessare taciturn."^ 1 Maule V. Ashmead, 8 Harris, 482, 484 ; Bandy v. Cartwright, 8 Exche- quer, 913; see also Ross v. Dysart, 9 Casey, 452; Moore v. Weber, 21 P. F. Smith, 429, 431 ; The Schuylkill and Dauphin Inaprovement and Eailroad Co. V. Schmolle, 7 Ibid. 271. ' Page 464 (4th ed.), and authorities there cited. s Smith & Solden's Landlord and Tenant, 99, and authorities there cited. * Strangs v. St. John, Law Eeports, 2 Common Pleas, 376; Anthony ci Brecon Market Co., Law Reports, 2 Exchequer, 167. ^ Brashier v. Jackson, 6 Meeson & Welsby, 549 ; Drury v. Maonamara, 5> Ellis & Blackburn, 612 (85 English Common Law Reports, 612). ' Cozens v. Stevenson, 5 Sergeant & Rawle, 421. ' Merrill «. Prame, 4 Taunton, 328; Noke's Case, 4 Coke (80 b.) ; Smith & Solden's Landlord and Tenant, 99 (2d ed.) ; Smith's Landlord and Tenant, 290 (2d ed.) ; Line v. Stephenson, 5 Bingham, N. C. 183 (35 English Common Law Reports, 77). 488 BREACH OF IMPLIED COVENANTS. [CHAP. XVI, In such a case the lessee cannot maintain an action of covenant upon an eviction by a paramount title. 928. Covenants that are implied from the use of particular words extend to real property only, for the law does not raise a covenant for a personal thing. Thus, if goods or chattels be de- mised for years, and the lessee be evicted, the action of covenant cannot be maintained against the lessor.' Where there is a lease of a house and the goods contained therein, it is advisable to affix to the lease a schedule of the goods, and incorporate in the lease a covenant on the part of the lessee to redeliver them at the end of the term ; for otherwise, after the termination of the term, the lessor can have no remedy for the goods but trover or detinue.^ But it has been held by our Supreme Court that where the demise is of both real and personal property, the rent payable therefor will be presumed to all issue out of the realty.' 929. Implied covenants do not extend to a thing not in esse at the time of the letting. Thus if A., in consideration that B. will build a mill upon land, and make a watercourse through it, de- mises the land to B, by the words " dedi et concessi" and after- wards stops the watercourse, B, cannot maintain an action of covenant against A.* 930. The covenants implied from the words of leasing, or from the relation of the parties, are termed covenants in law, in contra- distinction to express covenants, which are called covenants in deed, and the former are as binding on the parties as if expressed in the most unequivocal terms.* 931. Covenants in law in an indenture of lease for years end and determine with the estate out of which the lease is granted, and are confined to the covenantor only during the existence of his own estate, and are not binding on his personal representatives.^ Thus where a tenant for life makes a lease for years, without any ' Comyn's Digest, title, Covenant, A, 4; Bacon's Abridgment, title, Covenant, B. ' Ibid. s Mickle v. Miles, 1 Grant, 820. * Huddy V. Fisher, 1 Leonard, 278. ' Piatt on Covenants, *40. 6 MeClowry v. Croghan's, Administrators, 1 Grant, 807, 811, and authori- ties there cited ; "Williams v. Burrell, 1 Manning, Granger & Scott, 421 (50 English Common Law Eeports, 401), and cases there cited j see also Quain's Appeal, 10 Harris, 510. SBC. I.J NAT0RE OF IMPLIED COVENANTS. 489 express covenant for quiet enjoyment, and dies before the expira- tion of the term, and the lessee is evicted by the remainder-man, no action on the covenant of warranty and for quiet enjoyment, implied from the word of leasing, can be maintained against the executor of the lessor.' 932. Covenants in law follow the nature of the interest granted — joint, if a joint estate, if a several interest, several.' Thus, if A. and B. lease by the use of the word " demiserunt," the implied covenant of power to demise is joint, and if they were not seized at the time of letting, an action of covenant must be brought against both, and not against one only.' 933. All implied covenants run with the land.* A covenant runs with the land when its performance or non-performance affects the nature, quality, or value of the land demised, or the mode of enjoying it, independently of collateral circumstances.* But to make a covenant run with the land it must not only con- cern the land demised, but there must be besides a privity of estate between the contracting parties, that is, one of the estates must be so related to the other as to make but one and the same estate in law.' In a tenancy for years there exists privity of estate be- tween the lessor and the lessee. " This privity," says Baron Piatt in his work On Covenants/ "depending entirely on the estate, will have a duration coextensive with the continuance of the term. By an assignment the lessee may divest himself of the privity of estate, and transfer it to his assignee ; and it will re- main annexed to the estate in whose possession soever the lands may happen to fall, and notwithstanding the frequency with which the property may change owners, the assignee will still hold in privity of estate of the original landlord." But there is ' McClowry ». Croghan's Administrators, 1 Grant, 307, 311, and authori- ties there cited; Williams u. Burrell, 1 Manning, Granger & Scott, 421 (50 English Common Law Eeports, 401), and cases there cited; see also Quain's Appeal, 10 Harris, 610. 2 Coleman v. Sherwin, Salkeld, 137. s Ibid. * Spencer's Case, 1 Smith's Leading Cases, *115; Bacon's Abridgment, title Covenant (E.), 5. B Spencer's Case, 1 Smith's Leading Cases, *115; Mayor of Congletonu. Pat- tison, 10 East, 130, 135, per Lord EUenborough, C. J. | Comyn's Landlord and Tenant, *107. 6 2 Blackstone's Commentaries, *325. ' Page*490. 490 BREACH OB IMPLIED COVENANTS. [CHAP. XVI. no privity of estate between an under-tenant and the original lessor. It may then be said that the implied covenants, on the part of the lessor, run with the land, and are binding upon him or the reversioner, and may be enforced by the lessee or his assignee.'' SECTION II. THE IMPLIED COVENAITTS ON THE PAET OF THE LANDLORD. I. The Implied Covenant for Quiet Enjoyment. 934. When premises are demised, even orally, there is an im- plied covenant on the part of the lessor for quiet enjoyment dur- ing the term.' Baron Piatt -succinctly defines the covenant for quiet enjoyment as "an assurance against the consequences of a defective title, and of any disturbances thereupon."* As we have already observed,^ the word of leasing, " grant " or " demise," or any equivalent term creating an actual demise, such as " concessi," "demisi," " rent" " lease," or " let," in a lease for years, imports or makes a covenant in law, on the part of the lessor (in the absence of an express covenant for title, or for quiet enjoyment), that the lessee shall enjoy and possess the demised premises during the term, without any lawful entry, eviction, or actual disturbance of the possession, by any person having legal title, or right of entry. The implied covenant for quiet enjoyment does not embrace the wrongful evictions, or acts of strangers having no right or title to the demised premises.* It extends only to the possession, and its breach arises only from eviction by means- of title.' It means that the lessee shall not, by good title, be evicted or disturbed in 1 Piatt on Covenants, *489. 2 See Spencer's Case, 1 Smith's Leading Cases, *115; see also Williams v. Burrell, 1 Manning, Granger & Scott, 402 (50 English Common Law Re- ports, 401). ^ Maule V. Ashmead, 8 Harris, 482 ; Duff v. "Wilson, 19 P. P. Smith, 316 j Koss V. Dysart, 9 Casey, 452; Schuylkill and Dauphin Improvement and R. K. Co. V. Schmoele, 7 P. P. Smith, 271 j Moore v. Weber, 21 P. p. Smith, 429, 431. * Piatt on Covenants, *812. ^ Ante, page 486, f 924. e Moore V. Weber, 21 P. P. Smith, 429, 431. ' Schuylkill and Dauphin Improvement and R. R. Co. v. Schmoele, 7 P. F. Smith, 271. SBC. II.] COVENANTS ON PART OF LANDLORD. 491 the possession of the premises, or any part thereof.' Under the implied covenant for quiet enjoyment, it may then be said that the lessee has a right to have the term granted secured to him, and also the quiet enjoyment of the same. (1.) When there is a Breach of the Implied Covenant for Quiet Enjoyment. 935. A breach, on the part of the lessor, of the implied cove- nant for quiet enjoyment occurs under the following circum- stances : (1.) When the lessor commits any act which deprives the lessee of that beneficial enjoyment of the demised premises to which he is entitled under the lease.^ (2.) When the lessor withholds possession.' (3.) When the lessee is prevented from entering upon the de- mised preOaisas by a person in possession under a paramount title.* (4.) When the lessee is put to expense in procuring a perfect title on account of the lessor not having had sufScient power to demise for the whole term.^ (5.) When the lessee or his assignee are lawfully evicted throjLigh a defect in the lessor's title, or by one having title para- mount to the lease.° (6.) When the lessor refuses to allow an undertenant to enter the demised premises under threats of suit for rent, whereby the lessee is deprived of underletting.' ' Moore v. Weber, 21 P. P. Smith, 429. ' Hoevler v. Flemming, 8 "Weekly Notes, 65. ' Grist V. Hodges, 3 Devereaux (N. C), 200; Ooe v. Clay, 5 Bingham, 440; 15 English Common Law Keports, 492 ; Jenks v. Edwards, Hurlstone & Gordon fll Exchequer), 775. ' Ludwell V. Newman, 6 Term Eeports, 458 ; Gardner v. Eeteltas, 3 Hill, 330 ; St. John v. Palmer, 5 Ibid. 599 ; Hamilton u. Cutts, 4 Massachusetts, 349; Grist v. Hodges, 3 Devereaux (N. C), 200. * Comyn's Landlord and Tenant, *544 ; Bacon's Abridgment, title Cove- nant, B. ^ Spencer's Case, 1 Smith's Leading Cases, *115j Hemphill v. Eckfeldt, 5 Wharton, 274, 278; Koss v. Dysart, 9 Casey, 452; Piatt on Covenants, *40, and authorities there cited. ' Doran v. Chase, 2 Weekly Notes, 609. 492 BREACH OP IMPLIED COVENANTS. [CHAP. XVI. (7.) When the lessor enters upon the demised premises when left by the lessee, and puts another person in possession, and refuses the occupation of the premises during the residue of the term to the assignee or agent of the lessee.^ (8.) When the lessor disturbs a way of necessity which was an easement to the demised premises,^ (9.) When the lessor, without the consent of the lessee, takes possession of the ruins of premises destroyed by fire, for the pur- pose of rebuilding.* (10.) Where there is a demise of part of a house, and the lessor habitually introduces into the other part, which he himself occu- pies, lewd women, who create indecent noise and disturbance, so as to interfere with the quiet enjoyment of the lessee, and to bring odium and infamy upon the house as a place of prostitution.* (11.) Where the lessor, without the assent of the lessee, uses privileges appurtenant to the demised premises not reserved in the lease.^ (2.) When there is no Breach of the Implied Covenant for Quid Enjoyment. 936. There is no breach, on the part of the lessor, of the im- plied covenant for quiet enjoyment under the following circum- stances : (1.) Where goods or chattels are demised for years, and the lessee is evicted.* Implied covenants extend to real property only ; for the law does not raise a covenant for a personal thing.' (2.) Where the lessor, who is a tenant for life, leases for years, and dies before the expiration of the term, and the lessee is evicted 1 Briggs V. Thompsom, 9 Barr, 338. ' Morris v. Edgington, 8 Taunton, 24; Andrews v. Paradise, 8 Modern, 318. ' Magraw v. Lambert, 3 Barr, 444 ; see also Howeleru, Fleming, 8 Weekly Notes, 65. * Dyott V. Pendleton, 8 Cowen (N. Y.), 727. ' Nealei;. McKenzie, 1 Meeson & Welsby, 747 ; Vaughan & January v. Blan- chard & Eussell, 1 Yeates, 175 j Garrett v. Cummins, 2 Philadelphia, 207. * Comyn's Digest, title Covenant, A; 4 Bacon's Abridgment, title Cove- nant, B. ' See ante, page 487, f 928. SKO. II.] COVENANTS ON PART OF LANDLORD. 493 by the remainder-man.' No action on the implied covenant for quiet enjoyment can be maintained against the personal represen- tatives of the lessor ; for such covenant lasts no longer than the estate out of which the lease is granted." (3.) By an interference with the person of the lessee by the les- sor or a stranger, although on the demised premises.^ Such inter- ference is a trespass, and not an eviction from the premises. (4.) By the mere entry by the lessor upon the demised premises without any attempt to exclude the lessee therefrom, or to inter- fere with his beneficial enjoyment thereof.* (5.) By the unlawful entry upon the premises by a stranger, or tortfeasor.^ (6.) By the entry of the State under her right of eminent domain.* (7.) Where the lessee is dispossessed by the military force of a public enemy, or where the premises are destroyed or rendered untenantable by lightning, fire or flood.' (8.) By the commencement of an action of ejectment followed by a writ of estrepement.' A breach of the implied covenant for quiet enjoyment does not occur until the ejectment proves to be well-founded, and there is an actual eviction. (9.) By the erection of a party-wall by a stranger, whereby the windows in the demised premises are obstructed.' (10.) Where an adjoining owner pulls down his building, and leaves a side of the building on the demised premises exposed to ' Swan V. Searles, Dyer 257, a; McClowry v. Croghan's Administrator, 1 Grant, 307, 311, and authorities there cited ; Williams v. Burrell, 1 Manning, Granger & Scott, 421 (50 English Common Law Eeports, 401). 2 Ante, page 488, If 931. 3 Vatel V. Herner & Gardner, 1 Hilton (N. T. ), 149 ; Penn «. Glover, Croke- Elizabeth, 421 ; see also Noble v. Warren, 2 Wright, 340. * Randall v. Alburtis, 1 Hilton (N. Y.), 285 1 Bennet v. Bittle, 4 Kawle, 339. ^ Schuylkill and Dauphin Improvement and Eailroad Co. v. Schmoele, 7 P. P. Smith, 271 j Dyer v. Wightman, 16 P. F. Smith, 425, 427, and cases there cited. 8 Ibid. ; see also Frost v. Earnest, 4 Wharton, 86, 90 ; Dyer v. Wightman, 16 P. F. Smith, 425, 427, and cases there cited. ' Dyer v. Wightman, 16 P. F. Smith, 425, 427, and cases there cited. 8 Schuylkill and Dauphin Improvement and Kailroad Co. i;. Schmoele, 7 P. F. Smith, 271. » Hazletti). Powell, 9 Casey, 293. 494 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. the weather, so that the rain beats in and damages the lessee's goods.' (11). Where there is a lease for years from a future day, stating a third person to be then in possession, and the lessee is pre- vented from entering upon the premises by the holding over of the former tenant.^ (1 2.) Where the lessee is prevented from taking possession of the leased premises by the holding over of a former tenant, whose term has expired.' (13.) Where there is a mortgage antedating the lease, under which the lessee is liable to be dispossessed, if such incumbrance does not cause an interference with his beneficial enjoyment of the demised premises.* (3.) The Tenants Remedies for a Breach. 937. When the landlord is guilty of a breach of the implied covenant for quiet enjoyment, the tenant may resort to the follow- ing remedies: (1.) The action of covenant, which has already been treated of,* and of which more will be said farther on.^ (2.) The action of trespass on the case, which is brought for the recovery of damages,' and which was treated of in a former part of the work.' (3.) The action of assumpsit, which is resorted to for the re- covery of damages where there is a breach under a lease under seal, which has been materially varied by a subsequent oral agree- ment, or where the lease is not under seal, whether written or oral.' • Moore v. Weber, 21 P. P. Smith, 429. • Cozens v. Stevenson, 5 Sergeant & Rawle, 421. ' Gardner v. Keteltas, 3 Hill (N. Y.), 330. • Taylor's Landlord and Tenant, 232, J 308 ; see also Brown «. Dickerson, 2 Jones, 372 ; Wilson v. Cochran, 10 Wright, 229, 231. ^ See ante, page 173 et seq. ^ See infra, page 495 et seq. ' See Moore v. Weber, 21 P. P. Smith, 429; Briggs v. Thompson, 9 Barr, 338 ; Hemphill v. Bokfeldt, 5 Wharton, 274 ; see also 1 Chitty's Pleading, 152 (16th Am. Ed.). * See ante, page 495 et seq. ' Maule V. Ashmead, 8 Harris, 482 ; Lehigh Coal and Navigation Co. v. Harlan & Henderson, 3 Casey, 429 ; Vicary v. Moore, 2 Watts, 461 ; Ward v. Smith, 11 Price, 19 j Duff u. Wilson, 19 P. P. Smith, 316. SEC. II.] COVENANTS ON PART OF LANDLORD. 495 (4.) Bill in equity for specific performance of implied covenant, or for injunction to restrain a breach of the same.' This remedy has already been treated of in a former part of the work.' (4.) The Action of Covenant. 938. Where the lease is under hand and seal the lessee usually resorts to the action of covenant for recovering damages for a breach on the part of the lessor of the implied covenant for quiet enjoyment. The general nature of the action we have already discussed/ but some matters remain to be referred to when the lessee is the plaintiff in the action. 939. For a breach of the covenant committed after an assign- ment of the term the assignee of the lessee may maintain the action.* So may the assignee of the assignee and the executor or administrator of the assignee of the assignee.^ But where the les- see assigns his term, he will not be liable to his assignee, upon an implied covenant for quiet enjoyment, for a breach, by one claim- ing under the lessor.* In an assignment the assignee is put in place of the lessee, who is relieved from the contract unless he has bound himself by express covenants.' 940. In assigning a breach, if the declaration be certain to a common intent, it is sufficient.' In general the breach should be assigned according to the substance and legal import of the cove- nant.' If the breach was by the lessor, it need only set out an eviction or an actual disturbance in the possession by him without showing under what pretence or title it was committed.'" But 1 Pinley v. Aiken, 1 Grant, 83 ; Brooke v. Barton, 6 Munford (Va.), 306; see Schuylkill and Dauphin Improvement and Bailroad Co., 7 P. F. Smith, 271. ' See ante, page 366. ' See ante, page 173 et seq. * Spencer's Case, 1 Smith's Leading Cases, *115. ' Ibid. ^ Waldo V. Hall, 14 Massachusetts, 486 ; Blair v. Rankin, 11 Missouri, 442. ' Blair v. Rankin, 11 Missouri, 442 ; Woodburne v. Renshaw, 32 Ibid. 197 ; see also Simens v. Van Ingen, 6 Weekly Notes, 61, 63. 8 I'oster V. Pierson, 4 Modern, 617, 620. 9 See Potter v. Bacon, 2 Wendell (N. T.), 583 ; Abbott v. Allen, 14 John- son (N. Y.), 248 i Salmon v. Bradshaw, Croke Jac, 304 ; Barney v. Keith, 4 Wendell (N. Y.), 502. '" Comyn's Landlord and Tenant, *542. 496 BREACH OP IMPLIED COVENANTS. [CHAP. XVI. where the breach is by a/ stranger, the declaration must show a lawful entry, eviction, or interruption under a paramount title existing before the demise.' 941. Strictly speaking, there is no general issue in the action of covenant, for the plea of non est factum puta in issue merely the sealing of the lease in which the covenant is contained or implied,'' and under it the plaintiff need not prove the averments or breaches set forth in his declaration.' The plea admits all the material allegations, except the execution of the lease.* It admits the breaches, and the onus of showing the contrary is upon the de- fendant.^ The plea of non inf regit conventionem puts in issue barely the breach of the covenant, but does not seem to allow any defence other than that.' So the plea of performance is the averment of fulfilment of the covenants, under which, perhaps, prevention would be considered as equivalent to performance, so under the plea of performance with leave to give the special matter in evidence, any equitable defence can be made available with notice.' The defendant should then avail himself of the plea of performance with leave, etc., which is of the nature of a general issue, since under it he may prove any matter which he might have pleaded specially,* and under this plea the defendant assumes the burden of proof and has, therefore, the right to begin and conclude the case.' 1 Ibid. ; Naglee v. Ingeraoll, 7 Barr, 185 ; Brooks v. Humphreys, 5 Bing- ham (N. C), 55; Webb v. Alexander, 7 Wendell (N. Y.), and cases there cited. 2 Smith V. Justice, 6 Philadelphia, 234; 1 Chitty's Pleading, *J35, *514. ' Ibid. ; Legg v. Kobinson, 7 Wendell (U. T.), 194; Kane v. Sanger, 14 Johnson, 89; McNeish v. Stewart, 7 Cowen (N. Y.), 474. i Norman J). Wells, 17 Wendell (N. Y.), 136. 6 Goulding v. Hewitt, 2 Hill (N. Y.), 644. ' Per Sharswood, P. J., in Smith v. Justice, 6 Philadelphia, 234. ' Ibid. ; see also Neave v. Jenkins, 2 Yates, 107 ; Evans v. Dravo, 12 Har- ris, 62. 8 Ibid. ; Webster v. Warren, 2 WasTiington Circuit Court Reports, 456 ; Bender v. Froniberger, 4 Dallas, 436. s Norris v. Insurance Co. of N. A., 3 Yeates, 84; Scott v, Hull, 8 Connec- ticut, 296, SBC. II.] COVENANTS ON PART OF LANDLORD. 497 (5.) The Tenants Judgment or Measure of Damages. 942. As to the measure of damages the lessee is entitled to re- cover upon a breach of the covenant for qniet enjoyment, consid- erable diversity of opinion exists between the various courts of the States of the Union.' The conflict in the decisions gen- erally arises on the question whether the measure of damages in favor of a lessee when a breach of the covenant occurs shall be the same as has generally been adopted in favor of a vendee upon breach of a covenant for quiet enjoyment or of warranty, in the case of a conveyance or contract of sale of real estate. 943. The ordinary rule of the common law is that where a party sustains a loss by reason of a breach of contract, he is prima fade entitled, so far as money can do it, to be placed in the same situa- tion with respect to damages as if the contract had been performed.' But an exception to this general rule has been maintained where there is a breach of a covenant for quiet enjoyment or of war- ranty in the case of a contract for the sale or conveyance of real estate. Where there is a sale of a chattel, the vendor must know, or, at all events, is taken to know, what his right to the chattel is, while in the purchase and sale of real estate the vendee must bear in mind that with all the complications of the law of real prop- erty there is always more or less uncertainty as to whether a good title can be effectively made out by his vendor.' 944. In England, as early as the year 1775, in the case of Flureau v. Thornhill,* the general common-law rule was qualified and the principle established that where a contract of sale of real estate goes off by reason of the inability of the vendor to make a good title, the vendee is not entitled to recover damages for the loss of his bargain. Such a contract it was held was merely on condition that the vendor has a good title, and hence the vendee could only recover such amounts as he may have paid on account of the purchase, together with interest and the ex- ' See Eawle on Covenants for Title, 242 et seq. ■> Eobin3on v. Harman, 1 Exchequer (Welsby, Hurlstone & Gordon), 850 j see also Lock v. Furze, Law Eeports, 1 Common Pleas, 441, 450, 453. ' Bain v. Fothergill, Law Eeports, 7 English and Irish Appeal Cases (House of Lords), 158, 210, 211. * 2 William Blacltstone, 1078. 32 498 PREACH OF IMPLIED COVENANTS. [CHAP. XVI. penses to which he may have been put in the investigation of the title.' "In the absence of any express stipulation about it," says Lord Wensleydale/ "the parties must be considered as content that the damages, in the event of the title proving defective, shall be measured in the ordinary way, and that excludes the claim of damages on account of the supposed goodness of the bargain." This rule with regard to the measure of damages being limited by the consideration- money and interest has been adopted by the Supreme Court of the United States,' and by the courts of last re- sort of most of the States of the Union,^ the Supreme Court of Pennsylvania being among the first to announce the doctrine.^ 945. In Pennsylvania, as early as the year 1806, in the case of Bender v. Fromberger,' which was an action of covenant upon a breach of a warrantry of seisin, which, in effect, is a covenant for quiet enjoyment, the Supreme Court, Chief Justice Tilghman de- livering the opinion, decided that the standard of damages was the value of the land at the time of making the contract, or the con- sideration paid for it, not including any increase in the value of the land through improvements or otherwise, at the time of the evic- tion.' But the vendee's expenses attending the investigation of the title may be included in the measure of damages, even where 1 Ibid. ; Lock v. Furge, 19 Common Bench (N. S.), 96, 117, 123 (115 Eng- lish Common Law Eeports, 94, 116, 122), S. C. Law Eeports, 1 Common Pleas, 441, and authorities there cited; Robinson ti. Harman, 1 Exchequer (Welsby, Hurlston & Gordon), 885; Bain v. Pothergill, Law Eeports, 7 Eng- lish and Irish Appeal Cases (House of Lords), 158. 2 Walker v. Moore, 10 Barnwall & Cresswell, 416 (21 English Common Law Eeports, 100), quoted with approval by Blackburn, J., in Lock v. Furze, Law Reports, 1 Common Pleas, 454, and by Lord Chelmsford, in Bain v. Fothergill, Law Reports, 7 English and Irish Appeal Cases (House of Lords), 158, 201. ' Hopkins v. Lee, 6 Wheaton, 118. ' See Rawle on Covenants for Title, 242 ei seq , where the cases are col- lected. ^ Bender v. Fromberger, 4 Dallas, 441. « 4 Dallas, 441. ' Bender v. Fromberger, supra, has since been frequently followed and ap- proved: Brown v. Diekerson, 12 Jones, 372, 375; Cox's Administrators o. Henry, 8 Casey, 18, 19; Hertzog v. Hertzog, 10 Ibid. 418, 428 ; Dumars v. Miller, Ibid. 819 ; Terry's Executors v. Drabenstadt, 18 P. F. Smith, 400, 402 ; Bowser ». Cessna, 12 Ibid. 148; Smart v. Allegaert, 8 Weekly Notes, 217; S. C. Allegaert v. Smnrt, 10 Ibid. 29 ; King v. Pyle, 8 Sergeant & Rawle, 116 ; Lanigan v. Kille, 9 Weekly Notes, 481, 482, S. C, 1 Outerbridge. SEC. II.] COVENANTS ON PART OP LANDLORD. 499 the vendor acted honestly," and interest on the purchase-money will also be included where the contract has been executed by a deed with covenant of warranty, unless the land is improved and the vendee has been in possession. In such case the vendee has no claim to interest, except for such portion of the time for which he is held liable to account for mesne profits.' 946. On this standard of damages an exception has been en- grafted in cases where the vendor acts in bad faith, or is guilty of fraud, concealment, artifice, collusion, or tort, to escape from the performance of his contract, or from the effects of a bad bar- gain. Under such circumstances it has been well established here and in England that upon a breach of a contract to sell land, or of a covenant of seisin, or for quiet enjoyment, the vendee is entitled to recover not only compensatory damages, but also damages for the fancied goodness of the bargain, or the money he might have derived from the fulfilment of the vendee's contract, which he lost by the knavery of the vendor.' 947. This exception has been extended here and in England to cases between lessor and lessee where the former is guilty of a breach of the covenant for quiet enjoyment, on account of a dis- affirmance of his own act, or by any fraud on his part upon the lessee. In such cases the lessee's damages are measured by the actual loss which he has sustained through the breach, under rules analogous to those applied between vendor and vendee.* 948. But the rule as established in Flureau v. Thornhill,^ that when a contract for the sale of real estate goes off without any fraud on the part of the vendor, in consequence of a defect in his title, the purchaser is not entitled to damages for the loss of his ' See Lee v. Dean, 3 "Wharton, 316, 329; Thompson v. Sheplar, 22 P. P. Smith, 116. "^ See Cox's Administrators v. Henry, 8 Casey, 18, 19 j McClure's Execu- tors V. Gamble, 3 Ibid. 288, 291 ; Bitner v. Brough, 1 Jones, 127, 139. 3 Lee V. Dean, 3 Wharton, 316, 331, and authorities there cited ; Bitner v. Brough, 1 Jones, 127, 139, and authorities there cited ; McDowell v. Oyer, 9 Harris, 417; McClowry d. Croghan's Administrator, 1 Grant, 307, S. C, 7 Casey, 22; Thompson v. Sheplar, 22 P. P. Smith, 160; Smart v. AUegaert, 8 Weekly Notes, 217 ; S. C, AUegaert v. Smart, 10 Ibid. 29. < Mack V. Patchin, 42 New York, 167; Maule v. Ashmead, 8 Harris, 482; explained in Lanigan v. Kille, 9 AVeekly Notes, 481 et seq., S. O., 1 Outer- bridge ; McClowry v. Croghan's Administrator, 1 Grant, 807. s See ante, page 497, % 944. < 500 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. bargain, but can only recover back the deposit, with interest and the expenses to which be may have been put in the investigation of the title, was held, in England, not to apply to the case of a lease granted by a person who has no title to grant it.^ In such case it was decided there that the true measure of damages for the breach was the actual loss sustained by the lessee by reason of that breach. A distinction was drawn between a contract for the sale of land and a conveyance of an estate or interest therein, and the ordinary rule of the common law, that where a party breaks a covenant he is liable for such damages as are the proximate consequences of his breach of covenant was applied." 949. In Pennsylvania, however, as we have already observed, the case of Bender v. Fromberger,' in 1806, decided that on a breach of a warranty of seisin, which, in effect, is a covenant for quiet enjoyment, the measure of damages as between vendor and vendee is the consideration paid.* In McClowry v. Croghan's Administrators,^ which was an action of trespass on the case to re- cover damages for the breach of a contract to renew a lease. Judge Williams, in delivering the opinion of the District Court of Alle- gheny County, says that " the rule or measure of damages for the breach of a contract to lease ought to be the same as for a breach of a contract to sell land," and accordingly decided (this judgment of the court below was affirmed by the Supreme Court) that the plain- tiff was not entitled to recover damages for the loss of his bargain ; but that the measure of damages was the price paid for the lease and its interest, and not the value of the contract. 950. In the recent case of Lanigan v. Kille" (1881), the Su- preme Court announced the standard of damages, as between lessor and lessee, where there is a breach of the covenant for quiet enjoyment. That case was an action of covenant brought by the lessee (Lanigan) against the lessor (Kille) upon the covenant for J "Williams v. Burrell, 1 Manning, Granger & Scott, 402, 432 (50 English Common Law Eeports, 401 ) ; Locke v. Purze, 19 Common Bench, 96,117, 123 (115 English Common Law Reports, 94, 116, 122) ; S. C, Law Eeports, 1 Common Pleas, 441 ; Eolph v. Crouch, Law Beports, 3 Exchequer, 44. 2 Ibid. » 4 Dallas, 441. * See Lanigan v. Kille, 9 Weekly Notes, 481, 482; S. C, 1 Outerbridge. ' 1 Grant, 307, 309 etseq., S. C, 7 Casey, 22 ; see also Sausser v. Steinmetz, 7 Norris, 324; S. C, 8 Weekly Notes, 100. « 9 Weekly Notes, 481, S. 0., 1 Outerbridge. SEC. II.] COVENA-NTS ON PART OP LANDLORD. 501 quiet enjoyment implied from the use in the lease of the words "demise" and "let," to recover damages for an eviction from certain ore-lands which the lessor, in consideration of a certain royalty, had demised to the lessee ibr the terra of fifteen years. The lessee covenanted to erect good and approved machinery to .take out the ore, and the lessor covenanted that the lessee should have full privilege of erecting all buildings necessary to working the ore, and that at the end of the term, or sooner, if ore shall not be found in sufficient quantity upon the tract, he should have the right to remove all buildings and machinery put up by him. The lessee entered upon the demised premises, and erected certain im- provements, but subsequently was evicted by virtue of a judgment against the lessor in an action of ejectment founded upon a par- amount title. ^ The successful plaintiff in the ejectment then brought an action of trespass for mesne profits against the lessor^ who was allowed to set off against the plaintiff's claim the value of the improvements, amounting to $9600, made hy the lessee while in the quiet enjoyment of the demised premises.^ At the trial before Judge Mitchell (Common Pleas Number 2, of Philadelphia County), the lessor admitted the eviction, when the lessee offered to show: first, the value of the improvements at the time of eviction, affixed to the freehold by him under his lease ; and secondly, that the lessor, in an action against him for mesne profits by the claimant in the ejectment suit, fixed the value of the improvements at $9600, and was allowed to set off that amount to the claim for mesne profits. The Court refused the offer and instructed the jury to find for the plaintiff (lessee) nominal damages of |6. In discharging a rule for a new trial^ Judge Mitchell, in delivering the opinion of the Court below, says :' " Under the general established rule it is conceded that the plain- tiff (lessee) could not recover from defendant (lessor) the value of his improvements. By the eviction, therefore, they were lost to the plaintiff, with no obligation on the part of any one to pay for them. If the paramount owner had sued this plaintiff for mesne 1 Kills V. Ege, 29 P. F. Smith, 15, S. C, 1 Weekly Notes, 500 j Ege v. Kille, 3 Norris, 333. 2 Kille „. Ege, 1 Norris, 102, S. C, 3 Weekly Notes, 443 ; Ege v. Kille, 3 Norris, 333. 3 7 Weekly Notes, 293, 295. 502 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. profits, the latter might have set off the value of his improve- ments, but he could not have had a certificate in his favor for any- excess of such value. The most that his improvements could have availed him would have been to successfully defend such an actioUj and he is now nOne the worse oif because the action has been successfully defended through the same means by his lessor,, the present defendant. The paramount owner was a common enemy, who might have made his attack for mesne profits on either of the present parties. He did make it on the defendant, and in that action the defendant used the plaintiff's shield in the same manner that the latter might have done if the attack had been made on him." Upon a writ of error to the Supreme Court the lessee assigned for error the ruling out of his offers of evidence, and the instruc- tion to the jury to find nominal damages only. The Supreme Court sustained the action of the Court below, and in an elaborate opinion by Mr. Justice Paxson held : (1 .) That the word ecmoessi or demisi, or let or demise, in a lease implies a covenant for quiet enjoyment during the term, and that for a breach an action can be maintained. (2.) "That in an action by a lessee against his lessor for an evic- tion by a paramount title, the measure of damages is the consider- ation paid, and such mesne profits as he has paid, or may be liable for. The consideration for a lease is usually the rent reserved. If the tenant has enjoyed the possession of the demised premises, he has had the precise equivalent for the rent; if he has paid the rent in advance, he is entitled to recover it back in the form of damages for the eviction." (3.) That where the lessor is guilty of any fraud or bad faith, and the lessee is evicted by his act, procurement, or fault, he is liable to the lessee for the loss of his bargain, under rules analo- gous to those applied in the sale of personal property. (4.) "That in ordinary short leases, an examination of title is neither usual nor necessary ; the same cannot be said in regard to leases of valuable ore-lands having fifteen years to run, and when from the necessities of the business costly improvements are re- quired. The lessee of a small tenement has little occasion to concern himself about the title. If he is evicted, the rent ceases, and that is the end of it. But in leases of the character of the one we are SEC. II.J COVENANTS ON PART OP LANDLORD. 503 considering, title is of such supreme importance that no one but a very careless man would ever think of renting without a careful examination. However careless a man may be as to title in or- dinary leases, it is well to understand that when a lessee seeks to improve demised premises, the rule of caveat emptor applies, and he would do well to see that his lessor has title, and if not satis- fied therewith, he may further protect himself by apt words in an express covenant."^ II. The Implied Covenant for Payment of Taxes. 961. In the absence of any covenant touching the payment of taxes, the law implies a covenant, on the part of the landlord, to pay the same, and if he fail to do so the tenant may discharge them and defalcate the amount so paid from the rent. By the custom of the county of Philadelphia the landlord pays the water rent or tax. (1.) TJie Acts of Assembly. 952. In Pennsylvania, the legislature has passed various acts with regard to the assessment, collection, and payment of taxes, of which the following more particularly concern the relation of landlord and tenant : (1.) The act of 6th April, 1802,'' which authorizes the tenant to pay the road tax, and make the payment a set-off against the rent. (2.) The act of 3d April, 1804,' which makes the tenant liable for all taxes coming due during his tenancy, and on payment of same authorizes him to defalcate the amount from the rent then due or thereafter to become due. (3.) The act of 15th April, 1834,* which makes the goods and, chattels of any person occupying real estate liable to distress and sale for the non-payment of taxes assessed on the property during his possession. (4.) The act of 19th April, 1883,^ directs the Eeceiver of 1 9 Weekly Notes, 482 ei seq. ; S. 0., 1 Outerbridge. 2 See ante, Chapter V, page 135. 8 Ibid., page 135 ; see also McAfee ■». Bumm, 10 Philadelphia, 157. * Ibid., page 136; see also McAfee v. Bumm, 10 Philadelphia, 157. 5 Pamphlet Laws, 549. 504 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. Taxes to collect the delinquent taxes, and provides their efficient collection in cities of the first class. This act repeals and supplies the act of 24th March, 1870,' and the act of 16th April, 1879,^ and is as follows : " Sectioit 1. Be it enacted, etc., That from and after the seventh day of April, Anno Domini one thousand eiglit hundred and eighty-four, the office of collector of all outstanding or delinquent taxes, in cities of the first class, be and the same is hereby abolished. " Sbctiok 2. That in all cities of the first class, the receiver of taxes therein shall, on or before the fifteenth day of January, in each and every year, have prepared a registry of all outstanding or delinquent taxes, of the previous year, due and owing said cities, and shall immedi- ately proceed upon all such delinquent taxes, rates, and levies, for the collection thereof, and to collect the same, by distraint or otherwise, either out of the personal property on the premises, or the personal or- real estate of the delinquent owner wherever the same may be found, whether in his own possession, or in that of any trustee or other person for him, or in the possession of his executors, administrators, or legal representatives. " Section 3. The receiver of taxes, of the said cities of the first class, is hereby authorized and empowered to distrain and levy upon, and sell any goods, chattels, or personal property, found on any premises on which the taxes are delinquent, or upon the goods, chattels, or personal property of the owner of said premises, wherever the same may be found, whether in his own possession or in that of any trustee or other person for him, or in the possession of his executors, administrators, or legal representatives : Provided, That there shall have been served, on such owner or tenant or other person, in whose hands or possession such goods, chattels or personal property may be, a printed or written notice, demanding payment of the taxes, costs and charges thereon, within thirty days from the date thereof, stating, that if said pay- ment be not made within said time, the same would be enforced by levy and sale of such goods, chattels, and personal property : Provided further, That any executor, administrator, trustee or legal representative of any estate, or other person, who shall pay, under the provisions of this act, any such taxes, costs and charges due upon any such estate, may defalk the amount paid by him, or them, out of any moneys in his or their hands, or from any revenue received thereafter, from, or belonging to, said estate : And provided further, That when goods, chattels or personal ' Pamphlet Laws, 544. 2 Ibid., 24 ; see Lorman v. Donahugh, 8 Weekly Notes, 55, SEC. II.] COYBNANTS ON PART OF LANDLORD. 505 property of any tenant shall have been levied upon, by virtue of the pro- visions of this act, the said receiver of taxes is hereby authorized, em- powered and directed to proceed with due diligence, to collect from said tenant ; and when tlie amount of taxes, costs and charges exceeds the amount of reat due, then only the amount of rent then due ; but the lien of the levy shall remain upon said goods during the occupancy of said premises by said tenant, and all rents after accruing shall be applied to the extinguishment of said taxes, until the tax, charges and costs shall have been fully paid. The amount collected by said receiver of taxes shall be a lawful deduction from the rent due, or that may thereafter be- come due, and in the event of the refusal of any landlord to allow of said deduction to said tenant, on account of rent, and shall refuse to accept the receipt of said collector in lieu tliereof, then it shall be the duty of the city solicitor, of said cities of the first class, to defend the said tenant in any action brought by the said landlord or his agent, for the recovery of said rent, from said tenant ; the costs and expenses thereof to be paid by the said city : Provided further, That in no case shall any tenant or tenants be compelled to pay the said tax, costs and charges, or any por- tion thereof, until the said rent shall have become due and payable, neither shall said receivers of taxes follow said tenant's goods, chattels or personal property, to any other premises upon a previous levy upon a chan"0 of residence of said tenants or a hotiafide removal of said goods, in the ordinary course of business. " SECTI02T 4. In all cases, where the said receiver of taxes shall deem it advisable to proceed against the real estate of such delinquent owner, whether by action or by lien, and the said premises shall be exposed to sheriff's sale, if an amount shall not be bid at such sale sufficient to cover the amount of all taxes due, with all the costs, charges and expenses thereon, together with all costs and expenses incident to said sale, the said receiver of taxes shall have full power and authority, in his discre- tion, either to stay the said sale or to purchase the property, in the name and behalf of the said city, and take title thereto. " Sectioit 5. That all sales, which shall be made in suits instituted by such receiver of taxes, or under his direction, in behalf of any such city, on a judgment regularly obtained, shall vest in the purchaser a good and sufficient title to the premises sold, subject to the right of the dehn- quent owner to redeem the same, which is hereby limited to two years from the date of the acknowledgment of the sheriff's deed therefor, upon his payment to the purchaser, of the amount bidden at such sale, with ten per centum thereon, and all costs, charges and expenses. " Section 6. In all cases where the taxes remain unpaid for the period of one year, after tlie same shall have become delinquent, it shall be the duty of the said receiver of taxes, to procure forthwith an accurate description of the real estate upou which said taxes have been assessed ; 506 BREACH OF IMPLIED COVENANTS. [CHAP. XVl! the cost thereof to be charged against said owners, not to exceed, in any case, one dollar, and to file liens, keep the same revived, and proceed to collect the same from time to time. In the event of any judicial sale, other than upon a lien for said taxes, said taxes, charges and levies shall be discharged only to the extent to which they shall be paid by said sale. " Section 7. That the said receiver of taxes shall pay over to the city treasurer, of any such city, his collections of all outstanding or delinquent taxes, interest, penalties and costs at least once every week, and shall furnish, at the same time, a detailed statement of said payments, to the controller of such city, in the same wa}' and manner as is required by the laws and ordinances in all cities of the first class as to taxes that are not delinquent, keeping the accounts and returns of the said delinquent or outstanding taxes separate from the accounts and returns of all other taxes. " Sbctioit 8. That the said receiver of taxes shall appoint such num- ber of clerks and deputies as may be fixed by the councils of any city of the first class, removable at his pleasure ; and the said deputies shall have all the powers to collect and proceed for such delinquent taxes as are hereby conferred upon the receiver of taxes in all the cities of the first class ; and the said deputy collectors shall make weekly returns, and pay over to the said receiver of taxes, weekly, all sums of money for delin- quent taxes, interest, penalties and costs, collected by them. " Section 9. That if the said receiver of taxes, or the deputy collec- tors of delinquent taxes, or any of them, shall wilfully fail to pay and make return of said moneys, when and as required by the law so to do, or use the same for their own benefit, they, or either of them, shall be guilty of a misdemeanor, and upon conviction be sentenced to pay a fine of not exceeding five thousand dollars, and to serve a term of imprison- ment not exceeding two years, or either in the discretion of the court. " Section 10. That the said receiver of taxes shall, in addition to the security now required by law, give security in bonds to be approved by the councils of the cities of the first class in the sum of thirty thousand dollars, as bonds of such city oflScers are now approved. " Section 11. That in addition to the salary allowed by law to the said receiver of taxes, he shall be entitled to a commission of one per cent. on all moneys so collected by him or his deputies, and paid over to the treasurer of auy city of the first class, for which commission a warrant shall be drawn on said treasurer by said tax receiver monthly, and coun- tersigned by the controller of any such city upon the production of a certificate of the treasurer of said city, that the amount of delinquent taxes for which the commission is charged has been paid into the city treasury. The receiver of taxes shall receive no other compensation in addition to his salary than that herein provided. "Section 12, That the said deputy collectors, as provided for in sec- SBO. II.] COVENANTS ON PART OF LANDLORD. 507 tion eight, shall be paid for their services by a commission on the amount of their actual collections, to be fixed by the councils of any city of the first class ; said commission, however, shall not exceed five per centum on the amount collected by them ; and they shall draw the amount of the said commission monthly out of the treasury of any such city on warrants drawn by the said receiver and to bo countersigned by the controller thereof In case any such taxes shall be paid into the said receiver's office while the bills therefor are in the hands of the deputy or deputies for collection, he or they shall be entitled to receive the said commission, as though said taxes were actually collected by him or them. The said clerks, as provided for in section eight, shall be paid such salaries as shall be fixed by said councils. "Section 13. That there shall be imposed and collected, upon all taxes registered as delinquent, in accordance with the provisions of this act, the following penalties, to wit : On the first day of February suc- ceeding the registry of any tax as delinquent, a penalty of one per cen- tum ; and on the first day of each succeeding month of that year, up to and including the first day of August, an additional penalty of one per centum for each month, together with lawful interest from the thirtieth day of December, of the year for which the said taxes were assessed ; said penalties and costs to be paid by the delinquent taxpayer, and to be added on the amount of all such taxes, whether collected upon notice, or by levy, suit, lien or in the distribution of the proceeds of sheriffs or other judicial sales. ' ' Section 14. That this act shall take effect on the seventh day of April, Anno Domini eigliteen hundred and eighty-four, and all acts or parts of acts inconsistent herewith are repealed from and after that time." ' On the 14th day of February, 1881, an act was passed (Pamphlet Laws, 3) entitled, " An Act to consolidate the offices of Receiver of Taxes and Collector of Outstanding or Delinquent Taxes; to invest the receiver with all the powers and privileges, and to impose upon him all the duties and lia- bilities of said collector; and for the more efficient collection of taxes in cities of the first class." The third section of the act provided, " That in all cities of the first class, the Receiver of Taxes therein shall have all the powers and privileges, and be subject to all the duties and liabilities conferred or im- posed upon the Collector of Delinquent or Outstanding Taxes by any and all acts of Assembly heretofore passed, except so far as the same may be hereby in whole or in part repealed." But in Donohugh v. Roberts (11 Weekly Notes, — , S. C, 38 Legal Intelligencer, 137, A.D. 1881), the Court of Com- mon Pleas, No. 2, of the county of Philadelphia (President Judge Hare delivering the opinion), held that the third section of the Act of 1881 was 508 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. (5.) The act of 11th June, 1879/ authorizing cities of the first class to levy and fix a tax rate, etc., which is as follows : " Section 1. Be it enacted, etc., That it shall be the duty of the con- trollers of cities of the first class to furnish to the councils of said cities, on or before the first day of September in each and every year, a de- tailed statement of the estimated receipts, expenditures and liabilities of every kind for the next fiscal year ; and it shall be the duty of the said councils to levy and fix a tax rate, on or before the first day of Oc- tober in each and every year for the year next ensuing ; the amount of tax moneys collectable during the year for which such tax shall have been levied, shall be ascertained by deducting from the gross amount yielded by said tax rate, the average of such proportion of the annual tax levy for each of the five years immediately preceding as shall have remained uncollected at the end of each of the said years ; and the tax money col- lectable during the current year shall, with the average income from sources other than from current tax moneys, exclusive of sinking fund receipts (such average of income to be determined by ascertaining the average income during the five years immediately preceding), be set apart for the extinguishment of the fioating indebtedness other than that which may be outstanding at the passage of this act, which the city controller may estimate to be outstanding on the first of January following, for the payment of all lawful obligations due by the city, during the fiscal year commencing January first next ensuing, and for such expenses of the municipal government as may be authorized by the councils of said cities ; and the city controller shall not countersign any warrants (except for payment of interest and for sinking fund), pertaining to any of the appropriations, until said councils shall have first passed all appro- priations necessary for the expenses for the current year of each depart- ment, board, commission or trust, connected with said city ; nor shall said officer countersign any warrants, except as aforesaid, until the total of all appropriations, all estimates and other lawful obligations, shall have been brought within the sum yielded by the tax levy and aver- age income from other sources ascertained as aforesaid ; and any appro- priation or expenditure in excess of this total, shall be void and shall have no binding force upon the municipality ; in default of said councils fixing the tax rate on or before the first day of October in each and every year, then, and in that case the rate of the preceding year shall be the at varianou with Article III, Section 6, of the Constitution of Pennsylvania, inasmuch as it did not re-enact and publish at length the acts of Assembly referred lo, and therefore invalid, which involved the failure of the entire statute. This act has been supplied by the act of 19th April, 1883.' 1 Pamphlet Laws, 130. ' Pamphlet Laws, 9. SEO. II.] COVENANTS ON PART OF LANDLORD. 509 rate for the current year, and all appropriations shall he made in con- formity therewith as if councils had themselves established such rate. " Section" 2. The books of the receiver of taxes shall be opened on the first day of January in each and every year, and the payment of taxes shall commence at that time ; and the receiver of taxes shall close the books of the preceding year on the thirty-first day of December ; public notice thereof shall be given fifteen days prior thereto ; and the receiver of taxes shall, immediately after the books are closed, proceed to register all delinquent taxes, and shall annually, on the fifteenth day of January, place the said register in the hands of the collector of delinquent taxes. "Section 3. No city of the first class, no head of any department thereof, and no commissioner, board of trust, or any other agent, officer or employs of either or any thereof, exercising any powers of govern- ment therein, either in the making of contracts, the approval thereof, or in the authorization of the expenditures of the money of said cities of the first class in any manner whatever, shall hereafter make any contract, without a previous appropriation has first been made by the said councils, draw, issue, or approve any warrant for any expendi- ture by such department, commission, board or trust, or any other agent, officer or employe, unless an appropriation has been previously made in accordance with the provisions of this act ; and no warrant shall be drawn against any item in said appropriations in excess of said item ; and any contract made or warrant issued in violation of the requirements of this act, shall be absolutely void as against said cities ; and any head of department, board, commission or trust, agent, officer, or employ6 issuing such warrant, shall be deemed guilty of a misdemeanor, and upon the conviction thereof shall be fined a sum not exceeding five thousand dollars ($5000), and imprisoned for a term not exceeding three years, and be hereafter forever disqualified from holding any oflSce or position of trust under the State, or any county, or municipality thereof; and the countersigning of any warrant or war- rants by the city controller, contrary to the provisions of this act, shall also constitute in such officer a misdemeanor, and shall subject him to like penalties as hereinbefore provided : Provided, That nothing contained in this act shall be construed to relieve or exempt any officer or other person violating its provisions from liability to any other punishment or penalties now provided by law. " Sectioit 4. That all acts or parts of acts inconsistent herewith are hereby repealed." (2.) Resumi of the Acts. 953. From the acts of lltli June, 1879, and 19th April, 1883, relating to the city of Philadelphia, it is seen that — (1.) It is the duty of city councils to fix the rate of taxation 510 BREACH OF IMPLIED COVENANTS. [CHAP, XVI. for the coming year on or before the 1st of October, and in de- fault of so doing the rate shall be the same as for this year.' (2.) The receiver of taxes shall open his books on the 1st day of January in each year, and the payment of the year's taxes shall commence on that day.' (3.) The receiver shall close his books on the 31st day of De- cember.' (4.) The receiver shall, on or before the 15th of January in each and every year, have prepared a registry of all outstanding or delinquent taxes of the previous year.* (5.) The receiver shall then proceed to collect the delinquent taxes, either out of the personal property on the premises, or the personal or real estate of the owner wherever found, or he may levy on the goods of the tenant on the premises and collect from him whatever rent may be due by the tenant to the landlord, and the lien shall still remain against the tenant's goods for all future rent.^ (6.) When the receiver proceeds to sell the real estate of the delinquent owner, it is optional with him either to stay the sale or purchase for the city." (7.) The period of redemption is limited to two years from the date of the acknowledgment of the sheriff's deed.' (8.) All taxes, rates, and levies shall remain a lien on the premises, and shall not be divested by any judicial sale upon any claim, unless the sale be for taxes.* (9.) The receiver is empowered to appoint deputies, who are authorized to charge as follows on all bills placed in their hands.' The following penalties, to wit : "On the first day of February succeeding the registry of any tax as delinquent, a penalty of one per centum ; and on the first day of each succeeding month of that year, up to and including the first day of August, an additional penalty of one per centum for each month, together with lawful interest from the thirtieth day of December, of the year for which the said taxes were assessed." 1 Ante, page 507. » Ibid. » Ibid. - Ibid. 6 Ibid. 506. « Ibid. ' Ibid. 507. 5 Ibid. 9 Ibid. SEC. II.] COVENANTS ON PART OP LANDLORD. 511 (3.) Valuation of Real Estate. 954. As to the manner in which real estate in Philadelphia is valued for taxation, the act of 12th April, 1873,' provides for the division of the city into fifteen assessment districts, and authorizes the board of revision of taxes to appoint two assessors for each district, the term of office of whom is for five years. 955. These assessors receive from the city commissioners, on the 15th of May in each year, the assessment books of their several dis- tricts, and it is their duty to enter therein the valuations of the several properties in their respective districts, and return the said books to the city commissioners on or before the 15th day of Au- gust in each year. 956. Through the other parts of the State (excepting in cities of the second, third, fourth, and fifth classes) an assessor is, by virtue of the act of 15th April, 1834,' annually elected by the citizens of each township for the term of one year, and every third year two assistant assessors are elected in each township to serve for a term of one year. It is the duty of these assessors, on receipt of the precept of the county commissioner, to estimate the value of the real and personal property in their respective townships, and to make return thereof to the office of the county commis- sioners. 957. As to cities of the second class, the election and duty of the assessors is regulated by act of 5th May, 1876.* 958. As to cities of the third, fourth, and fifth classes, the acts of 20th January, 1874,* supplemented by that of 13th February, 1874,5 and that of 11th April, 1876,' regulate the election and duties of the assessors. (4.) Sales for Unpaid Taxes. 959. Sales of property for unpaid taxes can, in Philadelphia, only be made on the first Mondays of January, April, July, and October.' In the other parts of the State they may take place on 1 Pamphlet Laws, 715. ' IWd. 514. ' Ibid. 124. * Ibid. 31. » Ibid. 44. " Ibid. W. ' Act of 81st January, 186?, Pamphlet Laws, 9. 512 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. the second Monday of the month of June, in every biennial year, since the year 1816.' 960. The county treasurer is authorized to adjourn the sale from day to day.'' When there are no purchasers for unseated lands at an amount equal to the tax due, the lands are sold to the county commissioners, subject to the right of the former owner to redeem the same within five years from the date of the sale.' One of several joint tenants, tenants in common, or coparcener, may also redeem his or her proportionate part.* 961. But where such land is purchased by a stranger, the former owner has only two years from the date of the sale to redeem it in.' Minors and insane persons, whose unseated lands have been sold to a stranger for taxes, may, however, redeem them during two years after such disability is removed.* But if sold by the treasurer to the county commissioner, the right of such persons under disability to redeem, terminates at the end of five years from the treasurer's sale.' 962. When the land is seated, and there is not sufficient per- sonal property on it to pay the taxes, it may be sold in the man- ner in which unseated land is sold, and the former owner has the right to redeem the same at any time within two years after the date of the sale.^ Note. — The numerous acts in force relative to taxation, may be found in Brightly's Furdon's Digest, titles Taxes, and Un- seated Lands, and the various judicial decisions in Brightly's Digest, title. Taxation. SECTION III. COVENANTS THAT ARE NOT IMPUED ON THE PART OF THE LANDLORD. 963. In the absence of any stipulation in the letting, the follow- ing covenants are not implied on the part of the lessor: (1.) That the house or land demised is fit for habitation, occu- 1 Act of 13th March, 1815, 6 Smith's Laws, 299. 2 Ibid. ' ? 5 Ibid. 301. * Act of 25th April, 18.50, J 32, Pamphlet Laws, 514. 5 Act of 13th March, 1856, § 4, 6 Smith's Laws, 301. 8 Ibid., and see Act of 25th April, 1850, § 30, Pamphlet Laws, 574. ' Metz V. Hipps, 9 Weekly Notes, 321. 8 Act of 12th March, 1869, Pamphlet Laws, 840. SEC. III.] COVENANTS NOT IMPLIED. 513 pation, or cultivation, or suitable and proper for the purposes for which the premises are rented.' " The rule here," says Mr. Jus- tice Sharswood, " as in other cases, is caveat emptor. The lessee's eyes are his bargain."'' In the absence of any agreement on the subject, a person who agrees to take a house from the lessor must take it as it stands, and cannot call upon the lessor to put it into a condition which will make it fit for living in.' In a demise the doctrine of implied covenants and warranties has reference to the title and possession of the demised premises, and not to the quality or condition of the same.* Thus in a demise of a coal-mine no implied covenant arises that the land contains coal veins.* Where, however, a tenant is induced to take a lease through fraudulent misrepresentation of the condition of the premises, or where the same have been found to be uninhabitable by the wrongful act or default of the landlord, the tenant may withdraw from the tenancy.^ But where a house is in a ruinous and unsafe condition, there is' no implied duty in the landlord to inform a proposed tenant that it is unfit for habitation.' And where there was a demise of a house in which were sundry win- dows opening on the ground of an adjoining owner who after- wards erected a party-wall which closed up the windows, our Su- preme Court held that even if the lessor, at the time of the demise, knew of the intention of the adjoining owner to build such a wall, he was not bound to communicate to the proposed lessee - 1 Moore v. "Weber, 21 P. ¥. Smith, 429, 432; Hazlett v. Powell, 6 Casey, 293, 298; Carson v. Godley, 2 Ibid. Ill, 117; Lehigh Coal and Navigation Company v. Harlan, 3 Ibid. 429, 439; Harlan v. Lehigh Coal and Navigation Company, 11 Ibid. 287, 292; Wien v. Simpson, 2 Philadelphia, 158 ; Hart v. Windsor, 12 Meeson & Welsby, 68; Sutton ii. Temple, Ibid. 52 ; Keates d. Cadogan, 10 Common Bench, 591 (70 English Common Law Eeports, 591) ; Scott v. Simons, 54 New Hampshire, 426, 430, and authorities there cited; Button v. Gerrish, 9 Cashing, 89; Cleves u. Willoughby, 7 Hill (N. , Y )_ 83. ^ Moore v. Weber, 21 P. P. Smith, 429, 432. = Chappell V. Gregory, 34 Beavan, 250, 253. * Cleves V. Willoughby, 7 Hill (N. Y.), 83, 86. 6 Lehigh Coal and Navigation Company t). Harlan, 3 Casey, 430, 439 ; Har- lan V. Lehigh Coal and Navigation Company, 11 Ibid. 287, 292. « Izon V. Gorton, 5 Bingham (New Cases), 501, 507 (35 English Common Law Eeports, 198) ; see also Hazlett v. Powell, 6 Casey, 293, 298. ' Keates v. Cadogan, 10 Common Bench, 691 (70 English Common Law Reports, 591). 33 514 BREACH OF IMPLIED COVENANTS. [CHAP. XVI. such a contemplated interference with his light and air.' In England, however, in the case of Smith v. Marrable (1843),^ an ex- ception to the general rule has been established to the effect that in the letting of a furnished house there is an implied condition or obligation that the house is reasonably fit for habitation. In that case the house was infested and overrun with bugs, which nuisance was considered by the Court of Exchequer (Lord Abinger, C.B., and Parke, Alderson, and Gurney, BB.) to be a breach of the im- plied condition, that the house was fit for occupation, and the lessee was allowed to withdraw from the tenancy. And in the recent case of "Wilson V. Finch (1877),'the exception was approved and applied. In that case there was an agreement to let a furnished house, but the lessee at the beginning of the intended tenancy discovering that, on account of defective drainage, the house was unfit for hab- itation, refused to occupy it, whereupon the lessor repaired the drains, and some days afterwards tendered the house, in a whole- some condition, to the lessee, who still refused to occupy it or to pay any rent. The lessor having sued for the rent and use and occupation, it was held that the state of the house at the beginning of the intended tenancy, entitled the lessee to rescind the contract? and that he was not liable for the rent or for use and occupation.* (2.) Nor that the demised premises will continue fit or endure during the term, if there be no default on the part of the landlord.* 1 Hazlett V. Powell, 6 Casey, 293. 2 11 Meeson & Welsby, 5. ' Law Reports, 2 Exchequer Division, 336; see also Campbell v. Wenlock, 4 Foster & Finlason, 716 ; Scott v. Simons, 54 New Hampshire, 426, 430, and authorities there cited; White v. Montgomery, 58 Georgia, 204; Perrett i,. Dupre, 3 Eobinson (La.) 52 ; Button v- Gerrish, 9 Cushing, 89, 94. But see Carson v. Godly, 2 Casey, 111, 117. ' In delivering the opinion of the Court of Appeal, in Wilson v. Pinch, supra, Jjord Chief Baron Kelly says: "I am therefore of the opinion that both on the authority of Smith v. Marrable (11 Meeson & Welsby, 5), and on the general principles of law, there is an implied condition that a furnished house shall be in a good tenantable condition, and reasonably fit for human occupation from the very day on which the tenancy is dated to begin, and that where such a house is in such » condition that there is either great discom- fort or danger to health in entering and dwelling in it, then the intending ten- ant is entitled to repudiate the contract altogether." 6 Moore v. Weber, 21 P. P. Smith, 429, 432; Corson v. Godley, 2 Casey 111, 117; Hazlett v. Powell, 6 Ibid. 293, 298; Gott & Parquharson v. Gandy, 2 Ellis & Blackburn, 845 (75 English Common Law Reports, 843). SEC. IV.] THE IMPLIED COVENANTS. 515 (3.) Nor that the lessor will keep the premises in repair.' And ■where a lessor voluntarily does certain repairs for the benefit of the lessee, or to prevent dilapidation, it is no evidence from which an inference can arise that there was a contract on his part to repair.'' But a landlord is bound by the custom of Philadelphia County to keep a privy of demised premises in good condition.^ (4.) Nor that the lessor will keep up the fences.* (5.) Nor that the lessor will rebuild the premises if destroyed by fire, or any other accident, without any default on his part.^ SECTION IV. THE IMPLIED COVENANTS ON THE PART OP THE TENANT. 964. In every letting there are also certain covenants implied on the part of the tenant, in the absence of any express covenant on the subject. From the very relation of landlord and tenant, where there is no express stipulation to the contrary, the law im- plies on the part of the tenant the following covenants : (1.) That he will treat the demised premises in such manner that no injury will be done to the inheritance, so that the same may revert to the lessor undeteriorated by any wilful or negligent conduct on his part.* If the lessee be guilty of a breach of this implied covenant he renders himself liable for waste.' But if the premises be destroyed by fire, lightning, floods, tempests, or ene- mies, without any concurrence on the part of the lessee, or possi-' bility of his preventing the same, this is no waste in the lessee.* 1 Long V. Fitziramons, 1 Watts & Sergeant, 532; Hitner v. Bge, 11 Harris, 305 j Kline v. Jacobs, 18 P. F. Smith, 57; Moore v. Weber, 21 Ibid. 429; Scott V. Simons, 54 New Hampshire, 426, 430, and authorities there cited". See^osi, p. 579, f 1045 2 Moore v. Weber, 21 P. F. Smith, 429, 431. ' Scheerer v. Dickson, 7 Philadelphia, 472 ; S. C. 8 Brewster, 276. * Cheetham v. Hampson, 4 Term Eeports, 318 ; Whitefield v. Weedom, 2 Chitty, 686. ^ Long V. Fitzimmons, 1 Watts & Sergeant, 530, 532 ; Moore v. Weber, 21 P. F. Smith, 429. » Coke upon Littleton, 53, a ; Long v- Fitzimmons, 1 Watts & Sergeant, 530, 632. ' See ante, page 80 et seq. " Pollard V. Shaffer, 1 Dallas, 211 ; Long v. Fitzimmons, 1 Watts & Ser- geant, 530, 532. 616 BREACH OF IMPLIBD COVENANTS. [CHAP. XVI. (2.) That he will use the demised premises in a tenantable and proper manner.^ (3.) That he will manage and cultivate the lands demised in a good and husbandlike manner, according to the prevailing course of good husbandry and management in the neighborhood.^ (4.) That he will make fair, ordinary, and tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises.' It is also the lessee's duty to remove temporary or accidental obstructions from drains, spouts, water-pipes, and the like, keeping the prem- ises in as good order as he received them.* (5.) That he will keep up the fences.' (6.) Where there is a demise of a stone quarry, in consideration that the lessee shall pay a certain price per perch for all stone taken out a covenant is implied on the part of the lessee that he will work the quarry .° SECTION y. THE COVENANTS NOT IMPLIED ON THE PAET OF THE TENANT. 965. In the absence of any contract on the subject, the following covenants are not implied on the part of the tenant from the mere relation of landlord and tenant : (1.) That he will make extraordinary or substantial and lasting repairs, such as to put on new roofing.' It was held by the Court of Common Pleas of Philadelphia County, that by the custom of 1 Long V. Pitzimmons, 1 Watts & Sergeant, 630, 532, and cases there cited ; Legh V. Hewitt, 4 East, 154. ^ Powley V. Walker, 5 Term Reports, 573 ; Legh d. Hewitt, 4 East, 154. ' Furguson v. , 2 Espinasse (Nisi Prius), 590; Long v. Fitzimmons, 1 Watts & Sergeant, 530, 532 ; Hitner v. Ege, 11 Harris, 305, 808 ; Kline v. Jacobs, 18 P. P. SmHh, 57, 59; Cornell v. Vanatsdalen, 4 Barr, 864; Eussell u. Rush, 2 Pittsburgh, 134. * Russell V. Rush, 2 Pittsburgh, 134. 6 Cheetam v. Hampson, 4 Term Reports, 318, 819, cited by the court, in Long V. Pitzimmons, 1 Walts & Sergeant, 630, 632. « Watson V. O'Hara, 1 Watts, 362. ■' Purguson v. , 2 Espinasse (Nisi Prius), 590; Long v. Pitzimmons, 1 Watts & Sergeant, 580, 582 ; Soheerer v. Dickson, 7 Philadelphia, 472 ; S, C, 8 Brewster, 276. SEC. v.] COVENANTS NOT IMPLIED. 517 the county, a landlord is bound to keep a privy of a demised house in good condition.' (2.) Nor that he will restore demised premises, if destroyed by enemies, lightning, floods, tempest, fire, or if they become ruinous by any other accident, without any default on his part.^ £For forms of procedure see Appendix.] 1 Scheerer v. Dickson, 7 Philadelphia, 472; S. C, 3 Brewster, 276. 2 Long V- Fitzimmons, 1 Watts & Sergeant, 530, 632 ; Pollard v. Schaffer, 1 Dallas, 211. 518 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. CHAPTER XVII. Beeach of Express Covenants. SECTION I. NATtTBB OF EXPRESS COVENAITTS. 966. The sixth wrong a tenant may suffer from is the failure on the part of the landlord to fulfil the covenants expressed in the lease as obligatory upon him. I. Defined and Character. 967. A covenant, in its strict legal application, is usually defined to be an agreement between two or more parties, by an instrument in writing, sealed, and delivered, whereby either party promises to the other that something is done already, or that some particular act shall or shall not be done afterwards.' While in strictness the word " covenant " does not apply to agreements that are not exe- cuted under the solemnity of a seal, yet in common parlance it is applied to any agreement whether under seal or not. Thus where the word "covenant" is used in an agreement not under seal, it may be construed to mean " contract " or " stipulation," in order to effectuate the intention of the parties." And so where there is an oral or parol demise a covenant for quiet enjoyment is implied.' 968. Express covenants are such as are created by the words of the parties declaratory of their intentions.* The party making the ' See Sheppard'8 Touchstone, 157; 2 Blackstone's Commentaries, *304; Comyn's Landlord and Tenant, *106 ; Piatt on Covenants, *3. ' Hayne v. Cummings, 16 Common Bench (N. S.), 421, 426 (111 English Common Law Reports, 420, 425). » Maule V. Ashmead, 8 Harris, 482, 484 ; Bandy v. Cartwright, 8 Exchequer (Welsby, Hurlstono & Gordon), 913; Messeut v. Reynolds, 3 Manning, Granger & Scott, 194 (54 English Common Law Reports, 194). * Piatt on Covenants, *26. SEO. I.J NATURE OP EXPRESS COVENANTS. 519 covenant is called the covenantor, and he to whom it is made, the covenantee. For the purpose of making an express covenant the law does not require any particular technical language -^ nor need a covenant be inserted in any particular part of the lease.'' All that is necessary is language which, on the part of the covenantor, imports an agreement or shows a promise to do or not to do a par- ticular act.' Even the formal word "covenant" is not essential to the constitution of a covenant, since other words may constitute a covenant, because of the agreement between the parties.* Words in the form of a condition,'' a proviso,' an exception,' a restriction,^ a recital,' or even a license,^" may amount to a covenant. And a covenant which is implied by construction from the words of the letting, is properly speaking an express agreement." 969. As to the construction of express covenants it may be said in general that they shall be expounded so as to carry into effect the true intent and meaning of the parties, as gathered from their own words in the letting ; and whenever any ambiguity arises, such construction shall be made most strongly against the covenantor." An express covenant is, however, more strictly construed than an implied one." ' McCrelish v. Churchman, 4 Eawle, 26, 35 ; Laiit v. Norris, 1 Burrow, 287, 290; Duke of St. Albans v. Ellis, 16 East, 352. 2 Duke of Northumberland v. Erringlon, 5 Term. Reports, 526. '' Ibid. ; Buth v. Coles, Carthew, 232 ; Cannock v. Jones, 3 Exchequer (Welsby, Hurlstone & Gordon), 232, 237; Randall v. Lynch, 12 East, 179, 181 ; Taylor v. Preston, 29 P. J'. Smith, 436. * Hollis V. Carr, 2 Modern, 86; Saltoun v. Houston, 1 Modern, 433 (8 En- glish Common Law Reports, 368, 371). 5 McKnight v- Kreutz, 1 P. ¥. Smith, 233; Bacon's Abridgment, title Covenant. , ' Eussell V. Gulwell, Croke-Elizabeth, 657 ; Holder v. Tailor, 1 Brownlow, 23. ' Duke of St. Albans v. Ellis, 16 Bast, 352. s Jbid. ' Penn v- Preston, 2 Eawle, 14 ; Sampson v. Easterby, 9 Barnewall & Cress- well, 505 (17 English Common Law Reports, 428). 1° Davis V. Townsend, 10 Barbour (N. T.), 333; Wood v. Leadbitter, 13 Meeson & Welsby, 838. " See Williams v. Burrell, 1 Common Bench, 402 (50 English Common Law Reports, 40). " Comyn's Digest, title Covenant, E, 2 ; See Piatt on Covenants, *136, et seq. ; Iggulden v. May, 7 East, 237, 241, Bacon's Abridgment, title Cove- nant, P ; McCrelish v- Churchman, 4 Eawle, 26, 35. " Shubrick v. Salmond, 3 Burrows, 1637, 1639; Bacon's Abridgment, title. Covenant, P. 520 BREACH OF EXfEBSS COVENANTS. [CHAP. XVII. 970. Where there is an express covenant the law will not raise an implied covenant which is inconsistent with the former/ and the former, as we have already shown, will control the latter when of the same nature.' 971. We have seen that in a demise an implied covenant does not necessarily continue to the end of the term intended to be de- mised, but expires with the estate of the lessor, and is strictly confined to the covenantor, and not binding upon his executor or administrator.^ But the law is otherwise where there is an express covenant, or one which is implied by oondrudion from the lan- guage of the lease. Such a one continues in force until the termination of the whole term purported to be granted by the lease, and binds the personal representatives of the lessor.* II. Of Joint and Several Covenants. 972. An express covenant may be either joint or several, or both joint and several. The subject-matter of the covenant and the interest which passes thereby determine the character of the covenant. Whether the right of action under an express covenant is joint or several depends upon the quality of the interest of the covenantees. Wherever the interest of the covenantees is joint, the action for a breach must be joint, although the covenant be joint and several in terms. So if the interest of the covenantees be several, the action for a breach must be several, although the language of the covenant be joint.' 973. But it is a settled rule that the language of the covenant 1 Bacon's Abridgment, title Covenant (B.) [Bouvier's ed.] ; Cutter v. Powell, 6 Term. Reports, 320; Christine v. Wliitehill, 16 Sergeant & JRawle, 98. = See ante, page 487, 1[ 927. 3 See ante, page 488, f 931, * McClowry v. Croghan's Administrator, 1 Grant, 307, 311, and authorities there cited ; Bragg v. Wiseman, 1 Brownlow & Goldsborough, 22 ; Williams v. Burrell, 1 Common Bench, 402, 429 (50 English Common Law Reports, 401, 427). 5 Eccleston v. Clipsham, 1 Williams's Saunders, 162 (Ed. of 1871); see the notes to this case by Sbkjbant Williams, and by Sir E. V. Williams, where the subject is fully discussed; see also Piatt on Covenants, *715, et seq.; Bradburne v. Botfleld, 14 Meeson & Welsby, 559, 572; Titus v. The Railroad, 5 Philadelphia, 3G0 ; Foley u. Addenbrooke, 3 Gale & Davidson, 164; but see City of Philadelphia v. Reeves,, 12 Wright, 472, 476. SBO. I.] NATURE OF EXPRESS COVENANTS. 521 alone determines whether the liability of covenantors is joint or several, or both. A covenant by two or more is joint as to them, if not expressly declared several, or joint and several. The lan- guage of severalty or joinder must be the test.^ Thus where the lessee and his sureties covenant with the lessor to pay the rent of the demised premises, the covenant is joint, and the lessor cannot upon a breach maintain an action against the sureties alone.'' But if the covenant of the surety guaranteeing the payment of the rent by the lessee be made by a separate instrument, though exe- cuted at the same time with the lease, the obligation of the guar- antor is separate, and a joint action by the lessor against the lessee and the guarantor cannot be supported.' A covenant by two tenants in common to pay the rent reserved by the grantor is a joint covenant, notwithstanding their several interests in the land.* A covenant with tenants in common, and each and every of them, their and each and every of their heirs, executors, administrators, and assigns, to repair, is a joint and not a several covenant ; and an action for a breach must be brought by all the tenants in com- mon, or by the surviving covenantee.^ III. Of Dependent and Independent Covenants. 974. Whether an express covenant is dependent or independent is determined from the evident sense and meaning of the parties as gathered from the whole lease, and not merely from any tech- nical words that may have been used.^ Technical words should give way to the intention of the parties, and together with the good sense of the case such intention must guide in the construc- tion.^ The precedency of a covenant depends on the order of time in which the intent of the transaction requires its perform- ' City of Philadelphia v. Beeves, 12 Wright, 472, per Strong, J. ; S. C, 5 Philadelphia, 357. ' Ibid. " TibbitB V. Percy & L'Amoraux, 24 Barbour (N. T.), 89. * Phillips V. Bonsall, 2 Binney, 138. 5 Bradburne v. Botfleld, 14 Meeson & Welsby, 558. * M'Crelish v- Churchman, 4 Rawle, 26, 35; Lippincott v. Low, 18 P. F. Smith, 314, 317, and cases there cited; Kingston v- Preston, cited in Jones v. Barkley, 2 Douglass, 088, 690; Pordage v. Cole, 1 Williams's Saunders's Ke- ports, 548. ' McCrelish v- Churchman, 4 Bawle, 26, 85. 522 BREACH OP EXPRESS COVENANTS. [CHAP. XVII. ance, without regard to the order in which the covenant appears in the instrument.' But where a party covenants to do one thing, the other party doing another, it is not a condition precedent, but a mutual covenant.^ Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be compensated by damages, it is an independent covenant.' 975. It may then be said that no precise technical words are required in a lease to make a covenant precedent, or subsequent; nor does the construction depend on the position of the covenant, whether prior or posterior in the lease, since the same covenants have been construed to operate as either dependent or independent, according to the nature of the transaction.* But courts construe covenants as independent, rather than as dependent, especially where some benefit has been derived from the covenantor.' IV. Oj Real Covenants, or Covenants Running with the Land. 976. We have already seen that all covenants between a lessor and lessee are either implied or express f and so all express cove- nants may again be divided into two other general classes, namely: first, real covenants, technically called such as run with the land; and, secondly, personal covenants, or such as do not run with the land. 977. A real covenant or one that runs with the land is, as we have already stated,^ a covenant which affects the nature, qual- ity, or value of the land demised, or the mode of enjoying it, independently of collateral circumstances. Such a covenant not only binds the covenantor and his personal representatives by privity of contract, but also the assignee, though not mentioned and bound by express words if the covenant concern something • Kingston v. Preston, cited in Jones v. Barkley, 2 Douglass, 688, 690. 2 Boone v. Byre, 2 W. Blackstone, 1312. 3 Oberrayer v. Nichols, 6 Binney, 159 ; see also Presoott v. Otterstatter, 4 Norris, 534, 637. * Ibid. ; Hotham v. The East India Company, 1 Term Reports, 638, 645; Newson v. Smythies, 3 Hurlstone & Norman (Exchequer), 840; Koberts o. Brett, 11 House of Lords Cases, 337. ' McSheffery v. Sheron, 1 Philadelphia, 98 ; Newson v. Smythies, 3 Hurl- stone & Norman (Exchequer), 840, 842. 6 See anie, page 488, 1[ 930. ' Ibid., 489, f 933. SEC. I.] NATURE OF EXPRESS COVENANTS. 523 which is in esse at the time of making the covenant, and is part and parcel of the demised premises, and all other parties who are in of any estate created by or growing out of the original demise by privity of estate.' If at the time of its creation the covenant does not relate to a thing then in being, though it is to be done upon the land, it will not run with the land and bind the assignee unless he is named in the covenant.^ As is succinctly said by Mr. Smith in his learned notes to Spencer's Case,' " A covenant is said to run with land when either the liability to perform it or .the right to take advantage of it passes to the assignee of that land." 978. To render a covenant available to an assignee, it is not necessary that the act in respect to which the covenant is made should in strictness be done or omitted to be done on the demised premises; it need only touch or concern the thing demised as affecting the value of the reversion or the term or influencing the rent.* 979. A covenant that runs with the land may be divisible in its nature, and if so it will bind the assignee of a part of the premises demised, in respect to the part assigned to him.^ If the entire interest in different parcels of the premises passes by assign- ment to separate and distinct individuals, such covenant will attach upon each parcel pro tanto; and the assignee of each part will be answerable for his proportion of any charge upon the premises which was a common burden upon the whole, and will be exclusively liable for the breach of any covenant which related to that part alone.° Thus an action of covenant lies against the assignee of a lessee for a part of the rent.' And a lessor may maintain an action on the lessee's covenant to repair against the assignee of part of the premises demised for not repairing his part.* 1 See post, page 524, f 981. See also Judge Hake's note to Spencer's Case, 1 Smith's Leading Cases, *277 (7th Am. Ed.). 2 Spencer's Case, 1 Smith's Leading Cases, *116 (7th Am. Ed.). 5 Ibid., *120. 1 Norman v. Wells, 17 Wendell (N. T.), 136. 5 Congham v King, Croke-Charles, 221 ; Coke upon Littleton, 385, a. » Astor V Miller, 2 Paige (N. Y ), 68, 78, and authorities there cited ; Bab- cock V. Scoville, 56 Illinois, 461, 467. ' Stevenson v- Lambard, 2 East, 575, per Lord ELLBNBOROuaH, C. J. ; Babcock v. Scoville, 56 Illinois, 461, 467. 8 Congham v. King, Croke-Charles, 221 ; see also Babcock v- Scoville, 56 Illinois, 461, 467 ; Stevenson v. Lambard, 2 East, 675, 580. 524 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. And so an assignee of an undivided moiety of leasehold premises may support an action on the lessor's covenant of warranty con- tained in the lease.' 980. It is a general rule that subsequent to a breach a cove- nant will not run with the land, for an assignee is not liable for a breach which he never committed.' And so the personal repre- sentatives of a lessor are not liable for a breach occurring after his death of a covenant running with the land in which he bound himself and heirs.' And a lessor cannot bring an action of cove- nant, after he has assigned the reversion, for any breach subse- quent to the assignment, but the action must be brought by the assignee of the reversion; for the Statute of 32 Henry VIII* has transferred the privity of contract, together with the estate in the land, to the assignee of the reversion. Consequently if the assignee of the reversion sue the assignee of the term, or the assignee of the term sue the lessor, the action is local, and must be brought in the county where the laud lies.^ 981. From Spencer's Case,^ which is the leading case on the running of covenants, the following general rules may be deduced as to whether an express covenant does or does not run with the land demised so as to bind the assignee, whether of the reversion or the term : (1.) If the covenant touch and concern something in esse at the time of making the covenant, and is part and parcel of the demised premises, then it will run with the thing demised and bind the assignee, although he be not named and bound by express words. For example, if at the time of the letting, a house is standing on 1 Van Home v. Grain, 1 Paige (N. Y.), 455, 460 j Sheppard's Touchstone, *199. 2 Churchwardens, etc. w. Smith, 3 Burrow, 271 ; Crane v. Batten, 28 Eng- lish Law and Equity Reports, 137; Johnson v. Churchwardens, 4 Adolphus & Ellis, 520 (31 English Common Law Reports, 121) ; Gerzebek v. Lord & Redmond, 33 New Jersey Law, 240, 244, and eases there cited. s Kershaw w. Supplee, 1 Rawle, 131. * See post, page 527, ^ 987. 5 Thursby D. Plant, 1 Williams's Saunders, 277, 806 (Ed. of 1871), note (11) ; see also Wallace v. Harmstad, 8 Wright, 492, 502 ; Henwood v. Cheese- man, 3 Sergeant & Rawle, 500, 502, 504. « 1 Smith's Leading Cases, *116; see the learned notes by Mr. Smith, and by Judge Hake; see also Pollard v. Shaffer, 1 Dallas, 210j Fisher's Execu- tors V. Lewis, 1 Clark, 422. SBC. I.] NATURE OF EXPRESS COVENANTS. 625 the demised premises, and the lessor or lessee covenants to keep the house in repair during the term, such a covenant binds the assignee of the covenantor, although not named, since the subject- matter of the covenant is part and parcel of the demised premises at the time of the leasing.' (2.) If the covenant touch and concern something not in being at the time of the demise, it will not rau with the land and bind the assignee unless he is named.' For example, if the lessor cove- nant to pay the lessee (" without adding assigns ") at the expira- tion of the term for such buildings as he might erect during the term for the accommodation and pursuit of his business, such a covenant does not run with the land and bind the assignee of the lessor, since the subject of the covenant was not in being at the time of its creation, and in consequence the assignee could not be bound without including him in the covenant.^ (3.) If the covenant do not touch and concern the demised premises, but is merely personal or collateral to the same, it will not run with the land and bind the assignee, though he be expressly named. For example, if a lessee covenant for himself and his as- signs to build a house upon the land of the lessor which is no part or parcel of the demised premises, the covenant does not run with the land and bind the assignee, since it is merely collateral, and does not touch or concern the thing demised. V- Of Covenants Running with the Reversion. 982. At common law real covenants ran with the land, but not with the reversion.* A covenant runs with the reversion when either the liability to perform it, or the right to take advantage of it passes to the assignee of the reversion.^ 983. At common law the assignee of the lessee was liable in, 1 Ibid. ; see also Cathcart v. Bowman, 5 Barr, 317 ; Morland v. Cook, Law Eeports, Equity Oases, 252, 267. 2 See also Minshull v. Oakes, 2 Hurlstone & Norman (Exchequer), 790, where Chief Baron Pollock reviews numerous authorities ; notes by Mr. Smith to Spencer's Case, 1 Smith's Leading Cases, *277. 3 Thompson v. Bose, 8 Cowen (N. Y.), 266, 269. * See Thursby v. Plant, 1 Williams's Saunders, 299, notes by Serjeant Williams ; see also Henwoodi;. Cheesman, 3 Sergeant & Eawle, 500, 502, 504. Spencer's Case, 1 Smith's Leading Cases, *120. 526 ■ BREACH OP EXPRESS COVENANTS. [cHAP. XVII. and entitled to bring an action of covenant, while the grantee of the reversion or the assignee of the lessor could not maintain an action against the lessee upon his express covenants, nor was such grantee or assignee bound by the express covenants in the lease, although they ran with the land.' 984. With regard to a grantee or assignee of the reversion this was remedied by the statute of 32 Henry VIII, chapter 34, in force in Pennsylvania,^ which transfers the privity of contract from the grantor or assignor to the grantee or assignee, or more accu- rately the rights which the lessor had against the lessee by reason of the covenants running with the land, and enables parties not strictly privies thereto to maintain an action upon the covenant. After reciting, inter alia, "that by the common law no stranger to any covenant could take advantage thereof, but only such as were parties or privies thereunto," the statute enacts that grantees or assignees of the reversion, or assignees of lessors, shall enjoy the same benefits and remedies which the lessors or grantors themselves had or enjoyed for the breach of any condition, covenant, or agree- ment, contained or expressed in leases or grants. And the same statute in the second section imparts a reciprocal benefit and gives to lessees and grantees, their representatives and assigns, all the rights, benefits, and remedies against the owner of the reversion of lands, or any parcel thereof, which the lessees might have had against the lessors and grantors, their heirs and successors. 985. But it must be borne in mind that in case of an assign- ment of the term or of the reversion, the only covenants which the assignee of the lessor or lessee can avail himself of, are such as touch and concern the thing demised, which, in technical lan- guage, are said to run with the land. 986. The statute of 32 Henry VIII, it will be noticed, provides a mutuality of remedy for and against the grantees or assignees of a reversion, and for and against lessees, or their assignees, and places the grantees or assignees in the same situation, giving them the same remedy against the lessees, as the heirs at law of individ- uals, or the successors, in the case of corporations, had before the 1 Thursby v. Plant, 1 Williams's Saunders, 299, notes by Serjeant "Wil- liams; see also Biokford v. Parson, 5 Manning, Granger & Scott, 920, 929 (67 English Common Law Reports, 920, 929). 2 Robert's Digest, *227 ; see also Henwood v, Oheesman, 3 Sergeant & Rawle, 500, 502, 504. SEC. I.] NATURE OF EXPRESS COVENANTS. 527 statute.' "Wherever the statute gave a grantee of a reversion an action on a covenant made by a lessee, there also the lessee, or his assignee, enjoyed an action against such reversion, on a covenant entered into by his grantor.'' VI. The Statute of 32 Henry VIII. 987. Thestatuteof 32 Henry VIII, chapter 84,' enacts as fol- lows : " Whereas, Before this time, divers as well temporal as ecclesiastical and religious persons have made sundry leases, demises, and grants to divers other persons, of sundry manors, lordships, ferms, meases, lands, tenements, meadows, pastures, or other hereditaments, for term of life or lives, or term of years, by writing under their seal or seals,* contain- ing certain conditions, covenants, and agreements to be performed as well on the part and behalf of the said lessees and grantees, their executors and assigns, ap on the behalf of the said lessors, and grantors, their heirs and successors ; and forasmuch as by the common law of this realm no stranger to any covenant, action, or condition, shall take any advantage or benefit of the same, by any means or ways in the law, but only such as be parties and privies therunto, by the reason whereof, as well all gran- tees of reversions, as also all grantees and patentees of the king our sov- ereign lord, of sundry manors, lordships, granges, firms, meases, lands, tenements, meadows, pastures, or other hereditaments, late belonging to monasteries, and other religious and ecclesiastical houses dissolved, sup- pressed, renounced, relinquished, forfeited, given up, or by other means come to the hands and possessipn of the king's majesty since the fourth day of February, the seven and twentieth year of his most noble reign, be excluded to have any entry or action against the said lessees and gran- tees, their executors or assigns, which the lessors before that time might by the law have had against the same lessees for the breach of any con- dition, covenant or agreement, comprised in the indentures of their said leases, demises, and grants : Be it therefore enacted by the king our sovereign lord, the lord spiritual and temporal, and the Commons, in this present Parliament assembled, and by authority of the same, That as well all and every person and persons, and bodies politic, their heirs, successors and assigi s, which have or shall have any gift or grant of our said sovereign lord, by his letters patent, of any lordships, manors, lands, tenements, rents, parsonages, tithes, portions, or any other hered- itaments, or of any reversion or reversions of the same, which did belong or appertain to any of the said monasteries, or other religious or ecclesias- 1 Webb V. Eussell, 3 Term Reports, 393, 401, per Lokd Kenton, Ch. J. ' Piatt on Covenants, *534. 3 Roberta's Digest, *227. * But see ante, page 175, T[ 290. 528 BREACH OP EXPRESS COVENANTS. [CHAP. XVII, tical houses, dissolved, suppressed, relinquished, forfeited, or by any other means come to the king's hands, since the said fourth day of February, the seven and twentieth year of his most noble reign, or which at any time heretofore did belong or appertain to any other person or persons, and after come to the hands of our said sovereign lord ; as also all other persons being grantees or assignees to or by our said sovereign lord the king, or to or by any other person or persons than the king's high- ness, and the heirs, executors, successors and assigns of every of them, shall and may have and enjoy like advantages against the lessees, their executors, administrators and assigns, by entry for non- payment of the rent, or for doing of waste or other forfeiture ; and also shall and may have and enjoy all and every such like, and the same ad- vantage, benefit and remedies by action only, for not performing of othpr conditions, covenants, or agreements contained and expressed in the in- dentures of their said leases, demises or grants, against all and every the said lessees and farmers and grantees, their executors, administra- tors and assigns, as the said lessors or grantors themselves, or their heirs or successors, ought, should, or might have had and enjoyed at any time or times, in like manner and form, as if the reversion of such lands, ten- ements or hereditaments had not come to the hands of our said sover- eign lord, or as our said sovereign lord, his heirs and successors, should or might have had and enjoyed in certain cases, by virtue of the act made at the first session of this present Parliament, if no such grant by letters patent had been made by his highness. " II. Moreover be it enacted by authority aforesaid. That all farmers, lessees and grantees of lordships, manors, lands, tenements, rents, par- sonages, tithes, portions or any other hereditaments for term of years, life or lives, their executors, administrators, and assigns, shall and may have like action, advantage, and remedy against all and every person and persons, and bodies politic, their heirs, successors, and assigns, which have or shall have any gift or grant of the king, our sovereign lord, or of any other person or persons, of the reversion of the same man- ors, lands, tenements, and other hereditaments so letten, or any parcel thereof, for any condition, covenant or agreement contamed or ex- pressed in the indentures of their lease or leases, as the same lessees, or any of them, might and should have had against the said lessors and grantors, their heirs and successors ; all benefits and advantages of recov- eries in value by reason of any warranty in deed or in law, by voucher or otherwise, only excepted." (1.) When the Statute o/32 Henry VIII applies. 988. The statute of 32 Henry VIII, chapter 34, has been held to apply as follows : (1.) Only to such express covenants as touch and concern the SEC. I.] NATURE OF EXPRESS COVENANTS. 529 premises demised in such a way that their benefit or burden is capable of running with them, and not to collateral covenants. (2.) Only to leases by deed, hence the assignee of the reversion upon a lease not under seal cannot sue upon the lease, nor is he bound by its covenants.' Thus, where a lease for a time certain was granted by a writing not under seal, which contained a cove- nant on the part of the lessee to keep the interior of the premises in tenantable repair, the Court of Queen's Bench (Lord Denman, Chief Justice, delivering the opinion), held that the statute of 32 Henry YIII, chapter 34, applied only to cases of demise by deed, and that the assignee of the reversion could not maintain assumpsit against the lessee for a breach of his contract with the assignor (lessor) to repair.' But where the lease is not under seal the lessor does not lose any of his rights of action against the lessee by assigning his reversion.* (3.) In favor of and against the grantee or assignee of the rever- sion of part of the demised premises.^ Such grantee or assignee can, under the provisions of the statute, take advantage of the covenants with regard to that part, and the lessor may maintain covenant at common law as to the part retained by him.* Where several parcels of land are demised with a covenant on the part of the lessee to repair, if the lessee assign all his estate in a parcel of the premises, and the assignee do not repair the part to him assigned, the original lessor may bring an action on the covenant against the assignee ; for the covenant is dividable and follows the land, with which the assignee is chargeable by the common ' Webb V. Kussell, 3 Term Keports, 402; 1 Coke's Institutes, 215, b; Shep- pard's Touchstone, 176. 2 Buckworth ■;;. Simpson, 5 Tyrwhitt, 344, 354; Standen v. Chrismas, 10 Adolphus & Ellis, N. S., 135 (59 English Common Law Reports, 133) ; Smith V. Bggington, Law Keports, 9 Common Pleas, 145, 156, 158 ; Biokford v. Par- son, 5 Manning, Granger & Scott, 920, 929, 931 (57 English Common Law Reports, 920) ; see also Elliott v. Johnson, 8 Best & Smith (Queen's Bench), 38. ' Standen v. Chrismas, 10 Adolphus & Ellis, N. S., 135 (59 English Common Law Reports, 138). ■' Bickford v. Parsons, 5 Manning, Granger & Scott, 920 (57 English Com- mon Law Reports, 920). 5 Twynam v Pickard, 2 Barnewall & Alderson, 105, and oases there cited ; Sheppard's Touchstone, *176 ; Wollaston v. Hakewell, 3 Manning & Granger, 297 (43 English Common Law Reports, 161). « Ibid. 34 530 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. law, or by the statute of 32 Henry VIII. And so an action of covenant lies against the assignee of a lessee for a part of the rent." (4.) In favor of and against the grantee or assignee of part of the reversion.^ (5.) To estates for life and years, and not to estates in fee or in tail.' (6.) In favor of the grantee or surrenderee of a copyhold rever- sion.^ (7.) To such parties only as claim under the lessor, and not to such as come in by title paramount. For example, where a lessee for a term of years underlets for a less term, and afterwards assigns his reversion, the reversioner cannot have the benefit of the cove- nants made by the underlessee, since he is in by a paramount title.' (2.) When the Statute of S2 Henry VIII does not apply. 9&9. The statute of 82 Henry VIII, chapter 34, does not apply as follows: (1.) To mere collateral covenants, or such as are personal and do not run with the land/ (2.) Nor to remedies between lessors and the assignees of lessees. The common law provided for such cases.^ 1 Congham v. King, Croke-Charles, 221 ; see also Stevenson v Lambard, 2 East, 575, 580. ' Stevenson v. Lambard, 2 East, 575. * Twynam v. Pickard, 2 Barnewall & Alderson, 105, and cases there cited ; Sheppard's Touchstone, *176 ; Wollaston v. Hakewill, 3 Manning & Granger, 297 (42 English Common Law Reports, 161) j see also Yates v. Cole, 2 Broderip & Bingham, 600 (6 English Common Law Eeports, 308) ; Smith & Solden's Landlord and Tenant, 263 (2d ed.), and authorities there cited 4 Coke upon Littleton, 215, a; Lewes v. Ridge, Croke-Elizabeth, 863. 6 Glover v. Cope, 4 Modern, 80; "Whitton v. Peacock, 3 Mylne & Keen, 825, 834. Webb V. Russell, 8 Term Reports, 393, 402; Coke upon Littleton, 215, b. ; Chaworth Miles v. Phillips, Moore (A.D. 1675), 876; Thre'r tj. Barton Ibid., 94. ' Webb V. Russell, 3 Term Reports, 393 ; Martyn v. Williams, 1 Hurlstone & Norman (Exchequer), 816, 827. 8 Lewis V. Campbell, 8 Taunton, 715, 728; Thusby v. Plant, 1 Williams's Saunders, 299. SEC^I.] NATURE OF BXPEBSS COVENANTS. 531 i (3.) Nor to covenants or more properly agreements iu leases not under seal.' (4.) Nor to covenants contained in conveyances of estates in fee or in tail.^ (5.) Nor to persons who claim under paramount title.' An assignee must come in of the same estate in respect of which the covenant was created.* VII. What Express Covenants run with tJieLand and the Reversion. (1.) On the Part of the Lessor. 990. The lessee or the assignee of the term having a right to maintain an action against the lessor, or the grantee or assignee of the reversion, for the breach of an express covenant which runs with the land, it may be well to particularize instances of such covenants, since it is often a question of considerable diiSculty whether or not a particular covenant sufficiently relates to, touches, and concerns the demised premises, in such a way that its benefit or burden is capable of running with the land. 991. The following express covenants, on the part of the lessor, have been held to run with the land : (1.) A covenant for quiet enjoyment.* (2.) A covenant for further assurance.* (3.) A covenant for title.' (4.) A covenant to convey the premises demised to the lessee, at any time during the term, on receiving a specified sum.^ 1 See ante, page 529, f 988 (2). 2 Ibid. (5). Ibid. (7). ' Piatt on Covenants, *541. ^ Noke V. Awder, Oroke-Elizabeth, 436; Lewis v. Campbell, 8 Taunton,, 715, S. C. ; Campboll v. Lewis, 3 Barnewall & Alderson, 392 (5 English Com- mon Law Keports, 230) ; Le Eay De Chaumont v. Porsythe, 2 Penrose & "Watts, 507, 514; Williams v. Bur^ell, 1 Common Bench, 402 (50 English Common Law Reports, 402) ; Van Home v. Crain, 1 Paige (N. Y.), 455, 459. ^ Middlemore v. Goodall, Croke-Charles, 503 ; Colby v. Osgood, 24 Barbour (N. Y.), 839; Bennetts. Waller, 23 Illinois, 97. ' Kingdon v. Nottle, 4 Maule & Selwyn, 53. 8 Kerr v. Davy, 2 Harris, 112 ; Van Home v. Grain, 1 Paige (N. T.), 455, 459 ; Willard v. Taylor, 8 Wallace, U. S., 557; see also Hagar v. Buck, 44 Vermont, 285. 532 BREACH 0? EXPRESS COVENANTS. [CHAP. XYII. (5.) A covenant that the lessee at the end of the term shall have the privilege of purchasing the demised premises at a speci- fied price. (6.) A covenant that if the lessor shall sell or dispose of the demised premises the lessee is to be entitled to the refusal of the same.^ (7.) A covenant for the renewal of the lease.' (8.) A covenant to renew the lease at the request of the lessee within the term. The lessee having died during the term, his executors before the expiration of the term requested the lessor to make a new lease; the High Court of Chancery of England decided that the lessor was compellable to make the renewal.* (9.) A covenant by a lessee who had underlet to apply for and do his utmost to procure a renewal of the lease for a further term.* (10.) A covenant that either party may determine the demise.* (11.) A covenant to repair or rebuild.' (12.) A covenant to repair in case of damage to the buildings on the demised premises by fire rendering them untenantable. Under such a covenant a grantee of the reversion is bound to reb%dld houses wholly destroyed by fire.* (13.) A covenant that the lessor for himself and his heirs keep the dam, race, and other reservoirs of water, necessary for the supply of certain mills, in good repair.* (14.) A covenant to purchase a building which lessee stipulated to erect, at a price to be fixed by arbitrators, upon expiration of lease."* ' Napier v. Darlington, 20 P. F. Smith, 64, 2 Laffan v. Naglee, 9 California, 662, 677, and authorities there cited. But see CoUison v- Lettsom & Whitton, 6 Taunton, 224 (1 English Common Law Keports, 365). 8 Barclay v. Steamship Company, 6 Philadelphia, 558 ; Eoe v. Hayley, 12 East, 464, 469; Brook v- Bulkeley, 2 Vesey, Sen., 498; Piggott v. Mason, 1 Paige (N. T.),412. ' Hyde v. Skinner, 2 Peers Williams, 196 ; Eoe v. Hayley, 12 East, 464, 468. ^ Simpson v. Clayton, 4 Bingham (N. C), (33 English Common Law Ke- ports, 622). « Eoe v. Hayley, 12 East, 464, 468. ' Spencer's Case, 1 Smith's Leading Cases, *117; Bacon's Abridgment, title Covenant (E), 5; Allen v. Culver, 3 Denio (N. Y.}, 284, 294. 6 Allen V. Culver, 3 Denio, 284. Kershaw v. Supplee, 1 Eawle, 131, 138. "> Frederick v. Callahan, 40 Iowa, 311. SEC. I.] NATURE OP EXPRESS COVENANTS. 533 (15.) A covenant to pay lessee and his assigns the value of the improvements to be made during the term.' (16.) A covenant not to let or establish any other place on the same stream for the purpose of sawing mahogany.' (17.) A covenant to supply the demised premises (which were two houses), with a sufficient quantity of good water at a stipulated rate.' Where A. agreed to furnish B., the owner of a hotel, with spring- water by and through the same pipes and faucets which were then used for said purpose; B. subsequently leased the hotel toC, covenanting that the premises should be supplied with spring-water in the same manner as then supplied under the agreement with A., and that he would see that the covenants made by A. should be kept ; it was held by our Supreme Court that if the supply of the water failed because of drought or other natural cause, which neither party could prevent, there was no breach on the part of the lessor of any covenant, express or implied, for its supply.* Says Mr. Justice Trunkey, in delivering the opinion of the Court : " The lessor did not undertake to lay pipes to other fountains, or furnish water, in any other way than as supplied at the time of making the contract. He did not agree to furnish water in case drought dried that spring."^ (18.) A covenant excepting a certain entrance, with liberty to wash in the kitchen, and a passage for that purpose.® (2.) On the part of the Lessee. 991. The lessor, or his assignee, or the grantee or assignee of the reversion, having, as we have already shown,^ a right to maintain an action against the lessee, or the assignee, or grantee of the term for the breach of an express covenant which runs with the land, it may be well to notice the precise nature of some of these covenants, as it is difficult to define them with precision. But, it may be said ' Norman v. Wells, 17 Wendell (N. Y.), 136. 2 Thompson v. Eose, 8 Cowen (N. Y.),266; Lametti v. Anderson, 6 Ibid , 303, 308 ; Stockett v. Howard, 34 Maryland, 121, 126. ' Jourdain v. Wilson, 4 Barnewall & Alderson, 266 (6 English Common Law Reports, 420). * Ward V. Vance, 8 Weekly Notes, 348. « Ibid., 350. ® Bush V. Calis, 1 Showers, 389. ' See ante, page 526, f 984. 53i BKBACH OF EXPRESS COVENANTS. [CHAP. XVII. in general, that if the performance of the covenant be beneficial to the reversioner in respect of the lessor's demand, and to no other person, his assignee may sue upon it.' 992. The following express covenants, on the part of the lessee, have been coristrued as covenants running with the land, and, therefore, available to the assignee, or heir of the lessor, or to the grantee or assignee of the reversion, and binding upon the assignee of the lessee, whether named or not. (1.) A covenant to pay rent.^ (2.) A covenant to pay rent, clear of all charges and assess- ments whatsoever.' It was held that under this covenant lessee's assignee was bound to pay the taxes.* (3.) A covenant to pay taxes. ^ (4.) A covenant to discharge all such rates, taxes, and assess- ments for which the premises shall be liable, or shall be raised,, levied, or assessed on the same, during the continuance of the lease. The Court of Appeals of New York held that under such a covenant on the part of the lessee, the assignee of the term was bound to pay an assessment subsequently imposed for opening a street, although it was not authorized by any law existing at the time the lease was executed.* ' See Vernon v. Smith, 5 Barnewall & Alderson, 1, 10 (7 English Common Law Reports, 6) ; Vyvyan p. Arthur, 1 Barnewall & Cresswell, 410 (8 Eng- lish Common Law Reports, 113, 115); Hooper v. Clark, 8 Best & Smith, 150, 155. 2 Parker D. Webb, SSalkeld, 5; Porter ji. Swetnam, Style, 406 ; "Willardr. Tillman, 2 Hill (N. Y.), 274; Allen v. Bryan, 5 Barnewall & Cresswell, 512 (11 English Common Law Reports, 563) ; Damarest v. Willard, SCowen, 206; Moffat V. Smith, 4 New York, 126, and cases there cited. See ante, page 173, ^ 282. A covenant for the paymentof aground rent also runs with the land: Royer «. Ake. 3 Penrose & Watts, 461,464, and authorities there cited ; Hurst V. Rodney, 1 Washington's Circuit Court Reports, 375. So a covenant to pay the principal of a ground rent at. the end of a fixed period : Springer v. Phil- lips. 21 P. P. Smith, 60, 63, and eases there cited. So a covenant to pay rent in kind reserved upon a conveyance in foe: Herbaugh v. Zentmyer, 2 Rawle, 159. 3 Sandwith v. De Silver, 1 Browne, 221. * Ibid. 223. s See Ibid. 223; Hayes v. N. Y. Gold Mining Company of Colorado, 2 Colorado, 272. * Post V. Kearney, 2 New York (Comstock), 394. See, also, Astor v. Miller, 2 Paige (N; Y.), 68; Simonds v. Turner, 120 Massachusetts, 328, and cases there cited ; Brown v. Wagner, 1 Pearson, 254. SEC. I.] NATUKB OP EXPRESS COVENANTS. 535 (5.) A covenant to render suit or service in the nature of rent. Thus, a covenant that the lessee shall grind all the corn grown upon the demised premises at the lessor's mill, was held to run with the land, as long as the mill and the reversion of the premises belonged to the same premises, so as to entitle the assignee of the reversion to maintain an action for a breach against the personal representative of the lessee.^ " The general principle," says Judge Best, in delivering an opinion of the Court of King's Bench, in Vyvyan v. Arthur,'' "is that if the performance of the covenant be beneficial to the reversioner in respect of the lessor's demand, and to no other person,' his assignee may sue upon it ; but if it be beneficial to the lessor, without regard to his continuing owner of the estate, it is a mere collateral covenant upon which the assignee cannot sue." (6.) A covenant of forfeiture of a lease for non-payment of rent. (7.) A covenant not to assign without consent of lessor, assigns being named.* But it has been contended that the covenant not to assign appears to concern the thing demised in relation to its state at the time of the demise, and consequently to bind assignees, whether named or not.^ Where A. and B., partners in trade, were assignees of a lease, which contained a covenant by the lessee, for himself and his assigns, that he would not, neither should his execu- tors, administrators, or assigns, assign the demised premises without the consent in writing of the lessor, and on the dissolution of the: partnership, A. assigned all his interest in the premises to B., it ' Vyvyan v. Arthur, 1 Barnewall & Cresswell^410(8 English Common Law Keports, 113) ; but see post, page 543, ^ 999, (31. 2 Ibid 417, 115. A grant of land necessary to a mill, in fee, the grantee yielding and paying to the grantor, and his heirs, the privilege of grinding certain grain in the mill, toll free, was held by our Supreme Court to be a covenant running with the land and binding upon the assignee of the grantee :, Dunbar v. Jumpar, 2 Yeates, 74. » Evans v. Fries, 9 Weekly Notes, 462. ■• Williams «. Earle, Law Reports, 3 Queen's Bench, 739, 749, per Black- burn, J. ; see also West v. Dobb, 4 Ibid. 634, 637 ; Paul v. Nurse, 2 Man- ning and Ryland, 525, 527 ; and see note ante, page 55, where the authors, show how assignments may. be made. s Wood fall's Landlord and Tenant, 148 (eleventh edition) ; see also West, V. Dobb, Law Reports, 4 Queen's Bench, 634, 637, note (1). 536 BKBACH OF EXPEESS COVENANTS. [OHAP. XVII. was held to be a breach of the covenant.' It may be said in gen- eral, that a breach of the covenant not to assign without license is committed whenever there is a letting without license of the whole of the residual of the term. And it has been held that when the whole term is made over by the lessee, it is an assignment, and not an underlease, though the rent and power of re-entry for non- payment of rent be reserved to the assignor, and not to the original lessor.'' The acceptance of an assignment of the lease from the assignee of the lessee will not affect the lessor's right for a breach of the covenant not to assign.^ (8.) A covenant not to underlet without consent of lessor, as- signs being mentioned.* This covenant, it has also been contended, binds the assignee, whether named or not.^ It is not broken by an assignment of the term.' (9.) A covenant to insure the demised premises when in case of destruction the insurance money is to be expended in rebuilding.' But it seems that a covenant to insure which has for its object the benefit of the lessor only, as when the money paid in the event of a loss would go to him, is collateral. Says Mr. Justice Gholson, in delivering the opinion of the Supreme Court of Ohio : " A cove- nant, to run with laud, must have for its subject-matter something which sustains the estate and the enjoyment of it, and is, therefore, beneficial both to lessor and lessee.' ' Varley v Coppard, Law Reports, 7 Common Pleas, 505. ' Lloyd V. Cozzens, 2 Ashmead, 131. But where the assignee of a lesseedo- mised the premises for the residue of the term, reserving the delivery of pos- session at the end of the term, and the intermediate possession in case the buildings were destroyed by fire, the Court of Appeals of New York held that such demise was a sub-lease, and not an assignment of the term : Post v. Kearney, 2 New York (Comstook) 394. ' Hazlehurst v. Kendrick, 6 Sergeant & Kawle, 445. * Williams v. Earle, Law Eeports, 3 Queen's Bench, 739, 749 ; "West v. Dobb, Ibid., 634, 637. 5 Woodfall's Landlord and Tenant, 148 (eleventh edition) ; see also West V. Ddbb, Law Keports, 4 Queen's Bench, 684, 637, note (1). * Troxell v. Wheatley, 2 Luzerne Legal Register, 37. ' Masury v. Soulhworth, 9 Ohio State, 340 ; Thomas's Administrators v. Vonkapff's Executors, 6 Gill & Johnson (Ohio), 372 ; Vernon v. Smith, 5 Barnewell & Alderson, 1, 11, per Best, J. (7 English Common Law Reports, .1,7). 8 Masury v. South worth, 9 Ohio State, 340, 348. SEC. I.] NATURE OF EXPRESS COVENANTS. 537 (10.) A covenant to reside on the leased premises' during the demise. (11.) A covenant to cultivate or manage the lands demised in a husbandlike/ or any particular, manner. Thus, a covenant that the lessee should lime and dung the land durante terminof a cov- ena!it that the lessee should leave fifteen acres every year for past- ure absque culturd.^ (12.) A covenant to use a leased house as a dwelling-house only.' (13.) A covenant not to convert a leased dwelling-house into a shop." (14.) A covenant not* to carry on a particular or an offensive trade, or commit any nuisance on the demised premises.' In con- struing a covenant not to carry on an offensive trade, much will depend upon the situation of the premises, and it is particularly worthy of consideration, whether any such trades were carried on upon the premises at the time of the granting of the lease, for it seems that a trade carried on there at the time of the demise would not be within the covenant.* (15.) A covenant to build upon the demised premises.' (16.) A covenant to put the demised premises into tenantable repairs.'" Thus, a covenant to pull down old chimneys, and put ^ Tateni v. Chaplin, 2 H. Blackstone, 133 ; see also Chiokelej''s Case, 1 Dyer, [79, a] ; Doe v Hawke, 2 East, 481 ; Doe v. Clarke & Brown, 8 Ibid., 185 ; Ponsonby v. Adams, 2 Brown's Cases in Parliament, 431 ; Hinde v. Gray, 1 Manning & Granger, 195 (39 English Common Law Reports, 413), cases cited ia note. ' Watson v. Walsh, Espinasse's Nisi Prius, *295. 3 Sale V. Kitchingham, 10 Modern [158], * Cocksen v. Cock, Croke-James, 125. 6 Wilkinson v- Sogers, 2 De Gex, Jones & Smith, 62 ; see also St. Andrews Lutheran Church Appeal, 17 P. F. Smith, 512. « Gibson v. Doeg, 2 Hurlstone & Norman (Exchequer), 615. ' See Mayor of Congleton v. Pattison, 10 East, 130, 136, 138 ; see also Harms t;. Parsons, 31 Beavan, 328; Hodeon v. Coppard, 29 Ibid., 4; Barron V. Richard, 3 Edward's Chancery (N. Y.), 96. 8 Gutterbridge v. Munyard, 7 Carrington & Payne, 129 (32 English Com- mon Law Rpports, 464, 466). 9 Spencer's Case, Smith's Leading Cases, *117; Pisher v. Lewis, 1 Clark, 431; Smith v. Arnold, 3 Salkeld, 4; Sampson v. Easterby, 9 Barnewall & Cresswell, 50, 51 (17 English Common Law Reports, 426) ; S. 0. 1 Crompton & Jervis, 105. i" Marty n v. Clue, 18 Adolphus & Ellis, N. S., 661, 680 (83 English Com- mon Law Reports, 661, 680) ; Buckley v. Pirk, 1 Salkeld, 317. For meaning of word "repair," see Ardesco Oil Company v. Richardson, 13 P. F. Smith, 162, 166 ; post, page 577, 1 1042, cote, . 538 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. up new ones.' A covenant to build a new mill in lieu of an old one.' A covenant to put the premises into habitable repair binds the tenant to put them in a better state than that in which he found them, regard being had to the state of the premises at the time of agreement, and of their situation, and to the class of persons likely to inhabit them. Such a covenant means that the tenant is to put the premises into a state reasonably fit to be occu- pied by an inhabitant.' (17.) A covenant to keep the demised premises in repair.* (18.) A covenant to deliver up the demised premises in a state of repair.* (19.) A covenant that the lessee will repair the buildings and all other erections which may be erected during the term on the demised premises, and the same being so repaired, that he, his executors, administrators, and assigns, will at the end of the term yield them up." (20.) A covenant that the lessee and his assigns will put up new buildings upon the demised premises.' In this covenant, it is observed, the assignee must be named in order to be bound. 1 Harris v. Goslin, 3 Harrington (Del.), 338. ' Easterby v. Sarap.son, 6 Bingham, 644, 653 (19 English Common Law Re- ports, 188, 192). ' Belcher v. Mcintosh, 8 Carrington & Payne, 720 (34 English Common Law Keports, 601). * Ante, page 524, \ 981 (1); Pollard v. Shafer, 1 Dallas, 210, 211 ; Dean and Chapter of Windsor's Case, 5 Coke [*24 6.] ; Blake's Case, 6 Ibid. [*43 6] ; Alden v. Blaque, Croke-James, 99. 5 Pollard V. Sheafer, 1 Dallas, 210, 211 ; Shelby v. Hearne, 6 Yerger (Tenn.), 512; Martyn v. Clue, 18 Adolphus & Ellis, N. S., 661, 680 (83 English Com- mon Law Reports, 661, 679) ; Wakefield & Bingloy v. Brown, 9 Ibid. 209, 223 (58 Ibid. 208 222) ; Matures v. Westwood Croke-Elizabeth, 599 ; De- maresti). Willard, 8 Cowen (N. Y.), 206. 8 MinshuU v. Oakes, 2 Hurlstone & Norman (Exchequer) 793. In deliver- ing the opinion of the Court of Exchequer, Chief Baron Pollock says: " That as the covenant is not a covenant absolutely to do a new thing, but to do something conditionally, viz., if there are new buildin;;s to repair them ; as when built, they will be part of the thing demised, and ^uhsequently the covcmnii extends to its support, and as the covenant clearly binds the assignee to repair things in esse at the time of the lease, so does it also those in posse, and con- sequently the assignee is bound. There is only one covenant to repair; if the assignee is included as to part, why not as to all?" See also Mar- tyn V Clue, 18 Adolphus & Ellis, 661, 681 (83 English Common Law Reports, 661,679). Bee o». Turner, 5 Bingham (N. C), 666, (35 English Common Law Beporta, 264), and cases there cited; Mitchell v. Smith, 1 Binney, 110, 118 ; Seidenbender i;. Charles's Administrators, 4 Ser- geant & Rawle, 150, 158. SEC. I.] NATUKE OF EXPRESS COVENANTS. 545 covenant becomes void. But where one covenants not to do that •which at the time of the creation of the covenant was unlaw- ful, and a statute subsequently makes it lawful, the covenant will not be discharged by the statute.' If the covenant be to do that which is afterwards made unlawful in part only, it must be performed so far as it continues lawful.' And where one covenants to do that which is unlawful by statute, the covenant will not be- come lawful by a repeal of the statute, since the covenant was void ah initio; but if the covenant had originally been lawful and a statute made it unlawful, which was afterwards repealed, the covenant will become lawful." (4.) When the performance of the covenant is impossible,* but the impossibility of performance must exist at the time of cove- nanting, otherwise the covenantor will be liable.* (5.) Where the lease containing the covenant is void or void- able.^ (6.) When the covenant is uncertain. For example, the follow- ing covenants have been adjudged void for uncertainty : a. In a lease of a store for a term certain, a covenant that the lessee shall have the preference of renting the premises so long thereafter as they shall be rented for a store.' h. A covenant to let the premises at the expiration of the term to the lessee, without mentioning any price for which they are to be let." c. A covenant to let the tenant retain possession from July 1st, 1 Brewster v. KitcheO, Salkeld, 198 ; S. C, 1 Lord Raymond, 317, 321 ; Presbyterian Church v. City of New York, 5 Cowen, 538, 541 ; Hesketh •«. Grey, Buller's Nisi Prius, 165, a ; Anglesea v Kugeley, 6 Adolphus & Ellis, 107, 114 (51 English Common Law Reports, 107, 114); Brown v. Mayor of London, 9 Common Bench, N. S., 726 (99 English Common Law Reports, 726) ; but see Brason v. Dean, 3 Modern, 39. " 2 Cases in Equity Abridged, 26; Sheppard's Touchstone, *163. s Jacques v. Withy & Eeid, 1 H. Blackstone, 65. * Sheppard's Touchstone, *164. 6 Hall V. Wright, Ellis, Blackburn & Ellis, 746 (96 English Common Law Reports, 745) ; Comyn's Landlord and Tenant, *110; Woodfall's Landlord and Tenant, 145 (11th edition). ' See Soprani & Barnard v. Skurro, Yelverton, 18 ; Capenhurst v. Capeu- hurst, Sir T. Raymond, 27 ; Hayne v- Maltby, 3 Term Reports, 438. ' Delashmutt v. Thomas, 45 Maryland, 140. " Abeel & Abeel v. Kadcliff, 13 Johnson (N. Y.), 297 j Western Transpor- tation Company v. Lansing, 49 New York, 499, 504. 35 546 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. 1866, to July 1st, 1867, upon his giving the lessor the same rent the latter may be able to obtain from other parties.' d. A covenant that is silent as to the term to be demised.^ But a covenant to renew an underlease for such further term, as the original lease may be renewed or extended, is not void for indefi- niteness.^ e. A covenant that the lease is to be renewed, provided the premises do not change owners, without stating upon what terms and for what length of time.* /. A covenant to renew the lease at its expiration, the rent to be proportioned to the valuation of the premises at that time, without making provisions for determining such valuation.* g. A covenant to demise the premises at such rent and upon such terms as might be agreed upon.° h. A covenant that the lessee should have the option of the premises for a further term of two or three years, if the same be for rent, and the lessee suit the lessor, and if they agree on the rent.' But a lease for five years from the 1st of April, 1865, for the rent of $3500, or for ten years from that time, if the lessees should elect to do so for the same rent, is not ipso facto void be- cause subject to renewal at the option of the lessees.* X. When Discharged. 999. Express covenants, which were valid in their creation, may become discharged or suspended under the following circum- stances : (1.) By the act of God. Thus, where a lessee covenants to leave a wood in as good plight as the wood was at the time of the demise and during the term the trees are blown down by a tempest, the lessee is not liable on his covenant on account • Gelston v- Sigmund, 27 Maryland, 334 ; see also Bromley v- Jeffries, 2 Vernon, 415. 2 Clinan v. Cooke, 1 Schoales & Lefroy, 22. ' Cunningham v- Pattee, 99 Massachusetts, 248; see also Oreighton v. McKee, 2 Brewster, 388. < Boyle V. Laird, 2 Wisconsin, 431. 6 Pray v. Clark, 113 Massachusetts, 283. 8 Rutgers v. Hunter, 6 Johnson Chancery (N. T.), 216 ; Tracy v. Albany {Ixchange Company, 3 Selden (N. Y.), 472, 474, and authorities there cited. ' Whetstone v: Davis, 34 Indiana, 510. e Goehring's Appeal, 32 P. F. Smith, 283, 287. sue. II.] THE landlord's EXPRESS COVENANTS. 647 of the act of God rendering the performance impossible.' As early as the twenty-third year of the reign of Charles I the Court of King's Bench, in the case of Paradine v. Jane/ laid down the rule that where the law creates a duty or charge, and the party is disabled to perform without any default in him, and hath no rem- edy over, there the law will excuse him ; as in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. (2.) By the act of law. Thus, where the covenant is depend- ent on the interest enjoyed, a future destruction of that interest will defeat the covenant ; as, for example, where the lessee cove- nants to leave and yield up the premises well-repaired the cove- nant is discharged by the lessee's eviction.' (3.) By the act of the parties. Thus, by a release.* SECTION II. THE EXPRESS COVENANTS ON THE PART OF THE LANDLORD. I. The Express Covenant for Quiet Enjoyment. (1.) Its Character, and wherein it Differs from the Implied Covenant. 1000. In the preceding chapter* the writers treated of the implied covenant for quiet enjoyment which the law appends to every tenancy, in the absence of an express covenant securing to the tenant the peaceable and quiet enjoyment of the demised premises during the term. By the implied covenant for title or for quiet' enjoyment, we observed that the lessee shall enjoy and possess the demised premises during the continuance of the term, against any lawful entry, eviction, or actual disturbance of the possession, on the part of any person having legal title or right of entry, but not against the wrongfu. evictions or acts of strangers having no right ' Master John Perkins' Profitable Booke, Treating on the Lawes of Eng- land, pi. 738 (Londini 1601). 2 Allyn, 27 ; see Piatt on Covenants, *582 et seg. ' Andrews v- Needham, Croke-Elizabeth, 656; see Piatt on Covenants, *585 et seg. * See Piatt on Covenants, *590 et seq. ' Ante, Chapter xvi, section ii, page 490 et seq. 548 BREACH OF EXPRESS COVENANTS. [CHAP.XVII. or title to the premises demised.' For such tortious acts the lessee has his remedy against the wrongdoer.' 1001. Frequently an express covenant for title, or foF quiet en- joyment, is inserted in the lease, and when this is done such a covenant, however qualified or restricted, supersedes the implied covenant to the same effect, and the lessee's remedy for a breach is confined to the express covenant alone.' Thus, where a lease contains a covenant for quiet enjoyment, against the lessor and those who claim under him, the lessee cannot upon an eviction by a paramownt title recover under the implied covenant for general title, which is imported by the word of leasing, "grant" or "de- mise" or any equivalent term, creating an actual demise, such as "demisi" "concessi," " demiserunt," "rent," "lease" or "let;" for expressum faait cessare taciturn* Under this covenant the im- plied liability is restrained. But where a lessor covenants against disturbances by all persons whatsoever, the implied cove- nant for quiet enjoyment is enlarged, and for a breach the lessor is liable under the express covenant.^ 1002. The distinction between an implied and an express cove- nant for quiet enjoyment, may then be said to be this : the im- plied covenant extends to all lawful evictions or disturbances by any person, but not to unlawful evictions or disturbances by strangers,^ and continues in force only so long as the estate of the lessor lasts, and not necessarily during the whole term granted/ while the express covenant extends only to evictions or disturb- ances by the lessor, or by persons lawfully claiming by, from, or under him, or otherwise, as may be expressed in the covenant,* and continues in force to the end of the term expressed to be granted.' 1 See ante, page 490, 1[ 934. 2 Year Book, 26 Henry VIII, 3 b ; Wotton v. Hele, 2 Williams's Saunders, 525 (3) ; see s\so posrt, page 556, T[ 1011. * Line v. Stephenson, 4 Bingham, N. 0. 678 (33 English Common Law Ee- porls, 492) ; S. C, 5 Bingham, N. C. 183 (35 English Common Law Reports, 77) ; see also, ante, page 487, '^ 927. * Merrill v. Frame, 4 Taunton, 329 ; Nokes's Case, 4 Coke, 80 b. See also ante, page 486, 1[ 924. 6 Kent V. "Welch, 7 Johnson (N. Y.), 258; Sumner v. Williams, 8 Massa- chusetts, 162, 201. 8 Ante, page 490, \ 934. ' Ibid. 488, \ 931. « Ibid. 548, \ 1001. » Ibid 520, \ 971. SEC. II.] THE landlord's EXPRESS COVENANTS. 549 (2.) Its Effect. 1003. The effect of an express covenant for quiet enjoyment is to define exactly for what acts, and of whom, the lessor is to be responsible for the quiet and peaceable occupancy of the premises demised according to the particular agreement between the parties, and in order to create an express covenant for quiet enjoyment no particular form of words is necessary ; any apt words showing the intention of the parties, will amount to such a covenant.' 1004. When the lessor has no title, or has doubts as to his title to the demised premises, and desires to protect himself against the eviction or other disturbance of his lessee by the real owner, or by one entitled to the possession, he generally covenants with the lessee for quiet enjoyment, " without any interruption or disturbance from or by him, his heirs, executors, administrators, and assigns, or any other person or persons claiming by, from, or under him, them, or any of thenu" Such a covenant is a qualified covenant for quiet enjoyment, and upon an eviction or other dis- turbance by any other person than the lessor, or one claiming " by, from, or under him," the lessee has no remedy against his lessor for a breach.' 1005. If the lessee desires to protect himself in his enjoyment of the demised premises against evictions, or other disturbances, by all persons having lawful title, he should obtain from his lessor an unqualified covenant for quiet enjoyment, without any interruption or disturbance by the lessor, eta, "or by any other person or persons whomsoever." Under such a covenant the lessee runs no risk with regard to his lessor's title. 1006. A lessee, it has been held, is a purchaser pro tanto, to whom the maxim caveat emptor applies.' In ordinary short leases an examination of title is neither usual nor necessary, since if the lessee is evicted or disturbed in his enjoyment of the demised premises the rent ceases.' But where the lessee expects to build upon, or otherwise improve the demised premises, he should either investigate the lessor's title, or should protect himself by an uii- 1 See ante, page 519, f 968; Ellis v. "Welch, 6 Maesaobusetts, 246 ; Levitzky K. Canning, 33 California, 299 ; see also forms in appendix. 2 Merrill v. Franae, 4 Taunton, 329 ; Year Book, 26 Henry VIII, 3 (B.). 3 Sugden on Vendors, chapter x, g 1, pi. 12, and authorities there cited. Woodfall's Landlord and Tenant, 632 (Uth ed.). ' * See Lanigan v. Kille, 9 Weekly Notes, 293, 295; S. C, 1 Outerbridge. 550 BREACH OF EXPRESS COVENANTS. [OHAi'. XVII. qualified covenant for quiet enjoyment during the term. As was said by Mr. Justice Paxson, in delivering the opinion of the Su- preme Court, in the recent case of Lanigan v. Kille' (A.D. 1881), "However careless a man may be as to title in ordinary leases, it is well to understand that when a lessee seeks to improve demised premises, the rule of caveat emptor applies, and he would do well to see that his lessor has title, and if not satisfied therewith, he may further protect himself by apt words in an express covenant." (3.) What Constitutes a Breach. 1007. While it is true that the express covenant for quiet enjoy- ment ordinarily goes more particularly to the possession of the demised premises than to the title thereof, yet in England, Penn- sylvania, and most of the States of the Union, the prevailing rule is that art actual ouster or physical dispossession is not necessary to constitute a breach, but that the same may occur by the lessor committing any act which deprives the lessee of that full and bene- ficial enjoyment of the premises to which he is entitled under the lease,'* or by proceedings at law, or in equity, which interfere with the lessor's title or estate, so as to affect the lessee's immediate right of possession.^ 1008. But it must be borne in mind that the act of which the lessee may complain, as constituting a breach must be in the as- sertion of title, or of a lawful right of entry, and not a tortious act that merely amounts to a trespass.* And the eviction or other disturbance must be under a lawful title or right existing at the time of the execution of the lease, and not under rights subse- quently acquired.^ To constitute a breach there must be a lawful ' Ibid, see also ante, page 500, If 950. 2 Hceverler v. Fleming, 10 Norris, 322 ; S. C, 8 Weekly Notes, 65, and cases there cited ; Woodfall's Landlord and Tenant, 636 (11th ed.) ; Taylor's Land- lord and Tenant, 232, § 308. ' See Brown v. Dickerson,2 Jones, 872, 374, and cases there cited; Selden v. Senate, 12 East, 72; Martin v. Martin, 1 Devereux, Law (N. C), 48; 2 Piatt on Lease, 289, and cases there cited ; Smith & Solden's Landlord and Tenant, 95 (2d ed.), and cases there cited ; Laming v. Laming, Croke- Elizabeth, 316 ; "Woodfall's Landlord and Tenant, 636 (11 ed.). * Selden I). Senate, 13 East, 72; Frost w. Earnest, 4 "Wharton, RC R8; Peters II. Grubb, 9 Harris, 456. ' Ellis V. Welsh, 6 Massachusetts, 246; see also Frost v. Earnest, 4 Whar- ton, 86 ; Knapp u. Marlboro, 34 Vermont, 235; Grist v. Hodges, 3 Devereux, Law (N.O.), 200. SBC. II.] THE landlord's EXPRESS COVENANTS. 551 interruption, whether the word "lawful" is used in the covenant or not. If, however, the lessee is disturbed in his possession by the lessor himself, the latter is guilty of a breach, although he enters wrongfully, and this even if the covenant provides against lawful evictions only.^ 1009. It has also been held that there may be a constructive eviction which will operate as a breach of the covenant when, after a demand, or other hostile assertion of a paramount title, the lessee yields thereto, and this without any actual change in the posses- sion. But the lessee takes the risk with regard to the title being paramount, and of his attornment or purchase.^ And if the lessee surrenders the possession without a legal determination the burden of proving the paramount title is upon him.^ (4.) When, there is a Breach of the Express Covenant for Quiet Mijoyment. 1010. In a previous part of the work we gave a number of instances of breaches on the part of the lessor of the implied cov- enant for quiet enjoyment.* Those instances may also be con- sidered as constituting breaches of the general and ordinary express covenant for quiet enjoyment, when the same does not restrict the implied covenant. In addition to those, a breach, on the part of the lessor, of a special express covenant for quiet enjoyment has been adjudged to occur under the following circumstances! (1.) Where the covenant was that the lessee, paying the rent re- served and performing his covenants, shall at all times quietly enjoy the premises, and the lessee was disturbed in his enjoyment of the demised premises. A breach occurs so soon as the lessee is disturbed even though he be guilty of a default in the payment. 1 Crosse v. Young, 2 Showers, 425 ; Cones v. , Croke- Elizabeth, 544 ;, Lloyd V- Tomkies, 1 Term Reports, 671. ' Brown v. Dickerson, 2 Jones, 372, 374, and cases there cited ; Grist v^ Hodges, 3 Devereux, Law (N. C), 200; Sprague w. Baker, 17 Massachusetts,, 586; Loomis ». Bedel, 11 New Hampshire, 74; Moore j). Vail, 17 Illinois,, 190; Curtis v. Dearing, 12 Maine, 501 ; University of Vermont, 21 Vermont,, 52 ; Taylor's Landlord and Tenant, 232, g 308. * Greenvault «. Davis, 4 Hill (N. Y.), 643; Cowan v. Silliman, 4 Devereux, Law (N. C), 46; Hamilton v. Cutts, 4 Massachusetts, 349; Booth v. Starr, 6 Day, 282; Taylor's Landlord and Tenant, 232, g 308. * See ante, page 491, f 936. 552 BKBACH OF EXPRESS COVENANTS. [OHAP. XVII. of his rent, or performance of his covenants. The covenant to pay rent or to perform the covenants of the lease does not amount to a condition precedent to the performance on the part of the lessor of the covenant for quiet enjoyment.' (2.) Where a husband procured a fine of land to be levied to himself and his wife and his heirs, demised the land under the ordinary covenant that the lessee shall quietly enjoy it without disturbance of him, his heirs or assigns, or any other person, by, or through his means, title, or procurement, and afterwards makes his wife executrix, and dies, a breach occurs by an eviction of the lessee by the testator's widow. The Court of King's Bench held that the lessor's widow is a person within the covenant who claims by his means, on the ground that he procured the fine, although she claims by title derived from another.^ (3.) Where the lessor covenanted with the lessee for quiet enjoy- ment as against any person claiming by, from, or under him, and the lessee was evicted by a prior appointee of the lessor and another person, though the grant by the lessor to the lessee contained the words " as far as in his power lay, or he lawfully might or could."' (4.) Where the lessor covenanted for quiet enjoyment without the lawful let, hindrance, cr disturbance of himself, his heirs or assigns, or any otlier person lawfully claiming, or to claim by, from, or under him, and the lessor entered under claim of title. Lord Chief Justice JefFeries, in delivering the opinion of the Court of King's Bench, says : " That against the party (lessor) himself, they would not consider the word 'lawful,' nor drive the plaintiff (lessee) to his action of trespass, when by the general implied covenant in law, he had engaged no way to avoid his own deed, either by a rightful or a tortious entry."* While there would be no breach of such a covenant by an accidental trespass by the lessor, yet if he entered under claim of title a breach is committed.' 1 Haj'3 V. Bickerstaffe, 2 Modern, 84; Dawson v. Dyer, 5 Barnewall & Adolphus, 584 (27 English Common Law Keports, 129); Bartlett ». Green- leaf, 11 Gray (Mass.), 98. 2 Butler V. Swinnerton, Croke-James, 656; see also Cavan v. Pultuey, 2 Vesey, Jr., 544; Hurdu Fletcher, 1 Douglass, 43. s Calvert v. Sebright, 16 Beavan, 156 ; see also Hurd v. Fletcher, 1 Doug- lass 43' Evans v. Vaughan, 4 Barnewall & Cresswell, 261 (10 English Com- mon Law Reports, 327). * Crosse v. Young, 2 Showers, *425. " Lloyd V. Tomldos, 1 Term Reports, 671; see also Shaw i;. Stenton, 2 Hurl- ,Btone & Norman (Exchequer), 868. SEC. II.] THE LANDLOKD'S EXPRESS COVENANTS. 553 (5.) Where the lessor covenanted for quiet enjoyment against the acts of a particular person by name, and the lessee was evicted or disturbed by such person whether by lawful title or otherwise.' (6.) Where the lessor simply covenanted that the lessee should quietly enjoy the demised premises, and the lessor himself ousted the lessee. Such a covenant extends to all interruptions, by the lessor, whether rightful or wrongful.^ (7.) Where the lessor covenanted that the lessee should enjoy the premises without any lawful interruption or disturbance of the lessor or his executor, and the executor afterwards ousted the lessee. The lessee need not show that the entry of the executor was by title. (8.) Where the lessor covenanted for quiet enjoyment against all claiming, or pretending to claim, any right upon the demised premises, and one claiming such right entered and disturbed the lessee. The Court of King's Bench held that the covenant extended to all interruptions whatsoever, for if it were to extend to legal claims only, then would the lessee be put under the hardship of trying the right for the lessor, which was the very thing the lessee plainly designed to prevent by the covenant. (9.) Where a lessor, tenant in tail, covenanted for quiet enjoy- ment against all persons, without the interruption of any person except the reversioner, his heirs or successors, and afterwards the reversioner grants his reversion to B., and the lessor (tenant in taiP dies without issue, whereupon B. enters and ousts the lessee, such a covenant will be construed strictly, in order to exclude all persons who are not expressly named in the exception." (10.) Where in a lease of a furnace and grist and saw-mill, built upon a stream of water which was necessary to the enjoyment 1 Naeh v. Palmer, 5 Maule & Selwyn, 874, 379, where Lord Ellenbob- OUQH, C. J., sets forth the distinction between a covenant against the acts of all persons, and one against the acts of persons particularly speoiaed ; Fowler V. Welsh, 1 Barnewall & Cresswell 29 Wotton v. Hele, 2 Williams's Saunders, 526 (0), and authorities there cited. 2 Corns V. , Croke-Blizabeth. 544 ; Lloyd v- Tomkies, 1 Term Reports, 671 ; Shaw v. Stenton, 2 Hurlstone & Norman (Exchequer), 858. :. Eatcliff 1) , Executors, 1 Brownlow & Goldesborough, 80 ; Porte v. Vine, 2 RoUe, 21 * Chaplain v- Southgate, 10 Modern, 884. 6 Woodruff V Greenwood, Oroke-Elizabetb, 518 j see also Rashleigh v, WJlUttms, 2 Ventris, 61. 554 BRBACH OF EXPRESS COVENANTS. [CHAP. XVII. of the demised premises, the lessor covenanted to protect the lessee, etc., in the use and enjoyment of the premises demised, and to " warrant and defend the premises to him and them against the claims, or interruptions, or molestation of any person, or persons whomsoever, so that the said lessee shall suffer no loss from any defect of title of the lessors to the premises ;" it was held that the covenant in the lease was alike for quiet enjoyment and of war- ranty, and embraced all existing antagonistical claims, whether upon the part of the Commonwealth or of private persons, and that it was broken by a taking of the water by the State under her right of eminent domain, the original entry of the State having been made prior to the lease.' (11.) Where A. demised to B,, and B. assigned his term to C, with a covenant for quiet enjoyment, and C. afterwards assigned to D., who was ejected by A. for a forfeiture incurred by B. before his assignment to C, the Court of King's Bench held that D. could maintain an action against B. on his covenant for quiet enjoyment, on the ground that there was privity of estate between B. and C (12.) Where the lessor covenants with the lessee for quiet en- joyment, and afterwards slanders the lessee's possession by giving out publicly and pretending that he had no right to the possession of the demised premises, and bringing actions at law against the lessee and his tenants to recover possession, in consequence of which the lessee's tenants quit the premises, and he is unable to rent the same.' (13.) Where in a lease of a coal-mine the lessor covenanted that the lessee should peaceably and quietly occupy the demised mine without any molestation, interruption, or disturbance whatever, of, from, or by him, and afterwards over the demised mine excavated a quarry of iron-stone, making hoies from the strata of iron-stone into the demised mine, through wliich water percolated and escaped into the same, and also caused parts of the roof to fall in by his excavation, so that the working of the coal mine was rendered • Peters v- Grubb, 9 Harris, 455; but see ante, page 493, ^ 936 (6), where the writers sliow that the implied covenant for quiet enjoyment is not broken by the entry of the State by virtue of the right of eminent domain. " Campbell v. Lewis, 8 Barnewall & Alderson, 392 (5 English Common Law Beports, 322). 8 Levitzky v. Canning, 33 California, 299. SEC. II.J THE landlord's EXPKESS COVENANTS. 555 impracticable. The Court of Exchequer held that though the lessor had a right to excavate the quarry of iron-stone, yet his doing so in such a manner as to interrupt the lessee in his occupa- tion and enjoyment of the demised mine, made him guilty of a breach of his covenant for quiet enjoyment.' (14.) Where the lessor covenanted with the lessee for quiet en- joyment, and afterwards entered upon the roof of the demised premises and converted it into a washhouse or place for drying clothes.^ In delivering the opinion of the Supreme Court of Cali- fornia, Mr. Justice Sanderson says that " the lessor had no more right to enter upon the roof or to authorize another to do so, than he had to enter upon the floors of the building and make a wash- house of them."' (15.) Where the lessor covenanted that the lessee should quietly enjoy a close demised, and that he would not do anything to molest, hinder, or prevent such quiet enjoyment, and afterwards the lessor erected a gate across a lane leading to the close. The Court of King's Bench held that, inasmuch as the gate intercepted a way necessary to the enjoyment of the close, such erection was a breach of the covenant, whether set up by right or wrong.* (5.) When there is no Breach of an Express Covenant for Quiet Enjoyment. 1011. In the preceding chapter instances were given where no breach, on the part of the lessor, of the implied covenant for quiet enjoyment occurred.^ Bearing in mind the distinction between the implied and express covenant for quiet enjoyment, those instances may also be considered as not coustituting breaches of the general and ordinary express covenants for quiet enjoyment, when the same do not enlarge the implied covenant. Besides those, a breach, on the part of a lessor, of a special express covenant for quiet en- joyment has been adjudged not to occur under the following cir- cumstances : (1.) Where there was a general covenant fcr quiet enjoyment, without any interruption or disturbance by the lessor, his heirs 1 Shaw V. Stenton, 2 Hurlstone & Norman (Exchequer), 858. 2 Levitzky v. Canning, 33 California, 299. ' Ibid. 308. i Andrews v. Paradise, 8 Modern, 319. 6 See a7tie, page 493, 1[ 936, 556 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. or assigns, " or by any other person or persons whomsoever," and a stranger having no title disturbed the lessee in his possession. Such a covenant does not extend to the wrongful evictions or disturb- ances by a stranger, but only to persons claiming by a legal title ; for the law does not adjudge that a person covenants against the wrongful acts, which the folly or malice of strangers might com- mit, unless his covenant is full and express to that purpose.' The lessee has his remedy against the wrongdoer.' (2.) Where the lessor covenanted with the lessee for quiet en- joyment, " without any let, suit, trouble, denial, disturbance, evic- tion, or interruption whatsoever, of or by the defendant (lessor), his heirs or assigns, or any other person or persons lawfully claim- ing or to claim by, from, or under him, them, or any of them," and afterwards a collector of taxes entered upon the lessee and seized goods upon the premises for arrears of tax due from the les- sor before the demise. Lord Chief Justice Denman, in delivering the opinion of the Court of Queen's Bench, held that the words of the covenant implied a claim by title from the lessor, and not against him.^ (3.) Where the lease contained a covenant for quiet enjoyment against the lessor, " or any claiming or to claim, by, from, or un- der him," and the lessee was evicted by a title paramount to that of the lessor. It was argued for the lessee that the express covenant for quiet enjoyment did not restrain or destroy the implied cove- nant for an absolute good title, which was contained in the words of leasing, " demised and leased" but the Court held that the lessee could not upon an eviction by a paramount title recover under the implied covenant for general title, for the rule of law was, that expressum faoit taciturn eessare.* 1 Year Book, 22 Henry VI, 52 (B) pi. 26; Ibid. 32 Henry VI, 32 (B); . Tisdale v. Essex, 1 Brownlow & Goldesborough, 23 ; Dudley v. Polliott, 3 Term Reports, 584, and authorities cited in note; Poster v. Pierson, 4 Ibid. 617; Peters v. Grubb, 9 Harris, 459 ; see also Nash v. Palmer, 5 Maule & Selv/yn, 374, 879, where LiOkd Ellbnborodqh, C. J., shows the distinction between a covenant against the acts of all persons, and a covenant against the acts of a particular person by name. 2 Year Book, 26 Henry VIII, 3 (B) ; Wotton v. Hele, 2 "Williams's Saun- ders's Reports, 525 (3) ; Peters v. Grubb, 9 Harris, 459 ; Prost v. Earnest, 4 Wharton, 86, 88. ^ Stanley v. Hayes, 3 Adolphus & Ellis, N. S., 104 (43 English Common Law Eeports, 652). * Merrill ii. Frame, 4 Taunton, 329. SEC. II.j THE LANDLOKd'S EXPRESS COVENANTS. 557 (4.) Where the lessor covenanted that the lessee shoahl enjoy the demised premises peaceably and quietly, without any lawful let, disturbance, ejectment, or molestation, on his part, and after- wards entered upon the lessee, without any lawful right of entry, but as a mere trespasser.' (5.) Where the lessor covenanted against the entry of all per- sons " claiming by the assent, means, or procurement of B.," and C. claiming title from D. entered upon the demised premises.^ (6.) Where the lessor covenanted for quiet enjoyment, without the lawful let, suit, trouble, molestation, or interruption of the lessor, his heirs or assigns, or of any other person or persons what- soever, and the lessee was evicted by public authority, under an act of Assembly, passed before the making of the lease, authorizing the widening of a street, and providing for compensation to the owner of the property.' The Court held that in entering into the covenant it must be presumed that the lessor and lessee had in view only existing rights. Though the act had already been passed, yet it was uncertain whether the public authority would exercise the power conferred, in reference to the widening of the street, or if they exercised it, whether they would do so within the term of the lease, or, if within the term, whether the enlarged street would embrace the demised premises, or property on the other side of the old street. To hold that the covenant was broken would be applying it either to a naked possibility, or to a doubt- ful and uncertain contingency.* (7.) Where the lessor covenanted that the lessee " should hold and occupy" the premises during the term, and afterwards a town way was located over the demised premises.* (8.) Where A. demised a house to B. for a term of years, with a clause of re-entry, if B. or his assigns should convert the house into a shop, without the consent in writing of A. ; B. underlet it to C. for a shorter term, the lease omitting the clause of re-entry with 1 Crosse v. Young, 2 Showers, *425 ; Oorus v. , Croke-Elizabeth, 544; Lloyd V. Tomkies, 6 Term Reports, 671. = Eeles V. Lambert, Aleyn, 38, 41 ; see also Howes v. Brushfleld, 3 East, 491; Watton V. Hele, 2 Williams's Saunders, 181, n. 8 Frost V. Earnest, 4 Wharton, 86. * Ibid. 88 ; see also Ellis v. Welch, 6 Massachusetts, 246, 250. ' Ellis V. Welch, 6 Massachusetts, 246, 250. 558 BREACH OS EXPRESS COVENANTS. [CHAP. XVII. regard to the use of the house, but contained a covenant that C. should and might hold the premises demised during the term granted, without any lawful let, suit, trouble, molestation, evic- tion, interruption, claim, or demand whatsoever, by or from B., his executors, administrators, or assigns, or any person or persons whomsoever, claiming or to claim, by, from, under, or in trust for him, them, or any of them ; or by or through his, or their acts, means, right, title, forfeiture, privity, or procurement; C. assigned to D., and D., in ignorance of the clause of re-entry by the origi- nal lessor, in case the premises should be used for a shop, un- derlet to E., who incurred a forfeiture by using the house as a shop, whereupon A., the original lessor, entered upon E., and ousted him. The Court held that B. was not guilty of a breach of his covenant for quiet enjoyment, on the ground that the words " acts " and "means " in the covenant meant some act done by B., while the eviction arose from E., the person in possession of the premises, and not by anything proceeding from B., the cove- nantor, or any person claiming by, from, under, or in trust for him.' (9.) Where, in a lease of a house and garden, forming part of a large area of building-ground, the lessor covenanted for quiet en- joyment, without any interruption by himself, his heirs or assigns, or any other person, lawfully claiming by, from, or under them, or any of them, and afterwards demised the adjoining land to J. S., who built thereon a mews, having a wall twenty-three feet high, running the whole length of the garden, whereby the free access of light and air to the lessee's house and garden was greatly ob- structed and diminished. Yice-Chancellor Malins held that the covenant related only to quiet enjoyment, without any interrup- tion or disturbance of the thing or piece of land demised.^ (10.) Where the demise was of a mill, and of a stream of water flowing through a leat or trench in the land of the lessor, except so much of the water as should be sufBcient for the supply of persons, with whom the lessor had already contracted, or might thereafter contract to supply, provided that such a quantity should be left as should be sufficient to supply the mill for twelve hours • Spencer v. Marriott, 1 Barnewall & Cresswell, 457 (8 English Common Law Eeports, 129). 2 Potta V. Smith, Law Reports, 6 Equity Cases, 311, 817. SBC. II.] THE landlord's EXPRESS COVENANTS. 559 a day, and the lessor covenanted with the lessee for quiet enjoy- ment, without interruption of the lessor, or of persons claiming by his act, means, consent, default, priority, or procurement, it was held that diversions of the water, occasioned by contracts pre- vious to the demise, were no breach of the covenant for quiet en- joyment.^ (11.) A destruction of, or injury to, the premises by fire, tem- pest or otherwise, without any default on the part of the landlord.^ (6.) Its Application. 1012. With regard to the application of the express covenant for quiet enjoyment we may then conclude as follows : I. It extends to all interruptions and disturbances, whether lawful or unlawful, when committed — (1.) By the lessor himself, he being a party named.' (2.) By the lessor himself, even though he covenanted against lawful evictions only.* (3.) By one acting under the authority of the lessor.' (4.) By certain named persons, the lessor having covenanted against the acts of such particular persons by name.^ (5.) By one claiming or pretending to claim, the lessor having covenanted against the ' acts of all claiming or pretending to claim.' II. It does not extend to unlawful acts, interruptions, and dis- turbances, when committed — (1.) By the lessor, when such tortious act merely amounts to a trespass.* (2.) By strangers having no title or lawful right of entry.' (3.) By strangers having no title, notwithstanding the lessor, besides covenanting against his own acts, has covenanted against any interruption or disturbance by any other person or persons whomsoever.'" 1 Blatchford v. Mayor of Plymouth, 8 Bingham (New Cases), 691 (32 Eng lish Common Law Eeports, 285). ■' Brown v. Quilter, Ambler, 619, 621. 3 See ante page 552, If 1010 (3). < Ibid. 1[ 1010 (4). s Ibid. If 1010 (3). « Ibid, f 1010 (5). ' Ibid. Tf 1010 (8). * Ibid. If 1011 (4). 9 Ibid. If 1010 (1). "> Ibid. If 1011 (1). 560 BREACH OF EXPRESS COVENAHTS. [OHAP. XVII. (7.) On Whom Binding, and by Whom Available. 1013. This covenant, as we have already stated/ is one of those which runs with the land, and is binding on the assignee of the reversion, and may be rendered available by an assignee of the term, or by an assignee of an undivided moiety of leasehold premises.^ (8.) The Tenant's Remedies for a Breach. 1014. For a breach of the express covenant for quiet enjoyment the tenant may resort to the action of covenant, trespass, or as- sumpsit, for the recovery of damages, or to bill in equity for specific performance. Of these remedies we have already treated.' II. The Covenant against Incumbrances. (1.) Its Character, and Recovery thereunder. 1015. The covenant against incumbrances is closely connected with that for quiet enjoyment, as the danger to be apprehended or suffered from an incumbrance resting on the demised premises, is the loss of the quiet enjoyment or the full value thereof. But in order that the lessee may be fully protected in his enjoyment of the premises, he should have inserted in his lease, besides a covenant for quiet enjoyment, an unqualified covenant on the part of the lessor for indemnity against incumbrances, or that he shall enjoy the premises free from existing incumbrances or such as may yet be made by the lessor, his heirs or assigns. While the lessee has a remedy under the covenant for quiet enjoyment, if he is evicted or his enjoyment interfered with, yet if an incumbrance on the demised premises in any way lessens the value of the same under the lease, his only remedy is under a covenant against in- cumbrances. This covenant is then of the utmost importance to the tenant. 1016. If, at the time of the letting there is an outstanding in- cumbrance, an unqualified covenant against incumbrances is tech- nically broken as soon as executed, and an action may be brought at once.* It is not necessary that the tenant should be evicted or 1 See ante, page 531, f 991 (1). 2 Van Home n. Grain, 1 Paige (N. Y.), 455, 460. » Ibid. 494, f 937. ' Knepper v. Kurtz, 8 P. F. Smith, 480, 484, and cases there cited j Funk SEC. II.] THE landlord's EXPRESS COVENANTS. 561 actually interrupted in the enjoyment of the demised premises, the mere possibility of being disturbed, or the mere existence of an outstanding incumbrance, which may make him liable to satisfy claimants, or which may defeat the estate, is sufficieut to support an action,' or he may discharge the incumbrance and claim dam- ages, which will be measured by the amount he has fairly paid to extinguish the incumbrance, with costs and interest.' If the lessee has never suffered any actual injury or disturbance in con- sequence of the incumbrance, he can recover only nominal dam- ages.' But if the incumbrance has interfered with that full and beneficial enjoyment of the premises to which the lessee was en- titled under the lease, he may recover such damages as he has actually sustained, including the costs he may have been put to in defending the action by which he was evicted.' 1017. With regard to the lessor's liability under the covenant against incumbrances, much depends on the language of the cove- nant.* Thus, the covenant may be that the premises are free and clear from incumbrance, or that the lessor will protect the lessee against incumbrances. If it be the former, it is a covenant in prcesenti, and a breach occurs, as we have already observed, so soon as entered into, if an incumbrance exists at the time of the leasing. If it be the latter, it is a covenant infuturo, and a breach does not occur so long as the lessee enjoys the undisturbed posses- sion of the demised premises.' ». Voneida, 13 Sergeant & Eawle, 109, 112; Wyman ». Ballard, 12 Massa- chusetts, 304 ; Cathoart v. Bowman, 5 Barr, 317 ; Stewart & Fine v- Drake, 4Halsted (N. J.), 139; Garrison v. Sanford, 7 Ibid. 261 ; Potter v. Taylor, 6 Vermont, 676. ' Delavergne v. Norria, 7 Johnson (N". Y.), 358 ; Funk v. Voneida, 13 Ser- geant & Eawle, 109, 112; Spragueti. Baker, 17 Massachusetts, 586, 591 ; Gar- rison V. Sandford, 7 Halsted (N. J.), 261 ; Chapman v Homes, 5 Ibid. 28. ' Ibid.; Andersons. Knox, 20 Shephard, 156; Hull v. Dean, 13 Johnson (N. Y.), 105 ; Stanardu. Eldridge, 16 Ibid. 254 ; Prescott v. Freeman, 4 Mas- sachusetts, 627; Waldo v. Long, 7 Johnson (N. Y ), 173 ; Potter v. Taylor, 6 Vermont, 675. 3 Stanard v. Eldridge, 16 Johnson (N. Y.), 254; Funk t; Voneida, 13 Ser- geant & Rawle, 109, 114 ; Kellogg v. Malin, 62 Missouri, 429, 433. * Ibid. ; Waldo ■». Long, 7 Johnson (N. Y.), 173 ; Jenkins v. Hopkins, 20 Ibid. 346 ; see also Wilson r. Cochran, 10 Wright, 229, 231. 6 See ante, page 518, f 968. * Anderson v. Knox, 20 Shepherd (Ala.), 156, 161 ; Bacon's Abridgment, title Covenant (H). 36 562 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. (2.) What Constitutes an Incumbrance. 1018. As to what constitutes an incumbrance within the true intent and meaning of the covenant, it may be said in general, that every right to or interest in the land demised, to the dimi- nution of the value of the premises, but consistent with the pass- ing of the title, is deemed in law an incumbrance.* Thus, a judg- ment, a mortgage, or any debt which is a lien upon the premises, a right to an easement which does not obviously and notoriously affect the physical condition of the premises, and a claim of dower, which may partially defeat the lessor's title to the premises, is an incumbrance within the scope of the covenant.^ Where A. owned an indenture of lease, and assigned it to B., covenant- ing " that the assigned premises now are free and clear of and from all former and other grants, bargains, and incumbrances whatsoever," it was held that a prior sale to C. of a privilege to use a wall on the premises as a party-wall of a building to be erected adjoining it for and during the whole unexpired term of the lease, was an incumbrance.' (3.) When there is an Incumbrance between Vendor and Vendee. 1019. The books contain but few instances of incumbrances as between lessor and lessee, but many as between vendor and vendee, and of the latter class, it may be well to notice the following, which have been adjudged incumbrances within the scope of a covenant against incumbrances : (1.) A prior outstanding lease of the land conveyed.* 1 Prescott V. Trueman, 4 Massachusetts, 627, 629 ; Chapman v. Kimball, 7 Nebraska, 399 ; Mitchell v. Warner, 5 Connecticut, 527 ; Carter v. Denman, 3 Zabriski (N. J.), 273 ; see also 2 Greenleaf s Evidence, ? 242. 2 Prescott V. Trueman, 4 Massachusetts, 627, 629 ; Brooks v. Moody, 25 Ar- kansas, 452, 457, and cases there cited ; Harlow v. Thomas, 15 Pickering (Mass.), 68 ; Kurtz v. McOune, 22 Wisconsin, 628 ; Giles v. Dugro, 1 Duer (N. Y.), 311 ; Wilson v. Cochran, 10 Wright, 229, 233 ; McMullen v. Wooley, 2 Lansing (N. Y.), 394; Kelsey v. Remer, 43 Connecticut, 129. » Giles V. Dugro, 1 Duor (N. Y.), 331. » Grice v. Scarborough, 2 Spears (S. C), 649 ; Batchelder v. Sturgis, 3 Gush- ing (Mass.), 201 ; Van Wagner v. Van Nostraud, 19 Iowa, 422; Gale v. Ed- wards, 52 Maine, 360. SBC. II.] THE landlord's EXPRESS COVENANTS. 563 (2.) A previous sale of part of the land, by articles of agree- ment.' (3.) A paramount private right of way, or any way which is not visible and patent, or whose enjoyment is not matter of public notoriety.' (4.) A location of a highway, not in use.' (5.) A right of way for a railroad.* (6.) A pre-existing right to pass over the land conveyed, to take water from a spring on it.' (7.) A right to cut and maintain a drain,' or other artificial watercourses.' (8.) A right to dam up and use the water of a stream running across the land conveyed,^ to erect and maintain dams, sluices, and locks,' or to overflow land.'" (9.) A right in a third person to cut and remove standing tim- ber or woodleave within a certain time." (10.) A restriction which prevents the free and full use of the premises." (4.) When there is not an Inoumhranoe between Vendor and Vendee. 1020. The following instances as between vendor and vendee have been adjudged not to be incumbrances within the meaning and intent of a covenant against incumbrances : ' Seitzinger v. Weaver, 1 Eawle, 377. a "Wilson v. Cochran, 10 Wright, 229, 233. 3 Herriok v. Moore, 19 Maine, 313 ; but see Shute v. Barnes, 21 Allen (Mass.), 598. * Barlow v. McKinley, 24 Iowa, 69 ; Beach v. MUler, 61 Illinois, 206. ^ Harlow v. Thomas, 15 Pickering (Mass.), 68 ; Mitchell v. Warner, 5 Con- necticut, 497 ; Morgan v. Smith, II Illinois, 194. 8 Smith V. Sprague, 40 Vermont, 43. ' Prescott V. White, 21 Pickering, 341 ; see also Prescott v. Williams, 6 Metcalf (Mass.), 429, 433. 8 Morgan v. Smith, 11 Illinois, 194 ; Lamb v. Danforth, 59 Maine, 322. 9 Ginn v. Hancock, 31 Maine, 42. w Patterson v- Sweet, 31 Illinois, Appeal, 550. " Cathcartw. Bowman, 5 Barr, 317, 319; Spurro. Andrew, 6 Allen (Mass.), 420. " In re Whitlock, 32 Barbour (N. T.), 48 1 Roberts i>. Levy, 3 Abbott's Practice Cases (N. T.), N. S., 311. 564 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. (1.) A legal public highway in actual use.' But the location of a road is an incumbrance.^ (2.) A right to maintain a natural watercourse.' Where land was described in a conveyance as land through which the water from a mill passes, and the grantor covenanted that the premises were free from all incumbrances, the existence of a right in the mill-owner to cleanse the natural channel of the stream and re- move obstructions by the free flow of the water from the mill was held not to be an incumbrance.* (3.) A party-wall.^ (4.) An outstanding mortgage when the premises in the deed are described by metes and bounds, and declared to be subject to the mortgage.' (5.) An outstanding mortgage which the covenantee is bound to pay.' (6.) An adverse equitable claim to land.' 1021. A covenant against incumbrances being a personal cove- nant, does not run with the land.' But where there has been a breach before an assignment by the grantee, and the incumbrance has not been removed, the covenant will pass to the assignee, so as to entitle him to an action for such damages as he may sustain after the assignment." 1022. For a breach of the covenant against incumbrances, the action of covenant is generally resorted to ; but the other reme- dies usual in cases of breach of covenant may also be maintained, according to the circumstances of the breach." 1 Patterson v. Arthurs, 9 Watts, 152 ; Wilson v. Cochran, 10 Wright, 229, 232; Scribner v. Holmes, 16 Indiana, 142; see also Rawle on Covenants for Title, 101 et seq. (4th ed.), where the subject is thoroughly discussed. 2 Herrick v. Moore, 19 Maine, 313 ' Prescott V. Williams, 6 Metcalf, 429, 433 ; see also Eawle on Covenants for Title, 107 ei seq. (4th ed.) " Prescott V. Williams, 5 Metcalf, 429, 433. 5 Musgrave v. Sherwood, 54 Howard's Practice (N. Y.), 338; but seeMohr V. Parmelee, 43 N. Y. Superior Court, 320. * Freeman v. Poster, 55 Maine, 508. ' Watts V. Welman, 2 New Hampshire, 458. 6 Marple v. Scott, 41 Illinois, 50. 9 Pillsbury v. Mitchell, 5 Wisconsin, 17 ; see ante, page 540, f 994. 1" Sprague v- Baker, 17 Massachusetts, 586, 589. " See ante, page 494, ^ 937. 8EC. II.] THE landlord's EXPRESS COVENANTS. 565 III, The Covenant for Further Assurance. 1023. In addition to the express covenants for quiet enjoyment, and against incumbrances, the landlord sometimes covenants to malie such further assurance as the tenant's counsel may advise to be essential for completing the transfer of the interest or term stipulated for. 1024. The covenant for further assurance runs with the land, and is, therefore, binding on the assignee of the reversion, and is as available to the assignee of the term as to the original lessee.^ 1025. Where the covenant is inserted in a lease the lessee may demand the removal of any incumbrance which may endanger his possession.^ But where a mortgagor covenants with the mort- gagee for further assurance such a covenant does not oblige him to release his equity of redemption.' ' 1026. Where a defect in a title is discovered, which can be wiped out by the grantor, a bill for specific performance may be maintained by tlie grantee. Thus, where there is a conveyance of a bad title with a covenant for further assurance, and subsequently the grantor obtains a good title, he can be compelled to confirm his title.* 1027. For a breach of this covenant the most usual remedy is a bill in equity for specific performance,* but the other remedies in cases of breach of covenant may also be resorted to." IV. The Covenant to Renem the Lease. (1.) Its Charader. 1028. Besides the covenants which relate to the title and enjoy- ment of the demised premises during the term, the lessor some- 1 Middlemore ». Goodale, Croke-Charles, 503; Colby v. Osgood, 24 Bar- bour (N. T.), 339; Bennett ». Waller, 23 Illinois, 97; see ante, page 531, \ 991 (2). V » See King v. Jones, 5 Taunton, 418, 427 (1 Englisli Common Law Ee- ports, 139, 143). 3 Atkins V. Uton, 1 Lord Raymond, 36. * Middlebury College « Cheney, 1 Vermont, 336, 849; Taylor v. Debar, I Cases in Chancery, 274 ; S. C, 2 Ibid. 212; see also Seabourne v. Powell, 2 Vernon, 10. « See anU, page 494, % 937. « Ibid. 566 BREACH OP EXPRESS COVENANTS- [CHAP. XVII. times covenants to renew the lease to the lessee at its expiration, for the same or some other term, as may be agreed upon. 1029. A covenant for the renewal of the lease rans with the land, binding the grantee or assignee of the reversion, and, if the lessee assign the lease, the assignee will be entitled to the renewal.' But the landlord has also the right to enforce this covenant, and the same right passes to the grantee or assignee of the land.'' A breach may also be assigned against the executor or heir of the lessor." 1030. In order that the lessee may be entitled to a renewal of his lease, all conditions precedent on his part must be performed, and then he may either proceed at law for damage for a breach, or in equity for specific performance of the covenant.* A right of renewal must be the result of an express covenant.* 1031. When a covenant for renewal is inserted in a lease it should be explicitly stated when or how the lessee is to give notice of his desire to have a renewal. Thus where a lease for five years contained a covenant that after the expiration of the term of five years the lessor will, if thereto desired by the lessee, make and ex- ecute to the lessee a lease of said premises for the further term of five years upon the same terms,, the Supreme Court of Errors of Connecticut (A.D. 1868) held that, to entitle the lessee to a renewal of the lease, it was necessary for him to declare his elec- tion befm-e the expiration of the original term of five years.* But 1 Barclay ». Steamship Company, 6 Philadelphia, 558 ; Eoe v. Hay ley, 12 East, 464, 469; Brook ■». Buckley, 12 Vesey, Sen., 498; Piggott v. Mason, 1 Paige (N. Y.), 412, 414; Richardson v. Sydenham, 2 Vernon, 447 ; see ante, page 532, \\ 991 (7). ' Rutgers v. Hunter, 6 Johnson's Chancery (N. T.), 215. 3 Furnival v. Crew, 3 Atkins, 83, 87. * Arnots. Alexander, 44 Missouii, 25i 6 House V. Burr & Spencer, 24 Barbour (N.Y.), 525, 8 Renoud v. Dasfeam, 34 Connecticut, 512. In this case the lease expired on March 31st The lessee being in possession on April 2d, the lessor demanded possession, and gave the lessee notice to quit, when the later stated his election to take a renewal of the lease and demanded the same. In delivering the opinion of the Court, Mr. Justice Park, at page 516, says: "Its (the lease) proper meaning is that the respondent (lessor) will give another lease of the premises for another term of five years, to commence from and after Me expi- ration of the first term, if thereto desired. The phrase ' after the expiration of said term of five years,' must have reference to the commencement of the second term, and not to the time when the lease should be given ; for if it has SEC. II.] THE landlord's EXPRESS COVENANTS. 667 where there was a lease for five years, with the right to extend the lease five years longer, if the lessee shall so elect at the expiration of the term, the Supreme Judicial Court of New Hampshire (A.D. 1871) seem to hold that the mere continuance in possession, after the expiration of the original term, was sufficient notice on the part of the lessee of his desire for a renewal of the lease for five years more.' And so where there was a lease for three years, yielding and paying a certain rent, and, at the election of the ten- ant, for a further term of two years, yielding and paying an in- creased rent, the Supreme Judicial Court ot Massachusetts (A.D. 1866), held that the election of the tenant to hold for the addi- tional term at the increased rent may be inferred from his contin- uing to occupy the premises and paying the rent for two quarters, at the increased rate, without proof of any formal election or notice to the lessor at the time of the expiration of the first term.'' But where there was a lease for five years, which contained a stipulation that the tenant was to have the privilege of renting the premises for reference to the giving of the lease, how long after shall it be given ? and in that case when will the second term commence ? No time is specified for either, and both would be left in doubt and uncertainty. The petitioner (lea- see) having neglected to express his desire for another term, cannot now re- quire that another lease should be given." See also Thiebaud v. First National Bank of Vevay, 42 Indiana, 212. 1 Clarke v. Merrill, 51 New Hampshire, 415. In delivering the opinion of the Court Mr. Jttsticb Ladd, at page 418, says : " Nothing is said about notice to the lessor of the election whether it was to bi. verbal or in writing, whether by words or acts. Suppose the lessee, at the expiration of the first five years, had quit the premises, sent the key to the landlord, and left the country, would there be any difficulty in holding such acts to be sufficient notice of his intention not to occupy or pay rent for another five years ? On the other hand, why was not his continuing in the possession equally significant and equally effective as notice of his purpose to extend the lease and occupy for the remain- ing five years? .... We do not say that it was necessary to the validity of the lease for five years more that the defendant should give the plaintiff formal, notice of his intention at all, except by continuing his occupation. Nor do- we say that an election made in his own mind, at the end of the first five years, and formal notice thereof five days afterwards would not be sufficient." And so in Delashman u. Berry (20 Michigan, 292), where the lease to the tenant, was for the terra of one year, with the privilege of having the same for three, years at the same rent, and at the option of the lessee, the Supreme Court of Michigan held that the tenant's actual continuance of possession, and after the end of the first year, though previous notice of such intention to continue not having been given, created a tenancy for the full term of three years. a Kramer v. Cook, 7 Gray (Mass.), 550. 568 BREACH OP EXPRESS COVENANTS. [O HAP. XVII. another term of five years at the same rent, and the tenant con- tinued in possession for eighteen months after the expiration of the original term, paying the rent as before, without making a de- mand for a renewal of the lease, the Supreme Court of Indiana (A.D. 1873) held that the continuing in possession and the pay- ment of rent by the tenant and the acceptance thereof by the land- lord did not amount to the creation of a new term for five years, and that under the covenant to renew the lease the tenant must have elected to renew the same, and must have given notice thereof at or before the expiration of the first term.' If notice is stipulated for, where there is an option for a further term, it must be given.' 1032. Where there is an unqualified covenant to renew a lease it implies the making of a new lease of the same premises, upon the same essential covenants and for the same term, as in the orig- inal lease. A stipulation to renew a lease does not necessarily imply a new lease with all the covenants contained in the former lease, some of which may be accidental covenants, and not essen- tial parts of a lease.' 1033. The courts do not favor perpetual renewals, and a cove- nant for renewal will not be construed to be perpetual, unless the intention of the parties is unequivocally expressed for continued renewals.* Thus a covenant in a lease to renew under the same covenants, is exclusive of the covenant of renewal,^ and of all cov- enants of the former lease that have been fulfilled, and are not continuous." And so, where the lease contained a covenant to grant a new lease, " with all covenants, grants, and articles, in this in- 1 Thiebaud v. First National Bank of Vevay, 42 Indiana, 212 ; and see nu- merous authorities there cited. 2 Houser v. Burr & Spencer, 24 Barbour (N. Y.), 525. s Eutgers v- Hunter, 6 Johnson's Chancery (N. Y.), 215, 218 ; Willis ji. As- tor, 4 Edwards's Chancery (N. Y.), 594 ; Creighton v. McKee, 7 Philadelphia, 324; Cunningham v. Pattee, 99 Massachusetts, 248, 252, and cases there cited. * Baynham v. Guy's Hospital, 3 Vesey, Jr., 295; Cooke «. Booth, 2 Cowper 819, 822 ; Hare v. Burgess, 4 Kay & Johnson, 45 ; Blackmore v. Boardman, 28 Missouri, 420, 42S ; Furnwal v. Crew, 3 Atkyns, 83; Moore v. Foley, 6 Vesey, Jr., 232, 237, per Sir William Grant, Master of the Rolls; Eutgers v. Hunter, 6 Johnson's Chancery (N. Y.), 215, 219; Piggott v. Mason, 1 Paige's Chancery (N. Y.), 412; Carr v. Ellison, 26 Wendell (N. Y.), 178. 6 Tritton v. Foote, 2 Brown's Chancery Eeports, *636; S. C, 2 Cox'a Chan- cery Cases, 173 ; Moore v. Foley, 6 Vesey, Jr., 282. Ibid.; Eyder v. Jenny, 2 Eobertson (N. Y.), 56. SBC. II.] THE landlord's EXPRESS COVENANTS. 569 denture contained," the Court of King's Bench (Lord Eilenborough, Chief Justice, delivering a learned and elaborate opinion) held that such a covenant was satisfied by the tender of a new lease contain- ing all the former covenants, except the covenant for further re- newal.' If, however, the lease contain a clear covenant for per- petual renewal, equity will decree a specific performance/ and it has been held by our Supreme Court that a perpetual lease may be created under the common law of Pennsylvania, inasmuch as. livery of seisin is not necessary to pass an estate, which may be equivalent to a fee simple.' (2.) Special Covenants for Renewal Construed. 1034. In the construction of covenants for renewal, the first question to be solved is, whether the renewed lease is, or is not, to contain a covenant for renewal. If the covenant to renew the lease implies a similar covenant in the renewed lease, then the right of renewal becomes perpetual, which the courts, as we have already stated,* do not favor, and will not enforce, unless it is perfectly clear that the covenant means a perpetual renewal. o. What Covenants Create a Covenant for Perpetual Renewal. 1035. The following covenants in a lease, on the part of the lessor, have been adjudged to amount to covenants for perpetual renewal : (1.) A covenant, that if, at the expiration of the term, the lessee should be desirous of taking a further lease, the lessor would grant such further lease without any fine, and under the same rent and covenants only, as in this lease. At the end of the origi- nal term the lessor refused to execute a new lease with a further covenant for renewal, on the ground that it was in the nature of ' Igguldfin V. May, 7 East, 237, 240 | S. C. in Equity before Lokd Chau- CBLLOR Eldon, 9 Vesey, Jr., 324. ' Furnival v . Crew, 8 Atl^yns, 83; Cook v. Booth, 2 Cowper, 819, 822; Moore i). Foley, 6 Vesey, Jr., 232, 236 ; Baynham v. Guy's Hospital, 3 Vesey, Jr., 295, 298; Iggulden v. May, 9 Ibid. 324; Hare v. Burges, 4 Kay & Johnson, 45 ; Blackmore v. Boardman, 28 Missouri, 420, 3 Effinger v. Lewis, 8 Casey, 867. * Ante, page 568, f 1033. 570 BREACH OP EXPRESS COVENANTS. [CHAP. XVII. a perpetuity upon his estate, but the Court of Exchequer ordered a renewal, with a similar covenant inserted.' (2.) A covenant to execute one or more leases, under the same rents and covenants as are expressed in these presents, and so to continue the renewing of such lease or leases to the lessees and his assigns.^ (3.) Where the lessor covenants that he would always, at any time when requested by the lessees, etc., demise the premises for the further term of thirty-one years, in which new lease or leases were to be contained and inserted the same rents, payments, reser- vations, covenants, articles, clauses, provisos, and agreements, as were thereinbefore mentioned and contained.' (4.) In a lease for lives, a covenant on the death of either of the oestuis que vies to execute a renewed lease at the same rent, and subject to the same covenants, " including this present cove- nant," the High Court of Chancery (Lord Vice-Chancellor Wood delivering the opinion) held that this was a covenant for perpetual renewal, and that the lessee was entitled to have inserted in the renewal lease' a covenant for renewal totidem verbis with that con- tained in the original lease, but with the name of the new cestui que vie substituted for that of the deceased.* (5.) In a lease for ten years a covenant that, at the end of the terra demised, the lease shall be renewed for the further term of ten years ; and so on, from time to time perpetually, at the option of the lessee, he giving to the lessor in every instance a notice in writing of his wish to renew the same three months at least before the end of the term.* (6.) In a lease for one hundred years, a covenant that the les- see, his heirs and assigns, might hold the premises so long as he and they should think proper, after the expiration of the term, at the same rent, was held by our Supreme Court to create a perpet- ual lease, at the will of the lessee.* ' Bridges v. Hitchcock, 5 Brown's Cases in Parliament (Tomlin's Edition), 6, 2 Furnival v. Crew, 3 Atkyns, 83. ' Copper Mining Company v. Beach, 13 Beavan, 478. * Hare v. Burges, 4 Kay & Johnson, 45 ; see also Hodges v. Blagrave, 18 Beavan, 404. 6 Blackmore v. Boardman, 28 Missouri, 420. ' Effinger v. Lewis, 8 Casey, 867 ; see also Foltz v. Huntley, 7 Wendell (S. y.), 210; Cook V. Bisbee, 18 Pickering (Mass.), 627. SEC. II.] THE landlord's EXPRESS COVENANTS. 571 (7.) A covenant to renew and continue to renew the lease on the same conditions.' (8.) A covenant for renewal, at any time during the continu- ance of this present demise, at and upon the same rent, and with and under the like covenants, provisos, and agreements, as are herein contained, so that this present demise shall and may be renewable, and renewed forever.^ b. What does not amount to a Covenant for Perpetual Renewal. 1036. The following covenants in a lease, on the part of a lessor, do not amount to a covenant for perpetual renewal : (1.) A general covenant for renewal under the same covenants and conditions. Such a covenant as was held by Sir William Grant, Master of the Rolls, does not include the covenant to renew, but means only a second lease, not a perpetuity of leases.' (2.) A covenant to execute a new lease for the further term of seven years to commence from the end of the term of twenty -one years hereby demised, subject to the same rents, and pursuant to the same exceptions, covenants, reservations, conditions, and agreements in all respects as are in and by the present indenture of lease mentioned and expressed, in case the lessee should desire the same.* (3.) A covenant to grant a new lease at the end of eighteen years of the term, or before, on request of the lessee, " for the like fine, for the like term of twenty-one years at the like yearly rent, with all covenants, grants, and articles, as in that indenture were contained," Lord Ellenborough, Chief Justice, delivering the opinion of the Court of King's Bench, held that such a covenant was satisfied by the tender of a new lease for twenty-one years, containing all the for-^ ler covenants, except the covenant for future renewal.^ (4.) A covenant to renew the lease under the like covenants, and at the same rents, at the request of the lessee within the term, 1 Pagei). Esty, 54 Maine, 319. 2 Banks v. Haskie, 45 Maryland, 207. 3 Moore v. Foley, 6 Vesey, Jr., :232, 236. * Tritton v. Poote, 2 Brown's Chancery, *636 ; S. C, 2 Cox's Chancery Cases [174J. 5 Iggulden v. May, 7 East, 237 ; S. C. in Equity, 9 Vesey, Jr., 324, per Lord Chancellor Eldon. 572 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. and the lessee did not request, but his executors did, the High Court of Chancery (Lord Macclesfield, Chancellor) ordered the lessor to renew the lease at the same rent and under the same covenants as were contained in the old lease, except the covenant of renewal, which was to be omitted.^ (6.) Where a lease for lives contained an agreement that upon the renewing or inserting of any life or lives, a certain sum shall be paid by the lessee, his heirs and assigns, to the lessor, his heirs and assigns, the House of Lords held that such a stipulation does not amount to a covenant for perpetual renewal.' (6.) Where in a lease of land for ninety-eight years there is a covenant that the lessor will, from time to time, renew the lease, and perfect such other assurances as the lessee, etc., should reason- ably require for strengthening, confirming, and sure-making the demised premises, at such rents, and under such covenants and conditions as in the lease were contained, the House of Lords held that this was not a covenant for perpetual renewal, but for con- firming and further assuring the original lease.' (7.) Where there was a covenant that upon the expiration of a term of sixty-one years, and a payment by the lessee of a certain fine, the lessor, his heirs and assigns, shall pass and perfect another immediate lease of sixty-one years more, at the like yearly rent and reservations, as in the present deed indented, the High Court of Parliament held that it was not obligatory upon the lessor to deliver a new lease with the covenant for renewal.^ (8.) A covenant in efifect to renew a lease at the rents, cove- nants, and reservations before expressed, was adjudged by the Court of King's Bench not to be a covenant for perpetual renewal.* (9.) A covenant to renew the lease at the expiration of the term does not entitle the holder of the original to a covenant for renewal in the new lease, as that would in effect create a perpe- tuity.^ 1 Hyde v. Skinner, 2 Peere Williams, 197 ; see report of this case in Inchi- quin V. Burnell, 3 Ridgway's Parliamentary Cases, 393. 2 Smith V. N^ngle, 7 Clark & Pinnelly's Appeal Cases, 405. ' Brown v. Tighe, 2 Clark & Finnelly's Appeal Cases, 896. * Inehiquin v. Burnell, 3 Ridgeway's Parliamentary Cases, 376. ' Kenny v. Ford, 1 Batty, 534. " Piggot V. Mason, 1 Paige (N. T.), 412 ; see also Eyder v. Jenny, 2 Robert- son (N. T.), 56, 68. SEC. II]. THE landlord's EXPRESS COVENANTS. 573 c. Other Covenants of Renewal. 1037. The following covenants of renewal have been specially construed : (1.) Where a lease for seven years concluded : " This lease to be renewable at the pleasure of the lessee," Judge Ludlow, in de- livering the opinion of the Court of Common Pleas of Philadel- phia, held that that clause " implies not only the right of renewal, but also upon the terms and for the time specified in the instru- ment, at the will and pleasure of the lessee, for at least another term." (2.) In a lease of a water-power or privilege for ten years a covenant that the lease shall, on certain terms, be renewed for an additional term of ten years, is equivalent to a provision that the lease shall be executed for the additional term upon the same con- ditions. Such a lease is a good lease for twenty years if the tenant complies with the stipulations specified.^ (3.) A covenant to renew at such rent and upon such terms as might be agreed upon between the parties, implies a lease at the same rent and for the same term.' (4.) Where a lease contains a provision that the tenant should pay taxes and assessments, and a covenant on the part of the land- lord that upon certain conditions he would make and execute a new lease for a further term at a certain rent, it was held that the new lease did not carry any of the old covenants with it, and that the lessor must give such new lease, exclusive of a covenant on the part of the tenant to pay taxes and assessments.* (5.) A covenant to renew the lease at the expiration of the term, provided the lessee is willing to give as much as any other respon- sible party will agree to give, was held by the Supreme Court of Missouri to fix the amount of rent with sufficient certainty so as to enforce the covenant.^ But a stipulation to renew a lease at its expiration, the rent to be proportioned to the valuation, if the premises demised at that time with no provision for determining 1 Creighton v. McKee, 7 Philadelphia, 324; S. C, 2 Brewster, 383. ' Banlet v. Cook, 44 New Hampshire, 512. ' Rutgers v. Hunter, 6 Johnson's Chancery (N. Y.), 215, 218. » Willis V. Astor, 4 Edwards's Chancery (N. T.), 594. o Arnot v. Alexander, 44 Missouri, 25. 574 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. that valuation, was held by the Supreme Court of Massachusetts too vague to be enforced in equity.' (6.) A covenant to renew an under lease for such further term as their leasehold estate in the premises may be renewed or ex- tended, was adjudged by the Supreme Court of Massachusetts not to be void for indefiniteness.^ (7.) A covenant in a lease that the lessee shall have the refusal of the premises demised at the expiration of the lease for three years longer, is a covenant to renew the lease at the same rent for such term.' A breach of this covenant occurs by the lessor's refusal to execute a new lease, except at an enhanced rent ;* and the acceptance by the lessee of a new lease at the increased rent after such breach, at the same time protesting against the right to exact the increased rent, and claiming to reserve his right of action for the breach, will not prevent him from recovering as damages, the difference between what the lessee was to have paid for the rent for the term, and what he was compelled to pay under the new lease.^ Under such a covenant the lessee is not bound to wait until the actual termination of the lease before he makes his election to have the lease renewed ; for the lessor must renew when the lessee makes his election and demands the renewal.' (3.) The Tenant's Remedies. 1038. When the tenant has substantially performed all the con- ditions which entitle him to a renewal of the lease, and is not guilty of gross laches in making his demand for a renewal, he has a right to elect whether he will proceed at law for damages for the breach, or in equity for specific performance.' If at law, the 1 Pray v. Clark, 113 Massachusetts, 283. 2 Cunningham v. Pattee, 99 Massachusetts, 248; as to what covenants are void for uncertainty see ante, page 545 » Tracy v. Albany Exchange Company, 7 New York (3 Selden), 472, 474, and cases there cited. ' Ibid. 475, and cases there cited. 6 Ibid. ; see also Driggs v. Dwight, 17 Wendell (N. T.), 71. ^ Tracy v. Albany Exchange Company, 7 New York (3 Selden), 472. ' Arnot 1!. Alexander, 44 Missouri, 25 ; Banks «. Haskie, 45 Maryland, 207; Reed v. St. John, 2 Daly (N. Y.), 213; Eaton v. Lyon, 3 Vesey, 690; MoAlpine v. Swift, 1 Ball & Beatty, 285. SBC. II.J THE landlord's EXPRESS COVENANTS. 575 actions of covenant and assumpsit are open to rilm ; and if in equity, a bill for specific performance.' 1039. While the construction of covenants is the same in equity as at law, yet the performance may differ in the two sides of the court. At law a covenant must be strictly and literally performed, while in equity substantial compliance according to the true intent and meaning of the parties so far as circumstances will admit, may be deemed sufficient. But a court of equity can only be invoked where a literal performance has been pre- vented by unavoidable accident, fraud, surprise, or ignorance not wilful, and upon compensation being made, the party in default having done everything in his power, and no injury being done to the lessor.^ As was said by Lord Chancellor Lifford : " When the lessee has lost his legal right, he must prove some fraud on the part of the lessor, by which he was debarred the exercise of his right, or some accident or misfortune on his own part which he could not prevent, by means whereof he was disabled from applying at the stated times for a renewal according to the terms of his lease.'" [a.) When Equity cannot he Invoiced. 1040. As to what will create a forfeiture of the tenant's right of renewal depends upon the terms of the covenant, and whether they have been sufficiently complied with or not. But it may be well to note the following instances when a court of equity will refuse a decree for specific performance of the covenant of re- newal : (1.) When the agreement to renew has been accompanied by fraud or misrepresentation.'' (2.) When the lessee has been guilty of gross laches, or wilful neglect, in demanding a renewal.' But in general it may be said ' See ante, page 494, where the authors have treated of the actions of cove- nant and assumpsit ; and ante, page 173, where bill for specific performance is discussed. ' Eaton V. Lyon, 3 Vesey, .Tr., 690, 692; Baynham v. Guy's Hospital, 3 Vesey, Jr., 295; Kawstone v. Bentley, 4 Brown's Chancery Reports, 415. ' Bateman v. Murray, 1 Ridgeway's Cases In Parliament, 187, 202. * See Pendred I) Griffith, 1 Brown's Cases in Parliament, 314; Willingham V. Joyce, 8 Vesey, Jr., 169. ' Eaton V. Lyon, 3 Vesey, Jr., 690; McAlpine ». Swift, 1 Ball & Beatty, 285. 576 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. that a renewal will be decreed where there has been a substantial compliance with the conditions upon which the renewal was to be made, and no inj ury has been done to the other party by the failure to do the act required strictly under the covenant.' (3.) When the lessee is guilty of such a breach of covenant in the lease as entitles the lessor to re-enter.^ (4.) When the lessee has wilfully violated express or implied covenants of the lease, such as committing waste or treating the premises demised in an unhusbandlike manner.' (5.) When the lessee has failed to give the notice of his election for renewal as may be required under the covenant.* But where there is a substantial compliance with the giving of notice of the tenant's election for renewal it is sufficient. Thus when the notice of the tenant's intention to renew was according to the letter of the condition to be m writing, Lord Chief Baron Richards held that a failure to give such written notice did not defeat the tenant's right, if it could be shown that a fair intimation of an intention to renew had been given in any way. And so where a notice of an inten- tion to renew was deposited in the post-office within the time, but did not reach the other party until afterwards, it was held sufficient in equity." (6.) When the lessee has failed to perform a condition precedent to the exercise of his election of a right of renewal. For example, where the lease contains a provision in case the lessee shall pay the rent punctually at the end of the term, repair, insure, erect a new dwelling-house upon the demised premises, annually quarry one thousand squares of slate, use the premises in a husbandlike 1 See Keed v. St. John, 2 Daly (N. T.), 213; Maxwell v. "Ward, 11 Price, 16; City of London v. Miiford, 14 Vesey, Jr., 40; Maxwell d. Ward, Mc- Cleland, 458, 464; Eyder v. Mitford, 109 Massachusetts, 67; Eawstone v. Bentley, 4 Brown's Chancery Cases, *415. ^ See the following cases where various breaches on the part of the tenant have occurred: Hill v. Barclay, 18 Vesey, Jr., 56; Gourlay ii. Somerset, 1 Vesey & Beame, 68; Lovat v. Banelagh, 3 Ibid. 24, 29 ; Gannett v. Albree, 103 Massachusetts, 372 ; Job v. Banister, 2 Kay & Johnson, 374 ; Thompson V. Guyon, 5 Simons, 65. : Ibid. ' Bradford v- Patton, 108 Massachusetts, 153; Husse v. Burr, 24 Barbour (JSr. Y.), 525. 6 Maxwell v. Ward, 11 Price, 3, 16. « Reed v. St. John, 2 Daly (N. Y.), 213; see also Hunter v. Hopetoun, 13 Law Times Reports (U. S.), 130. SEC. II.J THE landlord's EXPRESS COVENANTS. 577 mannerj or carry on a particular trade, etc., he shall have the privilege of renewal, and is guilty of a breach.^ V. The Covenant to Repair. (1.) Implied on the Part of the Tenant. 1041. The writers have already shown that the mere relation of landlord and tenant throws upon the lessee the burden with re- gard to keeping the demised premises in fair and tenantable repair so as to prevent waste and decay.'' The lessee is bound to deliver them up at the expiration of the term in as good a condition as he received them, reasonable tear and wear, destruction by a public enemy, fire, and accidental injuries excepted.^ 1042. In the recent case of Hoy v. Holt* (A.D. 1879) our Su- preme Court laid down the rule that where there is an express and unconditional agreement on the part of the tenant to repair and keep in repair the demised premises, or to deliver them up in reasonaable good condition and repair (not saying "damage by fire or the elements excepted," or to that effect), he is bound to do so, though the same be destroyed by fire or other accident.^ 1043. But as early as A.D. 1787 our Supreme Court, in the case of Pollard v. Shafier,* did not follow the general common- law rule as laid down in the case of Paradine v. Jane^ by the Court of King's Bench, in the twenty-third year of the reign of Charles T, viz. : " Where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwith- ' Job V. Banister, 2 Kay & Johnson, 374; Thompson «. Guyon, 5 Simons, 65; Statham v. Liverpool Docks, 3 Young & Jervis, 565; see also Kawstone V. Bentley, 4 Brown's Chancery Cases, *415. " Ante page 516, I 964. s Ibid. * 10 Norris, 889 ; see also cases there cited; Huston v- Springer, 2 liawle, 97, 100; Bullock v. Dommitt, 6 Term Reports, 650. 5 Por construction of covenant to make tenantable repairs see Huston v. Springer, 2 Eawle, 97, 100; Walz v. Rhodes, 1 Weekly Notes, 49. " Repair," says Mr. Justice Read, "means to restore to its former condition, not to change either the form or the material. If you are to repair a wooden build- ing you are not to make it brick, stone or iron, but you are to repair wood with wood:" Ardesco Oil Co. v. Richardson, 13 P. P. Smith, 162, 166. 6 1 Dallas, 210. ' Alleyn (London, A.D. 1681), 26, 27; see also Dyer, 33, a; Year Book, 40 Edward III, 6, b. 37 578 BREACH OP EXPRESS COVENANTS. [CHAP. XVII. standing any accident by inevitable necessity, because he might have provided against it by his contract ; therefore, if a lessee cov- enants to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it,'" so as to hold a lessee liable on his covenant to keep and deliver up premises demised in good repair when the same had been taken possession of by a hostile army, who partially destroyed them. In Pollard V. Shaifer {supra) the lessee covenanted to pay rent and to keep the demised premises (a sugar-house) in good repair, and to deliver them up to the lessor, at the end of the term, in such good repair, etc. Before the expiration of the term the British army took pos- session of the premises, which they held after the end of the term, having committed waste and destruction. The lessor brought covenant for rent in arrear and for breach of covenant to deliver up the premises at the end of the term in good repair. The lessee resisted payment of rent and liability for breach, and specially pleaded that before the expiration of the term an alien enemy had taken possession of the premises, and held the same until after the end of the term ; and that during that period they had committed waste and destruction. The Supreme Court decided that the lessee was bound to pay the rent for the whole term, but that he was ex- cused by the special matter pleaded from the covenant to repair.^ ' This rule has often been recognized as firmly established, and as a sound one: Piatt on Covenants, 582, 274, and authorities there cited. See also Ser- jeant Williams's learned notes to Walton v. Waterhouse, 2 Saunders, 826, 835 (Sir Edward Vaughan Williams's edition (A.D. 1871), and authori- ties there cited ; note (h) by Williams and cases cited) ; School District v. Dauchy, 25 Connecticut, 530, 536, and cases there cited ; School Trustees of Trenton?). Bennett, 3 Dutcher (N. J.), 513, 527, and cases there cited; Der- mott V. Jones, 2 Wallace (U. S. S. Ct.), 1, 7, 8 ; Leavitt v. Fletcher, 10 Allen (Mass.), 119, 121, and authorities there cited. ^ In delivering the opinion of the Supreme Court Chief Justice McKean says: " I am of opinion that the defendant (lessee) is excused from his cove- nant to deliver up the promises in good repair on the 1st of March, 1778 ; — 1st, Because a covenant to do this, against an act of God or an enemy, ought to be .ipecial and express, and so clear that no other meaning could be put upon it. 2dly. Because the defendant had no consideration, no premium for this risk, and it was not in the contemplation of either party. And, lastly. Because equality is equity, and the loss should be divided ; — he who had the term will use the temporary profits of the premises, and he who hath the reversion will bear the loss done to the permanent buildings. Neither party has been guilty of any default ; the injury has been done by a common enemy whom both SEC. II.l THE LANBLORD'S EXPRESS COVENANTS. 579 1044. And the Supreme Court of New York (A.D. 1849) held that where the lessee covenants to surrender up the pos- session of the premises, at the expiration of the lease, in the same condition they were in at the time of making the lease, natural wear and tear excepted, without covenanting to repair or rebuild, and the premises are destroyed by fire during the continuance of the term, the lessee is not bound to put up new buildings in the place of those consumed.' And where in a lease of a lot of land with all the appurtenances thereto belonging, consisting of a grist- mill, a saw-mill, and a carding-mill, with their appurtenances, the lessee covenanted "to return the said property with all its appurtenances," at the expiration of the term ; the Court of Ap- peals of Virginia held that the lessee was not bound to rebuild the grist-mill, saw-mill, and carding-mill which had been acci- dentally consumed by fire, and return them as he received them.' (2.) Not Implied on the Part of the Landlord. 1045. There is no covenant or promise implied on the part of the landlord that he will make repairs ; unless the landlord bind himself by an express covenant to repair, he is not liable for any repairs whatever.' Thus, where there was a lease of a house, with the use of a pump standing on the landlord's premises, the tenant has no remedy against the lessor for suffering the pump to be out of repair, unless the latter has expressly agreed to keep it in repair.* together could not possibly resist or prevent, and the premises would have been thus damnified in the possession of the plaintiff himself." The soundness of the case of Pollard v. Shaffer (supra) has been questioned «o far as it decides that a lessee's covenant, to surrender demised premises at the expiration of the term in good repair was not broken when the same had been partially destroyed by a hostile enemy. See Warner v. Hitohins & Leonard, 50 Barbour (N. Y.), 666, 671 ; Metcalf on Contracts, 213. But our Supreme Court recently (A.D. 1879) commented favorably upon its former decision. See Hoy v. Holt, 10 Norris, 88, 91 f see also Maggort v. Hansbarger, 8 Leigh (Vir.), 532, 537. 1 Warner v. Hitchins & Leonard, 5 Barbour, 666 ; see also Howeth v- An- derson, 25 Texas, 557, 571. ' Maggort 11. Hansbarger, 8 Leigh, 532. ' Ante, page 515, \ 963; see also Walz v. Rhodes, 1 Weekly Notes, 49; Arden v. Pullen, 10 Meeson & Welsby, 321, 327; Witty v. Matthews, 62 New York (7 Sickels), 612, 514, and cases there cited ; Mumford v. Brown, 6 Cowen (N. Y.), 475. * Pomfort v. Eicroft, 1 Saunders, 321. 580 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. 1046. Where demised premises are held by a trustee, under a will, which directs him to keep them in repair, the untenantable condition of the same is no defence to an action for rent, in the absence of a covenant in the lease, that the lessor shall repair, even though the lease in terms is made subject to tlie provisions of the will.' Where there is no agreement or obligation on the part of the landlord to repair the premises, the lessee cannot set up the want of repairs, either as a defence to, or in reduction of the claim for rent.'' Nor can he set off against the landlord's demand for rent, ordinary repairs, to keep the premises in the same condition in which they were at the time of the letting.' Nor can a tenant in an account with his landlord charge permanent repairs on the leased property, if he made them without the consent of the landlord.* 1047. Where the landlord voluntarily, and at the request of the tenant, makes certain repairs for the benefit of the tenant, or for the property, so as to prevent the dilapidation, no presumption arises that he contracted to repair.* 1048. And it has even been held that if, after the execution of the lease, the lessor is under no legal obligation to make repairs, but notwithstanding promises to make them, his promises are without consideration, and will not support an action in case of a breach.' And a subsequent oral agreement to repair where the tenant finds the premises untenantable, without a new considera- tion therefor, is not binding, and the continuance of the tenant in the occupation is not a sufficient consideration.' But an oral agreement, modifying a lease under seal, is valid when such agree- ment is for a new consideration, and not within the Statute of Frauds.* ' Wheeler v. Crawford, 5 Norris, 327 | S. C. 6 Weekly Notes, 172. ' Moffatt V. Smith, 6 New York, 126. ' Kline v. Jacobs, 18 P. F. Smith, 57, 59; Hitner v. Ege, 11 Harris, 305, 308. * Long V. Fitzsimmons, 1 Watts & Sergeant, 580, 532 ; Kline v. Jacobs, 18 P. F. Smith, 57, 60, and cases there cited. ' Moore v. Weber, 21 P. P. Smith, 429, 432. « Libby v. Tolford, 48 Maine, 816 ; Proctor v. Keith, 12 Kentucky (B. Mon- roe), 252; Gottsberger v. Radway, 2 Hilton (N. Y.), 342. ' Speckels v. Sax, 1 E. D. Smith (N. Y.), 253 | see also Smith v. Ankrim, 13 Sergeant & Eawle, 89. 8 Wilgus V. Whitehead, 8 Norris, 131 ; S. C. 6 Weekly Notes, 537. SEC. II.] THE landlord's EXPRESS COVENANTS. 581 1049. Where the lessee covenants to repair, with express ex- ception of casualties by fire, and afterwards the premises are de- stroyed by fire, and the lessor, having had them insured, recovers the insurance-money, the lessee cannot compel him either at law, or in equity, to expend the money so recovered in rebuilding un- less he has expressly covenanted to do so.^ Nor does a mere cove- nant for quiet enjoyment cast such an obligation upon the land- lord.* The exception of casualties by fire, tempest, or other acci- dent, in the lessee's covenant to repair, does not raise an implied covenant on the part of the lessor to rebuild or repair damages, occasioned by such causes ;' and in such a case if the lessee cove- nant to pay rent he has no defence either in law or equity to an action of covenant to recover the stipulated rent.* The tenant must continue the payment of rent until the expiration of the term, though the premises become untenantable. 1050. By the custom of the county of Philadelphia, it is the implied duty of the landlord to keep the privy wells on demised premises clean and in good condition.^ (3.) When Expressed on the Part of the Landlord. 1051. When the landlord enters into an agreement to repair, and such a covenant is expressed in the letting, the lessee's implied responsibility for repairs ceases, for no obligation can be implied where there is an express stipulation on the subject.* 1052. Where a landlord covenants that he will pay for all re- pairs exceeding a certain sum, the covenant cannot be so construed as to oblige him to make the repairs.^ 1053. When the landlord covenants to put the premises into good and tenantable repair, and the lessee covenants to keep them 1 Pindard v. Ainsley & Rutter, cited in Belfour v. Weston, 10 Term Ee- ports, 310, 312; Leeds ». Cheatham, 1 Simons, 146. 2 Brown v. Quilter, 2 Ambler, 619; Bayne v. Walker, 3 Dow, 233. ' See Weigall v. Waters, 6 Term Reports, 488, per Lord Kenton, Ch. J.- Ellis & Medwin J). Sandham, 1 Ibid. 705, 710. •* Magaw V. Lambert, 3 Barr, 444 ; Hoy v. Holt, 10 Norris, 88, 90, and cases there cited; Hitchins v. Warner, 5 Barbour (N. T.), 666,669; Monka. Cooper 2 Lord Raymond, 1477. ' Scheerer v. Dickson, 7 Philadelphia, 472; S. C. 3 Brewster, 276. 6 Ante, page 487, \ 927. ' Louis V. Eeutter, 9 Watts, 516. 582 BREACH OF EXPRESS COVENANTS. [CHAP. XVII. in such repair, the performance of the former covenant is a condi- tion precedent to requiring peformance of the latter. 1054. Where no definite time has been agreed upon when the landlord shall repair, he is not in default until he has received no- tice of want of repairs.^ It is incumbent upon the lessee to give the lessor notice to make repairs.' And the lessor is in default only after a sufficient time has been afforded him for the purpose.* 1055. Where the landlord simply covenants to make repairs, such covenant does not extend to improvements of the soil, or to other matters, which are good husbandry on the part of the ten- ant, nor to new buildings of any kind, but gimply to a restoration to a sound state of what had gone into partial decay or dilapida- tion, or bettering of what had been destroyed in part.^ (4.) When there is a Breach of a Covenant to. Repair. 1056. A breach of covenant to repair, on the part of the land- lord, has been adjudged to occur under the following circum- stances : (1.) Where there was a general covenant to repair, and the lessor fails to keep the premises in good repair, or to put them in that con- dition, even though the lessee has entered upon the premises,^ or even though the disrepair results from the lessee's negligence in the use of the premises.' (2.) Where, in the leasing of premises for a first-class hotel, the lessor covenanted "to keep the said hotel and premises in good necessary repair, during the term, at his own proper charge and expense," and permits the chimney-flues to remain in such a condition that-the rooms cannot be used with a fire in consequence of the issuing of smoke from the grate into the rooms whenever a fire is lighted therein.' 1 Coward v, Gregory, Law Reports, 2 Common Pleas, 153. 2 Markin v. Wilkinson, Law Reports, 6 Exchequer, 25 ; Gerzebex v. Lord, 33 New Jersey (4 Vroom), 240. 3 Wolcottt). Sullivan, 6 Paige (N. T.), 118. * Walker v. Gilbert, 2 Robertson (N. T.), 214, 221 ; Lunn v. Gage, 37 Illi- nois, 19. s See Cornell v. Vanartsdalen, 4 Barr, 364, 370, per Rogers, J. 6 Ward & Grove v. Kelsey, 88 New York (11 Tiffany), 80. ' Plynn v- Trask, 11 Allen (Mass.), 550. 6 Myers v. Burns, 35 New York (8 Tiffany), 269. In delivering the opinion SEC. II.J THE landlord's EXPRESS COVENANTS. 583 (3.) Where the lessor covenanted to put the demised premises " in good condition and repair, and so keep and maintain them while the lessee used and occupied them," and afterwards the lessor is guilty of negligence in failing to keep the premises in repair, whereby water flowed into the tenement and compelled the lessee to vacate it. The breach of the covenant is not de- feated by such negligence on the part of the lessee as contributed to the injury, inasmuch as the lessor also was guilty of negligence in failing to keep his covenant.' (4.) Where the lessor covenanted to do all necessary repairs, and afterwards fails to keep the floors tight, if they were so when originally constructed and became leaky without fault of the lessee, and if the lessee's business requires the floors to be tight.^ (5.) Where the lessor expressly covenanted to repair, and after- wards fails to rebuild premises destroyed by fire.' (6.) Where the lessor covenanted that in case of damage by fire to the demised buildings, rendering them untenantable, he will repair the same, and afterwards fails to rebuild them in case of total destruction by fire.* (5.) Where there is no Breach of a Covenant to Repair. 1057. A breach of covenant to repair, on the part of the land- lord, has been adjudged not to occur under the following circum- stances : (1.) Where the lessor expressly covenanted to repair without of the Court of Appeals Judge Hunt says : " A house or a room that cannot be comfortably and safely inhabited is not in good repair Nor is it important either to the tenant or landlord whether such defects in the flues are caused by dilapidation or arise from original misconstraction The party agrees to ' keep ' in repair, and if to keep in repair it is necessary that the rooms should first be put in repair, the lessor is bound to perform that duty: (Mayneon Damages, 133; 92 Law Library; Payne v. Haine, 16 Meeson & Welsby, 541.) There is no covenant that the rooms be kept in tlieir then condition of repair, and no exception of natural wear and natural decay; but good repair and good condition, at all times, is the fair intent of the agree- ment." 1 Flynn v. Trask, 11 Allen (Mass.), 550. 2 Ward & Grove v. Kelsey, 38 New York (11 Tiffany), 80. " Flynn o. Trask, 11 Allen (Mass.), 550; Leavitt v. Fisher, 10 Ibid. 110; See post page 534, ^ 1058. i Allen V. Culver, 3 Denio (N. T.), 284, 294. 584 BKBAOH OF EXPRESS COVENANTS. [CHAP. XVII. any stipulations as to when the same shall be made, and the lessee gave no notice of want of repair.' (2.) "Where the lessor covenanted to make certain repairs during the tenancy, no definite time being indicated, and no demand for performance is made by lessee. A notice to perform from the lessee is requisite to put the lessor in default.^ (3.) Where the lessor covenanted to keep a mill in necessary repairs, fails to add improvements or make additions. Under such a covenant the lessor is only bound to renew existing ma- chinery when too old and worn to answer its purpose in the mill.' (4.) Where the lessor covenanted to build on the demised prem- ises, which he did, according to the specifications agreed upon, and afterwards fails to rebuild the premises destroyed by fire.* (5.) Where the lessor covenanted that, in case the premises shall be burned down, he will rebuild and replace them in the same state they were in before the fire, and after a destruction by fire fails to rebuild additional parts which had been made by the lessee. Under such a covenant the lessor is only bound to restore tlie premises to the state in which they were before he let them.^ (6.) On whom Binding, and by whom Available. 1058. The covenant to repair, as we have already stated,^ is one of those covenants which runs with the land, and is, therefore, binding on the grantee or assignee of the reversion, and may be made available, not only by a lessee, but also by an assignee of the term, or by an undertenant.' Thus where a lessor covenanted to repair, in case of damage by fire, the grantee of the reversion was held bound to rebuild the demised premises which were wholly destroyed by fire.^ (7.) The Tenant's Remedies for a Breach. 1059. For a breach of the covenant to repair the action of cov- 1 Mukin 11. Watkinson, Law Reports, 6 Exchequer, 36. a Gerzebek v. Lord & Redmond, 3S New Jersey Law (4 Vroom), 240. » Cooke V. Itagland, 27 Maryland, 14. * Cowell V. Lutnley, 39 California, 151. 6 Loader v. Kemp, 2 Carringfon & Payne, 375 (12 English Common Law Reports, 180). « See ante, page 532, f 991 (11). ' Ibid. 581, f 990. 8 Allen 0. Culver, 3 Denio (N. Y.), 284. SEC. II.] THE LANDLOED'S EXPRESS COYBNANTS. 585 enant, assumpsit, or trespass may be resorted to for the recovery of damages.' 1060. If the landlord fail to repair, there is no implied condi- tion that the tenant may quit the premises if the repairs are not done, nor is he released from payment of rent, but must seek his remedy upon the covenant,' or, in a suit for rent, he may recover his damages occasioned by a breach of the covenant to repair." The covenant on the part of the landlord to repair, and that of the tenant to pay rent, are independent covenants, and a breach of the former is no bar to an action on the latter.* And so where the tenant took a lease for another term, upon the landlord agreeing to make certain improvements and additions, which he subse- quently refused to do, our Supreme Court decided that if the tenant held and enjoyed the demised premises the covenant on the part of the landlord to repair and make additions to the prem- ises were subordinate to the tenant's covenant to pay rent, and did not go to the essence of the contract so as to defeat the rent in toto.^ 1061. The Court of King's Bench held that a landlord having no right to enter upon his tenant's premises to make repairs with- out some stipulations to that effect, the tenant may bring tres- pass for recovering damages when the landlord so enters without first having obtained his assent." And our Supreme Court has decided that if a landlord take poseession of the ruins of his premises destroyed by fire for the purpose of rebuilding, without the consent of his tenant, it is an eviction ; if with his assent, it is a rescission of the lease, and in either case the rent is suspended."' 1 For a treatment of these remedies, see ante, page 494, 1[ 937 ; see also Allen V. Culver, 3 Denio (N. Y.), 284. ^ Surplice v. Farusworth, 7 Manning & Granger, 576 (49 English Common Law Eeports, 574) ; Sutton v. Temple, 12 Meeson & Welsby, 52 ; Speckels v. Sax, 1 E. D. Smith (N. Y.), 253. ' Black V- Ebner, 54 Indiana, 544; Prescott v. Otterstatter, 4 Norris, 534. * Pindar ;,. Ainsley & Butter, cited in Belforer v. Weston, 1 Term Re- ports, 310, 312. " Prescott V. Otterstatter, 4 Norris, 534 ; see also Obermeyer v. Nichols, 6 Binney, 159. " Barker v. Barker, 3 Carrington & Payne, 557 (14 English Common Law Reports, 447). ' Magaw V. Lambert, 3 Barr, 444; Hoveler v. Fleming & Co., 10 Norris, S22, 126 ; S. C. 9 Weekly Notes, 65. 586 BREACH OF EXPRESS COVENANTS. [CHAP. XTII. 1062. A. bill in equity for specific performance of covenants to repair cannot usually be maintained, on the ground that, with rare exceptions, there is a complete and adequate remedy at law.' Thus the Court of Appeals of New York (A. D. 1874) held that equity will not enforce the specific performance of a covenant con- tained in a lease, on the part of a lessor, to repair damages caused by fire.' But when it appears that the tenant would be irrepara- bly injured without a specific performance of the covenant to re- pair, and that damages would not afford a sufficient compensation, specific performance may be decreed.' And where the lessor hav- ing agreed to put the demised house " in complete, substantial, and decorative repair," whereupon the lessee entered into posses- sion in the full expectation and belief that the premises would be so repaired, the lessor refusing to perform his contract, Vice-Chan- cellor Stuart decreed specific performance, and directed an inquiry whether the agreement as to repairs had been properly performed, and, if not, then an inquiry as to damages.* (8.) The Amount of Damages Recoverable. 1063. Upon a breach of the covenant to repair the general rule with regard to the measure of damages is that the tenant is enti- tled to recover the actual loss which he may have sustained by reason of the landlord's default. 1064. After waiting a reasonable time after having notified the landlord of the want of repairs, the tenant may make the repairs covenanted to be made by the landlord, and recover as damages the expenses of such repairs, even when they exceed what it would have cost the landlord had he employed his own mechanics, to- gether with remuneration for all expenditures of money, time, and labor in making the repairs, and compensation for the loss of the use of the premises while they are being placed in the condition 1 London v. Nash, 3 Atkyne, 512, 515; S. C. 1 Vesey, 11. See, also, 1 Story's Equity Jurisprudence, sections 725, 726, 727 ; Waterman on the Spe- cific Performance of Contracts, section 31 ; Fry on Specific Performance, 19, section 48. 2 Beck V. Allison, 56 New York, 386, opinion by Judge Gkover, in which many authorities are collated and discussed. 1 Valloton V. Seignett, 2 Abbott Practice Reports, 121 (A. D. 1855). * Samuda v- Lawford & Kelly, 8 Jurist, New Series, 73£i. SBC. II.J THE landlord's EXPRESS COVENANTS. 587 in which the landlord should have kept them.' The tenant is also entitled to be remunerated for all direct and immediate damages Resulting from the neglect of the landlord to make the repairs under his covenant, and which it was not in the power of the ten- ant easily to have avoided.' But where the tenant proved loss of custom in his business occasioned by the non-repair of a demised mill, it was held to be too speculative, and dependent upon too many and remote contingencies to constitute a proper ground for damages.' 1065. The tenant may at his option leave the premises unre- paired, and recover the damages actually sustained by reason of the default of the landlord in performing his covenant.* He may recover damages sustained by the loss of the use of certain parts of the demised premises rendered untentantable for want of re- pairs." 1066. Where a lessor ap-rees to reimburse a lessee for money ex- pended in repairs, the lessee may maintain an action to recover the same, though he has previously paid rent without claiming a de- duction for repairs.' But a promise on the part of the landlord to pay the tenant for repairs does not include improvements to the soil, or other matters which are only good husbandry, or new buildings of any kind, but simply a restoration to a sound state of old or dilapidated buildings, or bettering of what has been de- stroyed in part.'' 1067. While the general rule is, that the occupant, and not the owner, as such, is responsible for injuries received in consequence of a failure to keep the premises occupied in repair, yet where the landlord has agreed to keep the premises in repair, or where they are leased with a nuisance upon them, he becomes liable to the party injured by the defect and want of repair, or by reason of the nuisance.* But where a tenant suffers a nuisance on the premises "■ Middlekauffi). Smith, 1 Maryland, 329, 343, per Mason, J., and authori- ties there cited ; Myers v. Bums, 35 New York, 269 ; Hexter v. Knox, 3 New York, 561. 2 Middlekauff v. Smith, 1 Maryland, 329, 344, per Mason, J. => Ibid. * Buck v. Eodgers, 39 Indiana, 222. " Myers v. Burns, 35 New York, 269 ; Hexter v. Knox, 63 New York, 561. s Caulk V. Everly, 6 Wharton, 303. ' Cornell u. Vanartsdalen, 4 Barr, 364, 370. " Gridley v. City of Bloomington, 68 Illinois, 47, 51, and authorities there cited. 588 BREACH OF EXPRESS COVENANTS. [CHAP, XVII. he becomes liable therefor.' And where the lessee covenants to keep the premises in good repair, he is liable for damages caused a neighbor by a nuisance which he created, through the careless manner in which he carried on his business.^ Such a covenant binds the tenant to keep the premises at least in such order as not to be a nuisance to the neighbors.^ It seems, however, that if the nuisance had arisen wholly from the nature of the premises, and not from the act or neglect of the tenant, he would not be liable.'' VI. The Ccmmiard to Rebuild. 1068. The landlord sometimes covenants to rebuild the prem- ises in case they are destroyed by fire, the elements, or other accident. Under such a covenant the landlord is only bound to restore the demised premises to the same state in which they were before he let them, and need not rebuild additions or improve- ments made by his tenant.' 1069. The covenant to rebuild is so intimately connected with the covenant to repair that where the latter is entered into by the landlord it comprises the former.* Thus, where the lessor cove- nants to repair in case of damage to the buildings on the demised premises by fire, rendering them untenantable, the grantee of the reversion was held bound to rebuild houses wholly destroyed by fire.^ The reader is referred to the treatment of the covenant to repair.^ 1070. Like the covenant to repair, the covenant to build runs with the land, and is, therefore, binding on the grantee or assignee of the reversion, and may be made available by an assignee of the term, or by an under-tenant.' 1071. For a breach of the covenant to build, the action of cov- ' St. Louis V. Kaim, 2 Missouri Appeal, 66. 2 Somers'B Appeal, 6 Weekly Notes, 441. ^ Loader v. Kemp, 2 Carrington & Payne, 375 (12 English Common Law Reports, 180). ' See Leavitt v. Fletcher, 10 Allen (Mass.), 119; Plynn o. Trask, 11 Ibid. 650 ; Sampson v. Easterby, 9 Barnewall & Cresswell, 505 (17 English Com- mon Law Reports, 428) ; S. C. 1 Crompton & Jervis, 105. 6 Allen V. Culver, 3 Denio (N. Y.}, 284. ■> Ante, page 577 et seq. » Ante, page 532, \ 991 (11). SEC. II.] THE landlord's EXPRESS COVENANTS. 589 enant, assumpsit, or trespass may be resorted to for the recovery of damages,' or a bill in equity for specific performance.' VII. Other Covenants. 1072. The covenants for quiet enjoyment, against incumbrances, for further assurance, for renewal, to repair, and to rebuild, are the most usual covenants entered into by the landlord. But there may be other covenants, according to the nature and objects of the letting, or the intention of the parties. But we have seen that only such covenants as run with the land are binding upon the grantee or assignee of the reversion.' 1 See ante, page 494, f 937. 2 See City of London v. Nash, 3 Atkins, 515 j Franklin . Tuton, 5 Maddox, 469 ; see also, ante, page 495, ^ 937. 8 See ante, page 626, If 985. IFor forms of procedure, see Appendix.'] 590 WRONGFUL DISTRESSES. [CHAP. XVIII. CHAPTER XVIII. Wrongful Disteesses. SECTION I. DISTIKCTIOITS IK ENGLAND, BUT NONE IN PENNSYIiVAITIA. 1073. The seventh wrong which a tenant may suffer from the action of his landlord or of his landlord's bailiff,'is that of a distress illegally made or improperly conducted. 1074. Some writers' divide this wrong into — First. An illegal or wrongful distress, which is when the land- lord's distraint is made when he has no legal right to make it ; i. e., when no rent is due at the time, or not so n^uch rent as is distrained for, or where an excessive distress is taken, or where goods «re distrained 'which are not by law the subject of a distress. Second. An irregular distress, which occurs when the landlord, or bis bailiff, having the legal right to distrain, exercises it in an irregular or illegal manner, or does not pursue the distress in conformity with the statutes by which it is regulated. 1075. Such a division is appropriate to an English work on the law of landlord and tenant, since the statute-of 1 1 George II, chap- ter 19, section 19' {not in force in Pennsylvania^), established such ' See Archbold's Landlord and Tenant, *286 (53 Law Library); Woodfall's Landlord and Tenant, 490 (11th ed.) ; Pawoett's Landlord and Tenant, 175, 180; Smith's Landlord and Tenant, *180; Comyn's Landlord and Ten- ant, *553 (6 Law Library) ; Smith & Soldeu's Landlord and Tenant, 167 (2d ed.). 2 2 Revised Statutes, 407, 413 ; 6 Statutes at Large, 296, 300 (EuflFhead'3 ed.). See ^os<, page 618, 1[ 1092. ' Kerr v. Sharp, 14 Sergeant & Kawle, 399, 403 ; Waitt ». Ewing, 7 Philadelphia, 195. See Keport-of Judges, 3 Binney, 626 ; Koberts's Digest, *236. SBC. II.] DIFFERENCE IN DISTRESS. 591 a distinction by providing that where a distress is made for rent in arrear, and the distrainer, afterwards, in conducting the same, acts in an irregular or unlawful manner, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio, but the party grieved may have redress by an action of trespass or on the case. At common law, before the passage of this statute, if any irregularity was committed in the proceedings of a distress, it viti- ated the whole distress, and made the distrainer a trespasser ab initio.^ 1076. The nineteenth section of the statute of 11 George II relieves the landlord, in England, from the peril formerly inci- dental to any irregularity in conducting a distress ; but, inasmuch as it is not in force in Pennsylvania,' and as the legislature has passed no act analogous thereto, the law remains the same with us as it was in England prior to the passage of the statute, A.D. 1738. That is, where a landlord, or his bailiff, attempts to enforce the severe remedy of distress, and does so in an irregular and unlawful manner, he becomes a trespasser ab initio, and as such is liable to the usual common-law actions,' and this notwithstand- ing the provisions of the 13th section of the act of 21st March, 1806.* Therefore in writing on the subject of wrongful distresses, the authors will do so without regard to the division of the same, as being either illegal or irregular. SECTION TL. DIFFERENCE BETWEEN DISTRESS IN ENGLAND AND IN PENNSTL- VANIA. 1077. The difference that existed relative to the law of dis- tress for rent in arrear, between the law in England and in the ' Gilbert's Distress and Eeplevin (Impey's ed.), 73; Six Carpenters' Case, 1 Smith's Leading Cases, *216, *219, *221 (7th Am. ed.), and authorities there cited. 2 Kerr v. Sharp, 14 Sergeant & Kawle, 399, 403; Eeport of Judges, 8 Bin- ney, 626 ; Eoberts's Digest, *236, s Eees V. Bmerick, 6 Sergeant & Eawle, 285; Kerr v. Sharp, 14 Ibid. 399, 402 ; Brisben v. Wilson, 10 P.F. Smith, 452, 458. * 4 Smith's La-ws, 332 ; Eees v. Emerick, 6 Sergeant & Eawle, 286, 289. 592 WRONGFUL DISTRESSES. [CHAP. XVIII. province of Pennsylvania prior to the passage of our act of 21st March, 1772/ arose from the fact that certain statutes on the sub- ject passed by the British Parliament had not been extended to the colonies. The most important of these were : 1st. The statute of 2 William and Mary, chapter 5' (A.D. 16901. 2d. The statute of 8 Anne, chapter 18' (A.D. 1709). 3d. The statute of 11 George II, chapter 19* (A.D. 1738). These statutes have often been referred to in the decisions of our Supreme Court, and from them the greater part of our act of 21st March, 1772 was compiled. 1078. To the end that the reader may have before his eyes the state of the law of distress prior to our act of 21st March, 1772, the writers will give : First. The British statutes relating to distress, in force in Penn- sylvania ; Secondly. Certain sections of the British statutes not in force in Pennsylvania, but from whence our act of 21st March, 1772, was compiled ; and Thirdly. Certain sections of the British statutes not in force in Pennsylvania, and from whence our act of 21st March, 1772, was not compiled. I. British Statutes in Force, 1079. The following British statutes, relating to distress, are in force in Pennsylvania: (1.) The statute of Marlebridge, 52 Henry III, chap. 4' (A.D. 1267), which provides as follows : "None from henceforth shall cause any distress that he hath taken, to be driven out of the county where it was taken ; and if one neighbor do so to another of his own authority, and without judgment, he shall make fine (as above is said) as for a thing done against the peace : Nevertheless, if the lord presume to do so against his tenant, he shall be grievously punished by amerciament. Moreover, distresses shall be reasonable and not too great. And he that taketh great and unreasonable distresses, shall be grievously amerced for the excess of such distresses."" 1 Smith's Laws, 370. » 2 Eevisad Statutes, 15 ; 3 Statutes at Large, 446 (Euffhead's ed.). ' » 2 Ibid. 219 ; 4 Ibid. 409. * 2 Revised Statutes, 413 ; 6 Ibid. 296. s Koberts's Digest, *170. • But see post, page 625, ^ 1111. SBO. ir.] DIFFEEBNCB IN DISTRESS. 593 (2.) The statute of 52 Henry III, chap. 15^ (A.D. 1267), which provides as follows : "It shall be lawful for no man from henceforth, for any manner of cause, to take distresses out of his fee, nor in tlie king's highway, nor in the common street, but only to the king or his oflBcers haying special authority to do the same." (3.) The statute of 1 and 2 Philip and Mary, chap. 17' (A.D. 1554), which provides as follows : " For the avoiding of grievous vexations, exactions, troubles and disor- der in taking of distresses, and impounding of cattle. Be it enacted by the authority of this present Parliament, That from and after the first day of April next coming, no distress of cattle shall be driven out of the hundred, rape, wapentake or lathe where such distress is or shall be taken, except that it be to a pound overt within the same shire, not above three miles distant from the place where the said distress is taken ; And that no cattle or other goods distrained or taken by way of distress for any manner of cause at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevies for the delivery of the said distress, so taken at one time •, upon pain every person offending contrary to this act, shall forfeit to the party grieved, for every such offence, a hundred shillings, and treble damages." (4.) The statute of 17 Charles II, chap. 7' (A.D. 1671), which, however, more particularly relates to the replevin of a distress, provides as follows: " Sec. 2. Whensoever any plaintiff in replevin shall be non-suit before issue joined, in any suit of replevin by plaint or writ lawfully returned, recovered or depending in any of the king's courts at "Westminster, that the defendant making a suggestion in the nature of an avowry or cog- nizance for such rent, to ascertain the court of the laws of distress, the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken, to inquire by the oath of twelve good and lawful men of his bailiwick, touching the sum in arrear, as to the time of such distress taken, and the value of the goods or cattle distrained, and thereupon notice of fifteen days shall be given to the plaintiff or his attor- ney in court of the writing of such inquiry ; and thereupon the sheriff shall inquire of the truth of the matters contained in such writ by the oaths of twelve good and lawful men of his county ; and upon the return of such inquisition, the defendant shall have judgment to recover against the I Eoberts'a Digest, *171. ' Ibid. *172. ' Ibid., *176. See post, page , where the writers show that this statute ia in force in PennsylTania. 38 594 WRONGFUL DISTRESSES. [CHAP. XVIII. plaintiff the arrearages of such rent, in case the goods and cattle dis- trained with that value ; and in case they shall not amount to that value, then for so much as the said goods and cattle so distrained shall amount unto, together with his fuU costs of suit ; and shall have exe- cution thereupon by fieri facias or elegit, or otherwise as the law shall require ; and in case such plaintiff shall be non-suit, after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff, then the jurors that are impanelled as returned to inquire of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods or cattle distrained, and thereupon the avowant, or he that makes cognizance, shall have ■judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have exe- cution for the same by fieri facias or elegit, or otherwise, as the law shall require. "Sec. 3. That if judgment in any of the courts aforesaid be given upon demurrer for the avowant, or him that maketh cognizance for any rent, the court shall, at the grayer of the defendant, award a writ to inquire of the value of such distress, and upon the return thereof judgment shall be given for the avowant, or him that makes cognizance as aforesaid, for the arrears alleged to be behind in such avowry or recognizance, if the go(Jds or cattle so distrained shall amount to that value ; and in case they shall not amount to that value, then for so much as the said goods or cattle so distrained amount unto, together with his full costs of suit, and shall have like execution as aforesaid. " Sec. 4. Provided always. That in all cases aforesaid, where the value of the cattle distrained, as aforesaid, shall not be found to be of the full value of the arrears distrained for, that the party to whom such arrears were due, his executors, or administrators, may from time to time dis- train again for the residue of the said arrears. " II. Certain Sections of British Statutes not in Fcrce, but from whence the Act of 1772 wa^ Compiled. 1080. We have already stated that the statutes of 2 William and Mary, chapter 5; 8 Anne, chapter 18; and 11 George II, chap- ter 19, are the most important of the British statutes with refer- ence to the law of distress that were not extended to the colonies, and that from them so much of our act of 21st March, 1772, as relates to distress, was compiled. We will now proceed to give, in parallel columns, the sections relating to the same subject-matter in the statutes, and our act. 1081. The first section of the act of 21st March, 1772,' was taken 1 1 Smith's Laws, 370, ante, page 99. SEC. II.] DIFFERENCE IN DISTRESS. 595 from the first section of the statute of 2 William and Mary, chap- ter 5\ as follows : [Statute of 2 William and Mary.] " An Act for enabling the Sale of Goods distrained for Kent in case the Rent be not paid in a reasona- ble time, "Whereas the most ordinary and ready way for recovery of ar- rears of rent is by distresse yet such distresses not being to be sold but onely detained as pledges for in- forceing the payment of such rent the persons distraining have litle benefit thereby Tor the remedying whereof bee it enacted and ordained by the King and Queens most ex- cellent Majestyes by and with the advice and consent of the lords spir- itual! and temporall and commons in this present Parlyament assem- bled and by the authoritie of ihe same that from and after the first day of June in the yeare of our Lord one thousand six hundred and ninety that where any goods or chattells shall be distrained for any rent reserved and due upon any de- mise lease or contract whatsoever and the tenant or owner of the goods see distrained shall not within five dayes [next] after such dis- tresse taken and notice* thereof [Act of 1772.] " An Act for the sale of goods distrained for rent, and to secure such goods to the persons distrain- ing the same, for the better security of Kents, and for other purposes therein mentioned. ' ' Whereas the most ordinary and ready way for recovery of arrears of rent is by distress, and no provision hath yet been made by the laws of this province, that such distresses maybe sold, and by the common law the same may be only detained, as pledges for enforcing the payment of such rent, and the persons dis- training have little benefit thereby : For the remedying whereof. Be it enacted, That, from and after the publication of this act, where any goods or chattels shall be dis- trained for any rent reserved and due, upon any demise, lease or con- tract whatsoever, and the tenant or owner of the goods so distrained shall not, within five days next after such distress taken, and no- tice thereof, with the cause of such taking, left at the mansion house, or other most notorious place on the premises charged with the rent dis- 1 2 Eevised Statutes, 15; 3 Statutes at Large, 446 (Kuff head's ed.). 2 The notice must be in writing : Wilson v. Nightingale, 8 Adolphus & El- lis, N. S., 1034 (55 English Common Law Reports, 1034). Itought to inform the party whose goods are distrained of the distress taken, and the amount of rent in arrear: Kerby v. Harding & Biggs, 6 Exchequer 234 (Welsby, Hurl- stone & Gordon). It cannot be vague and uncertain : Ibid. ; but see Wake- man B.Lindsey, 14 Adolphus & Ellis, N. S., 625 (68 English Common Law Reports, 624). But a defect in the notice, or even an omission to give it, does not render the distress invalid or illegal : Trent v. Hunt, 9 Exchequer (Welsby, Hurlstone & Gordon), 14. Such defect or omission simply makes a sale under the statute irregular: Ibid., 20; Lucas v. Tarleton, 3 Hurlstone & Norman, 116. 596 WRONGFUL DISTRESSES. [OHAP. XTIII. (with the cause of such takeing) left at the chiefe mansion house or other most notorious place on the prem- ises charged with the rent dis- trained for replevy the same with sufHcient security to be given to the sheriffe according to law that then in such case after such distresse and notice as aforesaid and expiration of the said five dayes^ the person dis- training shall and may with the sheriflfe or under sheriffe of the county or with the constable of the hundred parish or place where such distresse shall be taken (who are hereby required to be aiding and assisting therein) cause the goods and chattells see distrained to be appraizedby two sworne appraizers^ (whome such sheriffe under sheriffe or constable are hereby impowred to sweare) to appraize the same truely according to the best of their understandings and after such ap- praisement shall and may lawfully gelP the goods and chattells soe dis- trained for, replevy the same, with sufficient security to be given to the sheriff, according to law, that then, and in such ease, after such distress and notice as aforesaid, and expira- tion of the said five days, the person distraining shall and jnay, with the sheriff, under sheriff, or any consta- ble in the city or county where such distress shall be taken (who are hereby required to be aiding and assisting therein], cause the goods and chattels so distrained to be ap- praised by two reputable free- holders, who shall have and receive for their trouble the sum of two shillings per diem each, and shall first take the following oath or affir- mation : ' I, A. B. , will well and truly, according to the best of my understanding, appraise the goods and chattels of C. D. , distrained on for rent by E. F.,' which oath or affirmation such sheriff, under- sheriff, or constable are hereby em- powered and required to admin- ' The "jive days " are calculated exclusively of the day of taking and notice thereof, and also of the day of the sale: Bobinsonii. Waddlngton, 13 Adolphus & Ellis (N. S.), 753 (66 English Common Law Keporls, 753), and cases there cited; and see also Harper v. Taswell, 6 Carrington & Payne, 166 (25 Eng- lish Common Law Reports, 836). ' Appraisement must be made by two appraisers, reasonably competent, but need not be professional appraisers : Allen v. Flicker, 10 Adolphus & Ellis, 642 (37 English Common Law Eeports, 204) ; Bishop v. Brj'ant, 6 Carrington & Payne, 484 (25 Englisii Common Law Eeports, 500) ; Koden i;. Ej'ton, 6 Manning, Granger & Scott, 427 (60 English Common Law Eeports, 4'J7). It cannot be made by the party who makes the distress; Westwood v. Crowne, 1 Starkie, 137 (2 English Common Law Eeports, 342). If the tenant, to save expense, requests that the formalities attending an appraisement be dispensed with, and in consequence, the distrainer values the goods, the tenant cannot complain of that which was done as an irregularity : Bishop v Bryant, 6 Car- rington & Payne, 484 (25 English Common Law Reports, 500). ' As to sale, see past, page 619, % 1093. If the landlord does not sell within the five days, by an arrangement between him and the tenant, that is no proof per se of collusion : Harrison v. Barry, 7 Price, 690. And the request of the tenant will justify the landlord in detaining the goods of a lodger upon the SEC. II.] DTFTBRENCE IN DISTRESS. 597 trained for the best price that can be gotten for the same toward satis- faction of the rent for which the said goods aad chattells shall be distrained and of tlie charges of such distressc appraisement and Bale leaving the overplus (if any) in the hands of the said sheriffe under sheriffe or constable for the owners use."^ ister ; and after such appraisement shall or may, after six days' public notice, lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, for and towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus, if any, in the hands of the said sheriff, under-sheriff, or con- stable for the owner's use."^ 1082. The second section of the act of 21st March, 1772,= was taken from the third section of the statute 2 William and Mary, chapter 5,* as follows : [Statute of 2 William and Mary.] "III. And bee it further enacted by the authoritie aforesaid that upon any pound breach or reseous of goods or chattells distrained for rent the person or persons grieved thereby shall in a speciall action upon the case for the wrong thereby sustained recover his and their treble damages and costs of suite against the offender or offenders in any such reseous or pound breach [Act of 1772.] " II. And he it further enacted. That upon any pound-breach or res- eous of goods or chattels distrained for rent, the person or persons grieved thereby shall, in a special action upon the case for the wrong thereby sustained, recover his, her, or their treble damages and costs of suit, against the offender or offend- ers in such reseous or pound-breach, any or either of them ; or against premises beyond the proper time of selling, if he did not know which were the goods of the lodger and which those of his tenant : Fisher v. Algar, 2 Carring- ton &/ Payne, 374 (12 English Common Law Eeports, 179). ^ A special action on the case lies, if the landlord does not leave the overplus, after payment of rent and reasonable expenses of distress, in the hands of the sheriff, etc. : Lyon v- Tomkies, 1 Meeson & Welsby, 603 ; Rogers v. Parker, 9 J. Scott, 112 (86 English Common Law Pveports, 111) ; Yates ■<,. Eastwood, 6 Exchequer (Welsby, Hurlstone & Gordon), 805. Where the goods have been removed to a convenient place for sale, and surplus goods remain after the distress is satisfied, they should be returned to the premises from whence they were taken : Evans v. Weight, 2 Hurlstone & Norman (Exchequer), 527. 2 Decisions under this section have already been given in various parts of the work. See ante, pages 96 et seq., 441 ei seq. ; pest, page 619. ' 1 Smith's Laws, 370, ante, page 99. * 2 Revised Statutes, 17 ; 3 Statutes at Large. 446 (Ruffhead's ed.). 598 WRONGFUL DISTRESSES. [cUaP. XVIII. any or either of them or against the owners of the goods distrained in case the same be afterwards found to have come to liis use or posses- sion.'" the owner or owners of the goods distrained, in case the same be after- wards found to have come to his or their use or possession. '« 1083. The third section of the act of 21st March, 1772/ was taken from the fourth section of the statute of 2 William and Mary, chapter 5/ as follows : [Statute of 2 William and Mary.'\ "lY. Provided alwayeS and bee it further enacted that in case any such disti-esse and sale as aforesaid shall be made by vertue or colour of this present Act for rent pretended to be arreare and due where in truth noe rent is arrear or due to the person or persons distraining or to him or them in whose name or names or right such distresse shall be taken as aforesaid that then the owner of such goods or chattells distrained and sold as aforesaid his executors or administrators shall and may by action of trespasse or upon the case to be brought against the person or persons soe distrain- ing any or either of them his or their executors or administrators recover double of the value of the [Xci 0/1772.1 "III. Provided always, and he it further enacted, Tliat in case any distress and sale be made by virtue of this act, for rent pretended to be in arrear and due, and vfhen in truth no rent shall appear to be in arrear or due to the person or per- sons distraining, or to him or them in whose name or names, or right, such distress shall be taken as afore- said, that then the owner of such goods and chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass, or upon the case, to be brought against the person or persons so distraining, any or either of them, his, or their executors or administrators, recover double the value of the goods or chattels so ' It is no answer to an action for treble damages for a pound-breach that the rent and demand were tendered after the distress and impounding ; Firth D. Purvis, 5 Term Eeports, 432. The costs are trebled as well as the damages : Lawson v. Story, 1 Lord Raymond, 19; S. C, Carthew, 321 ; 1 Salheld, 205. But where a distrainer takes the distress out of the place where it was origi- nally impounded, for the purpose of making an unlawful use of it, the owner may interfere and take it out of liis possession, without rendering himself lia- ble, either for a rescue, or a pound-breach: Smith v. Wright, G Hurlstone & Norman (Exchequer), 821. It seems that an open field is a sufficient pound for cattle: Castleman *. Hicks, 1 Carrington & Marshman, 266 (41 English Common Law Keports, 149). 2 Decisions under this section have already been given. See ante, page 207. 3 Smith's Laws, 370, ante, page 99. ■• 2 Eevised Statutes, 17 ; 8 Statutes at Large, 446 (Ruff head's ed.). BEC. II.] DIFFERENCE IN DISTRESS. 599 goods or chattells soe distrained and distrained and sold, together will sold together with full costs of full costs of suit.'" suite."' 1084. The fourth section of the act of 21st March, 1772,' which, however, instead of relating to distress directly, more particularly relates to goods and chattels upon the demised premises taken in execution, making them liable to the payment of one year's rent, was taken from the first section of the statute of 8 Anne, chapter 18,* as follows : [Statute of 8 Anne. ] [Act of 1772. ] "An act for the better Security " IV. And be it f wilier enacted, of Bents and to prevent Frauds That the goods or chattels lying or committed by Tenants.* being in or upon any messuage, lands " Fob the more easie and effect- or tenements, which are or shall ual recovery of rents reserved on be leased for life or lives, term of leases for life or lives term of years years, or otherwise, taken by virtue at will or otherwise be it enacted of any execution, shall be liable to by the Queen's most Excellent Maj- the payment of all such sum or sums esty by and with the advice and of money as are or shall be due for consent of the lords spiritual and rent for the premises, at the time of temporal and commons in Parlia- taking such goods and chattels by ment assembled and by author- virtue of such execution. And the ity of the same that from and after said sheriff shall, after sale of the the first day of May which shall be said goods and chattels, pay to the; in the year of our Lord one thou- landlord, or otherpersonempowered sand seven hundred and ten no to receive the same, such rent so. goods or chattels whatsoever lying due, if so much shall be in his or being in or upon any messuage hands, and if not, so much as. lands or tenements" which are or shall be in his hands, and apply ^ In action on the case under this section, the jury ought to he directed, if' they find for the plaintiff, to give damages to double the amount of the value of the goods; they cannot give nominal damages : Masters v. Parris, 1 Man-. ning, Granger & Scott, 715 (50 English Common Law Eeports, 714). s The decisions under this section have already been given. See ante,, pages 198, 354, 356. 3 1 Smith's Laws, 371, ante, page 130, If 198. * This is chapter xiv in the common printed editions : 2 Eevised Statutes,, 219 ; 4 Statutes at Large, 409. ' .The statute is to be liberally construed in favor of landlords: Henchett. t). Kimpson, 2 Wilson, 141. But does not apply to executions at the suit of the landlord : Taylor v. Lanyon, 6 Bingham, 536 (19 English Common Law Reports, 161). ' The statute applies to all goods upon the demised premises, whether belong- 600 WRONGFUL DISTRESSES. [CHAP. XVIII. shall be leased for life or lives term the overplus thereof, if any, to- of years at will or otherwise^ shall be wards satisfying the debt and costs liable to be taken by virtue of any in such execution mentioned. Pro- execution on any pretence whatso- vided always, That the said rent so ever unless the party at whose suit to be paid to the landlord, shall not the said execution is sued out^ shall exceed one year's rent. "^ before the removal of such goods from off the said premisses by virtue of such execution or extent pay to the landlord of the said premisses or his bailiff all such sum or sums of money as are or shall be due for rent for the said premisses at the time of the taking such goods or chattels by virtue of such execution provided the said arrears of rent do not amount to more than one years rent* and in case the said arrears ing to the tenant or not: Porster v. Cookson, 1 Adolphus & Ellis, N. S., 419 (41 English Common Law Reports, 606) ; Duck v. Braddyll, McClel- land, 217; S. C. 13 Price, 455. Or whether liable to a distress or not: Eise- ley V, Eyle, 11 Meeson & Welsby, 16, 22. If goods remain on the premises after a fictitious bill of sale made of them under an execution, they are liable to be distrained as before : Smith v. Russell, 3 Taunton, 400. A fraudulent bill of sale by the tenant does not prevent an execution against his goods, or a distress ; the property continues to remain vested in him : Reed v. Thoyts, 6 Meeson & "Welsby, 410. But goods taken in execution, without paying one year's arrears of rent to the landlord, are in cusiodid legis, and cannot be dis- trained on by the landlord for the year's rent, whether they are in the hands of the sheriff or of his vendee : "Wharton v. Naylor, 12 Adolphus & Ellis, N. S. 673 (64 English Common Law Reports, 673). 1 The statute only applies to subsisting tenancies, and the sheriff is not liable for removing goods taken in execution without first paying to the landlord a year's rent, where the tenancy has determined before the seizure, though within six months of it : Cox v. Leigh, Law Reports, 9 Queen's Bench, 333, 339 ; see also Hodgson v. Gascoigne, 5 Barnewall & Alderson, 81 (7 English Common Law Reports, 35) ; Cook v. Cook, Andrews, 219 ; Riseley v. Eyle, 10 Meeson & Welsby, 101, S. C, 11 Ibid., 16. And it must appear that the premises were held at a rent certain : Eisely v. Eyle, 11 Meeson & "Welsby, 16, 24. ^ The words "party at whose suit the executionis suedoui," are construed to mean either plaintiff or defendant, whose judgment and execution it is : Hen- chett V. Kimpson, 2 Wilson, 140. They apply where a defendant sues out execution for costs of defence : Ibid. To a seizure under an outlawry in a civil suit : St. John's College v. Murcott, 7 Term Eeports, 259. ' 'For decisions under this section, see ante, page 132, et seq. * Where there are two executions the landlord cannot have a year's rent on SBC. II.] DIFFERENCE IN DISTRESS. 601 shall exceed one years rent then the said party at whose suit such exe- cution is sued out paying the said landlord or his bailiff one years rent may proceed to execute his judg- ment as he might have done before the making of this Act [and the sheriflf or other officer is hereby im- each : Dod v. Saxby, 2 Strange, 1024. But he is entitled to a full year's rent (if so much be in arrear), though he used to make a voluntary abatement to his tenant: Williams v. Lewsey, 8 Bingham, 28 (21 English Common Law Keports, 208). He can, however, only claim from the sheriff the rent due at the time of taking the goods in execution, and not that which accrued after the taking and during the continuance of the sheriff in possession : Hoskins V. Knight, 1 Maule & Selwyn, 245; see also Keynolds v. Barford, 7 Manning & Granger, 449 (49 English Common Law Eoports, 447); "Wharton v. Naylor, 12 Adolphus & Ellis, N. S., 673 (64 English Common Law Eeports, 673). But if the sheriff remains beyond a reasonable time on the premises, so as to injure the rights of the landlord, the latter may have his remedy by means of an action upon the case : Ibid. 247. The executor or administrator of a de- ceased landlord is entitled to claim such rent from the sheriff : Palgrave v. Windham, 1 Strange, 212. But an administrator who obtains letters of ad- ministration after the goods have been removed and sold, and the proceeds paid over to the execution creditor, cannot make the claim ; Waring v. Dew- berry, Ibid., 97. The sheriff is not obliged to wait and see if anybody comes and makes a demand for the rent. He cannot take notice what arrears of rent there are, but if the landlord comes and acquaints him with it, then, and not till then, is he obliged to see the year's rent satisfied before removal of the goods : Ibid. ; see also Colyer v. Speer, 2 Broderick & Bingham, 67 (6 Eng- lish Common Law Keports, 21) ; Smith v- Russell, 3 Taunton, 400. While the statute does not in express terms require actual notice to be given to the sheriff of the arrears of rent, yet it seems that the sheriff is entitled to some notice, and that he is not bound to find out what rent is duo to a landlord and pay it to him unless he receives notice: Ibid. Where a sheriff, with knowl- edge that rent is due to the landlord, proceeds to sell the tenant's goods by virtue of a writ of _/i. fa., without retaining a year's rent, he will be liable for it, although no specific notice has been given to him by the landlord : An- drews V. Dixon, 8 Barnewall & Alderson, 645 (5 English Common Law Beports 410) ; see also Eisley v. Eyle, 11 Meeson & Welsby, 16, 20. But notice to the execution creditor is not necessary: Palgrave d. Windham, 1 Strange, 212, 214; Eisley J) Byle, 11 Meeson & Welsby, 16, 21. The notice may be given, and the sheriff is responsible for the year's rent, so long as the goods or pro- ceeds of a sale remain in his hands: Arnitt v. Garnett, 3 Barnewall & Aider- son, 440 (5 English Common Law Keports, 340) ; Yates v. Eatledge, 5 Hurl- stone & Norman (Exchequer), 248. As to sheriff's duty, under the English practice, on receiving notice of claim for rent, see Woodfall's Landlord and Tenant, 449, et seq. (llth ed.). 602 WRONGFUL DIBTKBSSES. [CHAP. XVIII. powered and required to levy and pay to the plaintiff as well the mo- ney ao paid for rent as the execution money].'" 1085. The fifth section of the act of 21st March, 1772/ was taken from the first section of the statute of 11 George II, chap- ter 19,' as follows: [Statute of 11 Oeorge II.] " An Act for the more effectual securing the Payment of Eents, and preventing Frauds by Tenants. "Whereas the several laws heretofore made for the better secu- rity of rents, and to prevent frauds committed by tenants, have not proved suflScient to obtain the good ends and purposes designed there- by, but rather the fraudulent prac- tices of tenants, and the mischief intended by the said Acts to be pre- vented have of late years increased, to the great loss and damage of their lessors or landlords : Por remedy whereof, may it please your most excellent Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Par- liament assembled, and by the au- thority of the same, that from and after the twenty-fourth day of June in the year of our Lord one thousand seven hundred and thirty-eight, in case any tenant or tenants, lessee 1 If the sheriff fail to pay over to the landlord the amount of rent claimed ty him (not exceeding one year's rent), before he removes the goods from the demised premises, the landlord may proceed against him by application to court, or by a special action on the case, founded on the statute ; Woodfall's Landlord and Tenant, 446, 447, 451 (llth ed.). ' Smith's Laws, 371, ante, page 188. ' 2 Kevised iStatutos, 407 ; 6 Statutes at Large, 296 (Kuffhead's ed.). [Act of 1772.] "T. And be it further enacted, That in case any lessee for life or lives, term of years, at will, or other. wise, of any messuages, lands or tenements, upon the demise whereof any rents are or shall be reserved or made payable, shall, from and after the publication of this act, fraudulently or clandestinely con- vey or carry off or from such de- mised premises his goods and chat- tels, with intent to prevent the land- lord or lessor from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any other person or persons, by him for that purpose law- full3' empowered, within the space of thirty days next ensuing such conveying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels, wherever the s.ime maybe found, as a distress for the said ar- rears of such rent, and the same to sell, or otherwise dispose of, in 6uch manner, as if the said goods SEC. II.] IFFERENCE IN DISTRESS. 603 or lessees for life or lives, term of and chattels had actually been dis- years, at will, sufferance, or other- trained by such lessor or landlord wise, of any messuages, lands, ten- in and upon such demised premises, ements, or hereditaments, upon the for such arrears of rent, any law, demise or holding whereof any rent custom or usage, to the contrary is or shall be reserved, due, or made notwithstanding, "* payable,' shall fraudulently or clan- destinely convey away, or carry off^ or from such premises, his, her, or their goods or chattels,' to prevent the landlord or lessor, landlords or lessors, from distraining the same for arrears of rent so reserved, due, or made payable, it shall and may be lawful to and for every landlord 1 The removal of goods must have taken place after the rent actually became due : Watson v. Maine, 3 Espinasse, 15, per Etkb, Ch. J. ; Rand v. Vaugban, 1 Bingham, N. C, 767 (27 English Common Law Eeports, 568), per TiNDALL, Ch. J. ; Dibble -v. Bowater, 2 Ellis & Blackburn, 564 (75 Eng- lish Common Law Eeports, 563) ; see, also, Purneaux v. Fotherby & Clarke, 4 Campbell (Nisi Prius), 135. 2 It must have been secret: Watson v. Maine (supra). The mere removal of goods by the tenant when rent is in arrear, is not of itself fraudulent as against the landlord; to justify the landlord in pursuing them he must show that they were removed witb a view to elude a distress: Parry «. Duncan, 7 Bingham, 243 (20 English Common Law Eeports, 118). Where a tenant openly and in the face of day, and with notice to his landlord, removed his goods without leaving sufficient on the premises to satisfy the rent then due, and tbe landlord followed and distrained the goods, the Court of King's Bench held that although the removal might not be clandestine, yet if it was fraudulent (which was a question fortbejury) the landlord was justified under the statute: Opperman v. Smith, 4 Dowling & Eyland, 33 (16 English Com- mon Law Eeports, 187). It seems that it is a question for the jury, whether a removal was fraudulent, although it be admitted at the trial, by tlie tenant, that the removal was to avoid a distress : John v. Jenkins, 1 Crompton & Meeson, 227; see, also, Welch v. Myers, 4 Campbell (Nisi Frius), 368. And it is for the landlord to show that the goods were removed with an intention to defraud him of his remedy by distress: Inkop -v. Morchurch, 2 Poster & Pinlason (Nisi Prius), 501. But the landlord need not prove that a sufficient distress was not left on the demised premises : Gilhiam v. Arkwright, 16 Law Times, 88. ' The goods must be the tenant's and not those of a lodger or stranger : Thornton v. Adams, 6 Maule & Selwyn, 37 ; Postman v. Harrell, 6 Carrington & Payne, 225 (25 English Common Law Eeports, 369). But the assignees of a bankrupt lessee are considered as the actual tenants : Welch v. Myers, 4 Campbell (Nisi Prius), 368. • * Por decisions under this section, seeanie, pages 125 et seq., 188 et seq. 604 WRONaPUL DISTEKSSBS. [CHAP. XVIII. or lessor, landlords or lessors, with- in that part of Great Britain called England, dominion of Wales, or the town of Berwick upon Tweed, or any person or persons by him, her, or them for that purpose lawfully impowered, within the space of thirty days next ensuing such con- veying away or carrying oif such goods or chattels as aforesaid, to take and seize such goods and chat- tels wherever the same shall he found, as a distress for the said arrears of rent, and the same to sell or otherwise dispose of in such manner as if the said goods and chattels had actually been dis- trained by such lessor or landlord, lessors or landlords, in and upon such premises for such arrears of rent, any law, custom, or usage to the contrary in any wise notwith- standing. " 1086. The sixth section of the act of 21st March, 1772,i was taken from the second section of the statute of 1 1 George II, chapter 19,^ as follows : [Statute of 11 Oeorge IT.] [Act of 1772.] "II. Provided always, that no "VI. Provided nevertlwless, Thut landlord or lessor or other person nothing herein contained shall ex- entitled to such arrears of rent shall tend, or he deemed or construed to take or seize any such goods or extend, to empower such lessor or chattels as a distress for the same landlord to take or seize any such which shall be sold bona fide and goods or chattels as a distress for for a valuable consideration before arrears of rent, which shall be, 6(ma such seizure made to any person or fide, and for a valuable consider- persons not privy to such fraud as ation, sold before sucli seizure aforesaid, anything herein con- made, to any person or persons not tained to the contrary notwith- privy to such fraud as aforesaid, standing." anything herein to the contrary notwithstanding. " ^ Smith's Laws, 371, ante, page 100. 2 2 Revised Statutes, 408- 6 Revised Statutes at Large, 296, 297 (Kuff- head's ed.). SBC. II.] DIFFERENCE IN DISTBESS. 605 1087. The seventh section of the act of 21st March, 1772/ was taken from the eighth section of the statute of 11 George II, chapter 19," as follows : [Statute of 11 Oeorge II.] "VIII. And be it further en- acted by the authority aforesaid, that from and after the said twenty- fourth day of June, which shall be in the year of our Lord one thousand seven hundred and thirty-eight, it shall and may be lawful to and for every lessor or landlord, lessors or landlords, or his, her, or their steward, bailiff, receiver, or other person or persons impowered by him, her, or them, to take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants feeding or depas- turing upon any common append- ent or appurtenant, or any ways belonging to all or any part of the premises demised or holden ; and also to take and seize all sorts of cornard grass, hops, roots, fruits, pulse, or other product^ whatso- ever, which shall be growing on any part of the estates so demised or holden, as a distress for arrears of rent ; and the same to cut, gather, make, cure, carry, and lay up, when ripe,* iu the barns, or other proper place on the premises so demised or holden ; and in case [Act of 1772.] " VII. And be it further enacted, That from and after the publica- tion of this act, it shall and may be lawful to and for every lessor or landlord, lessors or landlords, or his, her or their bailiff, receiver, or other person or persons empowered by him, her, or them, to take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants, feed- ing or depasturing upon all or any part of the premises demised or holden ; and also to take and seize all sorts of corn and grass, hops, roots, fruits, pulse, or other prod- uct whatsoever, which shall be growing on any part of the estate or estates so demised or holden, as a distress for arrears of jent, and to appraise, sell, or otherwise dispose of the same, towards satisfaction of the rent for which such distress shall have been taken, and of the charges of such distress, appraise- ment and sale, in the same manner as other goods and chattels may be seized, distrained and disposed of, and the purchaser of any such, corn, grass, hops, roots, fruits. 1 Smith's Laws, 371, ante, page 100. 2 2 Revised Statutes, 410; 6 Statutes at Large, 296, 298. ' The word " product " applies only to such products of the land as are sub- ject to the process of becoming ripe, and of being cut, gathered, made and laid up, when ripe. Trees, shrubs, and plants, growing in a nursery ground, cannot, therefore, he distrained for rent : Clark v. Gaskarth, 8 Taunton, 431 (4 Eng- lisli Common Law Keports, 154, 156), S. C, 2 Moore, 491 ; Clark v. Calvert, 8 Taunton, 742 (4 English Common Law Reports, 266, 272), S. C, 3 Moore, 96, 144 ; Amos & Ferard on Fixtures. * See post, page 620, ^ 1099. 606 WKONGFUL DISTRESSES. [CHAP, XVIII. pulse or other product, shall have free egress and regress to and from the same where growing, to repair the fences from time to time, and when ripe, to cut, -gather, make, cure, and lay up and thresh, and after to carry the same away, in the same manner as the tenant might legally have done, had such distress never been made.'" there shall be no barn or proper place on the premises so demised or holden, then in any other barn or proper place which such lessor or landlord, lessors or landlords, shall hire or otherwise procure for ' that purpose, and as near as may be to the premises, and in conve- nient time to appraise, sell, or otherwise dispose of the same, to- wards satisfaction of the rent for which such distress shall have been taken, and of the charges of such distress, appraisement, and sale in the same manner as other goods and chattels may be seized, dis- trained, and disposed of; and the appraisement thereof to be taken when cut, gathered, cured, and made, and not before." 1088. The tenth section of the act of 21st March, 1772/ which however, more particularly relates to the replevying, than to the taking of a distress, was taken from the twenty-second section of the statute of 11 George II, chapter 19,' as follows : [Statute of 11 Qeorge IL] "XXII. And whereas great dif- ficulties often arise in making avow- ries or conuzance upon distresses for rent, quit-rents, reliefs, heriots, and other services :* Be it further en- acted by the authority aforesaid, that from and after the said twen- L^ci 0/1772.] " X. And whereas great difficul- ties often arise in making avowries or conuzance upon distresses for rent : Be it further enacted, That, from and after the publication of this act, it shall and may be lawful for all defendants in replevin to ' For decisions under this section, see ante, page 105, et seg. 2 Smith's Laws, 370, 372, ante, page 404. 3 2 Revised Statutes, 407, 414 ; 6 Statutes at Large, 296, 412 (Kuffhead's ed.). ' A distress may be made for an increased rent for every acre of the land converted into tillage : Eoulston v. Clarke, 2 H. Blackstone, 563. For the rent of ready furnished lodgings; Newman v. Anderton, 2 New Reports (Bosanquet & Puller), 224, 227, per Mansfield, Ch. J. But the statute does not extend to an avowry for a rent charge or annuity : Bulpit v. Clarke, 1 Ibid., 66; Lindon v. Collins, Willes (Dumford's ed.), 429 ; see also Short v. Hub- bard, 2 Bingham, 349 (9 English Common Law Reports, 429, 431). SBC. II.] DIEFBRBNCB IN DISTRESS. 607 ty-fourth day of June, one thousand avow and make conuzance gener- seven hundred and thirty-eight, it ally, that the plaintiff in replevin, shall and may be lawful to and for or other tenant of the lands and all defendants in replevin to avow tenements whereon such distress or make conuzance generally ' that was ma le, enjoyed the same under the plaintiff in replevin, or other a grant or demise, at such a certain tenant'^ of the lands and tenements rent or service, during the time whereon such distress was made, wherein the rent or service dis- enjoyed the same under a grant or trained for incurred, which rent or demise^ at such a certaia rent,* dur- service Was then and still remains ing the time wherein the rent dis- due, without further setting forth trained for incurred, which rent the grant, tenure, demise, or title, was then and still remains due ;° or of such landlord or landlords, lessor that the place where the distress or lessors, any law or usage to the was taken was parcel of such cer- contrary notwithstanding ; and if tain tenements held of such honor, the plaintiff or plaintiffs in such lordship or manor, for which ten- action shall become nonsuit, dis- ements the rent, relief, heriot, or continue his, her or their action, ' Coparcerners must join in an avowry: Stedman v. Bates, 1 Lord Kay- mond, 64. Tenants in common must avow for their separate portions ; Har- rison V. Barnby, 5 Term Reports, 246, per Lord Kenyoh, Ch.J. Joint ten- ants may either join orsever; but, if one joint-tenant or tenant in common have distrained for the rent due for both shares, and the action of replevin be brought against one, he should avow for his own share, and for the other make cognizance as bailiff of his co-tenant : Comyn's Landlord and Tenant, *558 ; see PuUen u. Palmer, 5 Modern, *72. The statute does not apply where the defendant had no reversion ; Pluck v. Digges, 2 Dow & Clark, 180. ' The defendant may avow upon the lessee as his tenant, notwithstanding an assignment has been made, and the assignee is actually in possession of the land. Upon such an avowry evidence of enjoyment by the assignee, though not accepted tenant by the landlord, would be proof of enjoyment by the lessee: Per Lord Mansfibld, Ch. J., in Wadham v. Marlow, 8 East, 314, 316. 3 Where the plaintiff enters under an agreement for a lease, without any actual demise, an avowry cannot be supported under this statute : Hegan ■». Johnson, 2 Taunton, *148. * There must be an actual demise at a fixed rent, otherwise the landlord cannot distrain : Hegan v. Johnson, 2 Taunton, *148 ; Dunk u. Hunter, 5 Barnewall & Alderson, 322 (7 English Common Law Keports, 116); Eeg- nart v. Porter, 7 Bingham, 451 (20 English Common Law Reports, 194). The amount of the rent reserved should be correctly set forth in stating the de- mise in the avowry : Brown v. Sayce, 4 Taunton, 320 ; see also Bristow v. Wright, 2 Douglass, 665, 668. But the defendant may recover less rent than he avows for : Forty v. Imber, 6 East, 434, 437. 5 It is not necessary to aver that the rent continued in arrear at the time of the making avowry or conusance : Clarke v. Davies, 7 Taunton, 72 (2 Eng- lish Common Law Keports, 30). 608 WRONGFUL DISTRESSES. [CHAP. XVIII. other service distrained for was, at the time of such distress, and still remains due, without further setting forth the grant, tenure, de- mise, or title of such landlord or landlords, lessor or lessors, owner or owners, of such manor, any law or usage to the contrary notwith- standing; and if the plaintiff or plaintiffs in such action shall be- come nonsuit, discontinue his, her, or their action, or have judgment given against him, her, or them, the defendant or defendants in such re- plevin shall recover double costs of suit." or have judgment given against him, her or them, the defendant or defendants in such replevin shall recover double costs of suit."' 1089. The eleventh section of the act of 21st March, 1772/ which also more particularly relates to the replevying, than to the taking of a distress, was taken from the twenty-third section of the statute of 11 George II, chapter 19,' as follows : [Statute of 11 Oeorge IL] " XXIII. And to prevent vexa- tious replevins of distresses taken for rent, be it enacted by the au- thority aforesaid, that from and after the said twenty-fourth day of June one thousand seven hundred and thirty-eight, all sheriffs and other officers having authority to grant replevins may and shall, in every replevin of a distress for rent,* take in their own names from the plaintiff, and two responsible per- sona a sureties, a bond^ in double [Act of 1772.] "XI. And to prevent vexatious replevins of distresses taken for rent, Be it enacted, That, from and after the publication of this act, all sheriffs and other officers, having authority to serve replevins, may and shall, in every replevin of a distress for rent, take in their own names from the plaintiff, and one responsible person as surety, a bond in double the value of the goods distrained (such value to be ascer- tained by the oath or affirmation of 1 For decisions under this section, see ante, page 445, ei seq. 2 1 Smith's Laws, 370, 373, ante, f age 404. " 2 Kcvised Statutes, 407, 415; 6 Statutes at Large, 296, 801 (Ruffhead's rd.). * This includes a distress for a rent charge : Short ii. Hubbard, 2 Bingham, 349 (9 English Common Law Keports, 429). 5 If the officer omit to take the replevin bond or lose it, he will he liable to an action at the suit of tho person avowing or making cognizance : Mounsou V. Redshaw, 1 Williams's Saunders, 197, note. SEC. II.J DIFFERENCE IN DISTRESS. 609 the value of the goods distrained' one or more credible perfson or per- (such value to be ascertained by the sons, not interested in the goods or oath of one or more credible wit- distress ; which oath or affirmation ness or witnesses not interested in the person servini^ such replevin is the goods or distress, which oath hereby authorized and required to the person granting such replevin administer) and conditioned for is hereby authorized and required to prosecuting the suit with eifect, administer), and conditioned for and without delay, and for duly re- prosecuting the suit with effect' and turning the goods and chattels dis- without delay,' and for duly return- trained, in case a return shall be ing the goods and chattels dis- awarded before any deliverance be trained in case a return shall be made of the distress ; and that such awarded,* before any deliverance be sheriff, or other officer as aforesaid, made of the distress, and that such taking any such bond, shall, at the sheriff or other officer as aforesaid request and cost of the avowant or taking any such bond shall, at the person making conusance, assign request and costs of the avowant, such bond to the avowant or person or person making conuzance, assign aforesaid, by indorsing the same, such bond to the avowant or person and attesting it under his hand and aforesaid," by indorsing the same, seal, in the presence of two credible 1 The sureties are together liable to the amount of the penalty of the bond, and the costs of the suit on the bond : Hefford v. Alger, 1 Taunton, 217. ^ "With effect," means to prosecute suit to a successful determination ; Perreau v. Bevan, 5 Barnewall & Cresswell, 284, 299 (11 English Common Law Keports, 464, 471). See the opinion of Judge Holrotd, in which he cites numerous cases of a breach of the condition to prosecute with effect. See also Jackson v. Hanson, 8 Meeson & Welsby, 477. It seems that the words " then and there," usually inserted in the conditions of replevin bonds, are not proper: Ibid., opinion by Baron Parkk. 3 " Without delay," means that the prosecution must proceed regularly and in due course of time. Thus the condition of the bond requires the plaintiff in the replevin to appear at the next county court, and if he fail to do so and there levy his plaint, a breach occurs : Wharton v. Blackwell,13 Law Journal, 112; S. C, 12 Meeson & Welsby, 657; Diasti, Freeman, 5 Term Reports, 195. And so where the plaintiff allows two years to elapse without proceedings, it is a breach of the condition : Axford v. Perrett, 4 Bingham, 586 (15 English Common Law Eeports, 82). <> If the plaintiff make a return, he need not prosecute his suit with effect ; if he prosecute his suit with effect, he need not make a return ; Phillips v. Price, 3 Maule& Selwyn, 180, 183, per Dampikr, J. 5 If the landlord is the only defendant in the replevin, who avows the taking, he is alone entitled to the assignment. So if the bailiff alone is the defendant, who makes cognizance, he alone is entitled to it. But if the suit be against both, the bond may be assigned to both, and they may sue jointly upon it ; Phillips u. Price, 8 Maull & Selwyn, 180. Or the bond may be as- signed to the avowant alone, who may maintain suit on it without joining the cognizor : Archer v. Dudley, 1 Bosanquet & Puller, 381 (a). While it seems 39 610 WRONGFUL DISTEESSES. [CHAP. XVIII. and attesting it under his hand and witnesses ; and if the bond so taken seal in the presence of two or piore and assigned be forfeited, the avow- credible witnesses, which may be ant or person making conusance done without any stamp (provided may bring an action, and recover the assignment so indorsed bo duly thereupon in his own name ; and stamped before any action brought the Court where such action shall thereupon) ; and if the bond so be brought may, by a rule of the taken and assigned be forfeited, > same Court, give such relief to the the avowant or person making con- parties upon such bond, as may be uzance may bring an action, and agreeable to justice and reason ; recover thereupon in his own name ; and such rule shall have the nature and the court where such action and effect of a defeasance to such shall be brought may, by a rule of bond.'" the same court, give such relief to the parties upon such bond as may be agreeable to justice and reason, and such rule shall have the nature and effect of a defeasance to such bond.'"' 1090. The fourteenth section of the act of 21st March, 1772,* that an assignment may be taken at any time, yet no action can be maintained upon it until the party replevying have been guilty of some breach of the con- dition : Seal v. Phillips, 3 Price, 17. The court will not set aside proceedings on the bond because the action is commenced before there is a breach of one of its conditions, for it may be pleaded: Anonymous, 5 Taunton, 776 (1 Eng- lish Common Law Reports, 261). 1 If the avowant or person making cognizance take an assignment of the bond, and sue the principal and sureties, and they are found to be insolvent or insufficient, he may afterwards bring an action upon the case against the sheriff for taking insufficient sureties. Taking an assignment from the sheriff is no waiver of any proceedings afterwards against him, as it is in the case of a bail-bond : Mounson v- Eedshaw, 1 Williams's Saunders, 201, note. If the sheriff take but one surety, and .ifter judgment for a return the return fail to be made, whereon the party distraining recovers in an action against the sheriff for taking insufficient pledges, the sheriff cannot recover against the single surety more than a moiety of the sum composed of the rent which the party distraining establishes in the action of replevin to be due and the costs of the latter suit : Austen v. Howard, 7 Taunton, 827 (2 English Common Law Reports, 123). " In an action against a sheriff for taking insufficient sureties upon a re- plevin bond, where the verdict in the replevin suit is for a return of the goods, the measure of damages it seems is the value of the goods: Scott v. Waith- man, 1 Starkie, 168, 171, per Lord Abbott, Ch. J. But see Concanen v. Lethbridge, 2 H Blackstone, 36, see note (6) at page 41 ; Evans v. Brandner, Ibid., 547, 549. * For decisions under this section see ante, pages, 427 to 436. ' 1 Smith's Laws, 370, 374, ante, page 100. EEC. II.] DIFFERENCE IN DISTRESS. 611 Vas taken from the sixth and seventh sections of the statute of 8 Anne, chapter 18/ as follows : [Statute of 8 Anne.] " VI. Akd whereas tenants per auter vie and lessees for years or at will frequently hold over the tene- ments to them demised after the determination of such leases And whereas after the determination of Buch or any other leases no distress can by law be made for any arrears of rent that grew due on such re- spective leases before the determi- nation thereof it is hereby further enacted by the authority aforesaid thatfrom and after the said first day of May one thousand seven hundred and ten it shall and may be lawful for any person or persons having any rent in arrear or due upon any lease for life or lives or for years or at will ended or determined to dis- train for such arrears after the de- termination of the said respective leases in the same manner as they might have done if such lease or leases had not been ended or deter- mined. "VII. Peovided that such dis- tress be made within the space of six calendar montlis after the deter- mination of such lease [and] during the continuance of such landlord's title or interest and during the pos- session of the tenant from whom such arrears became due." 1091. The eighth and ninth sections of the act of 21st March, 1772, relating to ejectment, were taken from the twelfth and thirteenth sections, respectively, of the statute of 11 George II, ^ Chapter XIV, in the common printed editions; 2 Revised Statutes, 217; 4 Statutes at Large, 409 (Kuff head's ed.). ' See post, page 639, f 1142. [Act of 1772.] "XIV. And whereas, after the determination of such leases so made as aforesaid, no distress can by law be made for any arrears of rent that grew due on such re- spective leases before the determi- nation thereof: Be it therefore further enacted, That, from after the publication of this act, it shall and may be lawful for any person or persons, having any rent in arrear or due upon any lease for life or lives, or for one or more years, or at will, ended or determined, to dis- train for such arrears after the de- termination of the said respective leases, in the same manner as they might have done, if such lease or leases had not been ended or deter- mined ; provided that such distress be made during the continuance of such lessor's title or interest.'" 6i2 WRONGFUL DISTRESSES. [CHAP. XVIII. chapter 19. The twelfth and thirteenth sectioas, relating to a landlord's proceeding to gain repossession of demised premises, were not directly taken from the statutes of 2 William and Mary, chapter 5 ; 8 Anne, chapter 14 ; or 11 George II, chapter 19, al- though probably suggested by the provisions contained in the sixteenth and seventeenth sections, respectively, of the statute of 11 George II, chapter 19. III. Certain Sections of British Statutes not in Force, and from whence the Act of 1772 was not Compiled. 1092. The following sections of the statutes of 2 William and Mary, chapter 5 ; 8 Anne, chapter 18 ; and 11 George II, chapter 19, relating to distress, are also not in force in Pennsylvania, and whence our act of 21st March, 1772, was not compiled: (1.) The second section of the statute of 2 William and Mary, chapter 5,^ which provides as follows : "II. And whereas noe sheaves or cocks of come loose or in the straw or hay in any barne or granary or oa any hovell stack or rick can by the law be distrained or otherwise secured for rent whereby landlords are oftentimes cousened and deceived by their tenants who sell their corne graine and hay to strangers and remove the same from the prem- ises chargeable with such rent and thereby avoid the payment of the same Bee it further enacted by the authoritie aforesaid that for remedy- ing the said practice and deceit it shall and may from and after the said first day of June be lawfuU to and for any person or persons having rent arreare and due upon any such demise lease or contract as aforesaid to seize and secure any sheaves or cocks of corne or corne loose or in the straw or hay lying or being in any barne or granary or upon any hovell stack or rick or otherwise upon any part of the land or [ground] charged with such rent and to locke up and detaine the same in the place where the same shall be found for or in the nature of a distresse untill the same shall be replevyed upon such security to be given as aforesaid and in default of replevying the same as aforesaid withiu the time aforesaid to sell the same after such appraisement thereof to be made soe as neverthelesse such corne graine or hay soe distrained as aforesaid be not removed by the person [or] persons distraineing to the damage of the owner thereof out of the place where the same shall be found and seized but be kept there (as impounded) until the same be replevyed or sold in default of replevy- ing the same within the time aforesaid. ' ' 1 2 Revised Statutes, 16 j 3 Statutes at Large, 446 (Rufifhead's ed.). SEC. II.] DIFFERENCE IN DISTRESS. 613 (2.) The second, fifth, and eighth gections of the statute of 8 Anne, chapter 18,' which provide as follows : " II. And be it further enacted by the authority aforesaid that in case any lessee for life or lives term of years at will or otherwise of any messuages lands or tenements upon the demise whereof any rents are or shall be reserved or made payable shall from and after tiie first day of May fraudulently or clandestinely convey or carry off or from such demised premises his goods or chattels with intent to prevent the land- lord or lessor from distraining the same for arrears of such rent so re- served as aforesaid, it shall and may be lawful to and for such lessor or landlord or any person or persons by him for that purpose law- fully empowered, within the space of five days next ensuing such con- veying away or carrying off such goods or chattels as aforesaid, to take and seize such goods and chattels wherever the same shall be found, as a distress for the said arrears of such rent and the same to sell or otherwise dispose of, in such manner, as if the said goods and chattels had actually been distrained by such lessor or landlord, in and upon such demised premises for such arrears of rent, any law, custom, or usage to the contrary in anywise notwithstanding " " V. And it is hereby further enacted and declared by the authority aforesaid that all distresses hereby empowered to be made as aforesaid shall be liable to such sales, and in such manner, and the moneys arising by such sales to be distributed, in like manner as by an act made in the second year of the reign of their late majesties King William and Queen Mary, entitled An act for enabling the sale of goods distrained for rent in ease the rent be not paid m reasonable time is in that behalf directed and appointed " ' ' VIII. Provided always and it is hereby enacted and declared by the authority aforesaid that nothing in this act contained shall extend or be construed to extend to let hinder or prejudice her Majesty her heirs or successors ia the levying recovering or seizing any debts fines penalties or forfeitures that are or shall be due payable or answerable to her Majesty her heirs or successors but that it shall and may be lawful for her Majesty her heirs and successors to levy recover and seize such debts fines penalties and forfeitures in the same manner as if this act had never been made anything in this Act contained to the contrary in anywise notwithstanding. " (3.) The fourth, fifth, sixth, seveath, ninth, tenth, eleventh, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, and twenty-first sections of the statute of 11 George II, chapter 19, which provide as follows : * Chapter XIV, in the common printed editions; 2 Eevised Statutes, 219 ; 4 Statutes at Large, 409 (Eutf head's ed.). 614 WRONGFUL DISTKBS3ES. [CHAP. XTIII, " IV. Provided always, and be it enacted by the authority aforesaid, that where the goods and chattels so fraudulently carried off or concealed shall not exceed the value of fifty pounds, it shall and may be lawful for the landlord or landlords from whose estate such goods or chattels were removed, his, her, or their bailiff, servant, or agent in his, her, or their behalf, to exhibit a complaint in writing against such offender or offend- ers before two or more justices of the peace of the same county, riding, or division of such county residing near the place whence such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were re- moved, who may summon the parties concerned, examine the fact, and all proper witnesses upon oath, or if any such witness be one of the people called Quakers, upon affirmation required by law, and in a sum- mary way determine whether such pterson or persons be guilty of the offence, with which he or they are charged ; and to enquire in like man- ner, of the value of the goods and chattels by him, her, or them respect- ively so fraudulently carried off or concealed as aforesaid ; and, upon full proof of the offence, by order under their hands and seals, the said jus- tices of peace may and shall adjudge the offender or offenders to jjay double the value of the said goods and chattels to such landlord or land- lords, his, her, or their bailiff, servant, or agent, at such time as the said justices shall appoint ; and in case the offender or offenders having notice of such order shall refuse or neglect so to do, may and shall, by warrant under their hands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders ; and for want of such distress, may commit the offender or offenders to the house of cor- rection, there to be kept to bard labor, without bail or mainprize, for the space of six months, unless the money so ordered to be paid as aforesaid shall be sooner satisfied. " V. Provided also, that it shall and may be lawful for any person who thinks himself aggrieved by such order of the said two justices to appeal to the justices of peace at their next general or quarter-sessions to be held for the same county, riding, or division of such countj-, who may and shall hear and determine such appeal, and give such costs to either party as they shall think reasonable, whose determination ther'ein shall be final. " VI. Pbovided also, that where the party appealing shall enter into a recognizance with one or two sufficient surety or sureties in double the sum so ordered to be paid, with condition to appear at such general or quarter-sessions, the order of the said two justices shaU not be executed against him in the meantime. "VII. And be it further enacted by the authority aforesaid, that where any goods or chattels fraudulently or clandestinely conveyed or carried away by any tenant or tenants, lessee or lessees, his, her, or their servant or servants, agent or agents, or other person or persous aiding or assistino- therein, shall be put, placed or kept in any house, barn, stable, out-house. SEC. II.] DIFPEKBNCE IN DISTRESS. 615 yard, close, or place, locked up, fastened, or otherwise secured, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent, it shall and may be lawful for the landlord or land- lords, lessor or lessors, his, her, or their steward, bailiff, receiver, or other person or persons inipowered, to take and seize, as a distress for rent, such goods and chattels (first calling to his, her, or their assistance the con- stable, headborough, borsholder, or other peace-officer of the hundred, borough, parish, district, or place where the same shall be suspected to be concealed, who are hereby required to aid and assist therein ; and in case of a dwelling-house, oath being also first made before some justice of the peace of a reasonable ground to suspect that such goods or chattels are therein), in the day-time, to break open and enter into such house, barn, stable, out-house, yard, close, and place, and to take and seize such goods and chattels for the said arrears of rent, as he, she, or they might have done by virtue of this or any former Act if such goods and chattels had been put in any open field or place. " " IX. Provided always, that notice of the place where the goods and chattels so distrained sliallbe lodged or deposited shall, within the space of one week after the lodging or depositing thereof in such place, be given to such lessee or tenant, or left at the last place of his or her abode ; and that if after any distress for arrears of rent so taken, of corn, grass, hops, roots, fruits, pulse, or other product which shall be growing as afore- said, and at any time before the same shall be ripe and cut, cured, or gathered, the tenant or lessee, his or her executors, administrators, or assigns, shall pay or cause to be paid to the lessor or landlord, lessors or landlords, for whom such distress shall be taken, or to the steward or other person usually employed to receive the rent of such lessor or lessors, landlord or landlords, tl^e whole rent which shall then be in arrear, together with the full costs and charges of making such distress and which shall have been occasioned thereby, that then and upon such payment or lawful tender thereof actually made, whereby the end of such distress will be fully answered, the same and every part thereof shall cease, and the corn, grass, hops, roots, fruits, pulse, or other pro- duct so distrained, shall be delivered up to the lessee or tenant, his or her executors, administrators, or assigns, anything hereinbefore contained to the contrary notwithstanding. " X. And whereas great difficulties and inconveniences frequently arise to landlords and lessors and other persons taking distresses for rent, in removing the goods and chattels or stock distrained off the premises,, in cases where by law they may not be impounded and secured there- upon, and also to the tenants themselves many times, by Ihe damage unavoidably done to such goods and chattels or stock in the removal thereotf: Be it enacted by the authority aforesaid, that from and after- the said twenty-fourth day of June one thousand seven hundred and thirty-eight, it shall and may be lawful to and for any person or persons; lawfully taking any distress for any kind of rent, to impound or other- 616 WRONGFUL DISTRKSSBS. [CHAP. XVIII. wise secure the distress so made, of wliat nature or kind soever it may be, in such place or on such part of the premises chargeable with the rent as shall be most fit and convenient for the impounding and securing such distress, and to appraise, sell and dispose of the same upon the premises in like manner and under the like directions and restraints to all intents and purposes as any person taking a distress for rent may now do off the premises by virtue of an Act made in the second year of the reign of King William and Queen Mary, intituled, ' An act for ena- bling the sale of goods distrained for rent, in case the rent he not paid in a reasonable time, ' or of one other Act made in the fourth year of his present Majesty, intituled, '■An actfor the more effectual preventing frauds committed by tenants, and for the more easy recovery of rents and renewal of leases;^ and that it shall and may be lawful to and for any person or persons whatsoever to come and go to and from such place or part of the said premises where any distress for rent shall be impounded and secured as aforesaid, in order to view, appraise, and buy, and also in order to carry off or remove the same on account of the purchaser thereof, and that if any pound-breach or rescous shall be made of any goods and chattels, or stock distrained for rent, and impounded or otherwise secured by virtue of this Act, the person or persons aggrieved thereby shall have the like I'emedy as in cases of pound-breach or rescous is given and provided by the said statute. "XI. And whereas the possession of estates in lands, tenements, and hereditaments is rendered very precarious by the frequent and fraudulent practice of tenants in attorning to strangers who claim title to the es- tates of their respective landlord or landlords, lessor or lessors, who by that means are turned out of possession of their respective estates and put to the difficulty and expense of recovering the possession thereof by actions or suits at law : for remedy thereof, be it enacted by the au- thority aforesaid, that from and after the said twenty-fourth day of June in the year of our Lord one thousand seven hundred and thirty-eight, all and every such attornment and attornments of any tenant or tenants of any messuages, lands, tenements, or hereditaments within that part of Great Britain called England, dominion of Wales, or town of Berwick upon Tweed shall be absolutely null and void to all intents and purposes whatsoever ; and the possession of their respective landlord or landlords, lessor or lessors shall not be deemed or construed to be anywise changed, altered, or affected by any such attornment or attornments : Provided always, that nothing herein contained shall extend to vacate or affect any attornment made pursuant to, and in consequence of some judgment at law, or decree or order of a court of equity, or made with the privity and consent of the landlord or landlords, lessor or lessors, or to any mortgagee after the mortgage is become forfeited." "XVI. And whereas landlords are often great sufferers by tenants running away in arrear, and not only suffering the demised premises to lie uncultivated without any distress thereon, whereby their landlords SEC. II.J DIFFERENCE IN DISTRESS. 617 or lessors might be satisfied for the rent-arrear, but also refusing to deliver up the possession of the demised premises, whereby the landlords are put to the expense and delay of recovering in ejectment : Be it further enacted by the authority aforesaid, that from and after the said twenty-fourth day of June one thousand seven hundred and thirty- eight, if any tenant holding any lands, tenements, or hereditaments at a rack-rent, or where the rent reserved shall be full three-fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent, shall desert the demised premises and leave the same un- cultivated or unoccupied, so as no sufficient disti-ess can be had to countervail the arrears of rent, it shall and may be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view the same, and to alEx, or cause to be affixed on the most notorious part of the premises, notice in writing, what day (at the distance of fourteen days at least) they will return to take a second view thereof; and if upon such second view the tenant, or some person on his or her behalf, shall not appear and pay the rent in arrear, or there shall not be sufficient distress upon the premises, then the said justices may put the landlord or landlords, lessor or lessors, into the possession of the said -demised premises, and the lease thereof to such tenant, as to any demise therein contained only, shall from thenceforth become void. "XVII. Provided always, that such proceedings of the said justices shall be examinable into in a summary way by the next justice or justices of assize of the respective counties in which such lands or premises lie ; and if they lie in the city of London or county of Middlesex, by the judges of the Courts of King's Bench or Common Pleas ; and if in the counties palatine of Chester, Lancaster, or Durham, then before the judges thereof; and if in "Wales, then before the Courts of Grand-Sessions respectively, who are hereby respectively impowered to order restitution to be made to such tenant, together with his or her expenses and costs, to be paid bj' the lessor or landlord, lessors or landlords, if they shall see cause for the same ; and in case they shall affirm the act of the said justices, to award costs not exceeding five pounds for the frivolous appeal. "XVIII. And whereas great inconveniences have happened, and may happen, to landlords whose tenants have power to determine their leases, by giving notice to quit the premises by them holden, and yet refusing to deliver up the possession, when the landlord hath agreed with another tenant for the same : Be it further enacted by the authority aforesaid, that from and after the said twenty-fourth day of June one thousand seven hundred and thirty-eight, in case any tenant or tenants shall give notice of his, her, or their intention to quit the premises by him, her, or them holden, at a time mentioned in such notice, and shall not accord- ingly deliver up the possession thereof at the time in such notice con- 618 WRONGFUL DISTRESSES. [CHAP. XVIII. tained, that then the said tenant or tenants, Ms, her, or their executors or administrators, shall from thenceforward pay to the landlord or land- lords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to he levied, sued for, and recovered at the same times and in the same manner as the single rent or sum, before the giving such notice, could be levied, sued for, or recovered ; and such double rent or sum shall continue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid. "XIX. And whereas it hath sometimes happened that upon a distress made for rent justly due, the directions of the statute made in the second year of the reign of King William and Queen Mary, intituled, '■An act for enabling the sale of goods distrained for rent, in case the rent be not paid within a reasonable time,' have not been strictly pursued, but through the mistake or inadvertency of the landlord or other person intitled to such rent and distraining for the same, or of the bailiff or agent of such land- lord or other person, some irregularity or tortious act hath been afterwards done in the disposition of the distress so seized or taken as aforesaid, for which irregularity or tortious act the party distraining hath been deemed a trespasser ab initio, and in an action brought against him as such, the plaintiff hath been entitled to recover, and has actually recov- ered the full value of the rent for which such distress was taken : And whereas it is a very great hardship upon landlords and other persons intitled to rents, that a distress duly made should be thus in effect avoided for any subsequent irregularity : Be it enacted by the authority afore- said, that from and after the said twenty-fourth day of June in the year of our Lord one thousand seven hundred and thirty-eight, where any distress shall be made for any kind of rent justly due, and any irregu- larity or unlawful act shall be afterwards done by the party or parties distraining, or by his, her, or their agents, the distress itself shall not be therefore deemed to be unlawful, nor the party or parties making it be deemed a trespasser or trespassers ah initio; but the party or parties aggrieved by such unlawful act or irregularity shall or may recover fuU satisfaction for the special damage he, she, or thty shall have sustained thereby, and no more, in an action of trespass or on the case, at the elec- tion of the plaintiff or plaintiffs :' Provided always, that where the plain- tiff or plaintiffs shall recover in such action, he, she, or the}' shall be paid his, her, or their full costs of suit, and have all the like remedies for the same as in other cases of costs. "XX. Provided nevertheless, that no tenant or tenants, lessee or les- sees, shall recover in any action for any such unlawful act or irregularity as aforesaid, if tender of amends hath been made by the party or parties distraining, his, her, or their agents, before such action brought. " XXI. And be it further enacted by the authority aforesaid, that from and after the said twenty-fourth day of June one thousand seven hundred and thirty-eight, in all actions of trespass, or upon the case, to be brought against any person or persons entitled to rents or services of any SBC. II.J DIFFERENCE IN DISTRESS. 619 kind, his, her, or their bailiff or receiver, or other person or persons, relat- ing to ■ any entry by virtue of this Act or otherwise, upon the premises chargeable with such rents or services, or to any distress, or seizure, sale, or disposal of any goods or chattels thereupon, it shall and may be lawful to and for the defendant or defendants in such actions to plead the general issue, and give the special matter in evidence, any law or usage to the contrary notwithstanding ; and in case the plaintiff or plaintiffs in such action shall become nonsuit, discontinue his, her, or their action, or have judgment against him, her, or them, the defendant or defendants shall recover double costs of suit." IV. Some Observations on the Difference in Conducting Distress. (1.) As to the Sale. 1093. In England, under the provisions of the statute of 2 William and Mary/ we have seen that the distress may be sold after the expiration of five days, that is to say, five times twenty- four hours, next after the taking and notice thereof.' 1094. In Pennsylvania, under the provisions of the first sec- tion of the act of 21st March, 1772,' the distress cannot be sold until after the expiration of the five days allowed for the tenant or owner of the goods distrained to replevy the same, and in ad- dition until six days' public notice of the sale shall have been given after an appraisement previously made.* 1095. In England, the sale of the distress is not necessarily public, as it is not unusual for the appraisers to buy it ait their own valuation ;* but the landlord cannot sell ^e goods to him- self, or take them at the appraised value.* 1096. In Pennsylvania, the sale is a public one. 1097. In England, it seems that the distress may still, at the landlord's option, be retained as a pledge, since the words of the ' Ante, page 595, yj 1081. 2 Tlie " five days " are calculated exclusively of the day of taking and notice thereof, and also of the day of sain: Robinson v. Waddington, 13 Adolphus & Ellis (N. S.), 753 (66 English Common Law Eeports, 753), and cases there cited, and see Harperu. Taswell, 6 Carrington & Payne, 166 (25 English Com- mon Law Eeports, 336). ' Ante, page 596, T[ 1081. * Ante, page 595, T[ 1081 ; see also Ibid., 127, 1[ 184. 5 Woodfall's Landlord and Tenant, 437 (11th ed.) ; Bradby on Distress, *158. « King V. England, 4 Best & Smith, 782 (116 English Common Law Re- ports, 781). 620 WRONGFUL DISTliESSBS. [CHAP. XVIII. statute of 2 William and Mary,' namely, " shall and may lawfully sell," have been held not to make a sale imperative. ' Says Judge Park -^ " Much stress has been laid on the supjiosed incon- venience to tenants, but the inconvenience is all the other way, and if the landlord must proceed to sell, the plaintiff should have shown that he was satisfied ; for there are many cases supposable, in which the distress may be no satisfaction to the landlord, as where he withdraws it, relying on the tenant's word. I do not agree that shall and may in a statute are always imperative; they must be deemed imperative or not, according to the subject-mat- ter. The statute of William and Mary is a remedial law, and it was never meant that the landlord must necessarily sell because he has the power to do so." 1098. In Pennsylvania, in the case of Quinn v. Wallace,^ the Supreme Court decided that the words of the act of 1772,* namely, " shall or may " sell, make a sale of the distress by the distrainer imperative, unless the tenant or owner of the goods assent to a postponement, or a sale be prevented by a payment of the rent or suing out of a replevin. (2.) As to Growing Crops. 1099. In England, a sale of standing corn or growing crops be- fore ripe, is altogether void, but the distress is not.^ But where 1 Ante, page 595, 1[ 1081. 2 Hudd V. Eavenor, 2 Broderip & Bingham, 662, 664 (6 English Common Law Reports, 306, 307). In delivering an opinion in the same case, Chiei' JusTiCB Dallas says: "The provision in the statute is that the party dis- training shall and may sell ; thence it is argued that he must, and that wher- ever shall is found in company with may, it means must. That I deny. It does not follow, therefore, that a party must sell, because he may ; if so, it would go to this, that after seizure, a landlord could never come to any terms of agreement with his tenant. But it is from what Abbott, J., says in Lear V. Edmonds that the possession of the goods may be relinquished at the re- quest of the party I and who ever doubted it up to this moment?" See also Lear v. Edmonds, 4 Barnewall & Alderson, 157, 159, opinions by Batlet and Abbott, JJ. ' 6 Wharton, 452. See the learned opinion of Mb. Justice Kennedy, at page 463, ei seq., where ho reviews the English cases above cited, and refuses to follow them. * Ante, page 596, \ 1081. " Owen V. Legh & Brodbelt, 3 Barnewall & Alderson, 470 (5 English Com- mon Law Reports, 346) ; see also Proudlove v. Twemlow, 1 Crompton & Mee- Bon, 326; see also Peacock v. Purvis. 2 Broderip & Bingham, 862 C6 English Common Law Reports, 154). SBC. II.] DIFFERENCE IN DISTRESS. 621 growing wheat was distrained for rent, and sold in that state, and ■the jury found that no damage had been sustained by the prema- ture sale, it was held that the tenant was not entitled to recover even nominal damages.' 1100. In Pennsylvania, such an exception does not prevail, and the sale is conducted as in other cases of distress. (3.) As to Corn loose, or Hay. 1101. In England, under the statute of 2 William and Mary.' a distress may be made on sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise, upon any part of the land demised. 1102. In Pennsylvania, under the act of 1772,^ no such pro- visions are found, and though no such distress could be made at common law, yet our exemption act of 1849,* probably does away with most of the exemptions under the common law. We have already observed that under the act of 1772, growing grain and other product of the soil may, however, be distrained.* (4.) ^s to the Impounding, 1103. In England, prior to the statute of 2 William and Mary, the law did not allow an impoundingof any distress on the prem- ises demised,^ but that statute e'nacted that where corn, loose or in the straw, hay, etc., are distrained, they cannot be removed from the premises, but must be impounded where found.' And the tenth section of the statute of 11 George II., authorized the im- pounding on the premises of distresses for rent of what nature or kind soever.' 1104. In Pennsylvania, the act of 1772' makes no such provis- ions with regard to impounding a distress upon the premises. ' Eodgers v. Parker, 9 J. Scott, 112 (86 English Common Law Reports, 111) ; see also Lucas v. Tarleton, 3 Hurlstone & Norman (Exchequer), 116. ' Ante, page 512, f 1092. = Ante, page 605, yj 1087. * Ibid., 112, T[ 138. 6 Ibid., 107, If 128, 3. 8 Griffin v. Scott, 2 Lord Kaymond, 1424; S. C, 1 Bamardiston, 3; also in 2 Strange, 716, but it seems incorrectly reported. ' Ante, page 612, ^ 1092 (1). « ihjd., 615, I 1092 (3). » Ibid., 595, If 1081. 622 WRONGFUL DISTRESSES. [CHAP. XVIII. But President Shippen, in delivering the opinion of the Philadel- phia Court of Common Pleas, in the case of Woglam v. Cowper- thwaite' (A.D. 1790), says: "Oar act of Assembly pursues in general the directions of the statute of William, and contains some of the clauses of the latter statute, but omits that which empowers the landlord to impound on the premises : the usage, however, has been, both before and since our act of Assembly, to impound on the premises agreeably to the directions of the act of Geo. the '2d." Upon the authority of the case of GrifSn v. Scott (A.D. 1725), which as reported in 2 Strange, 716,'' decides that the landlord must remove the goods distrained at the five days' end, otherwise he becomes a trespasser after that time, the learned judge re- marks: " This implied strongly that the construction of the stat- ute of William was, that the distrainer might leave the distress on the premises, for five days, mentioned in the act, that the tenant might have the opportunity of replevying them, in the same plight in which they were when distrained. If that was the construction of the statute of William, the like construction will hold under our act of Assembly, which follows the words of the statute. Even at common law, goods distrained might be left on the premises for a reasonable time." Moreover, Mr. Justice Kennedy, in delivering the opinion of the Supreme Court, in the case of McKinney v. Reader,' 1 2 Dallas, 68, 69. ' According to the report of Griffin v. Scott, as made by Lord Eatmond, who was Lord Chief Justice of the Court of King's Bench when the case was decided, it seems it was held that the landlord should have removed the goods distrained from the premises, not at the end of five days, but in a reasonable time, and impounded them, since the law does not allow impounding a dis- tress on the premises, unless in cases within the statute of 2 William and Mary, and that he was a trespasser ab initio for having kept the goods distrained on the premises longer than a reasonable time, which the law allows him to remove them in. 2 Lord Kaymond, 1424, 1426. The report of the case in 1 Barnardiston, 3, states that the distrainer continued upon the land with the distress six days, and gives the judgment of the court as follows ; " That by the Common Law a Person that distrains is obliged to carry off the Distress immediately, and put it into a Pound Covert or a Pound Overt, and not detain it upon the land, and the present Case is not within the statute of 2 William and Mary, 5. And Judge Reynolds said, that the very Reason why Shocks of Corn could not be distrained at Common Law, was, because they could not be carried off without Damage to the Tenant, which implies that a carry- ing off of the Distress is necessary." See also Nolan's notes to Griffins. Scott, in the third edition of Strange's Reports, at page 716. ^ 6 Watts, 84, 38. See the discussion of the subject by Ebnnedy, J SEC. in.] REMEDIES FOR WRONGFUL DISTRESS. 623 quoted and approved the observations made by President Shippen. And in delivering the opinion of the District Court of Philadel- phia, in Waitt v. Ewing,' President Judge Hare squarely decided that goods distrained for rent may remain impounded on the premises for a reasonable time after the five days have expired, which, in all ordinary cases, will be until the time arrives at which they are sold in due course of law, and that six days, or if Sunday falls on the last day of notice of sale, seven days from the taking of the distress, will not be an unreasonable time to remove the goods. Taking such to be the settled law with regard to the impounding of the distress, it would seem only fair towards the tenant that the distrainer should not remove the distress from the premises, for an equal space of time. SECTION III. WHAT CONSTITUTES WRONGFUL DISTRESS, AND THE REMEDIES THEREFOR. 1105. In a previous portion of the work numerous instances of wrongful distresses were given,^ and also a detailed statement of the tenant's remedies for the same.' We saw that as a general rule the remedies for a wrongful distress are * (1.) Action of trespass.* (2.) Action of trespass on the case.' (3.) Action of trover.' (4.) Action of replevin.' (5.) Action of detinue.' (6.) Action of rescous.' These actions have already been treated of in various parts of the work, where the circumstances are set forth as to when and where each action will lie. ' 7 Philadelphia, 195; see also McElroy v. Dice, 5 Harris, 168. 2 See ante, Chapter III, Section ii, page 61, f 75 (7th). » Ibid., pages 63 to 70. * Ibid. See, also. Chapter XII, Section ii, pages 341, 354, 356, et seg. 6 Ibid. See, also, Chapter VII, Section i, pages 192, 197, et seq. ' Ibid. See, also. Chapter XV, Section iv, pages 374, 380, et seq. ' Ibid. See, also, Chapter XV, Section v, pages 386, 418, et seq. ' Ibid. See, also. Chapter XV, Section iii, pages 373, 374. ' Ibid. See, also, Chapter VIII, Section i, pages 204, 205. 624 WRONGFUL DISTRESSES. [CHAP. XVIII. I. Exceptions with regard to Trespass, and where the General Action does not lie. 1106. As a general rule, the action of trespass is a proper rem- edy, whensoever the distress is wrongful in its incipiency, or be- comes so by some irregular act on the part of the distrainer in conducting it. But there are some exceptions to this rule, which we will now proceed to consider. (1.) When Distress is Excessive. (a.) When for More Bent than Due. 1107. When the distress is made for more rent than is due, which in effect is an excessive distress, the distrainer does not be- come liable in an action of trespass. In the case of Karns v. McKinney,^ where it was alleged that a distress had been made for more rent than was due, Mr. Justice Mercur, in delivering the opinion of the Supreme Court, says : " If any rent was due, the landlord had the right to enter and to distrain. The entry and distress then being lawful in fact, the plaintiffs were not liable as trespassers for an excessive dis- tress. The proper remedy in such case is by an action on the case founded on the statute of Marlbridge." The same principle was held in McKinney v. Reader,^ Lynne v. Moody,' and Hutch- ins V. Chambers.* 1108. The landlord is liable in damages, without proof of malice or want of probable cause.* If a constable make a distress for more rent than is due he is also liable. The warrant alone is no protection to him. As was said by Mr. Justice Lewis : " It may be remarked that the constable is not bound to make a dis- tress for rent, and that the law only requires his interference, after the distress made, should an appraisement and sale become necessary. "° And an arrangement between the parties with regard ' 24 r. F. Smith, 387, 391. '' 6 Watts, 34, 41; see also Jimison d Eeifsnyder, 88 Legal Intelligencer, 292 (A.D. 1881). 8 2 Strange, 851. * 1 Burrow, 590. ' McElroy v. Dice, 5 Harris, 163. = Ibid., 109. See Wells v. Hornish, 3 Penrose & Watts, SO, 88. SBC. III.J REMEDIES. FOR WRONGFUL DISTRESS. 625 to the sale of the distress, is no bar to an action by the tenant for the excessive distress.' 1109. In an action for an excessive distress, under the statute of Marlbridge, a count in trover is sometimes added in case the tenancy or the distress should be denied ; or in case it turn out at_ the trial that some goods were removed by the landlord which were not taken originally under the distress, nor included in the inventory, because they were not discovered at the time." It is competent for the plaintiff, at the trial, to abandon the count under the statute, when he may recover under the count in trover.' But where there is no rent due or in arrear, an action of trover cannot be joined with an action of trespass, or upon the case, founded on the third section of the act of 1772, giving double the value of the goods distrained in damages. Says Mr. Justice Duncan in Smith v. Meaner:* "An action on a statute to enforce a penalty for a transgression, cannot be coupled with a demand for the recovery of damages for a mere conversion of the goods of another." 1110. An action of trespass on the case at common law will also lie for distraining for more rent than is due,^ even though the goods distrained are of less value than the rent really due.* And if the landlord proceed to distrain after the rent in arrear has been tendered, an action on the case for an excessive distress may be maintained.' (6.) When on more Chattels than Necessary. 1111. When the distress is made on more chattels than is neces- • Ibid., 163; Willoughby v. Backhouse, 2 Bamewall & Cresswell, 821 (9 English Common Law Reports, 254) ; Sells ». Hoare, 1 Bingham, 401 (8 Eng- lish Common Law Reports, 359). See also Glynn v. Thomas, 11 Exchequer (Hurlstone & Gordon), 870, 876. '' Bishop V. Bryant, 6 Carrington & Payne, 484 (25 English Common Law Eeports, 500). ' Spargo e. Brown, 9 Bamewall & Cresswell, 926 (17 English Common Law Reports, 525) . « 16 Sergeant & Rawle, 375, 877. ' Carter v. Carter, 5 Bingham, 892 (15 English Common Law Eeports, 479). ' Taylor v. Henniker, 12 Adolphus & Ellis, 488 (40 English Common Law Reports, 105). ' Branscomb v Bridges, 1 Bamewall & Creswell, 145 (8 English Common Law Reports, 43). See also Holland v. Bird, 10 Bingham, 15 (25 Ibid., 14). 40 626 WRONGFUL DISTRESSES. [CHAP, XVIII. sary to satisfy the rent and the expenses, which is also an excessive distress, the distrainer does not become liable in an action of tres- pass. The proper remedy is by special action of trespass on the case, founded on the statute of Marlbridge.' 1112. The remedy of distress is e-xtremely tyrannical, and should be restrained as much as possible. When carried with se- verity to even its legal limit, it is a breach of the Mosaic precept : " No man shall take the nether or the upper millstone to pledge, for he taketh a man's life to pledge."^ But cases may occur where an excessive distress is justifiable. Thus where there is but one thing on the demised premises, which can be distrained, even though it be of a value far exceeding the amount of rent due, yet it may be lawfully taken, and an action is not maintainable for such an excessive distress.' 1113. Every trifling excess in taking a distress does not render the distrainer liable.* But if there are some articles of value, and much more is taken than is sufficient to satisfy the rent and ex- penses, a case is maintainable, and this without proving express malice in the party distraining. It need simply appear that the goods taken are disproportionate to an excess of the rent in arrear.^ It is a question for the jury whether a distress is excessive or not.' 1114. If a distress be found excessive, the plaintiff is entitled to recover the fair value of the goods distrained, less the rent in arrear, and the costs of the distress.' But where the excess in the distress consisted wholly in seizing growing crops in two fields, the probable produce of which was capable of being estimated at the time of the taking, the Court of Exchequer held that the measure of damages was not the value of the crops, but the inconvenience and the expense which the tenant sustained in being deprived of the management of them, or which he was put to in procuring 1 Lynne v. Moody, 2 Strange, 851 ; Hatehins ». Chambers, 1 Burrow, 579, 690 f see also ante, page 624, ^ H07. 2 24 Deuteronomy, 6. " Field «. Mitchell, 6 Espinasse, 71. « Ibid. 6 Ibid. * See Smith v. Ashforth, 29 Law Journal (New Series), 259. ' Wells V. Moody, 7 Carrington & Payne, 59 (32 English Common Law Reports, 436); Biggins v. Goods, 2 Crompton & Jervis, 364; Knight v. Egerton, 7 Exchequer (Wolsby, Hurlstone & Gordon), 407. SBC. III.] REMEDIES FOR WRONflFUL DISTRESS. 627 sureties to a larger amount than he would otherwise have been in replevying the crops.' 1115. Where, however, the distress was obviously excessive on the face of it, it was considered illegal, and the distrainer a trespasser for taking it. Thus, where the distress was made on six ounces of gold, and one hundred ounces of silver for the sum of 6s. 8d., it was held excessive, and that an action of trespass would lie, on the ground that gold and silver were of certain known value.^ In all other cases, however, of goods of arbitrary and uncertain value, the action will not lie, but must be upon the statute.^ But if an excessive distress be abused the distrainer becomes a trespasser.* And where the distrainer, in addition to such a distress, turns the tenant's family out of possession, an action of trespass will lie against him.* 1116. A lodger may bring an action for an excessive distress when his goods are taken by the lessor of his landlord.* Such goods are privileged from distress, being on the demised premises in the way of trade.^ But the exemption is allowed a lodger or boarder in his character as a lodger or boarder only, and goods not in his actual use, and not necessary for his lodging or board- ing, are liable to a distress for rent due by the keeper of a lodging or boarding bouse.' And the tenant, on whose premises goods of a stranger are seized for rent, is liable over to the stranger.' 1117. But the right to an action for an excessive distress is per- sonal, and does not pass to assignees, or personal representatives.'" Nor can the action be maintained after a judgment recovered in replevin." But a recovery of the surplus money for which goods 1 Piggott V. Birtles, 1 Meeson & Welsby, 441. See, also, Chandler v. Doul- ton, 3 Hurlstone & Coltman (Exchequer), 552; Lucas «. Tarleton, 3 Hurlstone & Norman (Exchequer), 116. ' Moir V. Mundy, cited in Hutchins v. Chambers, 1 Burrow, 590. ' Ibid. * Lynne v. Moody, 2 Strange, 851. 6 Etherton v. Popplewell, 1 East, 139. " Fisher v. Algar, 2 Carrington & Payne, 374 (12 English Common Law Keports, 179). ' Kiddle ». Welden, 5 Wharton, 9; see also cases cited in notes 5, 6, 7 and 8, ante, page 452. ^ Jones v. Goldbeck, 8 Weekly Notes, 533. ' O'Donnell v. Seybert, 13 Sergeant & Rawle, 54. '" See O'Donnell ». Seybert, 13 Sergeant & Eawle, 54, 56 ; Smith v. Meanor, 16 Ibid., 375. " Phillips «. Berryman, Trinity, 23 George III, cited in Selwyn's IJisi Prius, *689. 628 WRONSFUL DISTRESSEa. [CHAP. XVIII. seized for rent sold beyond the amount of rent in arrears, is no bar to au action for an excessive distress.' (2.) When after Impounding Tender of Bent is Made. 1118. When, after the distress and the impounding thereof, tender is made of the rent due and the costs of the distress, and the same is refused, and the distress sold, the distrainer does not become a trespasser ab initio and liable in an action of trespass. 1119. It is to be remembered that the tender must be made to the landlord or to his agent authorized to receive the rent, A tender made to a mere bailiff authorized to distrain, but not par- ticularly authorized to collect the rent, is an invalid tender.' But the Court of Queen's Bench (A.D. 1850) has held that where a landlord gives a warrant to distrain for rent, he thereby authorizes the bailiff to receive the rent if tendered.' However, a man merely left in possession of a distress by the distrainer, has no implied authority to accept a tender.* But a tender made to the wife of the landlord, who has been in the habit of collecting the rent, is a valid tender.* 1120. The essentials of a valid tender may be said to be as fol- lows: (1.) It must be made to the landlord, or to one authorized to collect the rent." (2.) The whole rent in arrear (actual or constructive payments on account of rent being deducted),' and the costs of distress must be tendered.* 1 O'Donnell v. Seybert, 13 Sergeant & Eawle, 54. ' Pilkington's Case, 5 Coke, 76; Pilkington v. Hastings, Croke-Elizabeth, 813. « Hatch V. Hale, 15 Adolphus & Ellis, N. S., 10 (69 English Common Law Keports, 9), per Lord Campbell, Ch. J., Patteson, Wiqhtman, and Eklb, JJ. » Boulton V. Reynolds, 2 Ellia & Ellis, 369 (105 English Common Law Reports, 369). 6 Browne v. Powell, 4 Bingham, 230 (13 English Common Law Reports, 410) ; Steel v. Thompson, 3 Penrose & Watts, 34. * See Bennett v. Bayes, 5 Hurlstoue & Norman (Exchequer), 391. ' See ante, page 503, ^ 951 ; Carter v. Carter, 5 Bingham, 406 (15 English Common Law Reports, 479) ; Sapsford 'v. Fletcher, 4 Term Reports, 511. * Safe Bennett v. Bayes, 5 Hurlstone & Norman (Exchequer), 391. SEC. III.]- REMEDIES FOR WRONGFUL DISTRESS. 629 (3.) The money must be produced, unless the landlord, or his agent aforesaid, state that he will not accept it.' (4.) The money tendered must be lawful money of the United States." (5.) The tender must be made in daytime.' (6.) The tender should be made on the land, or to the landlord or agent as aforesaid, personally.' (7.) The tender must be unconditional.' 1121. The tender having been made, and the return of the dis- tress being refused, yet is the landlord or his bailiff no trespasser, according to the common law as laid down by Lord Coke, in his report of the Six Carpenters' Case,* wherein he says: "It was resolved per totam curiam, that not doing cannot make the party who has authority or license by the law, a trespasser ab initio, be- cause, not doing is no trespass, and therefore if the lessor distrains for his rent, and thereupon the lessee tenders him the rent and arrears, etc., and requires his beasts again, and he will not deliver them, this not doing cannot make him a trespasser a6 initio." And in his report of the case, Lord Coke sums up the common law in regard to a tender with great perspicuity, as follows: "Note, reader, this difference, that tender upon the land before the distress makes the distress tortious ; tender after the distress and before the impounding, makes the detainer, and not the taking, wrongful ; tender after the impounding makes neither the one nor the other wrongful ; for then it comes too late,' because then the cause is put to the trial of the law, to be there determined. But after the law has determined it, and the avowant has return irreplisable, yet if the plaintiff makes him a sufficient tender, he may have an ac- tion of detinue for the detainer after; or he may, upon satisfac- tion made in court, have a writ for the redelivery of his goods."' 1 Puller V. Little, 7 New Hampshire, 535; Thomas «. Evans, 10 East, 101. * As to what is " lawful money of the United States," see The Requisites of a Valid Tender, by John Horace Lind, 17 American Law Eegister (N. S.), 745, 752. ' Bradby's Distress, *88. ♦ Ibid. * Holton V. Brown, 18 Vermont, 224 ; Huxham v- Smith, 2 Campbell (Nisi Prius), 19, 21 ; Glascott ». Day, 5 Espinasse, 48. 6 8 Coke, 147a; S. C, 1 Smith's Leading Cases, «217. ' Pilkinton's Case, 5 CokC; 76 a; Anscomb v. Shore, 1 Campbell, 285. 8 8 Coke, 147 a ; 1 Smith's Leading Cases, *21& "630 WRONGFUL DISTEE8SES [OHAP. XVlII. These conclusions of Sir Edward Coke were made while he was Chief Justice of the Common Pleas, in the reign of King James I, which was before the passage of the statute of 2 William and Mary, authorizing a sale of the distress. Subsequently many de- cisions were made in accord with the common-law rule, that a tender of satisfaction after the impounding comes too late. Thus, in Firth v. Purvis,' in the thirty -fourth year of the reign of George III, it was held that a tender after the impounding of the distress was insuificieut. In Anscomb v. Shore,^ in the forty-eighth year of the reign of George Til, and in Sheriff v. James,' in the reign of George IV, it was held that an action of trespass on the case would not lie for refusing to restore the distress after tender sub- sequent to the impounding. In Lindon v. Hooper,* in the six- teenth year of the reign of George III, it was held that where the party distrained on paid an excessive sum for the release of the distress, an action for money had and received would not lie. The cases of Thomas v. Harries,^ Ladd v. Thomas,* Ellis v. Taylor,' and Tennant v. Field,' in the reign of Queen Victoria, were to the effect that a tender of satisfation after the impounding came too late. 1122. However, the Court of Queen's Bench, in the twenty- second year of the reign of Queen Victoria, in the case of Johnson V. Upham,' overruled Ellis v. Taylor,'" and Iviudred cases, and seems to settle the law as it should be, since the passage of the statute of 2 William and Mary, chapter 5, the first section of which being in- corporated almost word for word in the first section of our act of 21st March, 1772." In Johnson v. Uphara (supra) it was decided that upon the equity of the statute of 2 William and Mary, chapter 5, section 1, a tender by the tenant of the rent due, and costs, to the person distraining, within five days (the time allowed by the statute for the tenant to replevy) after the distress is taken, and 1 5 Term Eeporla, 433. ' 1 Campbell, 285. 3 1 Bingham, 341 (8 English Common Law Eeports, 338). • 1 Cowper, 414. 5 1 Manning & Granger, 695 (39 English Common Law Reports, 607). « 12 Adolphus & Ellis, 117 (40 EngKsh Common Law Reports, 38). " 8 Meeson & Welsby, 415. 8 8 Ellis & Blackburn, 336 (92 English Common Law Reports, 336). 9 Ellis V. Ellis, 250 (105 English Common Law Reports., 248). i" 8 Meeson & Welsby, 416. " See ante, page 594, f 1081. SBO. III.] REMEDIES ¥0R WRONGFUL DISTRESS. 631 before sale, though after the distress has been impounded in accord- ance with the statute of 11 George II, chapter 19, section 10,' was a good tender. Accordingly a special action of trespass on the case founded on the equity of the statute of 2 William and Mary may be maintained against the landlord if he proceed to sell the distress, although the goods were impounded before tender. At the present day in England the action of detinue will undoubtedly lie, as the statute of 3 and 4 William IV, chapter 42, section 13, has freed that action of the clog of wager of law.^ 1123. The case of Johnson v. Upham' is interesting to us, as we have no decision in our courts on the point. As our custom is to impound the distress on the premises of the tenant, no interval of time elapses between the act of distraining and that of impound- ing, unless the distrainer should conclude to remove the distress to another pound, which in fairness to the tenant he should not do during the five days, therefore, any tender of the rent and costs made by the tenant, is made after the impounding. If the tender be refused, although the distrainer does not become a trespasser by not restoring the goods, yet it would seem that the act of selling would be a trespass. But the Court of Common Pleas, in the eleventh year of the reign of Queen Victoria, in the case of West V. Nibbs,* where the question was, whether, if a landlord, after a lawful distress and impounding, accepts the rent in arrear, and the charges of the distress, he is liable as a trespasser, for merely retaining possession of the goods distrained and selling and disposing of them, decided that the landlord was not a tres- passer ab initio. In delivering the opinion of the Court, Judge Creswell says : " As to the selling and disposing of them (the goods distrained), although, under certain circumstances, the as- suming a right to dispose of goods of another may amount to a conversion of them sufficient to sustain an action of trover, yet it seems to us impossible to maintain that a man becomes a trespasser by the mere act of selling and disposing of the goods of another without authority, unless the sale and disposition be accompanied 1 See ante, page 615, If 1092. 2 See ante, page 373, T[ 698 ; see, also, West v. Nibbs, 4 Manning, Granger? & Scott, 172, 184 (56 English Common Law Reports, 172, 183). s 2 Ellis V. Ellis, 250 (105 English Common Law Reports, 248). * 4 Manning, Granger & Scott, 172 (56 English Common Law Reports;. 172). 632 WRONGFUL DISTRESSES. [CHAP. XVIII. by some act of removal of the goods, either by the vendor or by the vendee. It remains, therefore, to consider only whether the merely retaining possession of the goods as alleged amounts to an act of trespass." After quoting the resolution in the Six Carpenters' Case {supra) the learned judge goes on : " If, then, a landlord, who refuses a proper tender, is not to be regarded as a trespasser merely by reason of his nonfeasance, in failing to deliver up the distress, he being required so to do ; it appears to us to follow, that a landlord, who has accepted the rent in arrear, etc., after the impounding, cannot be treated as a trespasser merely because he retains possession of the goods distrained, — although his refusal to deliver them up to the tenant may amount to a conversion suffi- cient to make the landlord liable in an action of trover." 1124. In England, where it is optional with the landlord to sell the distress or to remove it to a pound and retain it as a pledge so long as may seem well to him,^ it would appear that, in case of a difference between the parties as to the amount of rent due, the policy of the landlord would be to keep the distress impounded as a pledge, according to the common law, and await a settlement. But with us the course of the distrainer is more difficult, as it has been decided in Quinn v. Wallace' that the words of our act are imperative and that, the distrainer must sell. Moreover, unless the tenant expresses his assent to the remaining of the distress on the premises, the distrainer must remove it within a reasonable time, and it has been decided that seven days after the distress is such reasonable time."* In England, in the reign of George IV, in the case of Pitt v. Shew,* the Court of King's Bench held that it must be left to a jury to say what is a reasonable time after the expiration of the five days allowed the tenant to replevy, within which to sell the goods. In that case a distress was made on April 14th, and a sale on April 27th was found by the jury to be within a reasonable time.* In Griffin v. Scott,' in the reign of George I, 1 See ante, page 619, f 1097. 2 See Woodfall's Landlord and Tenant, 378, 423, 11th ed. 8 6 Wharton, 452 ; see ante, page 620, f 1098. * Waitti). Ewing, 7 Philadelphia, 195. ' 4 Barnewall & Alderson, 208 (6 English Common Law Keports, 403). 6 Ibid., 206 (Ibid., 402). ' 2 Lord Eaymond, 1424 ; S. 0. 2 Strange, 717 ; see also Winterbourne v. Morgan, 11 East, 395. See ante, page 622, Tf 1104. BEC. III.j REMEDIES FOR WRONaFDL DISTRESS. 633 eight days were held to be an unreasonable time for allowing the distress to remain ; but that decision was before the statute of 11 George II, cliapter 19, authorized the impounding of a distress upon the demised premises. (3.) With Regard to Notice of Distress. (a.) When None. 1125. When the distress is made on goods on the demised prem- ises, and no notice thereof is served on either the tenant or the owner of the goods, the distrainer does not become a trespasser ab initio, and liable in an action of trespass, unless the goods be sold. 1126. Such a distress occurred in the caseof McKinney v. Reader,' and in delivering the opinion of the Supreme Court, Mr. Justice Kennedy says: "At common law, such notice was not required; and would seem to be necessary, under the act of Assembly, only in order to warrant a sale of the distress agreeably to the directions thereof. But as no sale was made of the distress in this case, the mere omission to give the notice required, cannot, of itself, be considered sufficient to make the landlord a trespasser ab initio. A mere nonfeasance does not amount to a trespass. The Six CaTpenters' Case, 8 Coke, 146. But here it may be said, that the landlord evinced his intention to proceed and sell; but certainly that was all he did ; and at most, it was only a declaration of intention, which will not, without some act done in pursuance of it, constitute a trespass. There must be some positive act done, that is incompat- ible with the right of the party to make the distress, in order to render him a trespasser ab initio. Gates v. Lounsbury, 20 Johns, Eeports, 427." Thus it may be inferred from the language of the learned justice that, had a sale of the goods been made, the omission of notice would have made the distrainer a trespasser, (6.) When on Tenant. 1127. "When the distress is made on chattels belonging to a stranger, which were left on the demised premises in the way of trade, and notice of the distress is given to the tenant, the dis- I 6 Watts, 34, 40. 634 WRONGFUL DISTEESSES. [CHAP. XVIII. trainer does not become a trespasser by proceeding with the dis- tress and selling the same. 1128. In Caldcleugh v. Hollingsworth/ the chattel distrained on was that of a stranger, who had left it on the premises in the way of trade for upwards of two years, when the same was dis- trained and notice thereof duly served on the tenant, but not on the owner of the chattel. Upwards of a year after the sale, the latter brought an action of trover against the landlord to recover damages for the value of the chattel. The decision of our Supreme Court (Chief Justice Gibson delivering the opinion), was to the effect that notice to the tenant was suf- ficient, as in such a case he might well be deemed the agent of the owner of the chattel, whose business it was to transmit it to the owner, and that, as the requirements of the act of 1772 had been complied with, replevin was the only remedy. Judge Stroud, in delivering the opinion of the District Court of Phila- delphia, in the case of Sassman v. Brisbane,^ went farther, and as- sumed that the opinion of Chief Justice Gibson was based on the provision of the act of 21st March, 1 806,^ which enacts that, where a statute provides a certain remedy, the same supplants the reme- dies otherwise provided by the common law. This assumption of Judge Stroud has already been commented upon in a previous part of the work,* and the case of Caldcleugh v. Hollingsworth^ was explained by Mr. Justice Thompson, in delivering the opinion of the Supreme Court, in the case of Briggs v. Large," in which he says: "It is an authority for giving notice of distrer.s to the ten- ant, and that it is his business to transmit it to the owner, ' whose agent for thai purpose he may be considered.' " (4.) With Regard to Impounding of Distress. (a.) When out of County or more than three miles. 1129. When the distress is removed and impounded out of the county, or at a place more than three miles distant from where 1 8 Watts & Sergeant, 802. ' 7 Philadelphia, 195. See note, ante, page 77, * 4 Smith's Laws, 832. * See note, ante, page 77. » 8 "Watts & Sergeant, 802, « 6 Casey, 287, 291. SEC. III.] KEMEDIES FOR WRONGFUL DISTRESS. 635 taken, the distrainer does not become liable in an action of tres- 1130. Although it would seem that in such a case an action of trespass would lie, yet it appears that such is not the case, as by the common law a distress might be impounded where the dis- trainer pleased -^ but the statute of Marlbridge, 52 Henry III, chapter 4' (in force in Pennsylvania), provides that it shall not be impounded out of the county, and the first section of the stat- ute of 1 and 2 Philip and Mary, chapter 1 2' (in force in Penn- sylvania), is to the effect that the distress shall not be carried out of the hundred, etc., unless to a pound in the same county within three miles' distance. Our courts have handed down no decision on this point ; but in England it has been decided that the action of trespass will not lie, the proper action being one upon the stat- ute.* But if the leased premises be part in one county and part in an adjoining county, the lessor may distrain in either,^ But where the landlord distrains cattle in both counties, he not only may, but ought to, drive them all into one county, tiiough it is otherwise where the two counties do not adjoin." Moreover, if the tenant's goods be fraudulently and clandestinely removed to avoid the distress, the lessor may follow them.' But the goods of a stranger cannot be so followed.* (6.) When Impounded in Several Places. 1131. When the distress is impounded in several places, the distrainer does not become liable in an action of trespass. This wrong to the tenant is such, because it may compel him to take out several replevins. 1132. The first section of the statute of 1 and 2 Philip and ' 1 Coke's Second Insitutes, 106; 9 Viner's Abridgment, Distress, E, 4; see Thomas v. Harries, 1 Manning & Granger, 695, 709, note (39 English Com- mon Law Reports, 607, 614, note). 2 Ante, page 592, 1[ 1079 (1). '' Ibid., 593, f 1079 (3). * Woodcroft II. Thompson, 3 Levinz, 48 ; Gimbarta. Pelah, 2 Strange, 1272; Comyn's Digest, 229. 5 1 Rolle's Abridgment, 671, 11, line 30. 6 Walter J). Eumbal, 1 Lord Raymond, 53; S. C, 1 Salkeld, 247; 4 Mod- ern 390; 12 Ibid., 76. ' Ante, Chapter V, page 125, etseg. 8 Adams v. La Comb, 1 Dallas, 440 ; Sleeper v. Parrish, 7 Philadelphia, 247. 636 WRONGFUL DISTRESSES. [CHAP. XVIII. Mary, chapter 12, which is in force in Pennsylvania,' provides that a distress shall not be impounded in several places, upon pain of every person so offending shall forfeit to the party grieved, for every such offence, a hundred shillings and treble damages. It is evident from the reading of the statute that the action of trespass will not lie, as the reasoning relative to this wrong is similar to that relative to the wrong of impounding the distress out of the county.' 1133. In Partridge v. Naylor,' in the reign of Queen Elizabeth, it was held that the penalty of five pounds and treble damages lay against each of the parties acting in the distress, but, upon error, the Court of Queen's Bench, in 38 Elizabeth, reversed the judgment, and held that where three persons distrained goods and severally impounded them in three several pounds, they, together, shall forfeit but one single penalty of five pounds and one treble damages.* In the case of Rex v. Clark,^ Lord Mansfield succinctly stated the true rule as follows : " Where the offence is in its na- hire single, and cannot be severed, there the penalty shall be only single; because, though several persons may join in committing it, it still continues but one offence. But where the offence is in its nature several, and where every person concerned may be sepa- rately guilty of it, there, each offender is separately liable to the penalty; because the crime of each is distinct from the offence of the others, and each is punishable for his own crime. For instance : the offence created by the statute 1 et 2 Phil, et Mar., c. 12, is 'the impounding a distress in a wrong place.' One, two, three or four, may impound it wrongfully; it still is but one act of impounding, it cannot be severed. It is but one offence, and therefore shall be satisfied by one forfeiture." (5.) When Distress is made in the Highway. 1134. When the distress is made on chattels in the highway, the distrainer does not become liable in an action of trespass. In England it has been laid down by Lord Coke,^ that the tenant's 1 Ante, page 533, 1[ 1079 (3). » See anie, page 454, f 867. » Noy, 52 (A-.D. 1669). * Partridge v. Naylor, Croke-Elizabeth, 480; Moore, 453; Partridge v. Emson, Noy, 62 ; Rex v. King, 1 Salkeld, 182. 6 2 Cqwper, 610, 612. 8 1 Coke's Second Institutes, 131. See ante, page 454, T[ 876. SEC. III.] REMEDIES FOR WRONGFUL DISTRESS. 637 remedy is by iaction upon the statute of Marlbridge, 52 Henry III, chapter 15 (in force in Pennsylvania), and it seems that in some cases the distress is not void. Thus, in Lord Chief Baron Gilbert's work on distress' it is said : "No private person can dis- train beasts off' his own land, or on the highroad ; — so is the stat- ute of Marlbridge (52 Henry III, c. 15). Yet this shall not be taken to make the distress illegal, so as to give an advantage thereof in bar of the avowry, but to this purpose only, that if the landlord distrain in the highway, the tenant may have an action against him on the statute." Again, from the case of Hodges v. Lawrence,^ it seems that chattels lying in a road adjoining a de- mised farm, and within the line of the middle of the highway, and next to the premises, may be distrained. Moreover, if the distress be removed into the highway after the distrainer has seen it on the land demised, it is liable to be distrained on ; but, if cattle, before the distrainer observes them, are driven off" by the tenant, in order to prevent a distress, or if after view they go off^ the land of themselves, they cannot be distrained.' (6.) When Distress is on Things in the Custody of the Law. 1135. When the distress is made on goods which were pre- viously levied upon on an execution or foreign attachment, the distrainer does not become liable in an action of trespass at the instance of the tenant, or the plaintiff at whose suit the levy was made. 1136. Such a distress is a trespass against the officer who levied upon the chattels, as such goods are privileged from distress.* In such a case the execution creditor cannot bring an action of tres- pass against the lanxllord, his remedy being against the ofSScer who made the levy,* and who may bring an action of trespass or trover ' Page, 40 (2d ed), 51 (4th ed). See also 1 Coke's Second Institutes, 131 ; Capel V. Buzzard, 6 Bingham, 150 (19 English Common Law Keports, 36). 2 18 Justice Peace, 347, Ex. ; Woodfall's Landlord and Tenant (11th edi- tion), 415. ' Coke upon Littleton, 161, a; 1 Coke's Second Institutes, 181; Clements. Milner, 3 Espinasse, 95; Gilbert's Distresses and Replevins, 22, 52 (4th ed.). * Pierce v. Soott, 4 Watts & Sergeant, 344, 346; Taylor v. Manderson, 1 Ashmead, 130; Eex v. Cotton, Parker, 112, 120; Eaton v. Southby, Willes, (Durnford's ed.), 131, 136. '■ Taylor v. Manderson, 1 Ashmead, 130; Clerk «. Withers, 6 Modern, 290; S. C, 2 Lord Raymond, 1072; 1 Salkeld, 323. 638 WRONGFUL DISTEESSES. [CHAP. XVIII. against any third person, who wrongfully divested him of the fruit of his levy.' 1137. By the 4th section of the act of 21st March, 1772,== supplemented by the 83d and 84th sections of the act of 16th June, 1836,' the officer conducting the execution is instructed to pay to the landlord one year's rent, if so much be in arrear, at the time of the levy. And if the landlord has distrained for part of the rent in arrear, he is not estopped from claiming the residue, not exceeding one year's rent.* But the landlord cannot appor- tion the rent beyond the time of the levy,' notwithstanding a stay of proceedings under a sheriff's interpleader." But where the landlord distraining for rent, the tenant claimed the benefit of the exemption act of 9th April, 1849, and the goods on the premises being appraised at less than $300, the landlord abandoned the distress. Subsequently the same chattels were taken in execution, under a claim on which the benefits of the act of 1849 had been waived. The landlord claimed his rent in arrear out of the pro- ceeds of the sale, but the court held that he was not entitled to the claim, and awarded the proceeds of the sale to the execution creditor.' (7.) When Distress is on Goods upon Premises in the Way of Trade. 1138. When goods of a stranger are upon the demised prem- ises in the way of trade, it seems reasonable to suppose that the landlord does not become a trespasser by distraining upon them without knowing their character ; for how is the distrainer to dis- tinguish them from the goods of the tenant, unless a claim be made?' But if the party distraining be made aware that the goods distrained on are privileged from distress, the distrainer will be a trespasser to the extent of that property. From the case ' Taylor 0. Manderson, 1 Ashmead, 130. 2 1 Smith's Laws, 370, ante, chapter v, page 130 ; see also, ante, page 599, \ 1084. " Pamphlet Laws, 777; ante, chapter v, page 131, et seq * Kreitor v. Hammer, 1 Pparson, 559. » See ante, page 133, ^ 204. « Horan v. Barrett, 8 Luzerne, Legal Observer, 96 j S. 0., 5 Legal and In- surance Reporter, 27. ' Prick V. McClain, 9 Weekly Notes, 82. ' See Caldcleugh v. Boilings worth, 8 Watts & Sergeant, 302. SBC. III.] REMEDIES FOR WRONGFUL DISTRESS. 639 of Kessler v. McConachy' it may be inferred that the measure of damages in favor of the owner of the chattels Would be the amount of the loss sustained by the sacrifice of the property, and the coats of a replevin, if there was one. (8.) When Distress is made after Termination of Tenancy. 1139. When the distress is made during the continuance of the landlord's title after the termination of the tenancy, and whether the tenant be in possession or not, the distrainer does not become liable in an action of trespass. 1140. In England, in Jenner v. Clegg,^ it was held that the landlord could not distrain on the chattels of a tenant holding over after the end of his term, when the lessor had served on him a notice to quit, without some evidence of a renewal of the tenancy. In that case the distress was for rent due in advance, and it was argued for the lessor that the act of distraining was a waiver of the notice to quit, and that the relation of landlord and tenant still existed. But the court decided that such was not the case, and that the mere holding over did not make the party a tenant upon the old terms, so as to confer the right of distress. 1141. In England, it is provided by the statute of 8 Anue, chapter 18, section 7,' that the landlord may distrain within six calendar months after the end of the term, provided there be a continuance of the landlord's title or interest, and of the tenant's possession. 1142. But our act of 21st March, 1772,* omits the provisions of the statute of 8 Anne, that the distress must be made within six months after the determination of the lease, and "during the possession of the tenant from whom such arrears became due." In Pennsylvania then, the landlord can distrain on the goods on the premises, after the termination of the term without limitation as to time, so long as he retains title or interest in the demised 1 I Eawle, 435. 2 1 Moody & Robinson, 213 ; see also Williams v. Stivin, 9 Adolphus & Ellis, N. S., 14 (58 English Common Law Eepoits, 12); Alford v. Vickery, 1 Carrington & Marshman (41 English Common Law Reports, 156). s AnU,page 511, % 1090. * 1 Smith's Laws, 370; ante, page 611, ^ 1090. 640 WRONGFUL DISTKESSES. [CHAP. XVIII. premises, whether the tenant be in possession or not.' And where W. went into possession under H., lessee of S., and held over after the termination of H.'s lease, our Supreme Court held that under the act of 1772, the goods of W. were liable after, as well as before, the determination of H.'s lease, in the same manner as if the lease was still in force, for rent due by H., unless such possession was continued under the authority of S., the owner of the premises.' (9.) When Landlord fails to Appraise Distress where no Sale Occurs. 1143. When the goods distrained are replevied by the owner, the landlord does not become a trespasser by having failed to ap- praise them. Says Judge Elcock, in delivering the opinion of the Court of Common Pleas, Number 4, of Philadelphia County, in Johnson v. Black :' " We do not see that there is anything in either the statute or the common law which requires a landlord to appraise the goods distrained within any period save a reasonable time, and at least six days before the sale of them under his war- rant There can be no necessity for an appraisement where the goods are replevied, the object of the appraisement being that the tenant may know the sum at which he can redeem his goods. Our act of Assembly follows that of 2 William and Mary, chapter 5,* and under that it has been decided that the landlord, upon the expiration of the five days, is allowed a reasonable time afterwards for the appraisement and sale (Pitt v. Shew, 4 B. & A., 206). The cases which determine that the landlord becomes a trespasser for a failure to appraise the goods, arise solely when he has made a sale of the property." ' Moss's Appeal, 11 Oasey, 162, 165 ; Lewis's Appeal, 16 P. F. Smith, 312, D14 : see ante, page 457, If 872 (8). 2 Whiting V. Lake, lONorris, 349 ; S. C, 9 Weekly Notes, 137. » 9 Weekly Notes, 438. * See ante, page 595, 1[ 1081. SEC. III.J KEMBDIES FOR WRONGFUL DISTRESS. 641 (10.) When Secona Distress is Made. 1144. In case a distress proves insufficient to satisfy tne whole rent, the landlord does not become a trespasser by distraining a second time for the same rent. 1145. By the common law, if a sufficient distress might have been taken at first, the landlord could not resort to a second dis- tress to make up any deficiency, because it was considered his folly that he did not distrain sufficient in the first instance.^ 1146. But the statute of 17 Charles II, chapter 7/ which was passed for the protection of landlords, in the fourth section makes an express provision for second distresses, as follows : "Provided, always, That in all cases aforesaid, where the value of the cattle' distrained; as aforesaid, shall not be found to be of the value of the arrears distrained for, that the party to whom such arrears were due, his executors, or administrators, may from time to time distrain again for the residue of the said arrears." 1147. Though the statute of 17 Charles II, chapter 7, was not included in the report of the Judges of the Supreme Court,* made A.D. 1808, as in force in Pennsylvania, yet since as well as before the report, the provisions of the statute have been recognized as a part of the common law of our Commonwealth.' In the recent case of Rosenthal v. Lehman (A.D. 1879), in delivering the opinion of the Court of Common Pleas, Number 1, of Philadelphia County, 1 Anonymous, Moore, 7 (in 3 Edward VI) ; Anonymous, Croke-Eliza- beth, 13 (in 25 Elizabeth) ; Comyn's Landlord and Tenant, *414 (6 Law Li- brary) ; see, also, Wallis v. Saville, Lutwyche, 1532, 1536 (in 13 William III) ; Quinn v. Wallace, 6 Wharton, 452, 464. » Roberts's Digest, *176 ; see ante, page 593, f 1079 (4). ' All the other sections of the statute of 17 Charles II, chapter 7, speak of "goods or cattle " distrained, while this section speaks of " cattle " only * See Appendix to 3 Binney, 893 ; Roberts's Digest, xiii. ' See Albright v. Pickle, 4 Yeates, 265 (A D. 1805), per Tbates, J. ; How- ard w. Johnson, 1 Ashmead, 58, per Hallowell, P.; Williams v Smith, 10 Sergeant & Rawle, 202, 206 (A.D. 1823) per Duncan, J. ; Kimmel v. Kint, 2 Watts, 432 (A.D. 1834), per Gibson, J., Tilghman, C. J., and Duncan, J., concurring; Rosenthal v. Lehman, 6 Weekly Notes, 559 (A D. 1879), per Peirce, J. But see Quinn v Wallace, 6 Wharton, 452, 458 (A.D. 1841), where Kennedy, J., says, that the statute of 17 Charles II has never been in force in this State by adoption or otherwise. 41 642 WRONGFUL DISTRESSES. [CHAP. XVIII. Judge Peirce, after carefully reviewing all the authorities, con- cludes: " We, therefore, adhere to the long-established practice and usage under the statute, and say, with Mr. Morris, in his val- uable treatise on replevin, ' Whether the statute, as such, is in force or not, its provisions seem to be recognized as part of the common law of Pennsylvania,' and we so decide." 1148. But a landlord cannot divide an entire rent due on the same day into parts, and distrain separately for each, because a sec- ond distress would be oppressive, and a distrainer cannot avow two distresses for one and the same rent.' And so a landlord cannot distrain for a parcel on one part of the land and afterwards for the residue on the other.^ Where the landlord vexatiously makes a second distress when he might have taken sufficient at first, or where, having taken a sufficient distress at first, volun- tarily abandons it, be becomes liable in an action of trespass, case,^ or trover.* 1149. If, however, the landlord distrain for the entire rent in arrear, and take an insufficient distress by bond fide mistaking the value of the goods seized, which may be of so uncertain or imaginary value that the party distraining may not be able to judge how much money they may fetch when they come to be sold, he may distrain again to make up the deficiency of the former distress, although at the time of the first distress there were sufficient goods on the premises to have answered the whole demand.^ So if the distrainer, at the instance of the tenant, do not take the value of the whole at first out of tenderness and mod- ' Wallis V. Savill, Lutwyche, 1532, 1536 (in 13 William III); see, also, Anonymous, Croke-Elizabeth, 13 (in 25 Elizabeth) ; Hutchins v. Chambers, 1 Burrow, 579, 589, per Lord Mansfield, Ch. J. ; Gambell v. Falmouth, 4 Adolphus & Ellis, 73 (31 English Common Law Reports, SO) ; Bagge u. Mawby, 8 Exchequer (Welsby, Hurlstone & Gordon), 641, 648. 2 Owens V. Wynne, 4 Ellis & Blackburn, 579 (82 English Common Law Reports, 579). » Lear v. Caldeoott, 4 Adolphus & Ellis, N. S., 123 (45 English Common Law Reports, 123), and cases there cited. * Dawson v. Cropp, 1 Manning, Granger & Scott, 961, 971 (50 English Common Law Reports, 959, 970), and cases there cited. ' Hutchins v. Chambers, 1 Burrow, 579, 589, per Lord Mansfield, Ch. J. ; see statute of 17 Charles II, chapter 7, ante, page 641, ^ 1146 ; see, also, Bagge V. Mawby, 8 Exchequer (Welsby, Hurlstone & Gordon), 641, 648 ; Lingham V- Warren, 2 Broderip & Bingham, 36 (6 English Common Law Reports, 10). SEC. III.J REMEDIES FOR WRONGFUL DISTRESS. 643 eration,' or is inchieed to withdraw his distress by false statements of the tenant/ he may distrain a second time. So, if the tenant by his misconduct prevent the purchaser of the distress from re- moving it, whereby the distress is defeated, a second distress will be justifiable.' "But if there is a fair opportunity," says Baron Parke, " and there is no lawful or legal cause why he should not work out the payment of the rent by reason of the first distress, his duty is to work it out by the first distress, and he cannot dis- train again." 1150. In making a second distress, the distrainer may take goods that have come on the demised premises subsequent to the first distress.* 1151. If cattle distrained for rent die in the pound, or, if goods distrained perish or are destroyed, without any fault or neglect on the part of the distrainer, he may distrain again.* 1152. Where different portions of rent become due upon several days, the landlord may distrain for one portion on one day and for another on another day,' and this he may do even though all the portions be due before he makes this first distress, and which may be taken for the portion of rent last accrued.' And where there has been an apportionment of rent, the tenant is subjected to sep- arate actions and distresses,' and thus a tenant in common may distrain for his share of the rent." 1 Hutchins v. Chambers, 1 Burrow, 579, 589, per Lord Mansfield, Ch. J. ; Bagge v. Mawby, 8 Exchequer (Welsby, Hurlstone & Gordon), 641, 648 ; ' Wollaston •«. Stafford, 15 Common Bench (6 J. Scott, 278 ; 80 English Common Law Reports, 276). » Lee V. Cook, 3 Hurlstone & Norman (Exchequer), 203 ; S. C, 2 Ibid. 583 ; see, also. Smith v. Torr, 3 Foster Einlason, 505. * Bagge V. Mawby, 8 Exchequer (Welsby, Hurlstone & Gordon), 641 648; see, also, Quinn v. Wallace, 6 Wharton, 452, 465. 6 See Bradby's Distress, *92. « Anonymous, Dyer, 280 b ; Vasper v Edwards, 12 Modern, *658, *662, *665 I S. C, Jasper v. Eadowes, 11 Ibid., *21, *22, *24 ; Vasper v. Eddowes, 1 Lord Kaymond, 719; Salkeld, 248; see also Quinn v. Wallace, 6 Wharton, 452, 462. ' Anonymous, Moore, 7 ; Warrington v. Kennedy, 10 Weekly Notes, 8 Palmer v. Stabick, 1 Siderfin, 44 (in 13 Charles II) ; S. C, Palmer v. Stanage, 1 Levinz, 43. ' Coke upon Littleton, 241 ; De Coursey v. Guarantee Trust and Safe De- posit Company, 31 P. F. Smith, 217, 228. i» Ibid. 644 WKONGFUL DISTRESSES. [CHAP. XVIII. 1153. Where the tenant replevies the distress, and is after- wards nonsuited in the action of replevin, the landlord is not bound to have his damages assessed by the jury under the statute of 17 Charles II, chapter 7,' or to take the earliest moment to prosecute his writ de retorno habendo.'' He may again distrain the same goods for rent subsequently accrued, previously to executing his retorno habendo, without waiving his action against the sureties in the bond.' 1154. "Where to an avowry and cognizance for rent in arrear a sub-lessee pleaded no rent in arrear, and it appeared that the landlord had previously distrained and sold the goods of the mesne tenant, our Supreme Court held that it lies upon the land- lord to show that the distress first taken was insufficient.* In order then to justify the making a second distress, it is incumbent upon the landlord to show how and in what manner the first was disposed of, and that upon a lawful disposition it had proved » Ante, page 59-3, Tf 1079 (4). ' Albright v. Pickle, 4 Yeates, 265; see, also, ante, p. 481, f 918. » Hefford v. Alger, 1 Taunton, *218. * Quinn v. Wallace, 6 Wharton, 452, 465-467. In concluding the opinion of the Supreme Court, Mr Justice Kennedy says : " We consider the cases of Lear v. Edmonds (1 Barnewall & Alderson, 157), Hudd v. Kavenor (2 Brod- erip & Bingham, 662; 6 English Common Law Keports, 306), noticed be- fore, and Lingham v. Warren (Ibid., 36 ; Ibid., 10), containing the same prin- ciple, as repugnant to the principle of Vaspor v. Edwards (12 Modern, *658 ; S. C, Jasper jj. Eadowes, 11 Ibid., *21; Vasper?; Eddowes, 1 Lord Kaymond, 719; Salkeld, 248), which may be regarded as a binding authority upon us, it having been decided before the Eevolution, and which settles the principle that a party having a right to distrain, cannot, after having made a distress, resort to any other remedy fur the same cause, without showing that the dis- tress has been rendered unproductive, either by the act of God or the act of the person from whom it has been taken." Lear v. Edmonds [supra) was an action for use and occupation, to which the tenant pleaded that the landlord before action took as a distress for rent sufficient goods to satisfy the same ; the Court of King's Bench (in 53 George III) held that the tenant's plea was bad for not showing that the rent was satisfied. In Lingham v. Warren {supra, in 1 George IV) it was held that to an avowry by executors for rent due in the testator's life, it is no plea " that the testator levied a sufficient distress for the same rent," unless it be also averred that the rent was thereby satis- fied. In Hudd V. Eavenor {supra, in 2 George IV), which was a replevin of a distress, it was held that to a cognizance for rent in arrear a plea of a former distress for the same rent without adding that the rent was satisfied is bad. But see ante, page 451 (13). SEC. III.] REMEDIES FOR WRONGFUL DISTRESS. 645 insufficient to pay the whole of the rent. If he fails to show this, he becomes with us a trespasser ab initio. 1155. It is a question for a jury whether the landlord has aban- doned a distress or not. In Eldridge v. Stacey/ the party distrain- ing was forcibly expelled by the tenant, and, after an interval of three weeks, he regained possession by breaking the frontdoor open with a sledge-hammer, and the jury found that the distress had not been abandoned. An abandonment was not inferred where the distrainer, having quitted the house in which the goods were im- pounded, for a short time, for the purpose of getting some beer, found the door purposely locked against him by the tenant, and broke it open for the purpose of re-entering.' The mere quitting the demised premises without leaving any one in possession of the goods distrained is not an abandonment of the distress.' Where the distrainer permitted the goods of a stranger, who had no notice of the distress, to be taken off the demised premises merely for a tem- porary purpose, with the intention on his part that they should be returned, which was subsequently done, the Court of Exche- quer held that there was not any abandonment of the distress." (11.) When the Distrainer Re-enters Forcibly. 1156. When a distress is lawfully made and afterwards the distrainer is forcibly expelled or denied re-entrance, he does not become a trespasser ab initio by regaining possession by force. 1157. In England, in the case of Eldridge v. Stacey,* the dis- trainer, in the absence of the tenant, climbed over a fence from an adjoining garden, and entered the house by the back door, which was only latched, and then forced the front door open for the pur- pose of admitting his assistant, whom he left in possession. Upon 1 15 Common Bench (J. Scott, N. S.), 458 (109 English Common Law Re- ports, 457). 2 Bannister v. Hyde, 2 Ellis & Ellis, 627 (105 English Common Law Re- ports, 627). = Swann v. Falmouth, 8 Barnewall & Cresswell, 456 (15 English Common Law Reports, 264) ; Bannister v. Hyde, 2 Ellis & Ellis, 627 (105 English Com- mon Law Reports, 628). * Kerby v. Harding, 6 Exchequer, 233. 15 Common Bench (J. Scott), 458 (109 English Common Law Reports, 467). 646 WR0N8FDL DISTKBSSES. [OHAP. XVIII. his return the tenant forcibly expelled him. After an interval of three weeks the distrainer resumed possession by breaking the front door open with a sledge-hammer. Chief Justice Erie ruled that the action of the distrainer did not make the distress unlaw- ful, and that inasmuch as he was put out by force, be was justified in resorting to force to regain possession, unless he abandoned the original distress. And in Eagleton v. Gutterbridge,' the Court of Exchequer held that where a distrainer enters under a warrant of distress, and is forcibly turned out of possession, he is entitled to re-enter by breaking open the outer door.'^ But where the land- lord in making a distress got over a fence or wall of from five to eight feet high at the back of the demised house, such being the only means of effecting an entrance, as the front door was locked, it was held that evidently the fence or wall was intended to keep people out by interposing a serious obstacle to their getting in, and that being so, the mode of entry was illegal.' 1158. It may be well to observe that while the distrainer can- not for the purpose of making a distress lawfully break open gates, or break down inclosures,'' or force open an outer door,^ or window' of a building, or enter by opening a window, whether fastened ' 11 Meeson & Welsty, 465. ' But see Commonwealth v. Moreland, 9 Weekly Notes, 272, which is at variance with the settled law. 3 Scott V. Buckley, 16 Law Times Eeports (N. S.), 573. « Coke upon Littleton, 161, a; Dent v. Hancock, 5 Gill (Md ), 120, 12f ; Cats V. Scbaum, 51 Maryland, 299, 307. But in Gould v. Bradstock (4 Taun- ton, 562), the landlord occupied an apartment over the demised premises, from which it was divided by a boarded floor only, without a plastered ceil- ing; the landlord took up a board of the floor of his own apartment and de- scended into the room below and made a distress; it was held (Lord Mans- riELD, Ch. J., delivering the opinion) that the landlord was not liable in an action of trespass. ^ Brown v Glenn, 16 Adolphus & Ellis, N. S., 254 (71 English Common Law Reports, 255) ; 9 Viner's Abridgment, 128, title Distress (E. 2) pi 6, per Lord Hardwickk, Ch. J. ; see, also, Semayne's Case, 1 Smith's Leading Cases, *)83. In Dent v. Hancock (5Gill, 126), the Court of Appeals of Mary- land held that if an outer door be forcibly broken open by a person not acting under the authority or sanction, or at the instance of the landlord or his bailiflf, the person required to make sucn distress is authorized to enter for that purpose at the door thus forcibly broken open. " Attack V. Bramwell, 3 Best & Smith, 520 (113 English Common Law Beports, 519). SEC. III.J RBM£)DIES FOR WRONGFUL DISTRESS. 647 with a hasp,' or shut and not fastened/ yet it seems that he may- enter by an open window,' or open an outer door by the usual means adopted by persons having access to the building ; as, for instance, by turning the key, by lifting the latch, or by drawing back the bolt ;* but he cannot gain admittance by putting his hand through a hole in the door, or through a broken pane of glass, and remove the fastening of the door or window.^ But after having entered lawfully he may break open an inner door or lock,* and the door of a lodger in the house/ if necessary, to find any goods which are distrainable, and it seems an outer door, to get out and remove the goods distrained.* And if the tenant's goods are clandestinely removed to a stranger's premises, the officer may break open the door (after request made) ; but if he do so and it turn out that the goods are not there, then he becomes a trespasser.' ' Hancock v. Austin, 14 Common Bench (J. Scott, N. S.), 634 (108 Eng- lish Common Law Keports, 632). ^ Nash V. Lucas, Law Reports, 2 Queen's Bench, 590, per Cockburn, Ch. J. ' Nixon V. Freeman, 5 Hurlstone & Norman (Exchequer), 653, per Pol- lock, Ch. B. ; see, also, 1 EoUe's Abridgment, 671. * Eyan v. Shilock, 7 Exchequer (Welsby, Hurlstone & Gordon), 71 ; Dent V. Hancoclc, 5 Gill (Md.), 120, 126; Gate ». Schaum, 51 Maryland, 299, 807; see, also, Nash v Lucas, Law Reports, 2 Queen's Bench, 590, 594. But in Curtis !j. Hubbard (4 Hill, 437,S. C.,1 Ibid., 336), the Court of Errors of New York held that opening the outer door of a dwelling-house, though merely by raising a latch, contrary to the known will of the owner, for the purpose of making a levy, was a trespass, and rendered the levy illegal and void. See observation of Chibi" Jtjstice Cockburn on the ruling in this case, in Nash V. Lucas {supra), at pages 593 and 694. See, also, Ilsely v. Nichols, 12 Pickering (Mass.), 270. ' Pitzherbert's Abridgment, title Distress, pi. 21 ; Ryan v. Shilock, 7 Ex- chequer (Welsby, Hurlstone & Gordon), 71, 76, per Pollock, Oh. B. ; Han- cock V. Austin, 14 Common Bench (J. Scott, N. S), 634, 638 (108 English Common Law Reports, 632, 636), per Erle, Ch. J. " Browning v. Dann, Cases Temp. Hardwicke, 167 ; Buller's Nisi Prius, 81, c ; Coke upon Littleton, 161 a; Semayne's Case, 1 Smith's Leading Cases, *183; Hutchison ». Birch, 4 Taunton, 618. ' Lee V. Gansel, 1 Cowper, 1, per Lord Mansfield. 8 Pugh V. Griffith, 7 Adolphus & Ellis, 827 (84 English Common Law Re- ports, 283). As to the general rule, see Cate v. Schaum, 51 Maryland, 299^ 307. ' Johnson v. Leigh, 1 Marshall, 565; S. C, 6 Taunton, 246 (1 English-. Common Law Keports, 374) ; see, also, Hobbs v- Geiss, 13 Sergeant & Rawie,. 417. 648 WRONGFUL DISTRESSES. [CHAP. XVIII. II. Landlord's Responsibility for a Wrongful Distress. 1159. The landlord is liable to the tenant for irregularities com- mitted by his bailiff in making and conducting the distress ; such, for instance, as for an unlawful entry upon the demised premises to make the distress ;' for distraining goods to an excessive amount ; for selling the goods, without notice or proper appraisement of distress ; or, for not pursuing the distress in conformity with the statutes by which it is regulated.'' In the case of Gate v. Schaum' the Court of Appeals of Maryland held that where a warrant clothes a bailiff with authority to enter demised premises to make a distress, and wrong is done in the manner of executing the war- rant, the general principle applies, that the master is responsible for the wrongful acts of his servant, even though they be wilful or reckless, if the act done by the servant be within the scope of his employment^ and in furtherance of his master's business. 1160. But the landlord is not responsible for the wrongful act of his bailiff in seizing what his warrant does not authorize him to seize, unless the landlord authorized it beforehand, or subse- quently assented to it, with knowledge of what had been done,* or meant without inquiry to take the risk upon himself, and to adopt the bailiff's acts.* Thus, in Freeman v. Rosher,^ where the landlord gave a broker a warrant to distrain, whereupon the broker took away and sold a fixture, and paid the proceeds to the landlord, who received the money without inquiry, but without knowledge that any irregularity had been committed in the dis- ' Attack V. Bramwell, 3 Best & Smith (Queen's Bench), 520 (113 English Common Law Reports, 519) ; Gate v. Sehaum, 51 Maryland, 299, 309. 2 Haseler v. Lemoyne, 5 Common Bench (J. Scott, N. S.), 530 (94 English Common Law Reports, 528) ; Ward v- Shew, 9 Bingham, 607 (23 English Common Law Reports, 726) ; Gauntlett v. King, 3 Common Bench (J. Scott, N. S.), 59 (91 English Common Law Reports, 58) ; Lyons v. Martin, 8 Adol- phus & Ellis, 512 (35 English Common Law Reports, 448) ; Hurry «. Rici- man, 1 Moody & Robinson, 126. ' 51 Maryland, 299, 308 ; see also cases there cited. * Freeman v. Rosher, 13 Adolphus & Ellis, N. S., 780 (66 English Common Law Reports, 778) ; Haseler v. Lemoyne, 5 Common Bench (J. Scott, N. S.) 630 (94 English Common Law Reports, 628) ; Moore v. Drinkwater, 1 Foster ,& Finlanon, lii. 6 Lewis V Read, 13 Meeson & Welsby, 834. « 13 Adolphus & Ellis, N. S., 780 (66 English Common Law Reports, 778). SEC. IV.] REQUISITES OP A RIGHTFUL DISTRESS. 649 tress, the Court of Queen's Bench held that the landlord was not liable in trespass, on the ground that no authority or assent on his part appeared. 1161. The landlord has, however, a remedy over against the bailiff, and may recover any loss or damage which he may have sustained by reason of his negligence or misconduct in making the distress. 1162. But where a constable undertakes to act as bailiff for the landlord, and makes a distress and sale thereof, and it turns out that no rent is in arrear or due, he, and not the landlord, becomes liable under the third section of the act of 21st March, 1772,'' to the owner of the goods distrained and sold, in an action of tres- pass, or upon the case, in double the value of the goods distrained and sold, together with full costs of suit.' In such a case the land- lord issuing the distress-warrant becomes a trespasser ab initio.'' And, if a constable make a distress for more rent than is due, he is liable, as well as his principal, in an action for an excessive dis- tress.' SECTION IV. REQUISITES OF A KIGHTFUL DISTRESS. 1163. We may summarize the requisites of a rightful distress as follows : 1st. That there is an actual demise, wherein a rent certain, or one capable of being reduced to a certainty, is reserved." 2d. That the amount of rent distrained for is in arrear and due.' 3d. That the lessor has not parted with his reversion.' 1 2 Chitty'B Pleadings, 503 (7th ed.) ; Woodfall's Landlord and Tenant, 417 (11th ed.). ' Smith's Laws, 370 ; ante, page 598, f 1083. 3 Wells 1). Hornish, 8 Penrose & Watts, 30, S3 ; Pretton v. Karcher, 27 P. F. Smith, 428, 429; McElroy v- Dice, 5 Harris, 163, 169; see also ante, page 624, 1[ 1109. ' Fretton v. Karcher, 27 P. P. Smith, 428. 6 See ante, page 624, f 1108. 6 See ante, page 1 03, H 1 24 ; Ibid. , 126, "P" 1 77 ; Ibid. , 140, Tf 230 (1) ; see also Detwiler v Cox, 25 P. P. Smith, 200. ' See ante, page 102, If 1222 ; Ibid., 140, <\ 230 (1). 6 Ibid., 104, If 125 (1) i Ibid., 141, f 230 (2). 650 WRONGFUIi DISTRESSES. [CHAP. XVIII. 4th. That no surrender of the lease has occurred. 5th. That no interest is added to the rent to be distrained for.^ 6th. That if made by a bailiff, he has authority to make the distress.' 7th. That the distress is made upon the demised premises, ex- cept where the goods are clandestinely or fraudulently removed.' 8th. That the distress is made between sunrise and sunset.* 9th. That the distress is not made on Sunday.' 10th. That the entry upon the premises to make the distress is not made by breaking open an outer door or window.^ 11th. That before distress no tender of the rent in arrear has been made.' 12th. That the distress is not made on goods privileged or ex- empt from distress.* 13th. That the distress is not made on more goods than are necessary to satisfy the rent and costs.' 14th. That the requisite notice of distress is given according to the act of 1772.'° loth. That in case of a sale the distress is appraised according to the act of 1772." 16th. That after the appraisement six days' notice of sale is given." 17th. That unless the tenant assents to the retaining of the goods on the premises they should be removed after the appraise- ment." Such assent it is advisable to procure in writing. 18th. That after the sale the overplus money should be left in the hands of the officer who superintended the appraisement.'* Moreover, before selling, the distrainer should satisfy himself that the goods have not been replevied. [For forms, see Appendix.] 1 Ibid. 140, 1[ 228. « Ibid. 104, f 125 (16). s See ante, page 141, ^ 280 (3) ; Ibid. 143, f 231 (3); Ibid. 102, \ 122 (2)j Ibid. 125, 1[f 174, 175, 176; see also chapter vi, page 188. ' See ante, page 102, T[ 122 (2) ; Ibid. 145, ^f 231 (31). « See ante, page 143, \ 230 (4). 6 ibid. 646, 1[ 1158. ' Ibid. 625, 1[ 1110. » Ibid. 105 to 125. » Ibid. 625, 1111, et seq. "> Ibid. 595, { 1081 ; see also page 633, T[ 1125 to 1128. " Ibid. 595, If 1081. " Ibid. % 1081 ; see also page 619, 1 1094. '^ Ibid. 620, 1[ 1098; see also page 621, T[ 1104. w Ibid. 597, ll 1081. SBC. I.] INJURY TO THE ESTATE DEMISED GENERALLY. 651 THE WRONGS AGAINST THE LANDLORD OR TENANT, AND THE REMEDIES THEREFOR. CHAPTER XIX. Tbespass. SECTION I. IKJUBY TO THE ESTATE DEMISED GENEBALLT. I. Trespass Defined. 1164. The first wrong a stranger may inflict on the landlord or tenant of demised premises is that of trespass, which is de- fined by Blackstone, when considering it in the confined sense of injury to real property, to signify no more than an entry on another man's ground without a lawful authority, and doing some damage, however inconsiderable, to his real property.^ II. Statute and Common-law Remedies. 1165. The legislature of Pennsylvania has in various acts" pro- vided punishment for the commission of several kinds of trespass, and though by the 13th section of act of 21st March, 1806,' and by the 183d section of the act of 31st March, I860,* has enacted that " in all cases where a remedy is provided, or duty en- joined, or anything directed to be done, by any act or acts of As- sembly of this Commonwealth, the directions of the said acts shall be strictly pursued ; and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into efiect," yet this provision does not debar the party injured from 1 3 Blackstone's Commentaries, *209. « See act of 2nth March, 1824, 8 Smith's Laws, 283 ; Chapter XII, T[ 638 ; act of 30th March, 1860, Pamphlet Laws, 362; ante, page 350, f 649; act of 31st March, 1860, Pamphlet Laws, 382, 419, sections 152 [ante., page 351, f 650), 106, 135, 136, 137, 138, 140, 141, 147, 148; act of 17th April, 1861, sec- tion 1, Pamphlet Laws, 322; ante, page 351, \ 651; act of 8lh May, 1876, Pamphlet Laws, 142 ; ante, page 352, f 655. » 4 Smith's Laws, 332. * Pamphlet Laws, 382, 426. 652 TRESPASS. [chap. XIX. the recovery of damages from the offender, by means of any appro- priate common-law action. Thus, in Rees v. Emericls' it was de- cided that an action of trespass qiuire clausum /regit at common law might be brought against a landlord for distraining and selling the chattels of a tenant when no rent was in arrear, notwithstanding that the 3d section of the act of 21st March, 1772,^ provided a statutory remedy. And in Rhines v. Clark,' which was an action on the case to recover damages sustained by the plaintiif while running a raft down the Clarion River, by reason of the defend- ant's testator having erected a dam across the river, the court below having ruled that the plaintiff could not recover in that form of action, as the act of 27th March, 1852,* substituted a stat- utory remedy for such injuries, the Supreme Court reversed the decision on the ground that the statutory remedy deprived the plaintiff of the constitutional right to a trial by jury in a case where the offence was one known to the common law. In deliv- ering the opinion of the Court, Chief Justice Woodward remarks: " Doubtless the legislature may withhold trial by jury from new offences created by statute, and unknown to the common law, as in the instance of the Sunday Law (Van Swarter's Case, 12 Harris, 131), and of numerous enactments in the nature of police regu- lations for the preservation of the public peace. So may trial by jury be withheld from new jurisdictions created by statute and clothed with no common-law powers, .... and also from pro- ceedings which, though in common-law courts, are out of the cmirse of the common law In all these instances it is no invasion of the rights of the citizen to withhold trial by jury, and provide some other mode for trying contested facts, because ' heretofore,' that is at the common law which antedated our constitutions, trial by jury did not exist in such cases." (1.) Action of Trespass by Tenant, Case by Landloi'd. 11|66. It seems to be evident, therefore, that w^here a trespass is committed on demised premises, the offender is, independent of the penalties imposed by our statute law, liable to the tenant in an ' 6 Sergeant & Rawle, 286, 289. 2 1 Smith's Laws, 370; ante, page 598, 1[ 1083. ' 1 P. P. Smith, 96. * Pamphlet Laws, 183. SEC. I.] INJDRY TO THE ESTATE DEMISED GENERALLY. 653 action of trespass/ and where damage is done to the estate de- mised, he is liable to the landlord, in respect to his reversionary interest, in an action of trespass on the case.'' 1167. As a general rule, the action of trespass on the case is the proper remedy for the reversioner where any damage is done to the demised premises." In Ripka v. Sergeant,* it was held to lie against a stranger for erecting a dam on the land contiguous to the demised premises, whereby damage was done to them. And in Sohnable v. Koehler,' the reversioner maintained the action against a stranger for an obstruction to a way appurtenant to the demised premises. (a.) When Tenant cannot maintain Trespass quare clausum fregit. 1168. The tenant cannot, however, sustain an action of trespass quare clausum fregit for an entry in the following cases : (1.) Where the landlord, or his bailiff, enters peaceably to de- mand rent in arrear or to distrain for the same.' (2.) Where the landlord enters peaceably to see if waste has been committed.' (3.) Where a person enters peaceably to demand money from the tenant or to pay him some.* (4.) Where an officer enters peaceably to execute process of law.' (5.) Where any one enters peaceably an inn or public house.'" 1 Greber v. Kleckner, 2 Barr, 289, 291 ; Torrence v. Irwin, 2 Yeates, 210 Kolle's Abridgment, 551, title Trespass ; Bedingfleld v. Onslow, 3 Levinz, 209 Jeffer v, Gifford, 4 Burrow, 2141; Evelyn v. Eaddish, 1 Holt, 543, 545, note see ante. Chapter XII, Section II, page 341 et seq., where the action of tres- pass is treated of. ' Ibid ; see ante, Chapter VII, Section I, page 192 ei seq., where the action of trespass on the case is treated of. 8 See ante, page 652, ^ 1166. * 7 Watts & Sergeant, 9. ' 4 Casey, 181. ' 3 Blackstone's Commentaries, *212; The Six Carpenters' Case, 1 Smith's Leading Cases, *216, 1st resolution, note; Proud v. Hollis, 1 Barnewall & Cresswell, 8 (8 English Common Law Reports, 8). ' Ibid. ; Hunt v. Dowman, Croke-James, 478. ' 3 Blackstone's Commentaries, *212. 9 Ibid. ; Biscop v. White, Croke-Elizaboth, 759. 1" 3 Blackstone's Commentaries, *212 ; The Six Carpenters' Case, 1 Smith's Leading Cases, *216; Thompson v- Lacy, 3 Barnewell & Alderson, 283 (5 English Common Law Eeports, 285) ; Hawthorn v. Hammond, 1 Carrington & Kirwan, 404 (47 English Common Law Eeports, 403); Houser i;. Tully, 12 P. P. Smith, 92, 95. 654 TRESPASS. [chap. XIX. (6.) Where any one enters to prevent the commission of mur- der.' (7.) Where any one enters peaceably on the demised premises to regain therefrom his own chattels which are on the premises without his default.' (8.) Where any one damaged enters thereon to abate a nui- sance.^ (9.) Where one enters to succor a beast in danger of death.^ SECTION II. CUTTESTGt DOWN TEEES. I. Remedies therefor. 1169. The landlord cannot sustain an action of trespass quare clausum /regit against a stranger for cutting trees during the term of the lease, even if the tenant be restricted from cutting the same, because the right to the possession of the soil lies in the tenant and not in the landlord. But if there be in the lease a reservation of the timber, the landlord may bring the action, because by a reser- vation of the timber he reserves the land in which the trees grow f therefore, in such a case, he, as well as the tenant, can bring an action of trespass against a stranger, — the tenant for the entry on the demised premises and for the loss of the shade of the trees,^ and the landlord for the cutting down of the trees which formed a part of the freehold, the possession of which remained in him.' 1170. The landlord may also avail himself of the benefits of the 3d section of the act of 29th March, 1824,* and of its supple- mentary acts of 8th April, 1833,' section 10; 1st April, 1840,'° 1 Handcock v. Bakpr, 2 Bosanquet & Puller, 260. 2 20 Viner's Abridgment, title Trespass. ' See Casebeer «. Mowry, 5 P. F. Smith, 419. * 9 Bacon's Abridgment, title Trespass (F). 5 Greber v. Kleckner, 2 Barr, 289, 291, and authorities there cited; see, also, Torrence v. Irwin, 2 Yeates, 210. 8 Ibid. I see, also, Stnltz v. Dicky, 5 Binney, 285, 288, 290. ' Ibid. ' Pamphlet Laws, 153 ; ante, page 347, f 641. 9 Ibid. 224 I ante, page 348, f 642. " Ibid. 217 ; ante, page 349, f 645 ; see O'Reilly t>. Shadle, 9 Casey, 489. SEC. II.] CUTTING DOWN TREES. 655 section 1, and 20th April, 1846/ section 6. The act of 1824 au- thorizes the bringing of the action of trover as wel 1 as of trespass. But the tenant of the property cannot avail himself of the ])rovi- sions of the act of 1824, as the act was designed for the protection of unseated lands.^ Under this act, one who cuts timber on an- other's land and converts it without the owner's consent is liable to treble damages, although he had no knowledge that it was not on his own land." But the owner of the land is bound to know where it is, and to do no act to mislead an adjoining owner or adverse claimant.* 1171. Where there is a trespass merely without a conversion of the trees the proper action is trespass, and by it double damages may be recovered ; where there is a conversion either trespass or trover will lie, and treble damages may be recovered.^ 1172. In the case of Shalemiller v. McCarty* it was held that the action of trespass would lie in favor of the owner prior to the sale of unseated lands sold for taxes, during the two years allowed for the redemption, as the incidents of title remain in the said owner, enabling him, upon his constructive possession, to maintain tres- pass against the purchaser for entering and cutting timber during that time. 1173. Prior to the year 1871 the action of replevin would not lie for timber where the title to the land was in dispute, or in favor of the former owner of land sold for taxes, pending the two years allowed for redemption; but the act of 15th May, 1871,' author- izes the action to be brought where the title to the land may be in dispute, provided the plaintiff shows title in himself at the time of the severance. This act, then, annuls the efficacy of the deci- sions in Cromelin v. Brink,' and kindred cases.' ' Ibid. 412 ; ante, page 349, ^ 646. 2 Tammany v. Whittaker, 4 Watts, 221. 3 Watson V. Kynd, 26 P. F. Smith, 59; O'Reilly v. Shadle, 9 Casey, 489. * Kramer & Bell v. Goodlander, 38 Legal Intelligencer, 357 (A.D. 1881). s Welsh V. Anthony, 4 Harris, 254. ' « 5 P. P. Smith, 186. ' Pamphlet Laws, 268; ante, page 409, % 760. » 5 Casey, 522. 9 See Elliott v. Powell, 10 Watts, 454, and cases there cited; Lehman v, Kellerman, 16 P. F. Smith, 492. 656 TRESPASS, [chap. XIX. SECTION III. FENCES AND STRAYS. I. When a Trespass Occurs. 1 1 74. When damage is done by stray cattle to a fence on demised premises the action of trespass quare clausum fregit lies in favor of the tenant, provided the fence be a lawful one, that is, one built in accordance with the law relating to the county in which the fence is. 1175. In regard to the law of fences in Pennsylvania, the acts passed on the subject have been numerous, and generally local in their application, and we will consider them with some detail, treating, at the same time, of trespass committed by animals, such as swine, horses, rams, and horned cattle. 1176. In England there is, in the eye of the law, a line around every man's land, over which it is a trespass to cross, and there (except where prescriptive rights exist) a landowner or occupant is not compelled to erect fences or hedges to keep wandering ani- mals from entering on his land.' 1177. But in Pennsylvania the law is otherwise, and unless there be a fence around a man's land, built in accordance with the law, it is no trespass for wandering animals to enter therein, because it is the fault of the occupier of the ground to not fence them out." 1178. Some curious decisions have been made in regard to the commission of trespass by breaking down fences. Thus, in the case of Adams v. McKinney' (A.D. 1795), which was an action of trespass for breaking plaintiff's close and treading and depasturing the grass in his meadow, the evidence was that the fence was not 1 See 3 Blackatone s Commentaries, *209 ; Doctor and Studen^, Dialogue I, Chapter VIII, page 29 ; see, also, Worrall v. Rhoads, 2 Wharton, 427, 430 ; Adama v. McKinney, Addison, 258 ; Gregg v. Gregg, 5 P. F. Smith, 227, 229. 2 Gregg V. Gregg, 5 P. F. Smith, 227; Knight o. Abort, 6 Barr, 472; Race V. Snyder, 10 Philadelphia, 533; S. C, 21 Pittsburgh Legal Journal, 29 ; Worrall v. Rhodes, 2 Wharton,' 427, 430, note ; Adama j>. McKinney, Addison, 258 ; Dolph v. Ferris, 7 Watts & Sergeant, 367, 369; Milligan v. Wehinger, 18 P. F. Smith, 235, » Addison, 258. SEC. III.] FENCES AND STRAYS. 657 what is called a lawful fence, yet was generally what was known as a neighbourly fence; j;hat the trespassing horses of the defend- ant were breachy, and that the defendant had turned them into the field after pulling down the fence. In charging the jury, President Addison held: "If fences, though not what are called lawful, be what are neighbourly, and sufficient to keep out cattle not breachy, I hold, that trespass will lie : for the owners of mis- chievous cattle ought to keep them from doing injury. But what- ever the fences be, whether good or bad, if a man drive his cattle over them into the field of another, trespass will lie." The ver- dict was for the plaintiff. At that, time fences in Alleghany County [locus fori) were regulated by the act of 29th March, 1784.' In Race v. Snyder (A.D. 1873) President Judge Elwell, in allud- ing to the view of the law as laid down by President Addison in Adams i>. McKinney,^ays: "I adopt it as substantially correct, and instruct you that if the defendant's cattle broke through or jumped over the fence between the plaintiff's cornfield and the defendant's woods, and damaged the plaintiff's corn, he is entitled to recover for the damage done, unless you are satisfied from the evidence that the fence was not such as farmers of practical knowl- edge and experience would consider as sufficient to protect the crop from injury by usually orderly cattle. If it was such a sufficient fence, for the damage done while in that condition the plaintiff may recover, although it was not made of logs or rails, or posts and boards, and was not 'four and a half feet high and well staked and ridered.' On the contrary, if not sufficient, judged by the standard before mentioned, no recovery can be had for the injury done while in that condition." In a case, in Clinton County (A.D. 1872), where the animals broke through a fence at a point where it was a lawful fence, though other parts of the fence were not, it was held by the court that the owner of the animals was liable in trespass.'' II. When and from whence the Counties were Created. 1179. The subject of fences, and that of animals trespassing through them are so intermingled in our acts of Assembly, that 1 2 Smith's Laws, 96, 98. 2 Crowley v. Gleason, Court of Common Pleas of Clinton County, Septem- ber Term, 1872, No. 176. 658 TRESPASS. [chap. XIX. we conclude it best to set forth these acts, arranged chronologi- cally ; but before giving them it will save confusion in the mind of the reader, if we first show when and from whence the counties of Pennsylvania were created. 1180. The Province of Pennsylvania was originally divided into the three counties of (1st) Chester, (2d) Bucks, and (3d) Phila- delphia. Out of these were divided and subdivided the present counties, thus: (4th.) Lancaster was taken from Chester County by the act of 10th May, 1729.' (5th.) York was taken from Lancaster County by the act of 19th August, 1749.' (6th.) Cumberland was taken from Lancaster County by the act of 27th January, 1750.' (7th.) Berks was taken from Philadelphia, Chester, and Lan- caster counties by the act of 11th March, 1752.* (8th.) Northampton was taken from Bucks County by the act of 11th March, 1752.' (9th.) Bedford was taken from Cumberland County by the act of 9th March, 1771.' (10th.) Northumberland was taken from Lancaster, Cumber- land, Berks, Northampton and Bedford counties by the act of 21st March, 1772.' (11th.) Westmoreland was taken from Bedford County by the act of 26th February, 1773.' (12th.) Washington was taken from Westmoreland County by the act of 28th March, 1781.' (18th.) Fayette was taken from Westmoreland County by the act of 26th September, 1783.'" (14th.) Franklin was taken from Cumberland County by the act of 9th September, 1784." (15th.) Montgomery was taken from Philadelphia County by the act of 10th September, 1784." (16th.) Dauphin was taken from Lancaster County by the act of 4th March, 1786." •Smith's Laws, 176. 2 Ibid. 198. » Ibid. 201. « Ibid. 212. 6 Ibid. 214. ' Ibid. 330. ' Ibid. 367. « Ibid. 402. 8 Ibid. 517. '" 2 Ibid. 81. " Ibid. 264. " Ibid. 267. IS Ibid. 284. SEC. III.] FENCES AND STRAYS. 659 (17th.) Luzerne was taken from Northumberland County by the act of 25th September, 1786.' (18th.) Huntingdon was taken from Bedford County by the act of 20th September, 1787.' (19th.) Alleghany was taken from Westmoreland and Washing- ton counties by the act of 24th September, 1788." (20th.) Mifflin was taken from Cumberland and Northumber- land counties by the act of 19th September, 1789.'' (21st.) Delaware was taken from Chester County by the act of 26th September, 1789.' (22d.) Lycoming was taken from Northumberland County by the act of 13th April, 1795." (23d.) Somerset was taken from Bedford County by the act of 17th April, 1795.' (24th.) Greene was taken from Washington County by the act of 9th February, 1796.' (25th.) Wayne was taken from Northampton County by the act of 21st March, 1798.' (26th.) Adams was taken from York County by the act of 23d January, 1800.'" (27th.) Centre was taken from Mifflin, Northumberland, Lyco- ming, and Huntingdon counties by the act of 13th Febniary, 1800." (28th.) Beaver was taken from Washington and Alleghany coun- ties by the act of 12th March, 1800." (29th.) Butler was taken from Alleghany County by the act of 12th March, 1800.'' (30th.) Mercer was taken from Alleghany County by the act of 12th March, 1800." (31st.) Crawford was taken from Alleghany County by the act of 12th March, 1800.'' (32d.) Erie was taken from Alleghany County by the act of 12th March, 1800'^ (33d.) Warren was taken from Alleghany and Lycoming coun- ties by the act of 12th March, 1800." ' Smith's Laws, 386. 2 Ibid. 417. » Ibid. 448. * Ibid. 493. ' Ibid. 499. » 3 Ibid. 220. ' Ibid. 229. 8 Ibid. 262. 9 Ibid. 316. w Ibid. 404. " Ibid. 407. 1! Ibid. 421. » Ibid. '♦ Ibid. " Ibid. 16 Ibid. " Ibid. 660 TRESPASS. [chap. XIX. (34th.) Venango was taken from Alleghany and Lycoming counties by the act of 12th March, 1800.' (35th.) Armstrong was taken from Alleghany, Lycoming, and Westmoreland counties by the act of 12th March, 1800.' (36th.) Indiana was taken from Westmoreland and Lycoming counties by the act of 30th March, 1803.' (37th.) Je'fferson was taken from Lycoming County by the act of 26th March, 1804.* (38th.) McKean was taken from Lycoming County by the act of 26th March, 1804.' '(39th.) Clearfield was taken from Lycoming County by the act of 26th March, 1804.' (40th.) Potter was taken from Lycoming County by the act of 26th March, 1804.' (41st.) Tioga was taken from Lycoming County by the act of 26th March, 1804.' (42d.) Cambria was taken from Huntingdon and Somerset counties by the act of 26th March, 1804.' (43d.) Bradford, which previous to the act of 24th March, 1812,'° was called Ontario, was taken from Luzerne and Lycoming counties by the act of 21st February, 1810." (44th.) Susquehanna was taken from Luzerne County by the act of 21st February, 1810." (45th.) Schuylkill was taken from Berks County by the act of 1st March, 1811." (46th.) Lehigh was taken from Northampton County by the act of 6th March, 1812." (47th.) Lebanon was taken from Dauphin and Lancaster coun- ties by the act of 16th February, 1813.'' .(48th.) Columbia was taken from Northumberland County by the act of 22d March, 1813.'^ (49th.) Union was taken from Northumberland County by the act of 22d March, 1813." (50th.) Pike was taken from Wayne County by the act of 26th March, 1814."' > Smith's Laws, 421. « Ibid. • Ibid. 83. ' Ibid. 170 « Ibid. « Ibid. ' Ibid. 8 Ibid. » Ibid. i» Ibid. 354. u 5 Ibid. 89. " Ibid. 90. 13 Ibid. 201. 1' Ibid. 304. " 6 Ibid. 17. « Ibid. 46. " Ibid. 49. " Ibid. 190. SBC. III.] FENCES AND STRAYS. 661 (51st.) Perry was taken from Cumberland County by the act of 22d March, 1820.' (52d.) Juniata was taken from Mifflin County by the act of 2d March, 1831.' (55d.) Monroe was taken from Northampton and Pike counties by the act of 1st April, 1836.^ (54th.) Clarion was taken from Venango and Armstrong coun- ties by the act of 11th March, 1839." (55th.) Clinton was taken from Lycoming and Centre counties by the act of 21st June, 1839.^ (56th.) Wyoming was taken from Luzerne County by the act of 4th April, 1842.^ (57th.) Carbon was taken from Northampton and Monroe coun- ties by the act of 15th February, 1843.' (58th.) Elk was taken from Jefferson, Clearfield, and McKean counties by the act of 18th April, 1843.' (59th.) Blair was taken from Huntingdon and Bedford counties by the act of 26th February, 1846.' (60th.) Sullivan was taken from Lycoming County by the act of 15th March, 1847.'" (61st.) Forest was taken from Jefferson County by the act of 11th April, 1848," and a part of Venango County added by the act of 31st October, 1866." (62d.) Lawrence was taken from Beaver and Mercer counties by the act of 20th March, 1849.'3 (63d.) Fulton was taken from Bedford County by the act of 19th April, 1850." (64th.) Montour was taken from Columbia County by the act of 3d May, 1850.'' (65th.) Snyder was taken from Union County by the act of 2d March, 1855.'" (66th.) Cameron was taken from Clinton, Elk, McKean, apd Potter counties by the act of 29th March, I860.'' ' 7 Smith's Law, 275. ^ Pamphlet Laws, 99. » Ibid. 430. i Ibid. 51. ' Ibid. 362. « Ibid. 222. '' Ibid. 85. ' Ibid, 512. ' Ibid. 64. '» Ibid. 462. " Ibid, of 1851, 744. "" Ibid, of 1867, page 529. " Ibid. 501. " Ibid, of 1851, 805. '^ Ibid. 658. ■« Ibid. 537. " Ibid. 697. 662 TRESPASS. [chap. XIX. (67th.) Lackawanna was taken from Luzerne County on the 21st of August, 1878, by virtue of the act of 17th April, 1878.^ III. Acts of Assembly relating to Fences and Strays. (1.) Act of 1700. 1181. The first statute on this subject was an act passed in the year 1700, and was entitled " An act for preventing of swine run- ning at large." The text of it is not set forth in Smith's Laws, as it was repealed in October, 1701. (2.) Act of 1700. 1182. The second statute was the act of 1700,^ which is as fol- lows : " I. For preventing all disputes and differences that may arise through the neglect or insuiHeiency of fences in this province, and counties an- nexed, Be it enacted, That all cornfields and grounds kept for inclosures, within the said province and counties annexed, shall be well fenced with fence, at least five feet high, of sufficient rail or logs, and close at the bot- tom ; and whosoever, not having their grounds enclosed with such suflS- cient fence as aforesaid, shall hurt, kill or do damage to any horse, kine, sheep, hogs, or goats, of any other persons, by hunting or driving them out of or from the said grounds, shall be liable to make good all damages sustained thereby to the owner of the said cattle. Provided, That all sorts of swine going at large, contrary to the intent of an act made and passed this present session, entitled, ' An act for restraining of swine from running at large,' shall not fall nor be deemed within the construc- tion of this act. But if any horse, kine, sheep, hogs or goats, or any kind of cattle, shall break into any man's inclosure, the fence being of the aforesaid height and sufficiency, and by the view of two persons, for that purpose appointed by the County Court, found and approved to be such, then the owner of such cattle shall be liable to make good all dam- ages to the owner of the inclosure ; for the first offence single damages only, and ever after double the damages sustained. And all persons having any unruly horses, mares, or cattle, that are not to be kept off by such fences as aforesaid, are ordered, and shall be obliged to take effec- tual care to restrain the same from trespassing on their neighbors' in- closures. " II. And for the better ascertaining and regulating of partition fences, Be it further enacted, That where any neighbors shall improve lands adja- 1 Pamphlet Laws of 1851, 17; see Walsh v. Commonwealtli, 8 Norris 419 424 ;S. C, 7 Weekly Notes, 21. » 1 Smith's Laws, 13. SEC. III.] FENCES ANB STRAYS. 663 cent to each other, or where any person shall inclose any land adjoining to another's land already fenced in, so that any part of the first person's fence becomes the partition fence between them, in both these cases the charge of such division fence (so far as inclosed on both sides) shall be equally borne and maintained by both parties. To which end, and the others in this act mentioned, each County Court within this province shall nominate, and is hereby empowered and required to nominate and appoint, so many honest and able men as they shall think fit, for each county respeetivel}', to view all such fence and fences, about which any difference may happen or arise ; and that the aforesaid persons, in each county respectively, shall be the sole judges of the charge to be borne by the delinquent, or by both or either party, and of the sufficiency of all fences, whether partition fences or others ; and where they judge any fence to be insufficient, they shall give notice thereof to the owners or possessors ; and if any one of the said owners or possessors, upon the request of the other, and due notice given by the said viewers, shall refuse to make or repair the said fence or fences, or to pay the moiety of the charge of any fence before made, being a division fence, within ten days after notice given, that then upon proof thereof before two Justices of the Peace of the respective county, it shall be lawful for the said Justices to order the person aggrieved and suffering thereby to repair the said fence or fences, who shall be reim- bursed his cost and charges, from the person so refusing to make good the said partition fence or fences ; and the said costs and charges shall be levied upon the offender's goods and chattels, by warrant from the said Justice, by distress and sale thereof, the overplus, if any be, to be returned to the party offending." 1183. The first section of the act of 1700, relative to how fences should be made, extended all through the State, and regulated what should be a lawful fence. It remained in force until the passage of the act of 10th May, 1729,' entitled " An act for erect- ing of pounds in each township of this province," when it was- modified, but not repealed, by the sixth section thereof. The height of the fence still remained the same, to wit: five feet. By the- act of 27th March, 1784," these acts were modified as to the then, counties of Bedford, Northumberland, "Westmoreland, Washing- ton, and Fayette, which at that time comprised, besides the now counties of the same names, the present counties of Alleghany,, Armstrong, Beaver, Blair, Bradford, Butler, Cameron, Cambria,, Centre, Clarion, Clearfield, Clinton, Columbia, Crawford, Elk, part: of Erie, Forest, Fulton, Greene, Huntingdon, Indiana, Jeiferson,, Lackawanna, Lawrence, Luzerne, Lycoming, Mercer, McKean,. 1 1 Smith's Laws, 173 ; post, page 671, \ 1206. 2 2 Ibid. 96 664 TRESPASS. [chap. XIX. Mifflin, Montour, Potter, Snyder, Somerset, Sullivan, Susque- hanna, Tioga, Union, Venango, Warren, and Wyoming, in all forty-five counties. Therefore, after the passage of the act of 27th March, 1784, post and rail fences in the last above-named coun- ties were lawful when four and one-half feet high, and worm fences as set forth in the second section of the act, but in the other then counties of the State, to wit : Bucks, Berks, Chester, Cumberland, Lancaster, Philadelphia, Northampton, and York, which then comprised, besides the now counties of the same names, the present counties of Wayne, Carbon, Pike, Monroe, Lehigh, Schuylkill, Montgomery, Delaware, Lebanon, Dauphin, Adams, Franklin, Perry, and Juniata (in all twenty-two counties), the acts of 1700 and 10th May, 1729, remained in force. However, by the act of 7th March, 1800,^ the act of 27th March, 1784, was repealed as to the county of Northumberland as it then was, viz., comprising, not only the present county of that name, but the present counties of Columbia, Union, Montour, and Snyder, and parts of the pres- ent counties of Centre and Clinton, thereby reviving the acts of 170O, 10th May, 1729, and 4th March, 1763, as to that area, which left the act of 1784 in force in what was takeu from North- umberland County to form Centre County, by the act of 13th February, 1800," to form Luzerne County by the act of 25th September, 1786,' to form Lycoming County by the act of 13th April, 1795,' and to form Mifflin County by the act of 19th Sep- tember, 1789.' 1 184. Moreover, by the act of 1st April, 1805,^ the act of 27th March, 1784, was repealed as to the then county of Luzerne, which comprised all of the present counties of Luzerne, Susquehanna, Wyoming, Lackawanna, and part of Bradford, reviving the acts of 1700, 10th May, 1729, and 4th March, 1763, in the said coun- ties, and leaving still subject to the act of 27th March, 1784, a part of the county of Luzerne as it was when taken from North- umberland by the act of 25th September, 1786.' 1185. Moreover, by the act of 7th April, 1807," the act of 27tb March, 1784, was repealed, and the acts of 1700, 10th May, 1729, and 4th March, 1763, were revived as to the borough of Somerset, in » 3 Smith's Laws, 417. ' 3 Ibid. 407. » 2 Ibid. 386. • 3 Ibid. 220. ^ 2 Ibid. 493. « 4 Ibid. 234. ' 2 Ibid. 886. ■> 4 Ibid. 408. SEC. III.] FENCES AND STRAYS. 665 Somerset County. By the act of 13th April, 1807,' the act of 10th May, 1729, and 4th March, 1763, were repealed as to the counties of Philadelphia, Bucks, Chester, and Lancaster, of about the same area then as now. Northampton, which comprised then the present counties of Northampton, Lehigh, Monroe, and Carbon, also Wayne County as it then was, and which had been taken from Northampton in 1798,^ and in 1807 comprised Wayne and Pike counties (the latter taken from Wayne in 1814), and also Dela- ware, taken from Chester in 1789.' The result of which act was that in the above-named counties the act of 1700 remained in force, not modified by the act of 10th May, 1729, but remained modi- fied in the following counties, viz., in the present counties of Berks, Schuylkill, Dauphin, Lebanon, Adams, York, Cumberland, Perry, Juniata, Franklin, and Montgomery. 1186. The act of 28th March, 1808,' relating to the counties of Wasliington and Alleghany, supplied the act of 27th March, 1784, without repealing the clause in the act of 1784, repealing the acts of 10th May, 1729, and 4th March, 1763. The act provides in the second section, that all fences shall be lawful that are four and one- half feet in height, therefore the act of 1700 was not in force as to that, nor is it so made by the later act of 11th April, 1862.^ 1187. The act of 6th February, 1810,^ by repealing the act of 27th March, 1784, as to the boroughs of Connellstown and Union- town, in the county of Fayette, revived the acts of 1700, 10th May, 1729, and 4th March, 1763, as to those boroughs. 1188. The act of 20th March, 1810,' by extending the act of 13th April, 1807, to the counties of Montgomery and York, re- pealed the acts of 10th May, 1729, and 4th March, 1763, and left in force the act of 1700 as passed. 1189. The act of 25th April, 1813,* although extending the act of 13th April, 1807, to all the counties of the State except Erie, Crawford, Warren, Mercer, Potter, Schuylkill, Butler, Adams, Alleghany, and McKean, thereby repealing the acts of 10th May, 1829, and 4th March, 1763, as to Berks, Dauphin, and York, left these acts still in force in Schuylkill in conjunction with the act of 1700. 1 4 Smith's Laws, 472 ; post, page 675, 1[ 121 5. » 3 Ibid. 316. = 2 Ibid. 499. * 4 Ibid 528 ; post, page 679, f 1221. 6 Pamphlet Laws, 496. 6 5 Smith's Laws, 83. ' Ibid. 147. » 6 Ibid. 59. 666 TRESPASS. [chap. XIX. 1190. The next act which affected this subject was that of 25th March, 1814/ which repealed the act of 27th March, 1784, as to Fayette, aud thereby revived the act of 1700 in that county, but as to this see the act of 28th March, 1820.' 1191. The act of 17th February, 1816,' repealed the act of 27th March, 1784, as to the county of Mercer, thereby reviving the acts of 1700, 10th May, 1729, and 4th March, 1763, as to Mercer County ; but as to the latter two acts, they were repealed as to Mercer County by the act of 5th March, 1819,* extending the act of 13th April, 1807, to that county. 1192. The act of 24th March, 1818,= repealed the act of 27th March, 1784, as to the borough of Waynesburg, in the county of Greene, and Greenesburg, iu the county of Westmoreland, thei'eby reviving the act of 1700 in those boroughs. 1 1 93. The act of 5th March, 1819,' besides extending the act of 13th April, 1807, to Alleghany, Butler, Venango, Warren, Craw- ford, and Erie counties, extended it also to Mercer County, which repealed the acts of 10th May, 1729, and 4th March, 1763, as to that county. 1194. The act of 28th March, 1820,^ provides that in Fayette County fences shall be deemed lawful that are four and one-half feet high, except iu the boroughs of Uniontown, Connellsville, Boonsville, and Bridgeport. 1195. The act of 2d April, 1821,' by providing that all fences shall be lawful that are four feet and a half high, virtually repeals the act of 1700 in Cumberland and Perry counties. 1196. The act of 10th January, 1832,=' by extending the act of 13th April, 1807, to the county of Schuylkill, repealed the acts of 10th May, 1729, and 4th March, 1763, as to Schuylkill County, so that in that county the act of 1700 remains alone in force. 1197. The act of 15th April, 1834,1° j^^ extending the act of 13th April, 1807, repealed the acts of 10th May, 1729, and 4th 1 6 Smith's Laws, 114. » 7 Ibid. 322. » 6 Ibid. 327. « 7 Ibid. 161. 5 Ibid. 117. Ibid. 161 ; post, page 682, f 1284. ' Ibid, 322; post, page 684, f 1286. 8 Ibid. 456 ; posi, page 684, 1[ 1237. » Pamplilfit Laws, 12 ; post, page 685, f 1240. i» Ibid. 537 ; post, page 685, T[ 1241. SEC. III.] FENCES AND STRAYS. 667 March, 1763, as to Adams County, so that in that county the act of 1700 remains alone in force. 1198. The act of 24th April, 1857,' enacts that the height of a lawful fence shall be four and one-half feet in the county of Erie. 1199. The act of 11th March, 1862,' provides that in the rural parts of the county of Philadelphia fences shall be legal if four and a half feet high, and that in the built-up parts of the city partition fences shall be six feet high. The act of 25th May, 1871,' enacts that in Lack township in the county of Juniata the height of a fence shall be not less than four feet and a half. 1200. The conclusion arrived at from the foregoing rhume is that fences, to be lawful, shall be as follows : (1.) In Alleghany and Washington counties, four and a half feet high, by the act of 28th March, 1808. (2.) In Fayette County four feet and a half high, except in the boroughs of Uuiontown, Connellsville, Boonsville, and Bridge- port, by the act of 28th March, 1820- (3.) In Cumberland and Perry counties four and a half feet high, by the act of 2d April, 1821. (4.) In Erie County four and, a half feet high, by the act of 24th April, 1857. (5.) In the rural parts of Philadelphia four and a half feet high, and partition fences in the built-up parts of the city six feet high, by the act of 11th March, 1862. (6.) In Potter and McKean counties, into which the stray act of 13th April, 1807, has not been extended, they shall be five feet high, as provided by the act of 1700, modified by the act of 10th May, 1729. (7.) In Lack township, Juniata County, four and a half feet high, by the act of 25th May, 1871. (8.) In all other parts of the State five feet high, as provided by the act of 1700. (3.) Act of 1705. 1201. The third statute was the act of 1705,* which enacts as follows : ' Pamphlet Laws, 309; post, page 690, Tf 1253. 2 Ibid. 109 ; post, page 691, \ 1258. 5 Ibid. 1137; post, page 701, f 1275. * 1 Smith's Laws, 70. 668 TKESPASS. [chap. XIX. "I. "WnsEEAS the freeholders and owners of lands and plantations, within this province, have received great damage and spoil in their corn- fields, meadows, and outlands, by swine running at large, without rings and yokes : For the prevention whereof for the future. Be it enacted^ That from and after the first day of the twelfth month, called February, next ensuing the publication hereof, no swine shall be suffered to run at large, without rings and yokes, under the penalty of forfeiting half the value thereof, to the use hereafter expressed : Therefore if any person or per- sons shall find on his, her or their lands, within fourteen miles of the navi- gable parts of the river Delaware, any swine, hog or hogs, shoat or shoats, or pigs, without rings in their noses, sufficient to prevent their turning up the ground, and triangular or three cornered yokes or bows about their necks, and to extend at least six inches from the angular point or cor- ner, suflScieut to keep them from breaking through fence, it shall and may be lawful for him, her or them, all such swine, hogs, shoats or pigs, to kill and take, and drive and carry away, or to cause them to be killed, taken, driven or carried away ; and heing so taken and carried away, the said takers shall forthwith acquaint a Justice of the Peace thereof, and being by him legally attested, that the said swine were taken as aforesaid, without yokes, or bows and ring, the said justice shall imme- diately appoint and order two indifferent persons of the neighborhood, to view and make a just and reasonable appraisement of all such swine, hogs, shoats or pigs, and to make return of their value, number, and marks, unto the said Justice of the Peace, as soon as conveniently it may be done after such appraisement, one moiety or half the value whereof shall be forfeit to the person or persons, owners or possessors of such lands where found and taken ; and he or they, that shall take up such swine as aforesaid, shall pay unto the said Justice of the Peace, for the use of the owner or owners of such swine, the other moiety or half part thereof; and thereupon the property of all such swine shall be and re- main in the said owner or possessor of land as aforesaid, to his and their own proper use, for ever. "II. And he it further enacted^ That such Justice of Peace shall make publication thereof, by a paper aflSxed on his house, and on some tree near the high-road side, declaring the number, marks and appraisement, of all such swine, and by whom taken up, to the end that the owners may have notice tliereof ; unto whom the said Justice of the Peace shall pay the other moiety or half the value of such swine taken and appraised, he first deducting out of the same, two shillings for the appraisers, and two shillings for the Justice's clerk, for their trouble therein. But if it so happen that the moiety or half part, as appraised, will not pay the said four shillings, then such takers up shall pay what shall be wanting thereof "III. Provided nevertheless, That if no person appear, within twelve months after appraisement as aforesaid, to claim the moiety or half part of such swine, that then the said Justice shall pay what money he hath received, the charges as aforesaid first deducted, unto the overseer or SBC. III.] FENCES AND STRAYS. 669 overseers of the poor of the township where taken up, for the use of the poor of said township, and the owners of such swine shall be thereupon debarred from any claim or right to the same, any law, usage or custom, to the contrary in anywise notwithstanding. " IV. And be it further enacted, That it shall not be lawful for any swine, hogs, shoats or pigs to go at large in the towns of Philadelphia, Chester or Bristol, whether yoked and ringed or not ; but if any such shall be found running at large, after the first day of the twelfth month next ensuing, such swine, hogs, shoats or pigs, shall be forfeit, one-half to him or them that shall take up the same, and the other half to the use of the poor of the respective towns, to be paid to the overseer or over- seers accordingly, to the use aforesaid ; the said town of Bristol being all the space contained within half a mile square, from the Mill-creek, up the River Delaware. " 1202. The act entitled "An act to prevent the running of swine at large," which originally extended only to lands within fourteen miles of the Delaware River, was extended throughout the State by the supplementary act of 10th May, 1829.^ The supplement was, however, repealed as to all parts of the State (excepting the present counties of Wayne, Pike, Lehigh, Carbon, Monroe, North- ampton, Bucks, Philadelphia, Montgomery, Berks, Schuylkill, Chester, Delaware, Lancaster, Lebanon, Dauphin, York, Adams, Cumberland, Franklin, Perry, and Juniata) by the act of 27th March, 1784.^ But the supplement was revived as to the present counties of Northumberland, Columbia, Union, Montour, and Sny- der, by the act of 20th March, 1800,' and as to the present coun- ties of Luzerne, Susquehanna, Wyoming, and Lackawanna, by the act of 1st April, 1805 ;* as to the borough of Somerset, in Som- erset County, by the act of 7th April, 1807 f as to the boroughs of Connellstown and Uniontown, in the county of Fayette, by the act of 6th February, 1810;° as to Fayette County, by the act of 25th March, 18i4;^ as to the borough of Mercer, by the act of 17th February, 1816;' and as to the boroughs of Waynesburg in Greene County, and Greenesburg in Westmoreland County, by the act of 24th March, 1818.' As to the counties of Tioga and Potter, it was extended by the act of 18th April, 1853."' It was supplied as to Washington and Alleghany counties by the acts of 1 1 Smith's Laws, 176. " 2 Ibid. 96. ' 3 Ibid. 417. ■» 4 Ibid. 234. 6 Ibid. 408. « 5 Ibid. 83. ' 6 Ibid. 114. 8 Ibid. 327 8 7 Ibid. 117. i» Pamphlet Laws, 650. 670 TRESPASS. [chap. XIX. 28th March, 1808/ and 11th April, 1862;' as to Fayette County, by the act of 28th March, 1820 f as to the counties of Cumber- land and Perry, by the act of 2d April, 1821 ;* as to Philadelphia, by the act of 20th March, 1822 f as to Warren and Crawford coun- ties, by the act of 26th April, 1855;* as to Lancaster County, by the act of 24th March, 1857 ;7 as to Erie County, by the act of 15th April, 1857;' as to Delaware County, by the act of 22d February, I860,' and was revived as to all parts of the State not already mentioned by the act of 2d April, 1862,^° which repealed the act of 24th March, 1784." The act of 1705 is therefore in force all through the State, amended, however, as to some of the counties by the supplementary acts already named. (4.) Act of 1721. 1203. The fourth statute was the act of 24th February, 1721," which was entitled " An act for regulating party walls, buildings, and partition fences in the city of Philadelphia." It is useless to give this act, as it has been supplied and repealed by the act of 11th March, 1862." (5.) Act of 1729. 1204. The fifth statute was the act of 10th May, 1729,'* which was entitled "An act for the erecting of pounds in each township of this province." As it is in force only in the counties of Pot- ter and McKean, we will omit the recital of all the sections ex- cepting the sixth, which is as follows : ' ' Section 6. To prevent disputes about the sufficiency of fences, all fences shall be esteemed lawful or sufficient, though they be not close at the bottom, so that the distance from the ground to the bottom thereof exceed not nine inches, and that they be four feet and a half high." 1205. This act was repealed, as already pointed out, as to a large part of the State, by the act of 27th March, 1784 f to other parts 1 4 Smith's Laws, 528. = Pamphlet Laws, 496. 3 7 Smith, 322. * Ibid. 456. 6 Ibid. 527. « Pamphlet Laws, 316. ' Ibid. 124. " Ibid. 196. 9 Ibid. 68. " Ibid. 496. " 2 Smith's Laws, 96. " Ibid. 124. '» Pamphlet Laws, 109. " 1 Smith's Laws, 173. " 2 Ibid. 96. SEC. III.] FENCES AND STEAYS. 671 by the acts of 13th April, 1807/ 20th March, 1810/ 25th April, 1813/ 5th March, 1819/ 10th January, 1832,' and 15th April, 1834/ It was repealed by the extension of the act of 13th April 1807,' to the counties named in the act. It was, however, re- vived as to Potter and McKean counties by the act of 11th April, 1862,' repealing the act of 27th March, 1784/ throughout the State, and remains in force in those counties. (6.) Ad of 1729. 1206. The sixth statute was the act of 10th May, 1729,"' which was entitled " A supplement to the act, entitled An act to prevent swine running at large," and is as follows : " Whereas by the said act, the relief provided for persons sufTering by hogs trespassing in tlieir fields or inclosures is limited to the extent of fourteen miles from the navigable parts of the River Delaware : Now, forasmuch as the couutryis become more populous, and it appears neces- sary to provide the same remedy for the inhabitants living in the other parts of this province : Tlierefore, be it enacted, That the same penalties, rules and orders, enacted and directed to be observed by the aforesaid act within fourteen miles of the navigable parts of Delaware Biver, shall, within one month after the publication hereof, be in force and extended throughout the province of Pennsylvania, as fully and amply as if the same act were again herein repeated and enacted ; any limitation in the aforesaid act, for preventing swine running at large, to the contrary in anywise notwithstanding." This act did not comprise a part of the county of Erie, as the same was only acquired from the Federal Government in 1792." The act is still in force. (7.) Act of 1763. 1207. The seventh statute was the act of 4th March, 1763," which provided how trespassing horses, cattle, and sheep should be treated. It was, however, repealed as to certain counties by > 4 Smith's Laws, 472. ' 5 Ibid. 147. 8 6 Ibid. 59. 7 Ibid. 159. 6 Pamphlet Laws, 12. = Ibid. 537. ' 4 Smith's Laws, 472. » Pamphlet Laws, 496. 9 2 Smith's Laws, 96. «> 1 Ibid. 176. '1 See Historical Collections by Sherman Day, 816. 12 1 Smith's Laws, 257. 672 TRESPASS. [chap, XIX. the acts of 27th March, 1784/ 13th April, 1807," 20th March, 1810,' 25th April, 1813,* 5th March, 1819,' 10th January, 1832,° and 15th April, 1834.' But it was revived as to Potter and McKean counties by the act of 11th April, 1862,' which repealed the act of 27th March, 1784," which had repealed the acts of 10th May, 1729, and 4th March, 1763. Therefore, the act of 1763 re- mains in force only in Potter and McKean counties, and we would refer the inhabitants of those counties to the act as printed in Smith's Laws. (8.) Act of 1782. 1208. The eighth statute was the act of 15th April, 1782," being a supplement to act of 24th February, 1721," relating to fences in Philadelphia, and which being repealed by the act of 11th March,. 1862,'^ it is needless to recite. (9.) Act of 1784. 1209. The ninth statute was the act of 27th March, 1784," enti- tled "An act to regulate fences and to appoint appraisers in each township in the counties of Bedford, Northumberland, West- moreland, Washington, and Fayette, and to encourage the raising of swine." This act repealed the acts of 1705," of 10th May, 1729,'° and 4th March, 1763,'^ so far as related to the counties named in the act, which at that time comprised all the State ex- cepting the present counties of Wayne, Lehigh, Pike, Carbon, Monroe, Northampton, Bucks, Montgomery, Berks, Schuylkill, Philadelphia, Delaware, Chester, Lancaster, Lebanon, Dauphin, York, Adams, Cumberland, Perry, Juniata, and Franklin. 1210. But the act of 27th March, 1784, was repealed as fol- lows : ' 2 Smith "3 Laws, 96. ' 4 Ibid. 472. ' 5 Ibid. 147. * 6 Ibid. 59. 5 7 Ibid. 159. « Pamphlet Laws, 12. ' Ibid. 637. 8 Ibid. 496. 8 2 Smith's Laws, 96. " 2 Ibid. 43. " 1 Ibid. 124. 12 Pamphlet Laws, 109 13 2 Smith's Laws, 96. " 1 Ibid. 70. " 1 Ibid. 173. " 1 Ibid. 257. 6 7 SEC. III.] FENCES AND STRAYS. 673 (1.) As to Northumberland County, by the act of 7th March, 1800.' (2.) As to Luzerne County, by the act of 1st April, 1805.' (3.) As to the borough of Somerset, by the act of 7th April, 1807.' (4.) As to Washington and Alleghany counties, partially by the act of 28th March, 1808.* (5.) As to the boroughs of Connellstown and Uniontown, by the act of 6th Februaiy, 1810.* (6.) As to Fayette County, by the act of 25th March, 1814, (7.) As to Mercer County, by the act of 17th February, 1816 (8.) As to the balance of the State, by the act of 11th April, 1862.' As the act of 1784 is repealed we will not recite it. (10.) Act of 1800. 1211. The tenth statute was the act of 7th March, 1800,' which repealed the act of 27th March, 1784," so far as related to Northum- berland County, as it then was, leaving out, of course, the counties of Luzerne and Lycoming and part of the counties of MifHin and Centre, which had been taken from Northumberland between 1784 and 1800. This revived the acts of 1705," 10th May, 1729," and 4th March, 1763," in Northumberland County as it was in March, 1800, when it contained the present counties of Northumberland, Columbia, Union, Montour, and Snyder. (11.) Act of 1805. 1212. The eleventh statute was the act of 25th March, 1805," which relates to fences protruding into the Eiver Schuylkill, and is as follows : 1 3 Smith's Laws, 417. » 4 Ibid. 234. s 4 Ibid. 408. ■* 4 Ibid. 528. 6 5 Ibid. 83. ' 6 Ibid. 327. ^ 6 Ibid. 327. 8 Pamphlet Laws, 496. But 6ee^os<,p?ge 693, % 1260. 9 3 Smith's Laws, 417. " 2 Ibid. 96. » 1 Ibid. 70. " 1 Ibid. 173. " 1 Ibid. 257. " 4 Ibid- 234. 43 674 TRESPASS. [chap, XIX. " Sectioit 7. That the wardens of the port of Philadelphia, shall be authorized and empowered to fix and determine the extent or distance which any person or persons, or bodies, politic or corporate, who are the owner or owners of lots of ground extending to the said Biver Schuylkill, on either of its shores, from the lower falls thereof to its junction with the River Delaware, may build wharves therein. " Sec. 8. That if any owner or owners of any lot or lots of ground extending into the Elver Schuylkill, from the lower falls thereof to its junction with the Biver Delaware, shall build any wharf, house, store or other buildings further into the said river than to common low-water mark, without license first had and obtained from the said wardens, or further into the said river than may be permitted by such license, he, she or they being legally convicted of the same shall pay a fine of one thousand dollars, to be recovered with costs as debts of the same amount are or may be by law recoverable ; one half of which fine shall be paid to the guardians or overseers of the poor of the city, district or town- ship where such wharf, or building shall be erected, and the other half to the person or persons who shall sue for and recover the same. "Sec. 9. That if any person or persons shall erect or make any fence beyond the common low-water mark into the said river, without license first had and obtained from the said wardens, he, she or they being legally convicted of the same, shall for every such oflfence forfeit and pay a fine not exceeding twenty dollars, to be recovered with costs as debts of the same amount are or may be by law recoverable ; one half of which fine shall be paid to the overseers or guardians of the poor of the city, district or township as aforesaid, and the other half to the person or persons who shall sue for and recover the same." (12.) Act of 1st April, 1805. 1213. The twelfth statute was the act of 1st April, 1805/ which repealed the act of 27th March, 1784,'' as to Luzerne County as it then was, that is, containing the present counties of Luzerne, Bradford (part of), Susquehanna, Wyoming, and Lackawanna. This revived the acts of 1705,' 1729,* and 1763,^ as to Luzerne County. (13.) Act of 1807. 1214. The thirteenth statute was the act of 7th April, 1807,^ which repealed the act of 27th March, 1784, so far as related to the borough of Somerset, in the county of Somerset. ' 4 Smith's Laws, 243. » 2 Ibid. 96. 8 1 Ibid. 70. * 1 Ibid. 173. » 1 Ibid. 257. • 4 Ibid. 408. SEC. III.] FENCES AND STRAYS. 675 (14.) Ad of 13th April, 1807. 1215. The fourteenth statute was the act of 13th April, 1807/ which repealed the acts of 10th May, 1729, and 4th March, 1763, as to the following counties, to wit : Philadelphia, the same area then as now; Bucks, which in 1807 comprised the present county of Bucks ; Chester, same then as now ; Lancaster, same then as now ; Northampton, which in 1807 comprised the present counties of Northampton, Lehigh, Monroe, and Carbon (part of) ; Wayne, which in 1807 comprised the present counties of Wayne, Pike, Monroe (part of), and Carbon (part of) ; and Delaware, same area in 1807 as now. The act is as follows : "Section 1. That it shall and may be lawful for the inhabitants of the respective townships in the counties of Philadelphia, Bucks, Chester, Lancaster, Northampton, "Wayne and Delaware, who are qualified electors, when they meet at the usual time and place for electing super- visors of the highways, also to elect in the same manner, some fit per- son for a town clerk ; and the judges of the election shall certify the same to the Court of Quarter Sessions, the clerk of which shall make record thereof, as records of the election for constables usually are made ; and if such person, so elected, shall neglect or refuse to serve as town clerk, or to perform any or all the duties hereinafter enjoined upon him, he shall forfeit and pay the sum often dollars, to be paid into the county treasury, and applied as other county moneys usually are : whereupon the Court of Quarter Sessions shall appoint some other fit person to fill his place ; and it shall be the duty of such clerk, so appointed or elected and consenting to serve, immediately thereafter at the expense of their respective townships, to provide a book or books as often as the same shall be necessary for the purposes herein mentioned, to be kept at or as near as conveniently may be to the place of holding township elections, the price of which shall be paid out of the moneys raised for the purpose of repairing the roads. "•Sec. 2. That if any person shall discover upon his, her or their im- proved and inclosed lands, any stray cattle, horse or sheep, it shall and may be lawful for such person or persons to take up the same ; and it shall be the duty of such person or persons to give notice thereof to the owner of such stray, if he or she can be readily found, but if otherwise, such person as aforesaid, shall within four days deliver to the town clerk aforesaid, a particular description of the color and marks, natural or artificial, of such stray or strays, in writing or other satisfactory way ; and for every neglect or refusal to do the same, he or she shall for- feit and pay the sum of five dollars, to be recovered as debts of a simi- ' 4 Smith's Laws, 472. 676 TRESPASS. [chap. XIX. lar amount are by law recoverable ; and it shall be the duty of the town clerk, subject to like penalty for neglect or refusal, to make an entry of the same in the book aforesaid, for which entry so made, the said clerk shall receive for each head of horse kind, fifty cents ; and for each head of cattle, twenty-five cents ; for every sheep, six cents ; to be paid by the person delivering such notice aforesaid ; and such psrson may detain such stray or strays, until the owner thereof shall reimburse him or her the expense of such entry, and also pay all reasonable charges of publish- ing such notice, which shall not exceed the sum of six cents per milo, to he estimated from the residence of the person taking up such stray or strays, to the place of keeping the book aforesaid, and also all reasona- ble expense for keeping such stray or strays, as well as the damage which may have been done by the same. "Sec. 3. That if the owner of any such stray or stra5'S taken up as afore- said, shall appear and neglect or refuse to make or tender a reasonable sat- isfaction to the party injured, for the damages sustained by such trespass, and for the cost of keeping such stray, or if such person or persons de- taining such stray , shall not accept the said satisfaction, it shall be lawful for either of the parties aforesaid, to complain to any justice of the peace of the proper township or county where such stray shall be taken up as afore- said, who shall upon such complaint and application issue his warrant di- rected to three disinterested and honest freeholders of the neighborhood, commanding and enjoining them forthwith to view the trespass, to value and appraise the same, having due regard to the sufficiency of the fence of such inclosure, with the expense and cost of keeping the said stray or strays, to make report thereof to him the said justice with all con- venient speed ; which said valuation and appraisement and return, they, the said freeholders, are hereby enjoined and required to make accord- ingly ; and if the said valuation and appraisement shall not amount to more than the sum of money tendered to the party injured, as a recom- pense for the damage done as aforesaid, before such complaint made, then the said justice shall give judgment for the same only, to the party refusing such tender, and award reasonable costs ; but if the said valua- tion shall amount to more than the sum tendered, or if no such tender be made, then and in that case the said justice shall award and give judg- ment for the valuation aforesaid, to the parties injured, with reasonable costs for keeping the stray aforesaid (to be estimated from the time of giving notice as aforesaid), against the other party, and shall award ex- ecution upon every such judgment, with costs of suit accordingly : Pro- vided, That the said valuation and appraisement come within the juris- diction of the said justice, but if not, then the said damage shall he re- covered as debts of an equal amount are by law recoverable: And pro- vided ahoays, That if no owner for any such stray shall have been found, within thirty days after the same shall have been taken up, then, and in that case, the person taking up the same, shall not be entitled to receive any compensation for the damages done by the same, unless he shall, within six days thereafter, have given notice to three disinterested free- SEC. III.] FENCES AND STRAYS. 677 holders to value and ascertain the amount of the same, which they are hereby authorized and required to do forthwith, and to make report thereof, on oath or affirmation, to any justice of the peace residing in the proper township, who shall, when the owner of such stray shall be found, upon his or her neglect or refusal to pay the same, give judgment and award execution with costs as aforesaid : And provided also. That if the amount of the said appraisement and valuation be not within the jurisdiction of a.justice of the peace, the said damage may be sued for be- fore any court of competent jurisdiction, and in all cases before a justice the defendant or plaintiff shall have like benefit of stay of execution or appeal, as is given under the existing laws relating to justices of the peace. " Sec. 4. That if no owner shall appear, within thirty days after any such stray shall have been taken up, it shall be the duty of the person taking up the same, to cause an advertisement, particularly describing such stray, to be published at least in one newspaper - in the proper county, if any there be, but if otherwise, to publish the same, by written or printed advertisements, which shall be put up at six or more public places in the county ; and if no owner shall appear and make out his or her property in the said stray or strays, within ninety days after the publication of such advertisements as aforesaid, the person taking up the same shall make application to any justice of the peace in the said township, who is hereby authorized and required to issue his war- rant to any constable within the township as aforesaid, and cause him to expose the said stray or strays to public sale, first giving at least ten days' notice in three or more public places in the said township, and after he shall have sold the same, he shall make a return thereof to the said justice, who shall, after the payment of all reasonable charges, and damages, and cost of keeping as aforesaid, pay over the surplus, if any there be, of such sale, to the county treasury ; but if the owner of such stray or strays shall appear within one year after such sale, and prove his, her, or their property, to such stray or strays, the said justice, or any other in the county, shall certify the same to the county treasury, who shall pay to the said owner, the whole amount of such surplus aforesaid, but if no owner shall appear within the time limited as aforesaid, he or she shall be thereafter barred from all right to the same, and the money aforesaid may be applied to such purposes as other moneys in the treas- ury usually are. " Sec. 5. That if any person or persons, taking up any stray or strays, shall neglect to give notice as is hereinbefore directed, he, she or they, so offending, shall forfeit all right and title to, or recovery of, any sum or sums of money for any trespass committed by the same, but shall deliver up the said stray or strays so detained to the owner thereof, without any recompense, fee, or reward whatsoever. "Sec. 6. That the books to be kept as aforesaid, by the respective town clerks of each township, shall be at all times kept open and free for any person or persons, who at any time may have occasion to search 678 TBESPASS, [chap. six. therein, for any such stray ; and for which search, such clerk shall not ask or receive any fee or reward, under the penalty of three dollars, to be recovered by the party aggrieved, in manner aforesaid, with costs of suit. " Sec. 7. That from and after the first day of March next, the act, en- titled 'An act for erecting pounds in each township in this province,' and the act, entitled, ' An act concerning cattle, horses and sheep tres- passing within this province,' be, and the same are severally hereby repealed, so far as they relate to the counties mentioned in this act, and this act shall then be in full force and operation." 1216. This act had an important bearing on the law of fences, as it repealed, so far as it related to the counties named in the act, the act of 10th May, 1729,^ entitled "An act for erecting of pounds in each township of this province," and the act of 4th March, 17G3,^ entitled "An act concerning cattle, horses, and sheep, tres- passing within this province." 1217. The act of 1807 was extended as follows : (1.) To Montgomery County, by the act of 20th March, 1810.' (2.) To York County, by the act of 20th March, 1810.' (3.) To all the counties in the State, excepting the counties of Erie, Crawford, Warren, Mercer, Potter, Schuylkill, Butler, Adams, Alleghany, and McKean, by the act of 13th April, 1813.* (4.) To the counties of Alleghany, Butler, Mercer, Venango, Crawford, Warren, and Erie, by the act of 5th March, 1819.° (5.) To Schuylkill County, by the act of 10th January, 1832.^ (6.) To Adams County, by the act of 15th April, 1834.* 1218. These acts extended the act of 13th April, 1807, to all the counties of the State, excepting Potter and McKean. 1219. The 4th section of the act has been modified by the act of 5th March, 1819,' as to all the counties in.which the act is in force. It has been extended to mules by the act of 5th March, 1858.'» 1220. The act of 1807 was modified as to certain counties, as follows : ' 1 Smith's LawB, 173. > 1 Ibid. 257. 3 6 Ibid. 147. * 5 Ibid. 147. 6 6 Ibid. 59. ■ « 7 Ibid. 159. ' Pamphlet Laws, 12. « Ibid. 537. » 7 Smith's Laws, 169. '" Pamphlet Laws, 78. SEC. III.] FBNCBS AND STRAYS. 679 (1.) As to Washington and Alleghany, by act of 28th March, 1808.' (2.) As to Fayette, by the act of 28th March, 1820." (3.) As to Cumberland and Perry, by the act of 2d April, 1821.' (4.) As to Warren and Crawford, by the act of 26th April, 1855.* (5.) As to Chester, by the act of 27th April, 1855,' and the act. of 1st April, 1868." (6.) As to Lancaster, by the act of 24th March, 1857.' (7.) As to Erie, by the act of 15th April, 1857.* (8.) As to Venango, by the act of 25th February, 1859.' (9.) As to Delaware, by the act of 22d February, 1860." (10.) As to Alleghany, by the act of 11th April", 1862." (11.) As to Susquehanna, by the act of 15th April, 1863." (12.) As to Bradford, by the act of 9th April, 1864." (13.) As to Erie and Crawford, by the act of 24th February, 1870." (14.) As to Mercer, by the act of 18th March, 1873.» (15.) Act of 1808. 1221. The fifteenth statute was the act of 28th March, 1808,^' which related to the counties of Alleghany and Washington as they now are. The act is as follows : "Sectiok 1. That from and after the first day of July next, all dam- ages occasioned by horses, horned cattle or swine, trespassing throughi or within any inclosure within the counties of Washington and Alle- ghany, shall be determined by referees upon actual view, to be appointed, and such damages recovered, agreeable to an act entitled, 'A supple- ment to the act, entitled, An act to extend the powers of the justices of the peace of this State,' passed the first day of March, one thousand, seven hundred and ninety-nine, with the several supplements thereto. ' See ;)o«r!, page 679, Tf 1221. " Ibid. 684, T[ 1236. 3 Ibid. 684, 1[ 1237. * Ibid. 688, % 1249. " Ibid. 689, If 1250. « Ibid. 000, f ' Ibid 689, If 1251. » Ibid. 689, f 1252. 9 Ibid. 690, if 1255. '» Ibid. 690, f 1254. " Ibid. 693, Tf 1269. " Ibid. 694, f 1261. " Ibid. 684, If 1262. •* Ibid. 230, f 1272. " Ibid. 702, If 1277. " 4 Smith's Laws, 528.. 680 TRESPASS. [chap. XIX. " Sectiok 2. That all fences shall be deemed lawful which are four and a half feet high, and if in the judgment of such referees, the fence or fences viewed by them shall be such, in other respects, as are generally- constructed and deemed a sufBcient fence within their respective town- ship. " Section 3. That from and after the first day of July next, the act, entitled ' An act to regulate fences and to appoint appraisers in the coun- ties of Bedford, Northumberland, Washington and Fayette, and to en- courage the raising of swine, ' passed the twenty-seventh day of March, one thousand seven hundred , and eighty-four (except the repealing clause), be and the same is hereby repealed, so far as the same respects the counties of Washington and Alleghany." 1222. It will be noticed that this act, in the 2d section, pro- vides what shall be a lawful fence. It does not entirely repeal the act of 27th March, 1784,' as it excepts the clause in that act repealing the acts of 1705,' 10th May, 1729,' and 4th March, 1763,* hence the latter acts were not revived in Washington and Alleghany counties. (16.) Act of 1810. 1 223. The sixteenth statute was the act of 6th February, 1810,* which repealed the act of 27th March, 1784, as to the boroughs of Connnellstown and Uniontown, in the county of Fayette. (17.) Ad of 20th March, 1810 \_No. 1]. 1224. The seventeenth statute was the act of 20th March, 1810 [No. 1],' which extended the act of 13th April, 1807,' to the counties of Montgomery and York. (18.) Act of 20th March, 1810 [No. 2]. 1225. The eighteenth statute was the act of 20th March, 1810 [No. 2], and enacts as follows :* " Section 1. That from and after the passing of this act, any three of the fence-viewers already appointed, or which may hereafter be ap- 1 2 Smith's Laws, 96. ' Ibid, ante, page 667, f 1201. s 1 Ibid. 173; ante, page 670, ^[f 1204, 1205. « Ibid. 257 ; see ante, pago 671, Tf 1207. « 5 Ibid. 83. 8 5 Ibid. 147. ■> 4 Ibid. 472, ante, page 675, f 1215. 5 Ibid. 14 SEC. III.J FENCES AND STRAYS. 681 pointed by the different Courts of Common Pleas, in the several counties of the Commonwealth, shall be a quorum for doing business ; and any Tiew or order which they may make in pursuance of, or in discharge of the duties enjoined on them in the act to which this is a supplement, shall be as firm and valid in law, as if the whole number appointed in any of the counties aforesaid, had viewed or adjudged the same accord- ing to the true intent and meaning of said act. "Sec. 2. That the fence-viewers aforesaid, or such of them as shall proceed to view, shall each of them receive a compensation for their ser- vices, of one dollar per day, for every day which they shall be engaged in any view under this act, which cost or expense shall be borne by both or either parties, as the said viewers shall direct, according to the provisions of the act to which this is a supplement " (viz., the act of 1700). (19.) Aot of 1812. 1226. The nineteenth statute was the act of 27th March, 1812/ relating to rams ; but was repealed by the act of 29th March, 1813." (20.) Ad of 1813. 1227. The twentieth statute was the act of 29th March, 1813,' and enacts as follows : " iSection 1. That if any ram shall be taken trespassing within any inclosure within the counties of Delaware, Northumberland, Union, Columbia, Lycoming, Luzerne, Bradford, Fayette, Washington, Cum- berland, and Centre, at any time between the first day of August and the first day of December, the owner of said ram shall forfeit and pay to the owner or possessor of said inclosure, the sum of two dollars, to be recovered as debts of that amount are or shall be by law recoverable. " Sect. 2. That if the owner of said ram be not known, the owner or possessor of said inclosure is hereby directed to give ten days' notice of the trespass committed, by advertisements to be set up at four public places within the township where the ram shall have been taken, de- scribing his marks, if any ; and if no owner shall appear within twenty days after notice to claim the ram, he shall be forfeited to the then pos- sessor. "Sect. 3. That the aot, entitled ' An act to improve the breed of sheep in the counties of Ijuzerne, Northumberland, and Delaware, ' passed the twenty-seventh day of March, one thousand eight hundred and twelve, be and the same is hereby repealed." 1 6 Smith's Laws, 359. " 6 Ibid 80. 682 TKH6PASS. [chap, XIX, (21.) Ad of 25th April, 1813, 1228. The twenty-first statute was the act of 25th April, 1813/ which extended the act of 13th April, 1807,'' to all the counties of the State, excepting the counties of Erie, Crawford, "Warren, Mer- cer, Potter, Schuylkill, Butler, Adams, Alleghany, and MoKean. (22.) Act of 1814. 1229. The twenty-second statute was the act of 14th March, 1814,' which extended the act of 29th March, 1813,* to the counties of Chester, Beaver, Butler, Mercer, Venango, Crawford, Somerset, and Alleghany. (23.) Act of 15th March, 1814. 1230. The twenty-third statute was the act of 15th March, 1814,* which repealed the act of 27th March, 1784," as to the county of Fayette. (24.) Act of 1816. 1231. The twenty-fourth statute was the act of 25th January, 1816,' which extended the act of 29th March, 1813,' to the coun- ties of Erie, Bucks, Westmoreland, and Tioga. (25.) Act of nth February, 1816. 1232. The twenty-fifth statute was the act of 17th February, 1816,'- which repealed the act of 27th March, 1784,'° as to the borough of Mercer. (26.) Act of 1818. 1233. The twenty-sixth statute was the act of 24th March, 1818," which repealed the act of 27th March, 1784/' as to the boroughs of Waynesburg, in Greene County, and of Greenesburg, in Westmoreland County, (27.) Act of 1819, 1234. The twenty-seventh statute was the act of 5th March, 1819,'' which supplements the act of 13th April, 1807," and extends ' 6 Smith's Laws, 59. 2 Ante, page 675, Tf 1215. a 6 Ibid. 123, ante, page 681, T[ 1227. « 6 Ibid 80, ante, page 681, f 1227. i 6 Ibid. 114. 6 2 Ibid. 96. ' 6 Ibid. 308. » 6 Ibid. 80; ante, page 681, T[ 1227. 9 6 Ibid. 327. '» 2 Ibid. 96. " 7 Ibid. 117. 12 2 Ibid. 96. " 7 Ibid. 159. " Ante, page 675, f 1215. SEC. III.] FENCES AND STEAYS. 683 the same to the counties of Alleghany, Butler, Mercer, "Venango, Warren, Crawford, and Erie, thereby repealing the act of 10th May, 1729, and 4th March, 1763, to such of the said counties as it applied. The act of 1819 is as follows: " Section 1. That whenever the inhabitants of any of the townships, in any county within this Commonwealth, authorized by the act to which this is a supplement, to elect and return to the Court of Quarter Sessions, some fit person for a town clerk, shall neglect so to elect and make return, the court are hereby authorized to appoint some fit person for the office aforesaid, which person when appointed and notified thereof by the court, shall have and possess all power and authority, and perform the same duty that is vested in and enjoined on the town clerk elected in manner prescribed by the act to which this is a supplement, and be subject to similar penalties for neglect of duty. "Sec. 2. That if the owner of any stray or strays, taken up under authority of the act to which this is a supplement, shall not appear upon notice given, or, having appeared, shall neglect or refuse to make or tender reasonable satisfaction to the party injured, for the damages sus- tained by reason of the trespass of such stray and for the costs of keep- ing ; or if such injured party shall not accept the' satisfaction which may be offered, it shall be the duty of such injured party to make immediate application to any justice of the peace of tlie proper county, who shall proceed upon such application in the manner directed by the act to which this is a supplement. " Sec. 3. That if the owner shall not have appeared within ten days after any such stray shall have been taken up, it shall be the duty of the person taking up such stray, to cause the same to be advertised in man- ner prescribed by the 4th section of the act to which this is a supple- ment. And if the owner shall not have appeared within sixty days after such advertisement and publication, the person taking up the same shall make application to a justice of the peace, and the same proceedings shall be had as are directed by the act to which this is a supplement. And that so much of the act to which this is a supplement as is hereby altered, be and the same is hereby repealed. "Sec. 4. That all the provisions of this act, and the act to which this is a supplement, passed the thirteenth April, one thousand eight hun- dred and seven, be and the same are hereby extended to the counties of Alleghany, Butler, Mercer, Venango, Warren, Crawford, and Erie : Pro- vided, however, That the said clerk s]jaU not be compelled to serve more than one year in seven." 1235. The 1st section of this act was supplied by the 83d sec- tion of the act of 10th April, 1834.' 1 Pamphlet Laws, 537. 684 TRESPASS. [chap. XIX. (28.) Act of 1820. 1236. The twenty-eighth statute was the act of 28th March, 1820/ relating to Fayette County, and enacts as follows : " Section 1. That from and after the first day of July next, all dam- ages occasioned by horses, horned cattle, or swin3, trespassing through or within any inclosure within the county of Fayette, shall be determined by referees upon actual view, to be appointed, and such damages recov- ered agreeably to an act, entitled ' A supplement to an act, entitled An act to extend the powers of the justices of the peace of the State,' passed the first day of March, one thousand seven hundred and ninety-nine, with the several supplements thereto. " Sec. 2. That all fences shall be deemed lawful, which are four and a half feet high, if in the judgment of such referees the fence or fences viewed by them, shall be such in other respects as are generally con- structed and deemed a sufficient fence within their respective town- ships. "Sec. 3. That from and after the first day of July next, so much of any of the laws of this Commonwealth relating to fences and damages by horses, cattle, or swine, as are hereby altered or supplied, be and the same are hereby repealed so far as they respect the county of Fayette: Provided, That the provisions of this act shall not be extended to the boroughs of Uniontown, Connellsville, Brownsville, nor Bridgeport." (29.) Aet of 1821. 1237. The twenty-ninth statute was the act of 2d April, 1821,' which repealed the act of 27th March, 1784,' as to the counties of Cumberland and Perry, as follows : " Section 1. That from and after the first day of July next, all dam- ages occasioned by horses, cattle or swine, trespassing through or within any inclosure within the counties of Cumberland and Perry, shall be determined by referees upon actual view, to be appointed, and such dam- ages recovered agreeably to an act, entitled, ' A supplement to an aet entitled An act to extend the powers of the justices of the peace of this State,' passed the first day of March, one thousand seven hundred and ninety-nine, with the several supplements thereto. "Sec. 2. That all fences shall be deemed lawful which are four and a half feet high, if in the judgment of such referees, the fence or fences vie.wed by them shall be such in other respects as are generally con- structed and deemed a sufficient fence within their respective townships. " Sec. 3. That from and after the first day of July next, so much of any of the laws of this Comilionwealth relating to fences and damages, by 1 7 Smith's Laws, 322. « 7 Ibid. 456. « 2 Ibid. 96. SBC. III.] FENCES AND STRAYS. 685 horses, cattle, or swine, as are hereby altered or supplied, be, and the same are hereby repealed, so far as they respect the counties of Cumber- land and Perry : Provided, That the provisions of this act shall not ex- tend to any incorporated borough within the counties of Cumberland and Perry." 1238. The act of 1st March, 1799,' referred to in this act, was supplied by the act of 20th March, 1810,^ now in force. (30.) Ad of 1822. 1239. The thirtieth statute was the act of 30th March, 1822,' and enacts as follows : " Section 1, That from and after the passage of this act ' The Guar- dians of the Poor of the City of Philadelphia, the District of Southwark, and the Township of the Northern Liberties,' or the person or persons by them appointed for that purpose, shall have the exclusive right and privilege of taking up any swine, hogs, shoats or pigs, running at large in the city of Philadelphia, and the swine, hogs, shoats or pigs so taken up, shall be disposed of for the sole use and benefit of the poor of said city, district and township." (31.) Act of 1832. 1240. The thirty-first statute was the act of 10th January, 1832,* which extended the act of 13th April, 1807,^ to the county of Schuylkill, as follows : " Section 1. That all the provisions of the act entitled, 'An act con- cerning strays,' passed on the thirteenth day of April, eighteen hundred and seven, and the supplements, passed the fifth day of March, eighteen hundred and nineteen, be and the same are hereby extended to the county of Schuylkill." (32.) Act of 1834. 1241. The thirty-second statute was the act of 15th April, 1834,^ which extended the act of 13th April, 1807,' to Adams County, as follows: " Section 1. That all the provisions of the act entitled, ' An act con- cerning strays,' passed the thirteenth day of April, one thousand eight hundred and seven, and supplements to the same, passed the fifth day 1 3 Smith's Laws, 354. 2 5 ibid. 561. 3 7 Ibid. 527. * Pamphlet Laws, 12. 6 4 Smith's Laws, 472 ; ante, page 675, f 1215. ' Pamplilet Laws, 537. ' 4 Smith's Laws, 472; ante, page 675, % 1215. 686 TRESPASS, [chap. XIX. of March, one thousand eight hundred and nineteen, are hereby extended to the county of Adams : Provided., however, That said clerk shall not be compelled to serve more than one year in seven. " (33.) Ad of 1842. 1242. The thirty-third statute was the act of 11th March, 1842/ and relates to the whole State, as follows : " Section 1. That in addition to the duties now imposed upon the township auditors, they shall hereafter perform the duties hereinafter prescribed as fence-viewers. That in addition to the oath now prescribed, to be taken by the auditors, they shall annually be sworn or affirmed, to discharge their duties as such viewers faithfully and impartially. " Sec. 2. In case of the death, removal or resignation of any fence- viewers and auditors, so elected, the judges of the court of the proper county, shall appoint a suitable person to fill the vacancy, for the unex- pired term of the person whose place is vacant. "Sec. 3. When any two persons shall improve lands adjacent to each other, or where any person shall inclose any land adjoining to another's land already fenced in, so that any part of the first person's fence be- comes the partition fence between them, in both these cases the charge of such division fence, so far as is inclosed on both sides, shall be equally borne and maintained by both parties. ' ' Sec. 4. On notice given the said viewers shall within five days there- after view and examine any line fence as aforesaid, and shall make out a certificate in writing, setting forth whether in their opinion the fence of one which has been already built, is sufficient, and if not, what proportion of the expense of building a new or repairing the old fence should be borne by each party, and in each case, they shall set forth the sum which in their judgment each party ought to paj' to the other, in case he shall repair or build his proportion of the fence, a copy of which certificate shall be delivered to each of the parties ; and the said viewers shall re- ceive the sum of one dollar for every day necessarily spent by them in the discharge of their duties, which they shall be entitled to receive from Mie delinquent party, or in equal sums from each, as they shall decide to be just. " Sec. 5. If the party who shall be delinquent in making or repairing any fence, shall not, within ten days after a copy of the certificate of the viewers shall have been delivered to him, proceed to repair or build the said fence, and complete the same in a reasonable time, it shall be law- ful for the parties aggrieved to repair or build the said fence ; and he may bring suit before any justice of the peace or alderman against the delinquent party, and recover as in other actions, for work, labor, ser- vice done, and materials found, and either party may appeal from the decision of the justice or alderman as in other cases, ' Pamphlet Laws, 62. SEC. III.] FENCES AND STRAYS. 687 "Sec. 6. The said viewers shall not be called out to view any fence between the first day of November and the first day of April of the next year. " Sec. 7. If any viewer shall neglect or refuse to perform any duty herein enjoined upon him, he shall pay for each such neglect or refusal, the sum of three dollars, to be recovered by the party aggrieved as debts of a like amount are recoverable. "Sec. 8. A majority of the viewers in each township shall be a quorum, and shall have power to do all the duties herein assigned." 1243. By the act of 28th February, 1868,' the provisions of this act were extended to any three of the school directors of any district within the limits of the city of Pittsburg, imposing upon them the duties required by the act. 1244.. By the act of 13th April, 1870/ the duties offence-viewers under the act of 1842 were extended to the school directors of Doylestown borough, in the county of Bucks. (34.) Ad of 1847. 1245. The thirty-fourth statute was the act of 3d March, 1847,' which enacts as follows : "Section 10. That all the provisions of an act, entitled 'An act for regulating and maintaining line fences, and for other purposes,' passed the eleventh day of March, 1842, relating to township auditors, imposing upon them the duties of fence-viewers, be and the same is hereby extended to borough auditors." (35). Act of 1849. 1246. The thirty-fifth statute was the act of 3d April, 1849,* which relates to Philadelphia, and enacts as follows : " Section 3. That whenever any nuisance shall be found anywhere within the jurisdiction of the board of health, by reason of the keeping of hogs or other animals, the board of health, in addition to their power of destroying their pens or other inclosures containing such animals, or of otherwise abating and removing such nuisance, be and they are hereby empowered to seize such animals, and deliver them over as forfeited to ' the guardians for the relief and employment of the poor of the city of Philadelphia, the district of South wark, and the townships of the North- ern Liberties and Penn, for the use of said poor ;' and it shall be the duty fo said guardians of the poor, on notice from the board of health, to re- 1 Pamphlet Laws, 236. « Ibid. 1145. s Ibid. 200. * Ibid. 346. 688 TRESPASS. [chap. XIX. ceive the said animals, and pay the expense of their removal : Provided That nothing herein contained shall be construed to interfere with the keeping of well-regulated markets for the purchase and sale of cattle, ex- cepting swine." (36.) Act of 1851. 1247. The thirty-sixth statute was the act of 14th April, 1851," and enacts as follows : " Section 12. That if any person or persons from and after the passage of this act shall maliciously or voluntarily break down any post and rail or other fence put up for the inclosure of lands, and carry away, break, or destroy any post, rail, or other material of which such fence was built within this Commonwealth, every person or persons so offending, and being legally thereof convicted before any justice of the peace or alderman within this Commonwealth, shall for every such offence forfeit and pay the sum of ten dollars, one-half thereof to be paid to the in- former and the other half to the support of the poor of such county, township, borough, or ward where the offence has been committed, to- gether with costs of prosecution ; and in default of payment, such per- son or persons shall be imprisoned in the county jail not exceeding thirty days for the first offence, and sixty days for the second : Provided, That either of the parties shall have the right of appeal in the same manner as in civil cases." (37.) Ad of 1853. 1248. The thirty-seventh statute was the act of 18th April, 1853,^ which extended the act of 1705^ to the counties of Tioga and Potter. (38.) Act of 1855. 1249. The thirty -eighth statute was the act of 26th April, 1855," and relates to the counties of Warren and Crawford, as follows : "Section 1. That all stallions, bulls, bucks or rams, and all swine which may be found running at large in any of the streets or highways, in the counties of Warren and Crawford, shall be and the same are de- clared to bo strays, and shall be dealt with as such, and subject to the same proceedings as by law are provided for; and any resident of the township or borough is hereby authorized to take up said animals, in the same manner as if said animals had been found trespassing on the prem- ises of said resident : And provided also, That an additional charge of one 1 Pamphlet Lawa, 615. ^ Ibid. 550. » 1 Smith's Laws, 70, ante, page 667, f 1201. * Pamphlet Laws, 316. SEO. III.] FENCES AND STRAYS, 689 dollar shall be allowed for taking up the same, which shall be paid by the owner of said animal, or taljen out of the proceeds of the sale of the same." (39.) Ad of 27th April, 1855. 1250. The thirty-ninth statute was the act of 27th April, 1855/ and relates to Chester County, as follows : " Section 1. That from and after the tenth day of May next, all cattle, horses, and sheep, belonging to farmers or owners of farms, found run- ning at large or upon the public roads or highways, in the county of Chester, shall be considered in the character of strays, and may be taken up as such by any person, and shall and may be disposed of under the existing laws of this State relating to strays, if such person shall see proper to prosecute the same : Provided, That this act shall not apply to any of said animals that may have accidentally escaped from their proper inclosure." But the act of 1st April, 1868,' repeals this act. (40.) Ad of 1857. 1251. The fortieth statute was the act of 24th March, 1857,' and relates to Lancaster County, as follows : ' ' Section 1. That from and after the tenth day of May next all cattle, horses, sheep and hogs belonging to farmers or owners of farms, found running at large, or upon the public roads or highways in the county of Lancaster, shall be considered in the character of strays, and may be taken up as such by any person, and shall and may be disposed of under the existing laws of this State relating to strays, if such person shall see proper to prosecute the same : Provided, That this act shall not apply to any of said animals that may have accidentally escaped from their proper inclosures." (41.) Ad of 15th April, 1857. 1252. The forty-first statute was the act of 15th April, 1857,* which extended the act of 26th April, 1855,^ to the county of Erie. ' Pamphlet Laws, 351. ' See post, page 698, f 1268. ' Pamphlet Laws, 124. • Ibid. 196. 6 Ibid. 316; ante, page 688, f 1249. 44 690 TRESPASS. [chap. XIX, (42.) Act of 24th April, 1857. 1253. The forty-second statute was the act of 24th April, 1857,' and relates to Erie County, as follows : " Section 1. That the proprietors of land in the county of Erie shall make and maintain sufficient fence or fences to secure their particular fields and inclosures ; and all fences four and one-half feet high, and in good repair, consisting of rails, timber, boards, or any combination there- of, and hedges, ditches, creeks and ponds, or other things which, in the judgment of the fence-viewers having jurisdiction thereof, are equivalent thereto, shall be deemed legal and sufficient fences." (43.) Act of 1858. 1254. The forty-third statute was the act of 5th March, 1858,' which extended the act of 13th April, 1807,' together with its supplements, to mules. (44.) Act of 1859. 1255. The forty-fourth statute was the act of 25th February, 1859,* -which extended the act of 26th April, 1855,* to the county of Venango. (45.) Act of 15th February, 1860. 1256. The forty-fifth statute was the act of 15th February, I860,* and relates to Clarion County, as follows: " Section 1. That the act, entitled ' An act to improve the breed of sheep in certain counties of this Commonwealth,' passed the twenty- ninth day of March, one thousand eight hundred and thirteen, be and the same is hereby extended to the county of Clarion : Provided, That the penalties prescribed in the act to which this is an extension, shall be recoverable in the said county of Clarion only for trespasses committed between the first day of September and the first day of December in each year." (46.) Ad of 22d February, 1860. 1257. The forty-sixth statute was the act of 22d February, I860,' and relates to Delaware County, as follows : 1 Pamphlet Laws, 309. 2 Ibid. 78. » 4 Smith's Laws, 472, ante, page 675, f 1215. * Pamphlet Laws, 79. « Pamphlet Laws, 316, ante, page 688, ^ 1247. « Pamphlet Laws, 160. " Ibid. 68. SEC. III.] FENCES AND STRAYS. 691 " Sectiok 1. That from and after the first day of April next, no cattle, horses, sheep or swine shall be suffered to run at large, or upon the public roads or highways, in the county of Delaware, under the penalty of two dollars for each offence. " Sec. 2. That it shall be the duty of the constables within said county, and they are hereby directed and empowered, without any special warrant or other authority than this act, to seize and secure every animal of the cattle, horse, sheep, or hog kind that may be found running at large as aforesaid, and the same to sell at public sale in the same manner as is provided by law for selling strays, giving the owner, if he can be found, at least five days' notice previous to such sale. If said owner shall pay to the constable the said penalty of two dollars, and also pay for the ex- pense of keeping said animal or animals, then it shall be the duty of the constable to deliver said animal or animals to the owners ; but if he shall make a sale as aforesaid, he shall pay the overplus, after deducting the said penalty and expenses, to the owner, and the constable making such seizure shall be allowed for the same to retain one-half of the penalty, and it shall be his duty to pay the other half to the school treasurer of the township where such seizure was made, for the use of the schools of said township. ' ' Sec. 3. That if any constable shall neglect or refuse to seize or secure any animal aforesaid, found running at large, after being notified by any person to seize and secure the same, such constable shall pay a fine of five dollars, for the use of the schools of the township where the said constable resides, for every such neglect or refusal." This act was extended to Franklin County by the act of 4th March, 1865/ which was, however, repealed by the act of 27th March, 1866.^ It was also extended to Lebanon County by the act of 10th April, 1866," which was also repealed by the act of 10th April, 1867.* It was also extended to the counties of Craw- ford and Erie by the act of 3d April, 1867,* which was also re- pealed by the act of 9th April, 1869.' (47.) Act of 1862. 1258. The forty-seventh statute was the act of 11th March, 1862,' and relates to Philadelphia, as follows: " Section 1. That from and after the passage of this act the board of surveyors and regulators of the city of Philadelphia shall, in addition 1 Pamphlet Laws, 271. ' Ibid. 332. 3 Ibid. 716. * Ibid. 1021. 6 Ibid. 691. « Ibid. 800. ' Ibid. 109. 692 TRESPASS. [chap. XIX, to the duties now imposed upon them, perform the duties hereinafter pre- scribed as fence-viewers ; that in addition to tlie oath now prescribed to be taken by the said surveyors and regulators, they shall be sworn or affirmed to discharge their duties as such viewers, faithfully and impar- tially. " Sec. 2. That on application made to the said board of surveyors and regulators, the president shall, at the first meeting of said board there- after, appoint three members thereof, who shall within five days thereafter proceed to view and examine any line or partition fence, and shall make out a certificate in writing, setting forth whether, in their opinion, the fence if one has been already built, is lawful or otherwise ; and if not lawful, or if no fence is built upon said line, then stating what propor- tion of cost, repairing the old or building a new fence, should be borne by each party ; and in each case thej' shall set forth the sum each party ought to pay to the other, in case he should build or repair the other party's portion of said fence, a copy of which certificate shall be deliv- ered to each of the parties ; and they shall also present to the said board, at the next stated meeting thereafter, a report of their proceedings, which report, if approved by said board , after hearing of the parties in- terested, shall be final and conclusive. " Sec. 3. That if the party who shall be delinquent in making or re- pairing any fence, shall not within ten days after the report shall have been approved by the said board, proceed to repair or build the said fence, and complete the same in a reasonable time, it shall be lawful for the parties aggrieved to repair or build said fence, and he may bring suit before any alderman against the delinquent party, and recover as in other actions for work and labor done, and service performed and materials found, and either party may appeal from the decision of the alderman as in other cases. " Sec. 4. That all partition fences dividing inclosed lands within the rural districts of the said city of Philadelphia, shall be substantially made, at least four feet six inches high, and of sufficient rails or logs, the bottom rail or log to be not more than eight inches above the ground ; and in the built-up portions of said city, a tight board or palisade fence, sub- stantially built, at least six feet high ; and in either case, the said view- ers and board of surveyors and regulators shall have power to designate the kind of fence to be built : Provided, The cost in the rural districts shall not exceed twelve cents per lineal foot, and in the built-up portions of said city, not exceeding twenty-five cents per lineal foot. ' ' Sec. 5. That in all cases where a building shall be a part of such party fence, the owner of the ground on which such b\iilding is erected, shall be allowed for so much of said building as forms part of the partition, as part of his share of the whole fence, in proportion to the cost of the whole ; and in case the parties shall agree to divide any partition fence between them, such agreement, setting forth the kind of fence, and what portion of the same each party shall make and keep in repair, shall be SEC. III.] FENCES AND STRAYS. 693 filed in the office of the board of surveyors and regulators, to be there kept as a public record. " Sec. 6. That all laws applying to fence- viewers or partition fences in the city of Philadelphia, as are hereby altered, amended or supplied, are hereby repealed. " Sec. 7. The board of surveyors and regulators of the city of Phila- delphia shall receive no compensation for the services required to be per- formed by them by the provisions of this act." (48.) Act of ntJi April, 1862. 1259. The forty-eighth statute was the act of 11th April, 1862,' and relates to Alleghany County so far as it applies to strays, and to the counties of Alleghany, Washington, Fayette, and West- moreland so far as it applies to fences. It enacts as follows : " Section 1. That from and after the first day of July next, all horses, cattle, sheep and swine, belonging to farmers, or other persons, found running at large, or upon the public roads or highways, in the county of Alleghany, shall be considered in the character of strays, and may be taken up as such, by any person, and shall and may be disposed of under the existing laws of this Commonwealth, relating to strays, if such per- son shall see proper to prosecute the same : Provided, That this act shall not apply to any of said animals that may have accidentally escaped from their proper inclosures. "Sec. 2. That an act to regulate fences in the counties of Alleghany Washington, Payette, and "Westmoreland, approved the twenty-seventh day of March, one thousand seven hundred and eighty-four, be and the same is hereby repealed," 1260. This act repealed the act of 27th March, 1784,' through- out the State, and removes it from further consideration.' It revived the act of 1700* in many counties, and would also have revived the acts of 10th May, 1729/ and 4th March, 1763,* in many, had 1 PampTilet Laws, 496. " 1 Smith's Laws, 96. ^ But the act of 10th April, 1873, Pamphlet Laws, 665, provides as follows : " That the act, entitled ' An Act to regulate fences and to appoint appraisers in each of the townships in the counties of Bedford, Northumberland, West- moreland, Washington and Fayette,' approved March twenty-seventh, one thousand seven hundred and eighty-four, be and the same is hereby repealed eo fer as the same relates to the county of Bedford; Promded, That the provi- sions of this act, shall not affect the present county of Huntingdon, which at the time aforesaid was embraced within said county of Bedford." * 1 Smith's Laws, 13. « Ibid. 173. « Ibid. 257. 694 . TRESPASS. [chap. XIX. not the same been repealed as to all the counties in the State (ex- cepting Potter and McKean), by the act of 13th April, 1807,' and its supplementary acts of 20th March, 1810,' 25th April, 1813,' 5th March, 1819,* 1st January, 1832/ and 15th April, 1834.' As no provisions have been made for Potter and McKeau counties, it seems that the repeal of the act of 27th March, 1784,' revives in them the acts of 10th May, 1729,' and 4th March, 1763,' in conjunction with the act of 1700.'° (49.) Act of 1863. 1261. The forty-ninth statute was the act of 15th April, 1863," and relates to Susquehanna County, as follows : "Section 1. That from and after the first day of July next, all horses, cattle, sheep and swine, belonging to farmers, or other persons, in the county of Susquehanna, shall be considered in character of strays, and may be disposed of, under the existing laws of this Commonwealth re- lating to strays, if such person shall see proper to prosecute the same : Provided, That this act shall not apply to any of said animals that may have accidentally escaped from their inclosures." (50.) Act of 1864. 1262. The fiftieth statute was the act of 9th April, 1864,'' and relates to Bradford County, as follows : " Section 1. That from and after the first day of July next, all horses, mules, cattle, sheep and swine, belonging to farmers, or other persons, found running at large, or upon the public roads or highways, in the county of Bradford, shall be considered in character of strays, and may be taken up as such, by any person, and shall and may be disposed of, under existing laws of this Commonwealth relating to strays, if such person shall see proper to prosecute the same." (51.) Ad of 22d March, 1865. 1263. The fifty-first statute was the act of 22d March, 1865," entitled "A supplement to an act, entitled 'An act to provide for « 4 Smith's Laws, 472. » 5 Ibid. 147. 8 6 Ibid. 59. 4 7 Ibid. 159. Pamphlet Laws, 12. « Ibid 537. 1 2 Smith's Laws, 96. s 1 Ibid. 173. » 1 Ibid. 257. '» 1 Ibid. 13. " Pamphlet Laws, 501. " Ibid 369. M Ibid. 538. SEC. III.] FENCES AND STRAYS. 695 the appointment of fence-viewers in the city of Philadelphia, ap- proved March eleventh, one thousand eight hundred and sixty- two,' " and relates to Philadelphia, as follows : " Section 1. That if the party who shall be delinquent in making or repairing any fence, in accordance with the provisions of the act of which this is a supplement, shall not, within ten days after the report shall have been approved by the board of surveyors, proceed to repair, or build, said fence, and complete the same, in a reasonable time, it shall be lawful for the parties aggrieved, to repair, or build, said fence ; and if the costs, for the work done and materials furnished, are not paid by the de- linquent party, within three months after the completion of the same, a lien may be filed against the premises, for said costs and expenses, which shall be of the same effect, and may be sued out and collected, in the same manner as municipal claims are now, by law, collected. " Sec. 2. The third section of the act, of which this is a supplement, is hereby repealed. " (52.) Act of 23d March, 1865. 1264. The fifty-second statute was the penal act of 23d March, 1865,' which was a supplement to the act of 14th April, 1851,^ and enacts as follows : "Section 1. That if any person or persons, from and after the passage of this act, shall maliciously or wantonly break, or throw down any post and rail, or other fence, erected for the inclosure of land, or shall carry away, break or destroy, any post, rail, or other material, of which such fence was built, inclosing any lots or fields, witliin the Commonwealth, such person or persons, so ofiending, shall be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine not exceeding fifty dollars, one-half thereof to be paid to the informer, on conviction of the offender or offenders, the other half to the support of the poor of such county, township, borough or ward where the offence has been com- mitted, with costs of prosecution, or to undergo an imprisonment not exceeding six months, or both, or either, at the discretion of the court." (53.) Act of 23d March, 1868. 1265. The fifty-third statute was the act of 23d March, 1868,' and relates to Erie County, as follows : " Section 1. That it shall be the duty of each company owning or operating a railroad in the county of Erie, to erect, where not already 1 Pamphlet Laws, 42. ' ' Ibid. 615, ' Ibid. 424. See supplement, post, page 699, f 1270. 696 TRESPASS. [CHAP. XIX. erected, and to keep and maintain on each side of the track or tracks of said roads at all places in said county except where said road or roads pass through a village, borough, or city, or a public road crosses the same, a suitable fence five feet high, to prevent cattle, sheep and swine from going upon said tracks ; and in case any company referred to in this act shall neglect to perform the duty herein imposed, the company so offending shall be answerable to the owner or owners of any horses, cattle, sheep or swine for the value of the property injured upon said roads in consequence of such neglect ; said company or companies shall further be liable to the penalty of fifty dollars for each place along said roads in said county where the fence or fences required by this act to be built, kept and maintained, are destroyed or broken down and permitted so to re- main for a period of three days ; the penalty herein imposed, to be recov- ered one-half to the use of the informer and the other half for the use of the school districts of the township in which said offence or offences shall be committed. " Sec. 2. All damages and penalties in this act to be sued for and re- covered as debts of like amount are now by law made recoverable : Pro- vided, That this act shall not go into effect until the first day of July Anno Domini one thousand eight hundred and sixty-eight. " (54.) Act of 28th March, 1868. 1266. The fifty-fourth statute was the act of 28th March, 1868,» and relates to Warren County, as follows : " Sectiok 1. That for the protection of farmers and owners of cattle, horses, sheep and swine residing along the line of any railroad now con- structed or that may hereafter be constructed in the county of Warren, all railroad companies, when railroads are completed and on which they are now running trains in the said county, shall, before the first day of September, one thousand eight hundred and sixty-eight, construct and keep in repair, or cause to be constructed and kept in repair, a good and sufficient fence, at least four feet high, along their track, except through incorporated boroughs ; and also construct sufficient c-attle-guards at all road-crossings, sufficient to prevent orderly cattle, horses, sheep and swine from straying upon any railroad track in said county ; and all railroads that may hereafter be constructed in said county are hereby required to construct such fences and cattle-guards before running trains thereon. "Sec. 2. If any railroad company in said county shall neglect or refuse to comply with the first section of this act, then any person, after giving the president, any director, the superintendent or chief clerk fif- teen days' notice, may, if said railroad company continue to neglect and refuse to build the fences and cattle-guards as by this act required, build the said fence and cattle-guards or any portion of the same ; and any ' Pamphlet Laws, 614. SEC. III.] FENCES AND STRAYS. 697 person so building any fence or cattle-guards in said county, wliich by this act sucli railroad companies are required to build, may sue and re- cover the cost of making such fence or cattle-guards from any railroad company neglecting and refusing to comply with the provisions of this act, together with ten per centum additional to the actual cost of build- ing such fence and cattle-guards, to be sued and recovered in said county of Warren, in the same manner as debts of like amount are now re- coverable." (55.) Act of 1st April, 1868. 1267. The fifty-fifth statute was the act of 1st April, 1868/ and relates to live fences in Erie County, as follows : " Section 1. That whenever any owner or owners, occupier or occu- piers of anj' land or lands bordering upon any public road or highway, except a street or alley in any town or village, or through which any public road or highway may pass, may wish to plant and cultivate any hedge or live fence along the margin of his, her or their land, it shall be lawful for any such person or persons to set or plant any such hedge or live fence precisely on the line of the road or public highway, and also to place on the margin of such road a protection-fence, not to occupy more than six feet of the margin or edge of such road ; and such protec- tion-fence, wlien placed opposite any live fence or hedge, actually set out or planted, shall be permitted by the road commissioners and all other persons to remain for the term of six years : Provided, That the road commissioners are satisfied that the parties jjlanting said fence are care- fully cultivating the same with the intention of growing said hedge and making it permanent. "Sec. 2. "Whenever any owner or owners, occupier or occupiers of any land or lands adjoining such highways before mentioned, may wish to grade, cultivate and enrich said margin for the purpose of planting such hedge or live fence, and thereby facilitate the growth and usefulness of said hedge, he, she or they shall have the right to place the fence in- tended as the protection-fence to said hedge when planted on the margin of said road, and to continue for one year, first having permission in writing from the road commissioners of the township ; said fence to con- tinue not longer than five years after the planting of said hedge ; but if the party or parties receiving such permission to and occupying said road or highway shall at the end of one year refuse or neglect to plant or set out such hedge or live fence, it shall be the duty of the road com- missioners to remove the said fence, in case the owner or owners thereof shall neglect or refuse to remove the same within ten days after notice to him or them so to do. "Sec. 3. That the provisions of this act shall extend only to the county of Erie." I Pamphlet Laws, 570. 698 TRESPASS. [CHAP. XIX. (56.) Act of 1st April, 1868. 1268. The fifty-sixth statute was the act of 1st April, 1868,' and relates to Chester County, as follows : " Section 1. That from and after the i5rst day of May next no cattle, horses, sheep or swine shall be suffered to run at large or upon the public roads or highways in the county of Chester, under a penalty of two dol- lars for each offence. " Sec. 2. That it shall be the duty of the constables or any of the su- pervisors of roads within the said county, and they are hereby authorized and empowered, without any special warrant or other authority than this act, to seize and secure every animal of the cattle, horse, sheep or hog kind that may be found running at large as aforesaid, and the same to sell at public sale in the same manner as is provided by law for selling strays, giving the owner, if he can be found, at least five days' notice previous to such sale ; if said owner shall pay to the consta,ble or supervisor the said penalty of two dollars, and also pay for the expense of keeping said animal or animals, then it shall be the duty of the constable or supervi- sor to deliver said animal or animals to the owner ; but if he shall make a sale as aforesaid, he shall pay the overplus, after deducting the said penalty and expenses, to the owner ; and the constable or supervisor making such seizure shall be allowed for the same to retain one-half of the penalty, and it shall be his duty to pay the other half to the school treasurer of the township where such seizure was made, for the use of the schools of said township. " Sec. 3. That if any constable or supervisor shall neglect or refuse to seize or secure any animal found running at large as aforesaid, after being notified by any person to seize and secure the same, such constable or supervisor shall pay a fine of five dollars, for the use of the schools of the township where he resides, for every such neglect or refusal. " Sec. 4. That all acts or parts of acts, heretofore enacted, that are inconsistent with the provisions of this act, are hereby repealed." (57.) Aet of 9th April, 1868. 1269. The fifty-seventh statute was the act of 9th April, 1868," and relates to Centre County, as follows: "SectiohtI. That it shall be the duty of each company owning or operating a railroad in the county of Centre, to erect, where not already erected, and to keep and maintain on each side of the track or tracks of said road, at all places in said county except where said road or roads passes or pass through a village, borough or city, or a public road crosses the same, a suitable fence, five feet high, and to build, erect and main- 1 Pamphlet Laws, 573. t Ibid. 779. SEC. III.] FENCES AND STRAYS. 699 tain such suitable cattle-guard or guards, at all crossings on said rail- road, as will prevent horses, cattle, sheep and swine from going upon said tracks ; and in case any company owning or operating said road or roads shall refuse or neglect to perform the duties herein imposed, the com- pany or companies so offending shall be answerable to the owner or owners of any horses, cattle, sheep or swine to the full value of the prop- erty injured upon said road or roads, in consequence of such neglect ; said company or companies shall be further liable to the penalty of fifty dollars for each place along said road or roads in said county, where the fence or fences required by this act to be built, erected, kept and main- tained, are destroyed or broken down and permitted so to remain for a period of ten days ; the penalty herein imposed to be recovered one-half to the use of the informer and the other half for the use of the public schools of said county of Centre. " Sec. 2. All damages and penalties in this act to be sued for and re- covered as debts of like amount are now by law made recoverable : Pro- vided, That this act shall not go into effect until the first day of August, Anno Domini one thousand eight hundred and sixty-eight." (58.) Act of 13th April, 1868. 1270. The fifty-eighth statute was the act of 13th April, 1868/ which is a supplement to the act of 23d March, 1868/ relating to Erie County, and enacts as follows : " Section 1. That the provisions of an act, entitled ' An act to secure farmers against losses caused by railroads in Erie County, ' approved on the twenty-third day of March, Anno Domini one thousand eight hun- dred and sixty-eight, shall not apply to or upon lands in said county, in regard to which contracts exist by virtue of which the owners thereof are bound to build and maintain fences thereon along the line of the rail- road passing through or along the same : Provided, That in all cases v?here fences along the line of any railroad are destroyed by fire caused by the running of trains or by the employes of any railroad, the said railroad company shall be liable to the penalties in the first and second sections of an act, entitled 'An act to secure farmers against losses caused by railroads in Erie County,' approved the twenty-third day of March, Anno Domini one thousand eight hundred and sixty -eight. " (59.) Act of 17th April, 1869. 1271. The fifty-ninth statute was the act of 17th April, 1869/ which is a supplement to the act of 28th March, 1868/ relating to 1 Pamphlet Laws, 1022. » Ibid. 424, ante, page 695, 1[ 1265. 8 Ibid. 1125. * Ibid. 514, ante, page 696, f 1266. 700 TRESPASS. [chap. XIX. Warren County, and which extends the latter act to the counties of Bradford, McKean, and Venango, as follows: "Section 1. That if any company referred to in said act shall neglect to perform the duties imposed hy said act, the company so offending shall be answerable to the owners of cattle, horses, sheep or swine to the value of the property injured upon said roads in consequence of such neglect. " Sec. 2. The provisions of said act and this supplement be and the same are hereby extended to the counties of Bradford, McKean, and Venango, and the several courts of said county shall have like juris- diction." (60.) Aot of 2ith February, 1870. 1272. The sixtieth statute was the act of 24th February, 1870,^ and relates to Erie and Crawford counties, as follows : "Section 1. That from and after the passage of this act no cattle, horses, hogs or sheep shall be suffered to run at large on or upon the public roads or highways, in the counties of Erie and Crawford, under the penalty of two dollars per head for horses and cattle, one dollar per head for hogs, and fifty cents per head for sheep. "Sec. 2. That it shall be the duty of any of the constables in the sev- eral wards, boroughs, or townships in said counties, and they are hereby directed and empowered, without any special warrant or other authority than this act, to seize and secure any animal of the cattle, horse, hog or sheep kind that may be found running at large in the counties aforesaid, and the same to sell at public sale in the same manner as is or may be provided for selling strays, giving the owner, if he or she can be found, at least five days' notice previous to such sale ; if said owner shall pa}- to the constable the said penalty for each animal as provided in the first section of this act, and also pay for the expenses of keeping said animal or animals, then it shall be the duty of the constable to deliver said animal or animals to the owner thereof; but if he shall make sale as aforesaid, he shall pay the overplus, after deducting the said penalty and expenses, to the owner ; and the constable making such seizure shall be allowed for the same to retain one-half of the penalty, and it shall be his duty to pay the other half to the school treasurer of the ward, borough or township, for the use of the common schools of said ward, borough or township in which said animal or animals were found running at large : Provided, That no constable shall be required to take up or secure any of said animals out of the district for which he shall have been elected. " Sec. 3. That it shall be lawful for any person finding any animal or animals as aforesaid, trespassing upon his premises, or running at large upon the public roads or highways running through or immedi- ' Pamphlet Laws, 230. SEC. III.] FENCES AND STRAYS, 701 ately adjoining his premises, to seize or secure such animal or animals and deliver the same to the constable of his district, to be dealt with as is hereinbefore provided for, and with the same effect as if the seizure had been made by the constable. " Sec. 4. That if any constable shall neglect or refuse to seize or secure any animal or animals as aforesaid, found running at large, after being notified by any person to seize and secure the same, such constable shall pay a fine of five dollars for the use of the common school of the ward, borough or township in which said animal or animals shall be found running at large, to be sued for and collected by the school directors of said ward, borough or township as debts of like amount are now collected by law ; the penalties imposed by this act shall be prosecuted and re- coverable before a justice of the peace, in the name of the school directors of the ward, borough or township in which such penalties shall arise : Provided, That this act shall not apply to any of said animals that may have accidentally escaped from their proper owner or inclosures : And provided further, That no animal or animals shall be liable to be seized as aforesaid, when found on or .upon so much of any public road or high- way as may run through the premises of the owner of said animal. "Sec. 5. That any law or laws heretofore passed to prevent any of said animals from running at large, in said counties, be and the same are hereby repealed." (61.) Act of 6th May, 1870. 1273. The sixty-first statute was the act of 6th May, 1870/ and relates to the city of Philadelphia, as follows : "Section 1. That from and after the passage of this act the duties required to be performed by the board of surveyors and regulators of the city of Philadelphia, as fence-viewers, as provided by the act of March 11th, 1862, shall be performed by the building inspectors of said city, who shall have authority to fix the prices to be paid for the erection or repairs of said fences, as may come under their official inspection, and they shall receive a fee of three doUars in each case, to be paid by the applicant for the view." (62.) Act of nth March, 1871. 1274. The sixty-second statute was the act of 17th March, 1871,^ and relates to Mercer County, but was supplied by the act of 18th March, 1873," which extends the act of 10th April, 1867, to the county of Mercer. (63.) Act of 25th May, 1871. 1275. The sixty-third statute was the act of 25th May, 1871,* which relates to Lack township, in the county of Juniata, and enacts as follows : » Pamphlet Laws, 1303. -° Ibid. 411. » Ibid. 340. * Ibid. 1137. 702 TRESPASS. [chap. XIX. " Section 1. That from and after the passage of this act all owners and renters of land and property in the township of Lack, Juniata County, shall be required to keep up and maintain a good and sufficient fence around their inclosures, of a height of not less than four feet and a half, and sufficiently close to prevent the entrance through the same of hogs and sheep. "Sec. 2. That if a fence of the character mentioned in the preceding section of this act is not made, kept up and maintained, and on that ac- count cattle, sheep, horses, hogs or other stock get in upon or roam over the same, to their annoyance of the same, damages shall not be allowed or recoverable by law." (64.) Act of 2Qth May, 1871. 1276. The sixty-fourth statute was the act of 29th May, 1871/ and relates to Susquehanna County, as follows : " SECTioisr 1. That all the provisions of the laws of the Commonwealth of Pennsylvania now in force in the county of Susquehanna, in relation to line or partition fences on improved lands, be and are hereby extended to embrace and include all woodland used as pasture-land for horses, cattle, sheep, or swine." (65.) Act of 18th March, 1873. 1277. The sixty-fifth statute was the act of 18th March, 1873,' and relates to Mercer County, as follows : " Sbctioit 1. That the provisions of an act entitled, ' An Act to pre- vent horses, cattle, mules, sheep and hogs from running at large in Venango township, Erie County, and Little Beaver township, Lawrence County, approved the tenth day of April, Anno Domini one thousand eight hundred and sixty-seven, 's be and the same is hereby extended to the county of Mercer : Provided, That this act shall not go into effect until the first day of April, one thousand eight hundred seventy-three : And provided further, That this act shall not interfere with the running at large of one milch cow owned by any person or persons in said county of Mercer. " Sec 2. All acts or parts of acts inconsistent herewith are hereby re- pealed, as far as they relate to the county of Mercer." IV. Acts of Assembly applying to only Parts of Counties. 1278. The legislature has passed numerous acts prohibiting the running at large of cattle, horses, mules, sheep, and swine, which relate to only certain parts of the following counties : Adams,* 1 Pamphlet Laws, 1281. » Ibid. 810. ' Ibid. 1082. * As to Adums township, act, of 11th April, 1866, Pamphlet Laws, 737. SEC. III.] FENCES AND STRAYS, 703 Beaver/ Bedford/ Berks/ Blair/ Bucks/ Butler/ Carbon/ Co- lumbia/ Crawford/ Dauphin/" Erie/' Indiana/'' Lancaster/' Law- 1 As to Darlington township, act of lOtli April, 1867, Pamphlet Laws, 1071. ■' As to Bedford and Snake Spring townships, act of 10th April, 1873, Pam- phlet Laws, 621; repealed by act of 11th May, 1874, ibid. 294. 8 As to townships of Maiden Creek and Ontelawnee, act of 11th April, 1866, Pamphlet Laws, 562; act of 13th April, 18/0, ibid. 1125. As to North Hei- delberg township, act of 17th April, 1869, ibid. 1152; repealed by act of 2d June, 1871, ibid. 1323. As to townships of Penn, Maxatawney, and Eichmond, act of 14th April, 1870, ibid. 1170. As to Jefferson township, act of 29th May, 1871, ibid. 1279. As to Exeter, Bern, Spring, and Lower Heidelberg townships, act of 2d June, 1871, ibid. 1293. As to the township of Maxa- tawney, act of 2d June, 1871, ibid. 1295. * As to swine in Blair township, act of 11th April, 1866, Pamphlet Laws, 676; repealed by act of 10th February, 1870, ibid. 123. As to swine in Alle- ghany township, act of 3d April, 1867, ibid. 738. ' As to that part which lies southeast of the townships of Hilltown and Plumstead in the county of Bucks, act of 21st March, 1865, Pamphlet Laws, 444. As to Wrightstown township, act of 18th March, 1870, ibid. 489. ' As to Cranberry and Butler townships, act of 2d April, 1869, Pamphlet Laws, 670. As to Middlesex, Butler, and Mercer townships, and borough of Harrisville, act of 15th March, 1870 ibid. 431. As to Connoquenessing and Lancaster townships, act of 18th February 1871, ibid. 102. As to Washing- ton, Buffalo, Parker, and Forward townships, act of 9th March, 1872, ibid. 280. As to Franklin township, act of 3d April, 1872, ibid. 895. As to Ve- nango, Jackson, and Slippery Kock townships, and borough of Centreville, act of 10th April, 1873, ibid. 650. ' As to Lower Towamensing township, act of 9th March, 1871, Pamphlet Laws, 205; act of 9th March, 1871, ibid. 205. ' As to swine in Benton and Fishing Creek townships, and in town of Light Street, act of 23d March, 1872, Pamphlet Laws, 550. In Greenwood and Orange townships, act of 10th April, 1873, ibid. 678. ' As to the borough of Ssegerstown and the townships of Troy, Bloomfield,and Oil Creek, act of 5th April, 1870, Pamphlet Laws, 905. As to Bloomfield town- ship, act of 26th May, 1871, ibid. 1194. As to milch cows in East and West Fal- lowfield townships, act of 13th March, 1872, ibid. 672 ; repealed by act of 16th May, 1878, ibid. 55, so far as it applies to the township of East Fallowfield. 1" As to townships of Derry, Londonderry, Swatara, Lower Swatara, Mid- dletown, and Susquehanna, act of 2d April, 1869, Pamphlet Laws, 672 ; act of 13th April, 1869, ibid'. 892 As to Susquehanna, Derry, Londonderry, and Swatara townships, act of 17th April, 1869, ibid. 1153. As to Mifflin town- ship and borough of Berrysburg, act of 24th May, 1881, ibid. 1118. As to Sus- quehanna township, act of 6th May, 1871, ibid. 603; repealed by act of 18th March, 1873, ibid. 305. As to South Hanover and Middle Paxton townships, act of 28th March, 1873, ibid. 458. » As to Venango township, act of 10th April, 1867, Pamphlet Laws, 1082. 12 As to Burrell township, act of 28th March, 1870, Pamphlet Laws, 680. '3 As to the townships of Strasburg and Bast Donegal, act of 21st March, 1865, Pamphlet Laws, 444. As to West Donegal township, act of 3d April, 704 TEESPASa. [chap. XIX. rence/ Lehigh,^ Luzerne,' Lycoming/ McKean/ Mercer/ Mifflin/ Monroe/ Montgomery/ Northampton/" Northumberland/' Phila- delphia/' Pike/' Potter/* Sullivan/' Susquehanna/" Union/' Ve- nango/' Warren/' Wayne/" Westmoreland/' and Wyoming." 1867, ibid. 691 ; act of 9tli April, 1869, ibid. 800. As to Sadsbury, Bart, and Colerain townships, act of 4th April, 1870, ibid. 862. As to townships of Elizabeth, Penn, and Bphrata, act of 27th March, 1873, ibid, 4.37. ' As to Little Beaver township, act of 10th April, 1867, Pamphlet Laws, 1082. As to Big Beaver township, act of 14th April, 1868, ibid. 1121. As to North Beaver township, act of 16th April, 1869, ibid. 1137. As to the town- ships of Hickory, Mahoning, Washington, and Wilmington, act of 28th March, 1870, ibid. 676. As to Perry, Scott, and Union townships, act of 19th March, 1872, ibid. 438. As to Taylor township, act of 10th April, 1873, ibid. 650. As to township of Hickory, act of 19th February, 1873, ibid. 134. As to township of Wayne, except Chewton Common, act of 28th February, 1873, ibid. 187. As to Plain Grove township, act of 12th March, 1873, ibid. 273. As to Taylor township, act of 10th April, 1873, ibid. 650. ' As to Upper Saucon township, act of 5th April, 1870, Pamphlet Laws, 896. As to Hanover township, act of 6th May, 1871, ibid. 600. ' As to the townships of Plains, Exeter, Kingston, Plymouth, Salem, Wilkesbarre, Hanover, and Newport, and as to the boroughs of Wilkesbarre . and Kingston, act of 23d March, 1865, Pamphlet Laws, 628 ; act of 26th June, 1866, ibid. 1114; act of 13th April, 1867, ibid. 1224; act of 12th March, 1868, ibid. 301. As to the boroughs and townships of Plymouth and Kings- ton, the townships of Hanover, Wi&esbarre, Plains, Kansom, and that por- tion of Pittston township lying northwest of the Lackawanna Eiver, act of 11th April, 1868, ibid. 865. As to Abington township, act of 17th March, 1869, ibid. 379; repealed by act of 18th February, 1871, ibid. 158. As to Ex- eter township, act of 5th April, 1871, ibid. 878. As to Huntingdon township, act of 22d May, 1878, ibid. 96. * As to city of Williamsport, act of 18th March, 1868, Pamphlet Laws, 376 ; repealed by act of 14th April, 1868, ibid. 1123. As to townships of Fairfield, Loyalsock, Old Lycoming, Woodward, Armstrong, Susquehanna, Pratt, Porter, and Nippenose, act of 18th April, 1873, ibid. 818. 6 As to Keating township and borough of Smethport, act of 9th April, 1872, Pamphlet Laws, 1062. As to the townships of Annin and Liberty, act of 22d May, 1878, ibid. 99. « As to Mill Creek township and borough of New Lebanon, act of 10th April, 1865, Pamphlet Laws, 1071. ' As to the flat of Jack's Mountain, in Menno and Union townships, act of 10th April, 1867, Pamphlet Laws, 1128. 8 As to Smithfleld township, act of 9th March, 1871, Pamphlet Laws, 205. » As to Cheltenham township, act of 14th April, 1863, Pamphlet Laws, 453. As to Abington township, act of 2d April, 1867, ibid. 683. As to Upper and Lower Merion townships, act of 4th April, 1868, ibid. 702. As to Whit- pain, Worcester, and Gwynedd townships, act of 4th April, 1868, ibid. 707. As to Upper Providence, Lower Providence, Perkiomen, Plymouth, Abing- ton, Upper Dublin, and Whitemarsh townships, act of 17th March, 1869, ibid. SEC. III.] FKNCES AND STRAYS. 705 879. As to Moreland township, act of 1st April, 1870, ibid. 743. As to the townships of Limerick, Horsham, and Pottsgrove, act of 1st April, 1870, ibid. 743. As to Upper Hanover, Upper Salford, Lower Salford, Marlboro, and Hatfield townships, act of 9th March, 1872, ibid. 295. As to townships of Montgomery, Norriton, and Hatfield, act of 19th February, 1873, ibid. 132. As to Frederick township, act of 28th February, 1873, ibid. 187. As to Whitpainand Upper Providence townships, act of 28th March, 1873, ibid. 459. '" As to Bethlehem township, act of 7th May, 1864, Pamphlet LawSj 885. As to Hanover township, act of 11th April, 1866, ibid. 703. As to Lower Nazareth, East Allen, and Saucon townships, act of 8th April, 1867, ibid. 940. As to Upper and Lower Nazareth townships, act of 4th April, 1868, ibid. 701. As to Forks and Palmer townships, act of 20th May, 1871, ibid. 1022. n AstoChillisquaque township, actof 23d March, 1865, Pamphlet Laws, 628, act of 26th June, 1866, ibid. 1114; act of 13th April, 1867, ibid. 1224; act of 12th March, 1868, ibid. 301. As to Turbet township, act of 13th April, 1870, ibid. 1137. " As to Twenty-fourth ward of city of Philadelphia, act of 11th April, 1863, Pamphlet Laws, 322. '3 As to Milford township, act of 10th April, 1873, Pamphlet Laws, 733. " As to the townships of Alleghany, Bingham, Genesee, Harrison, Sweden, and Ulysses, and the borough of Lewisville, act of 22d May, 1878, Pamphlet Laws, 99. '* As to Polks township, act of 28th March, 1870, Pamphlet Laws, 564 ; ex- tended to Cherry township by act of 24th May, 1871, ibid. 1119. '* As to townships of Forest Lake and Middletown, act of 10th April, 1867, Pamphlet Laws, 996. As to township of Forest Lake, act of 2d April, 1868, ibid. 627. " As to Kelly township, act of 23d March, 1865, Pamphlet Laws, 628 ; act of 26th June, 1866, ibid. 1114; act of 13th April, 1867, ibid. 1224. As to swine in Union township, act of 4th April, 1870, ibid. 844. '* As to Plum township, act of 27th March, 1869, Pamphlet Laws, 350 ; repealed by act of 10th April, 1869, ibid. 832. As to Canal township, act of 10th April, 1869, ibid. 832 ; repealed by act of 4th April, 1870, ibid. 838. " As to Farmington township, act of 24th March, 1768, Pamphlet Laws, 448. As to Sugar Grove and Freehold townships, act of 27th March, 1869, ibid. 550. As to Spring Creek township, act of 28th March, 1870, ibid. 580. As to Farmington and Columbus townships, act of 15th March, 1870,ibid. 433. As to Conewango township, act of 6th May, 1871, ibid. 599. As to Broken- straw township, act of 6th May, 1871, ibid. 600. As to Pine Grove and Pitts- field townships, act of 28th February, 1873, ibid. 185. As to Glade township, act of 28th March, 1873, ibid. 460. "> As to Farmington and Columbus townships, act of 15th March, 1870, Pamphlet Laws, 433. As to Dyberry township, act of 20th May, 1871, ibid. 1042. As to Oregon township, act of 21st February, 1872, ibid. 128. As to Berlin township, act of 27th February, 1873, ibid. 171. '1 As to the townships of Kostraver and Sewickley, act of 8th April, 1873, Pamphlet Laws, 565. 22 As to Tunkhannock township, act of 10th April, 1867, Pamphlet Laws, 996. As to Exeter township, act of 3d April, 1872, ibid. 811. As to North Moreland, South Baston, and Easton townships, act of 10th April, 1873, ibid. 651. 46 706 TRESPASS. [chap. XIX. V. Ads of Assembly Relating to Trespassing Dogs. (1.) Ad of 1809. 1279. The first statute relating to trespasses committed by dogs was the act of 23d March, 1809,' which related to the then coun- ties of Philadelphia, Backs, Chester, Montgomery, and Delaware, and in the fifth section enacted as follews : " Section V. That if any dog shall be seen worrying sheep, it shall be lawful for any person seeing the same to kill such dog, or if any dog shall have been known to worry sheep, and information thereof be given to the owner of such dog, if he does not kill or cause him to be killed, he shall make full compensation for all damage done by said dog, and any person seeing said dog running at large may lawfully kill him."^ This section was extended throughout the State by the act of 29th March, 1813.' 1280. The second and third sections of the act of 1809 are still in force in the counties named, but do not appear to have been ex- tended throughout the State, as the act of 1813 does not include them. They enact as follows : " Section' 2. "When any inhabitant ofthe counties aforesaid, shall have had any sheep destroyed by a dog or dogs, he or she may apply to the appraisers appointed by this act, and they or any two of them are hereby authorized and required to view and ascertain the damage sustained by the owner of such sheep destroyed as aforesaid, and when they shall have ascertained the legality ofthe claim, and the damages so sustained, they, or any two of them, shall certify the same under their hands and seals to the commissioners of the county, who shall draw their warrant on the treasurer of the county for the amount so certified to be paid out ofthe fund arising from the tax on dogs ; but if there shall not be sufficient money in the treasury belonging to the said fund, then the said warrant shall be kept by the person in whose favor it shall have been drawn, and be paid out of the first money that shall come into the treasury belonging to the said fund. ' ' Section 3. The persons elected to audit and settle the accounts of the supervisors of the highways in the several townships, wards and dis- tricts, shall be and they are hereby appointed appraisers of the damage done by dogs within their respective townships, wards or districts, and shall have full power and authority to examine any person that shall ap- pear before them, respecting the premises, upon oath or afllrmation, to be by them administered. " 1 5 Smith's Laws, 36. « See post, page 707, f 1281. » Pamphlet Laws of 1852, 712. SEC. III.] FENCES AND STRAYS. 707' (2.) Ad of 1851. 1281. The fifth section of the act of 1809 was supplied by the seventh and eighth sections of the act of 14th April, 1851/ as fol- lows : "Shctioij'7. It shall be lawful for any person or persons to shoot or kill any dog or dogs found or known to be chasing or worrying sheep, or accustomed so to do within this commonwealth, without liability on the part of such person or persons to pay any damages therefor. " SECTioisr 8. The owner or owners of any dog or dogs shall be liable for all damages done or caused to be done by any and every such dog or dogs, in an action of trespass vi et armis, in the name of the person or persons injured, to be sued for and recovered before any court or justice of the peace having jurisdiction of the amount so claimed," The act of 1851 applies to the whole State. 1282. The act of 4th April, 1831,^ applied to the counties of Chester and Delaware, as follows : " Sectioit 3. Any dog seen within an inclosure where cattle or sheep are kept, in either of said counties, except when in company with his owner, may be lawfully killed." 1283. The act of 8th April, 1862,' made similar provisions for the counties of Mercer, Clinton, and Susquehanna, and were ex- tended to the counties of Armstrong and Westmoreland, by the act of 3d April, 1867.* (3.) ^c« 0/1878. 1284. On 12th June, 1878,* the following act, which provides for the taxation of dogs and the protection of sheep, and relates to the whole State, was passed: • " Section 1. That from and after the passage of this act, there shall be assessed, levied, and collected, annually, with other county taxes , in each of the townships and boroughs of this commonwealth, from the owners and keepers of dogs, the following-named taxes, namely : For each male dog, the sum of fifty cents, and for every female dog the sum of one dollar, to be paid to the treasurer of the county where collected, to be kept by him separate, and in such manner that he can know how much has been col- lected from each township and borough, and how much paid out for losses or damages in each, at any time, to be a fund from which persons sus- taining loss or damage to sheep by a dog or dogs, and the necessary ' 6 Ibid., 86. ' Ibid., 496. = Pamphlet Laws, 323. * Ibid., 691. 6 Ibid., 198. 708 ' TRESPASS. [chap. XIX, costs in establishing their claims therefor, as herein provided, may be paid. "Section 2. Tor the purpose of levying and collecting such taxes, the assessors of each township and borough shall, annually, at the time of assessing other taxable property, ascertain and return to the county commissioners of their county a true statement of all the dogs in their townships and boroughs, respectively, and the names of the persons owning or keeping such dogs, and how many of each sex is kept or owned by each person ; and such commissioners in each county shall, annually, levy and cause to be collected the taxes hereinbefore named, with, and in the same manner, and for the same compensation, that other county taxes are collected. "SECTioiirS. That whenever any person shall sustain any loss or damage to sheep by a dog or dogs, in any township or borough, «uch per- son, or his or her agent or attorney, may complain to any justice of the peace of such township or borough, in writing, to be signed by the per- son making such complaint, stating therein when, where and how such damage was done, and by whose dog or dogs if known ; whereupon the justice of the peace to whom such complaint shall be made, shall cause a notice to be served on the owner or keeper of the dog or dogs causing the damage, if known, that a complaint has been made to him of such loss or damage ; and if the owner or keeper of such dog or dogs does not appear as soon as practicable, and settle and pay for such loss or damage, then such justice shall appoint three competent persons, not related to the claimant or other person interested therein, to appraise the loss or damage sustained by claimant ; and such appraisers, after being sworn or affirmed by such justice of the peace, or some other competent person, to perform the duties of their appointment without partiality and ac- cording to the best of their judgment and ability, shall, as soon as prac- ticable, examine the place where the damage is claimed to have been done, and the sheep injured or killed, if practicable and they are re- quested to do so, and shall examine, on oath or aflSrmation, to be ad- ministered by one of them, any witness called before them by a subpoena from such justice or otherwise, and after making diligent inquiry in re- lation to such claim, shall determine and report to such justice in writ- ing whether any such damage has been sustained, and the amount thereof, and who was the owner or keeper of the dog or dogs, if known, by which such damage has been done, and whether or not any part thereof was caused by a dog owned or kept by the claimant, which re- port, so made, shall be signed by a majority of such appraisers, and de- livered to the justice by whom they were appointed. " Section 4. That upon receiving such report, the said justice shall immediately make a certificate thereon or thereto, signed and sealed by him, that such appraisers were duly appointed and sworn by him, and that they made such report ; and if by such report it appears that any damages have been sustained by the complainant, the said justice shall deliver such report and all papers relating to the case, to such claimant or his or her SEC. III.] FENCES AND STRAYS. ' 709 agent or attorney, upon payment of the costs up to that time, hereinafter provided, (or having the same secured to be paid, ) to be delivered to the commissioners of the county where such damages have been sustained to be filed in their ofHce. " Section 5. Tliat if, upon the commissioners of the county receiving eucli report, it shall appear thereby that a certain amount of damage or loss has been sustained by the claimant to sheep, by a dog or dogs not owned or kept by him or her, they shall immediately draw their order on the treasurer of such county in favor of the claimant for the amount of loss or damage such claimant has sustained according to such report, with necessary and proper costs incurred as aforesaid, to be paid out of the fund raised or to be raised by taxes on dogs as hereinbefore pro- vided ; and if it shall appear by such report or otherwise, that a respon- sible person was the owner or keeper of the dog or dogs by which the damage complained of was done, and there is a reasonable probability such damages and costs can be collected from such owner or keeper, then such commissioners shall immediately proceed, in the manner provided by law for the collection of debts and costs of like amount, to collect such damages and costs by a suit or suits from the owner or owners or keeper or keepers of such dog or dogs, and place the proceeds thereof, less costs, in the proper sheep fund of the county ; Provided, At any and all times, it shall be the duty of the owner of any sheep-killing dog or dogs, or any person owning sheep, to kill any and all dogs guilty of killing sheep within the commonwealth. " Section 6. That all dogs in this commonwealth shall hereafter be personal property and subjects of larceny, and the owner or keeper of any dog shall be liable to the county commissioners for all loss or damage to sheep by such dog, with all the necessary costs incurred in recovering and collecting such damages, including an attorney fee of five dollars, if finally determined before a justice of the peace, and of ten dollars if tried in a court of common pleas ; but at any time after notice of a claim for damages under the provisions of this act, the owner or keeper of any dog may tender to the claimant or his agent or attorney making such claim a sum of money equal to the loss or damage sustained, or may offer before a justice of the peace, with notice to the claimant, his agent or attorney, as aforesaid, a judgment in an action of trespass for the amount of such loss or damage, and all costs up to the time of such offer, which offer, for a fee of twenty cents, shall be entered on the docket of such justice ; and in case the claimant in such case, or commissioners, as the case may be, shall not accept of such tender or offer of judgment, and afterwards on the final determination of such case shall not recover a greater amount than the sum so tendered or for which ajudgment has been offered as aforesaid, besides the interest and costs accruing of such tender or offer, as the case may be, such claimant or commissioners shall not recover any costs accruing after such tender or offer, but shall pay to the defendant or defendants the costs such defendant or defendants have incurred since such offer or tender, including an attorney fee as 710 TRESPASS. [chap. XIX. hereinbefore provided in case of a recovery by claimants, which costs may be deducted from the amount of any judgment recovered in such case by the claimants or commissioners, and if such judgment is not sufficient such costs may be collected by an action of debt in any court having jurisdiction of such amount as in other cases of debts. " Section 7. That justices of the peace for the special services under the provisions of this act, shall be entitled to one dollar for each case, and the appraisers each one dollar per day for the time necessarily spent by them in investigating each claim, to be paid by the claimant in such case. " Section 8. That at the end of each year the commissioners of each county shall certify to the treasurer of the county the several claims and amounts thereof, filed in their office under the provisions of this act, remaining unpaid ; and if any such treasurer shall have in his hands, moneys collected for the payment thereof, more than two hundred dol- lars above the amount of such claims, he shall immediately apportion and distribute the excess to the several school districts in such county, in proportion to the amount of such balance or excess raised by said taxes on dogs in each or in the several tovpnships or boroughs forming such districts, respectively, and shall notify the school treasurer of such districts how much it is entitled to of such moneys, and shall pay the same to such school treasurers, on their receipts and orders for the same, for the support of the common schools of such district. " Section 9. That this act shall not repeal or affect the provisions of any special law in relation to the same subject in any county of this com- monwealth. "Section 10. That the sheriff of each county, on the request of the county commissioners, shall cause this act to be published therein, with and in the same manner as notices of the next general election shall be published ; and for the purpose of deciding whether or not the provisions of this act are desired in the several counties, the qualified electors therein may vote at such election, by ballots written or printed on the outside ' Sheep Law, ' and on the inside ' For the Sheep Law ' or * Against the Sheep Law ;' and in each county wherein it shall appear by a proper count of such ballots that a majority are ' For the Sheep Law,' this act shall im- mediately take effect, but in no other county until a majority of the quali- fied electors thereof, after like advertisement in like manner, have deter- mined that they desire this act to take effect therein : Provided, that there shall be no advertisement or election for such purpose in any county oftener than once in two years." (4.) Act of 1881. 1285. The act of 10th June, 1881,' which relates to cities of the commonwealth, enacts as follows : ' Pamphlet Laws, 98. SEC. III. J FENCES AND STRAYS. 711 " Section 1. That every city of the commonwealth shall have power to pass ordinances taxing the owners and harborers of dogs, and provid- ing for the destroying ol all dogs found at large, contrary to any ordi- nance. ' " Section 2. All acts or parts of acts inconsistent with this act be and the same are hereby repealed." VI. Observations on the Acts of Assembly relating to Trespassing Animals. 1286. Having now quoted the acts of Assembly relative to the trespass of the animals therein named, it may be vrell to make some observations on the most important matters. (1.) Act of 1700. 1287. The act of 1700/ providing that the height of a fence shall be at least five feet, is in force in all parts of the State, ex- cepting the counties of Allegheny, Washington, Fayette, Cum- berland, Perry, Erie, and Philadelphia, and the township of Lack in the county of Juniata. In Potter and McKean counties it is in force, but is modified by the act of 10th May, 1729.'' 1288. Although the act of 1700'' enacts that " whosoever, not having their ground inclosed with such sufficient fence as afore- said, shall hurt, kill or do damage to any horse, kine, sheep, hogs, or goats, of any other persons, by hunting or driving them out of or from said grounds, shall be liable to make good all damages sustained thereby to the owner of the said cattle," yet from this provision we must not infer that the owner of land insufficiently inclosed is responsible for an injury sustained by the trespassing animal without his default, after being driven into the highway.* 1289. Though the law is settled that the owner of an animal given to trespassing is liable for damages committed by his beast breaking through the inclosure,' yet where the animal is not under his control, but in the care of an agister, the action of trespass ' 1 Smith's Laws, 13 ; ante, page 662, Tf 1182, ei seg. 2 Ante, page 671, T[ 1206. ' Ibid., 662, ^ 1182. " Palmer v. Silverthorn, 8 Casey, 65. 5 Rossell V. Cottom, 7 Casey, 525, and authorities there cited ; Dolph v. Fer- ris 7 Watts & Sergeant, 367, and authorities there cited ; Adams v. Mo- Kinney. Addison, 258 ; Race v. Snyder, 10 Philadelphia, 533 ; S. C, 21 Pitts- burgh Law Journal, 29. 712 TRBSPASS. [chap. XIX. will not lie against the owner, but against the agister.' If any action can be sustained at all against the owner, it must be an ac- tion of trespass on the case.^ 1290. The act of 1700 does not apply to fences around unim- proved land.* Nor does the act of 11th March, 1842, relate to partition fences of unimproved land.* Where, by virtue of the act of 13th June, 1836,^ a private road is opened through the land of another, it is incumbent on the party enjoying the road to fence the same f and where a road is constructed, the owner of the land is entitled to recover for new fences which the loca- tion of the road rendered necessary.' (2.) Partition Fences. 1291. As to partition fences, provision was made for them by the second section of the act of 1700, but this section was repealed and supplied by the act of 11th March, 1842.* Such fences may be erected by either landowner at pleasure, and his occupation of the requisite land of his neighbor for that purpose is not ad- verse but by permission." In building a fence he may insert the rails of the new fence into the older fence of his neighbor, and if they project a short distance the injury falls within the maxim de minimis non curat lex}" Where a partition fence has been de- stroyed by a flood, either landowner may recede from the former line and erect a fence on his own land, and thereafter is not bound to contribute to the erection of or repair of a partition fence." But in such a case he cannot complain of a trespass on the portion of his land which he thus excludes from his inclosure. 1292. While, by virtue of the fifth section of the act of 11th March, 1842,'* a landowner may, on the delinquency of his neighbor, and after the preliminaries required by the act, build the whole of the ' Kossell V. Oottom, 7 Casey, 625, 527, and cases there cited. 2 Ibid., 528. » Gregg v. Gregg, 5 P. F. Smith, 227. * Palmer «. Silverthorn, 8 Casey, 65, 67; ante, page 68t), T[ 1242. ' Pamphlet Laws, 551. « Flemings. Eamsey, 10 Wright, 252. ' Plank Koad Company v. Ramage, 8 Harris, 95. Ante, page 686, 1[ 1242. 9 Dysart v. Leeds, 2 Barr, 488. '« Ibid. " Painter v- Eeece, 2 Barr, 126 ; Eohrer v. Eohrer, 6 Harris, 367; Potts v. Everhart, 2 Casey, 493. " Ante, page 686, \ 1242. SBC. III.] FENCES AND STRAYS. 713 partition fence, and then collect the half cost thereof from the de- linquent. He may, also, build the one-half of the fence, and call on his neighbor to build the other portion, and should the latter fail to do so, and subsequently suffer damage from the trespass of the former's cattle, he cannot maintain an action for the damage sustained in consequence of the fence not having been put up.' It is the duty of both landowners to contribute towards the build- ing of a partition fence, and even when a question of title is raised as to the o"wnership of the land, the jurisdiction of the justice of the peace to enforce this contribution still remains.' 1293. Where a public road was laid out along the partition line of two landowners, who subsequently inclosed it and ran a partition fence along the centre of the road, one of them, after harvesting his crop, threw down the part of the fence that he had built, whereby cattle entered the inclosure and destroyed his neighbor's grain, whereupon the latter brought an action against the former. The Supreme Court decided that no action would lie, as the fence was illegally built on the highway." But when ad- jacent landowners agree not to erect a partition fence, and the cat- tle of the one enter on the land of the other and commit damage, an action of trespass may be brought and damages recovered.* 1294. Partition fences are the common property of adjacent landowners, and it is error for either to hold that he has a separate property in any particular part of the fence, and may, therefore, remove it. If he does so, he becomes liable to his neighbor in an action of trespass.' 1295. When a partition fence is about to be erected, due notice should be given to the party whose rights are to be affected.* 1296. An agreement made between adjacent landowners relative to the duty of each in maintaining a partition fence is personal, and does not bind their res2)ective executors or administrators for subsequent repairs.'' 1297. Fences when of older date than twenty-one years are 1 Eangler v McCreight, 3 Casey, 95. ' Stephens v- Shriver, 1 Casey, 78. ' Jenkins v. Fowler, 12 Harris, 308. • Milligan v. Wehinger, 18 P. F. Smith, 235. ' Smith V- Johnson, 26 P. F. Smith, 191 ; Stoner v. Hunslcker, 11 Wright, 514. ° Shriver v. Stevens, 8 Harris, 138. ' Bland's Administrator v- Umstead, 11 Harris, 316, 714 TRESPASS. [chap. XIX. landmarks, and as such are protected by the 153d section of the act of 31st March, 1860.^ Such a fence, although crooked, con- stitutes the true boundary, even though the deeds of the adjoin- ing owners call for a straight line between acknowledged land- marks.'' (8.) Act of 1705. 1298. The act of 1705,' which relates to swine running at large, and which originally applied only to land within fourteen miles of the navigable parts of the river Delaware, was extended by the act of 10th May, 1729,* to all parts of the State, and though sub- sequently repealed as to certain counties by the act of 24th March, 1784,* has since, by the repeal of the latter act, become in force throughout the whole State. The act is highly penal in its nature, introducing a new mode of procedure for divesting the owner of his property unknown to the common law, and hence must be strictly construed." 1299. In the application of the act of 1705 the following dif- ferences must be noted : First. In Philadelphia, Chester, and Bristol swine are absolutely prohibited from running at large under penalty of forfeiture, one- half to the person taking them lip, and one-half to the use of the poor of the respective town where taken. In Philadelphia the right to take up swine was by the act of 30th March, 1822,' restricted to the guardians of the poor. Moreover, the keeping of swine in that city was regarded as a nuisance, and by the act of 5th April, 1849,^ the board of health was authorized to seize and deliver them over as forfeited to the guardians of the poor; and by ordinance of 1st March, 1855,' they were prohibited from running at large, and provision was made for their forfeiture and sale. 1 Brown D. McKinney, 9 Watts, 565; Stoner v. Hunsicker, 1] Wright, 514. 2 McCoy V. Hancp, 4 Casey, 149 ; see, also, Martz v. Hartley, 4 Watts, 261 ; Potts V. Bverhart, 2 Casey, 493. 8 1 Smith's Laws, 70; ante, page C67, f 1201. * Ibid., 176 ; ante, page 671, 1[ 1206. 5 2 Ibid., 96; ante, page 672, ^ 1209. 6 Commonwealth v. Pourtoen Hogs, 10 Sergeant & Eawle, 393 ; Strauser v. Kosier, 8 P. F. Smith, 496. ' 7 Smith's Laws, 527. Pamphlet Laws, 346. > Ordinances of 1865, page 82. SEC. III.] FENCES AND STRAYS. 715 Second. lu the other parts of the State the act of 1705 prohibits swine being suffered to run at large without rings and yokes (as described in the act), under penalty (if found ou the lands of an- other) of being killed, or taken up, or driven or carried away, and being so taken or carried away, it becomes the duty of the takers to immediately acquaint a justice of the peace thereof. 1300. Under the act of 1705 the requisites to give the magis- trate jurisdiction and the form of proceeding are as follows: 1st. The swine must have been — (1.) Suffered to go at large by the owner without yoke or bow and ring (not escaped).^ (2.) They must have been found on the land of the taker-up. 2d. The taker-up must be — (1.) The owner of the land on which the swine trespassed. (2.) He must have killed or taken them up on the land. (3.) He must forthwith acquaint a justice of the peace thereof. (4.) Legally attest the taking as aforesaid. (5.) Pay (after the appraisement) half the appraised value thereof to the said j ustice of the peace. 3d. The justice of the peace must — (1.) Legaljy attest as to the facts of the taking up. (2.) Immediately thereafter appoint two indifferent persons of the neighborhood to view and appraise the swine, and make re- turn of their value, number, and marks. (3.) Collect from the taker-up of the swine the one-half of the appraised value thereof. (4.) Advertise for the owner of the swine in the manner pre- scribed by the act. (6.) Pay the said collected one-half of the appraised value of the swine to the owner of the swine, or in case no owner as afore- said be found within twelve months from the time of the appraise- ment, pay the said one-half to the overseers of the poor of the township in which the swine were taken.^ 1301. The preceding paragraph contains the process provided 1 Commonwealth v. Fourteen Hogs, 10 Sergeant & Eawle, 393 ; Shaw v. Commonwealth, 22 P. P. Smith, 68 ; Strauser v. Kosier, 8 Ibid., 496 ; see also Mitchell V. Wolf, 10 Wright, 147, for pathetic history of the swine law, by Chibp Justice Lowrie. ' See act of 1705 ; mite, page 667, Tf 1201. 716 TRESPASS, [chap. XIX. by the act, which must be strictly followed, and it must be so shown by the record of the justice of the peace, otherwise the whole proceedings are void, and the taker-up will be deemed a trespasser ab initio? 1302. In the case of the Commonwealth v. Fourteen Hogs' it was decided that a certiorari lies from the Supreme Court to remove the proceedings of a justice under the act of 1705 ; but in Frick V. Patton' it was held that a certiorari does not lie to re- move proceedings had before a justice under the act of 13th April, 1807,'' in relation to stray cattle. 1303. In the following counties swine were made subjects of special legislation : Allegheny and Washington, by the acts of 28th March, 1808,^ and 11th April, 1862 f Fayette, by the act of 28th March, 1820;' Cumberland and Perry, by the act. of 2d April, 1821 ;' Philadelphia, by the acts of 30th March, 1822,' and 5th April, 1849;''' Warren and Crawford, by the act of 26th April, 1855;" Lancaster, by the act of 24th March, 1857;" Erie, by the act of 15th April, 1857;" Venango, by the act of 25th February, 1859 ;" Delaware, by the act of 22d February, I860.'* (4.) Act of 1807. 1304. The act of 13th April, 1807,'« which, though not includ- ing swine, has been extended to them in certain counties, as we have already observed. The act must be read in connection with its supplement of 5th March, 1819." 1305. The act embraces two classes of cases, namely : First. A class in which the owner of the trespassing cattle is known.'* Second. A class in which the owner is unknown." 1 See Commonwealth «. Fourteen Hogs, 10 Sergeant & Kiiwle, 393; Strauser v. Kosier, 8 P. F. Smith, 496 ; see also Fitzwater v. Stout, 4 Harris, 22. 2 10 Sergeant & Eawle, 393. » 2 Eawle, 20. 1 Ante, page 675, f 1215. ' 4 Smith's Laws, 528. » 13 Pamphlet Laws, 496. ' 7 Smith's Laws, 322. 8 Ibid., 456. » Ibid., 527. '» Ibid., 346. » Pamphlet Laws, 316. '2 Ibid., 124. " Ibid., 316. 1* Ibid., 79. » ibi^ _ gS. i» 4 Smith's Laws, 472 ; ante, page 675, Tf 1215. " 7 Smith's Laws, 159; ante, page 682, Tj 1284. 18 Vandamagem v. Wood, 1 Ashmead, 203. '8 Ibid. SEO. III.] FENCES AND STRAYS. 717 1306. Where the owner is known it is incumbent on the party- injured to give notice of the taking up to the owner of the stray. If such owner shall not then appear, or, if having appeared, shall neglect or refuse to tender a reasonable satisfaction to the party injured, or if such party injured shall refuse tbe tender made, it will be lawful for either party to complain to a justice of the peace of the proper county, who, when such complaint is made, shall issue his warrant to three disinterested freeholders of the neigh- borhood, commanding them to view the trespass and to appraise it, having regard to the sufficiency of the fence of the inclosure and tbe expense of keeping the stray, and directing them to report to him witb all convenient speed, 1.307. Notice of the appraisement should be given to the owner of tlie stray. If the amount of the appraisement do not exceed the sum tendered by the owner of the stray, then judgment shall be given for that sum only, with reasonable costs ; but if the ap- praisement shall exceed the sum tendered, or if no tender has been made, then the justice shall give judgment for the amount of the appraisement, with the costs of keeping the stray from the time that notice was given to the owner of the stray of the taking up, and shall award execution upon such judgment with costs of suit. 1308. When the owner of the stray is not known, or cannot be found, a different mode of proceeding is directed, as follows : (1.) The party trespassed on must give notice of the taking up to the town clerk within four days, giving a particular notice, in writing or other satisfactory way, of the color and marks, natural or artificial, of the stray, under penalty of five dollars. (2.) The town clerk must make entry of the same in a book kept for that purpose, receiving compensation therefor as set forth in the act. (3.) If no owner for any such stray shall be found within thirty days after the taking up of the stray, the party injured must, within six days after the thirty, give notice to three disinterested free- holders, who are to appraise the damage and to make report thereof to any justice of the peace residing in the proper township, who shall, when the owner of such stray shall be found, upon failure of such owner to pay the damages appraised, give judgment and award execution, with costs, as aforesaid. If the party injured fails to give such notice he is entitled to no compensation for the trespass, and must deliver the stray to its owner. 718 TRESPASS. [chap, six. (4.) If no owner appear within thirty days after the stray has been taken up, it becomes the duty of the person taking it up to cause an advertisement, particularly describing the stray, to be published at least in one newspaper in the proper county, if any there be ; and if there be no such newspaper, he must publish the same by written or printed advertisements, which shall be put up at six or more public places in the county ; and if no owner appear after ninety days after the publication, the party injured shall make application to any justice of the peace in the said township, who is authorized to issue his warrant to a constable for the public sale of the stray after ten days' notice has been given in three or more public places in the said township. After the sale the pro- ceeds are to be given to the said justice, who shall, after the pay- ment of all reasonable charges, damages, and cost of keeping, pay over the surplus to the county treasurer. (5.) The fourth section of the act provides that if the owner appear within one year from the date of the sale, and prove his property in the stray, the justice, or any other in the county, shall certify the same to the county treasurer, who will pay over the surplus to the owner. (6.) If no owner appear within that time, the owner shall be barred, and the surplus money be applied to such purposes as other moneys in the treasury. 1309. It is important that the form of procedure prescribed by the act be strictly adhered to, as otherwise the party taking up the stray will become a trespasser ab initio^ But if the stray have been wrongfully taken up, as, for example, upon the public road, and is sold upon a warrant by the justice of the peace, the pur- chaser acquires a good title, whether the proceeding be regular or not.'' And where a horse had originally been stolen, and after- wards turned loose, when he was taken up as a stray, it was held that the purchaser acquired a good title if the statutory proceed- ings in the case of a stray were carried out.' " The proceeding against a stray," says Chief Justice Gibson, " is in rem, and not against the title of any particular owner."* ' See Pitzwater v- Stout, 4 Harris, 22 | Kelley v. Stevens, 8 Legal Chron- icle, 134 ; Vandamagem v. Wood, 1 Ashmead, 203k a Thompson v. O'Hanlen, 6 Watts, 492. » Patterson v. McVay, 7 Watts, 482. * Ibid., 483. SEC. III.J FENCES AND STRAYS. 719 1310. Although, as a general rule, the party taking up a stray has no right to work or use it, yet if the same be a horse or a mule, and be ridden by the taker in search of the owner, such an act is not such a conversion as to make the rider liable in an ac- tion of trover.' 1311. The justice who has jurisdiction in the case of a stray is a justice of the peace of the township or county in which the stray was taken up; the justice of the peace of another county has no jurisdiction.^ 1312. The proceedings under this act cannot be removed to the Supreme Court by a writ of certiorari.* 1313. Although the act of 1807 does not, in general, apply to animals wandering at large upon the public highways, yet its provisions have been extended to them in the following counties : (1.) Warren and Crawford, by the act of 26th April, 1855.* (2.) Chester, by the act of 27th April, 1855.' (3.) Lancaster, by the act of 24th March, 1857.° (4.) Erie, by the act of 15th April, 1857.' (5.) Venango, by the act of 25th February, 1859.^ (6.) Delaware, by the act of 22d February, 1860." (7.) Allegheny, by the act of 11th April, 1862.'° (8.) Bradford, by the act of 9th April, 1864." (9.) Chester, by the act of 1st April, 1868.'" (10.) Erie and Crawford, by the act of 24th February, 1870.'' (5.) Ad of 181S. 1314. The act of 29th March, 1813,'* which relates to rams, is supplemented by the acts of 14th March, 1814,'^ and 15th Febru- ary, I860.'* These acts apply to the counties of Delaware, North- umberland, Union, Columbia, Lycoming, Luzerne, Bradford, Fay- ette, Washington, Cumberland, Centre, Chester, Beaver, Butler, 1 Henry e.Bichardson, Ibid., 557. 2 Wilbur V. Loveland, 5 Luzerne Legal Kegister, 122. s Prick V. Patton, 2 Rawle, 20. * Ante, page 688, f 1249. * ibid., 689, 1[ 1250. « Ibid., 1251. 7 Ibid., 1252. 8 Ibid., page 690, % 1255. » Ibid., f 1257. '0 Ibid., 693, | 1259. i' Ante, page 694, f 1262. '2 Ibid., 698, 1[ 1268. " Ibid., 700, 1[ 1272.^ " 6 Smith's Laws, 80 ; ante, page 681, If 1227. 15 Ibid., 123 ; ante, page 682, yj 1229. " Pamphlet Laws, 160 ; ante, page 690, Tf 1256. 720 TRESPASS. [chap, XIX. Mercer, Yenango, Crawford, Somerset, Allegheny, Clarion, Clin- ton, Perry, Wyoming, Sullivan, Lawrence, Snyder, Lackawanna, and that part of Cameron which was taken from Clinton. 1315. The act of 29th March, 1813, provides that when a ram is taken trespassing within an inclosure at any time between the 1st of August and the 1st of December, the owner of the ram shall pay to the possessor of the inclosure the sum of two dollars. Moreover, if the owner of the ram be not known, the possessor of the inclosure is directed to give ten days' notice of the trespass by advertisements set up at four public places in the township where the ram was taken, describing the marks, if any ; and if no owner shall appear within twenty days after notice to claim the ram, the same shall be forfeited to the then possessor. 1316. 'No decisions under this act appear in the reported cases of our courts, but it is evident that, as the act is a penal one, the provisions thereof must be strictly followed. (6.) Acts 0/1831 and 1851 1317. The acts of 4th April, 1831," and of 14th April, 1851,^ relative to dogs accustomed to killing sheep. The former is con- fined to the counties of Chester and Delaware, and provides that any one may kill a dog seen without its owner within any inclo- sure wherein cattle or sheep are kept. The latter act is less se- vere, but relates to the whole State, and not only provides that where any one finds a dog on bis land, known as accustomed to chasing or worrying sheep, he may liill him, but also that the owner shall be liable for the damage done in an action of trespass vi et armls.^ It would seem that this latter provision was unnec- essary, as the decisions of our Supreme Court on that subject were equally effectual.* 1318. A joint action will lie against the owners of several dogs which kill and wound sheep, and each' owner is answerable for the whole damage done in which his dog was jointly engaged. And it seems that the action will lie without proof of joint owner- ship when the dogs did the mischief together.* 1 Ibid., 496 ; ante, page 707, f 1282. ' Ibid, of 1852, 712 ; ante, page 706, ^ 1281. 8 See Ibid. ; Campbell v. Brown, 1 Grant, 82 ; S. C, 7 Harris, 359. * King V. Kline, 6 Barr, 318 ; Pafif v. Stark, 7 Barr, 254. » Kerr v. O'Connor, 13 P. P. Smith, 341, 346. SBC. IV.] STATUTORY PENALTIES FOR TRESPASS. 721 1319. In England and in our sister States many decisions have been handed down, showing the liability of the owner of a dog for trespasses committed by it.' It may reasonably be inferred that when a dog enters on the land of one other than its master in pursuit of an animal ferae naturce, the entry should not be regarded as a trespass, as it is for the common good ; but when the dog en- ters and commits some damage to the property of the landowner, the case is different, and his owner becomes liable for the trespass of the dog.'' Moreover, a fierce dog is held to be a nuisance, and it has been decided that any one who is bitten by one may at once kill it.' But certainly this would not apply to a dog who was defending his master's home from the illegal entry of a stranger.* (7.) Act of 1878. 1320. On the 12th June, 1878,° an act was passed which made provision for the recovery of damages from the owners of dogs which worry sheep, but it is provided in the act that the same shall only apply to such counties as may adopt it. SECTION IV. STATTTTORT PENALTIES FOR TRESPASS. I. The Various Trespasses, 1321. Independent of the common-law remedies for trespasses committed on the land of any one, and of the acts already quoted, our penal statutes have provided punishments for certain tres- passes as follows : (1.) For breaking off and stealing fixtures of a building. 1 See Sarch v. Blackburne, 4 Carrington & Payne, 297 (19 English Common Law Eeports, 394) ; Townsend v. Nathan, 9 East, 277, 281 ; Stansfeld v. Boi- ling, 22 Law Times Eeports (N. S.), 799; Mason v. Keeling, 12 Modern, 335; Loomis V. Terry, 17 Wendell (N. Y.), 496; Brill v. Folger, 23 Ibid., 354; Brown v Carpenter, 26 Vermont, 638. 2 See Vere v. Cawdor, 11 East, 568. ' Bowers v Fitzrandolph, Addison, 215; see also Brown v. Carpenter, 26 Vermont, 638. * See Loomis „. Terry, 17 Wendell (N. Y.), 496; Sarch v. Blackburn, 4 Carrington & Payne, 297 (19 English Common Law Eeports, 394). 6 Pamphlet Laws, 198 ; ante, page 708, ^ 1284. 46 722 TRESPASS. [chap. XIX. (2.) For entering by night into any building or outhouse with a felonious intent. (3.) For entering by day into any building with a felonious intent. (4.) For maliciously burning, or attempting to burn, or causing to be burnt, any building. (5.) For maliciously burning, or causing to be burnt, or attempt- ing to burn, any building, or any barrack, rick, or stack of grain, hay, fodder, or bark, piles of wood, boards, or lumber of another. (6.) For placing in or near any building or vessel any gunpow- der or other explosive mixture with intent to destroy or damage. (7.) For maliciously cutting, breaking, or destroying any lead, tin, copper, or iron spout affixed to any house, or for maliciously daubing, painting, or defacing any dwelling. (8.) For maliciously breaking, injuring, or destroying any win- dow or door of any dwelling or outhouse, or taking from the door thereof any knocker, bell-pull, plate, or sign. (9.) For maliciously breaking down trees, shrubs, or fences, or destroying any fruit or ornamental trees in any orchard, garden, close, street, or square. (10.) For maliciously causing water to be conveyed into any mine, or pulling down, filling up, or obstructing any air-way, water-way, drain, pit, level, or shaft of the same. (11.) For cutting down timber trees, knowing the same to be on the land of another, or purchasing or receiving the same, know- ing that they have been taken off the land of another without the latter's consent. (12.) For maliciously cutting or altering any boundary tree or other landmark to the wrong of his neighbor. (13.) For wilfully taking and carrying away fruit, vegetables, plants, fruit or ornamental trees, vines or shrubs, whether at- tached to the soil or not ; or mutilating any nut, fruit, or orna- mental tree, shrub, bush, plant, or vine, trellis, arbor, hot-bed, hot or greenhouse, or injuring any growing crop. (14.) For wilfully taking away any grapery, statuary, vases, or fountains, or other useful or ornamental erections. (15.) For damaging fruit trees in Clinton, Centre, Butler, Law- rence, and Mercer counties. (16.) For malicious firing of woodlands and marshes. SEC. IV.] STATUTORY PENALTIES FOR TRESPASS. 723 II. The Acts of Assembly. 1322. The acts of Assembly which define the trespass and create the penalty are the following: (].) Act ofSlst March, 1860. 1323. The act of 31st March, 1860/ which enacts as follows: " Section 106. If any person shall steal or rip, cut or break, with intent to steal, any glass or woodwork belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, ■ whether made of metal or other material, respectively fixed in or to any building whatsoever, or anything made of metal fixed in any land, being private property, or for a fence to any dwelling-house, garden or area, or in any square, street or other place dedicated to public use or orna- ment, every such offender shall be deemed guilty of larceny, and being thereof convicted,, shall be sentenced to pay a fine not exceeding five ■hundred dollars, and undergo an imprisonment, by separate or solitary confinement at labor, not exceeding three years. "81:0x1011 135. If any person shall, by night, wilfully and malici- ously break or enter into the State capitol, or other public building belonging to the commonwealth, or to any city or county thereof, or to any body corporate, society or association, or into any church, meeting- house or dwelling-house, or outhouse, parcel of said, dwelling-house, with an intent to kill, rob, steal or commit a rape, or any felony whatever, whether the felonious intent be executed or not, the person so offending shaU, on conviction, be adjudged guilty of felonious burglary, and be sentenced to pay a fine not exceeding one thousand dollars, and to un- dergo an imprisonment, by separate or solitary confinement at labor, not exceeding ten years. "Section 136. If any person shall in the daytime, break and enter any dwelling-house, shop, warehouse, store, mill, barn, stable, outhouse or other building, or wilfully and maliciously, either by day or by night, without breaking, enter the same with intent to commit any felony whatever therein, the person so offending shall be guilty of felony, and on conviction, be sentenced to pay a line not exceeding five hundred dol- lars, and to undergo an imprisonment, by separate or solitary confine- ment, at labor, not exceeding four years. " Section 137. If any person shall maliciously and voluntarily burn, or cause to be burned, or set fire to, or cause, or attempt to set fire to, with intent to burn any factory, mill or dwelling-house of another, or any kitchen, shop, barn, stable or other outhouse that is parcel of such dwelling, or belonging, or adjoining thereto, or any other building by means whereof a dwelling-house shall be burnt, then, and in every such case, the person so offending shall be adjudged guilty of felonious arson, • Pamphlet Laws, 886, 409. 724 TRESPASS. [chap. XIX, and on conviction thereof, shall be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, at labor, not exceeding twelve years ; and in case of the malicious burning or setting fire to any dwelling-house, or building that is parcel of such dwelling or belonging thereto, there is any person in the same, the ofiender being convicted thereof, shall be sentenced to pay a fine not exceeding four thousand dollars, and to undergo an im- prisonment, at separate or solitary confinement, not exceeding twenty years. " Section 138. If any person shall wilfully and maliciously burn, or cause to be burned, set fire to, or attempt to set fire to, with intent to burn, or aid, counsel, procure or consent to the burning or setting fire to, of any barn, stable or other building of another not parcel of the dwelling- house, or anj' shop, storehouse or warehouse, malthouse, mill or other building of another, or any barrack, rick or stack of grain, hay, fodder or bark, piles of wood, boards or other lumber, or any ship, boat or other vessel of another lying within any county in this State, or any wooden bridge within the same, or State capitol or adjoining offices, or any church, meeting-house, court-house, jail or other public building belong- ing to this commonwealth, or to any city or county thereof, or to any- body corporate or religious society whatever, the person offending shall, on conviction, be adjudged guilty of a misdemeanor, and be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an im- prisonment, by separate or solitary confinement at labor, not exceeding ^ ten years. " SECTioif 140. If any person shall wilfully set on fire, or cause to be set on fire, any woods, lands or marshes within this commonwealth, so as thereby to occasion loss, damage or injury to any other person, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one hundred dollars, and to undergo an imprison- ment not exceeding twelve months. "Section 141. If any person shall unlawfully and maliciously place or throw in, into, upon, against or near any building or vessel, any gun- powder or other explosive mixture, with intent to do bodily harm to any person, or to destroy or damage any building or vessel, or any machinery, working-tools, fixtures, goods or chattels, every such ofiender shall, whether or not injury is effected to any person, or any damage to any building, vessel or machinery, working tools, goods or chattels, be guilty of felony, and being thereof convicted, shall be sentenced to pay a fine not exceeding five hundred dollars, and to undergo an imprisonment, by sep- arate or solitary confinement at labor, not exceeding three years. "Section 147. If any person shall unlawfully and maliciously break, injure or otherwise destroy or damage any part of any loco- motive or stationary engine, inclined plane, engine-house, station or depot, bridge, culvert, trestle-work or other building or structure be- loni-in" to any railroad, or any other part of such railroad ; or shall wantonly and maliciously derange or displace the fixtures or machinery SEC. IT.j STATUTORY PENALTIES FOR TRESPASS. 725 of any locomotive or stationary engine used or employed on any tail- road ; or shall wilfully and maliciously destroy or injure any fence or wall, cross-road passing over or under such railroad ; or shall unlaw- fully and maliciously break, injure or otherwise destroj"^ or damage any of the posts, wires or other materials or fixtures employed in the construction and use in any line of an electrical telegraph, or shall wilfully and maliciously interfere with such structure so erected, or in any way attempt to lead from its uses or make use of the electrical current, or any portion thereof, properly belonging to and in use, or in readiness to be made use of, for the purpose of communicating tele- graphically from one station of a telegraph company to another estab- lished station of the same, or a connecting telegraph line ; or shall un- lawfully and maliciously break, injure or otherwise destroy or damage any bridge, river or meadow bank or mill-dam ; or wilfully and malici- ously take down, injure, remove or in any manuer damage or destroy any flag, flag-stafi^ beacon, buoy or other way or water marks, which now are or hereafter may be put, erected or placed, by lawful authority, near or iu any streams that are or may be declared public highways ; or shall unlawfully and maliciously cut, break or otherwise destroy any lead, tin, copper or iron spout affixed to any house or other building, public or private ; or shall unlawfully and maliciously daub, paint or otherwise deface any dwelling-house, such offender shall be guilty of a misdemeanor, and, upon conviction, be sentenced to pay a fine not exceeding five hun- dred dollars, and undergo an imprisonment not exceeding twelve months, or both, or either, at the discretion of the court. ' ' Section 148. If any person shall wilfully and maliciously break, injure or destroy any window or door belonging to any dwelling-house or outhouse, parcel threof ; or shall unlawfully and maliciously break or take off from the door any knocker or bell-pull, or plate inscribed with the name of the occupant, or number of the house ; or shall wilfully and maliciously destroy, take down, injure or deface any sign, put up by an inhabitant to denote the place of his abode, occupation, business or em- ployment, such person shall be guilty of a misdemeanor, and, upon conviction, shall be sentenced to pay a fine not exceeding one hundred dollars, or suffer an imprisonment not exceeding six months, or both, or either, at the discretion of the court. "Section 149. If any person shall wilfully and maliciously break down any tree or shrub growing on the public grounds as inclosed on Capitol Hill, or otherwise injure or destroy the same, or shall break or destroy the fence around such inclosure, or any part thereof, or shall maliciously and wilfuUj' injure any part of the public grounds, or the buildings be- longing to the State ; or if any person shall wilfully or maliciously injure or destroy any fruit or ornamental trees, shrub, plant or grape-vines growing or cultivated in any orchard, garden, or close, or upon any pub- lic street or square in this commonwealth, he shall be guilty of a misde- meanor, and, on conviction, be fined not exceeding one hundred dollars, 726 TRESPASS. [chap. XIX. and undergo an imprisonment not exceeding six months, or both, or either, at the discretion of the court. "Section 150. If any person shall unlawfully and maliciously cause any water to be conveyed into any mine, or into any subterraneous pas- sage communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall, with the like intent, unlawfully and maliciously pull down, fill up or obstruct any airway, waterway, drain, pit, level or shaft of, or belonging to any mine, such offender, his aiders and abettors, shall, on conviction thereof, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding two years. " Section 152. If any person shall cut down or fell any timber-tree or trees, knowing the same to be growing or standing upon the lands of another person, without the consent of the owner, or if any person shall purchase or receive any timber tree or trees, knowing the same to have been cut or removed from the lands of another, without the consent of the owner thereof, or who shall purchase or receive any planks, boards, staves, shingles or other lumber made from such timber-tree or trees, so as aforesaid cut or removed, knowing the same to have been so made, the person so offending shall be guilty of a misdemeanor, and being thereof convicted shall be sentenced to pay such fine, not exceeding one thousand dollars, or to such impi-isonment, not exceeding one year, as the court, in their discretion, may think proper to impose. " Section 153. If any person shall knowingly and maliciously cut, fell, alter or remove any certain bounded tree or other allowed land-mark, to the wrong of his neighbor, or any other person, he shall be guilty of a misdemeanor, and on conviction be sentenced to pay a fine not exceed- ing five hundred dollars, and to undergo an imprisonment not exceeding one year." (2.) Act of 30th March, 1860. 1324. The act of 30th March, I860,' relating to the counties of Huntingdon, Washington, Allegheny, Berks, Lancaster, Lyco- ming, and Delav?are. The text of this act has already been given.^ By the act of 17th April, 1861,' it was extended to the several counties of the State. (3.) Act of 1861. 1325. The act of 1st May, 1861," after extending the act of 1860 to the counties of Beaver, Blair, Lehigh, York, Bradford, Jefferson, Lebanon, Union, Schuylkill, Cambria, Mercer, Greene, ' Pamphlet Laws, 362. « See ante, page 350, f 649. » Ibid. 361, f 651. * Pamphlet Laws, 478. SEC. IV.j STATUTORY PENALTIES FOR TRESPASS. 727 Philadelphia, and Carbon, in the second section provided protec- tion for graperies, statuary, etc. The text of that section has already been given.' (4.) Act of 1867. 1326. The act of 8th April, 1867,^ which enacts as follows: "Sectiok 1. That the wrongful taking and carrying away of fruit, vegetables, plants, fruit, ornamental, or other trees, vines or shrubs, in the counties of Clinton, Centre, Butler, Lawrence, and Mercer, whether attached to the soil, or not, shall be deemed, and the same is hereby de- clared, a misdemeanor, and may be prosecuted and punished as such, under the laws of this commonwealth. " Section 2. Any person, or persons, who shall wilfully and mali- ciously in said counties, enter, or break down, through, or over, field, orchard, garden, or yard, fence, hot-bed, hot or greenhouse, and who shall wilfully and maliciously club, stone, cut, bark, break, or otherwise muti- late, or damage, any fruit, ornamental, or other tree, shrub, bush, plant, or vine, trellis, arbor, hot-bed, hot or greenhouse, or who shall wilfully and maliciously trespass upon, walk over, beat down, trample, or in any- wise injure, any grain, grass, vines, vegetables, or other growing crop, in the said counties of Clinton, Centre, Butler, Lawrence, and Mercer, shall, on conviction thereof in an action of trespass, before any mayor, burgess, alderman, or justice of the peace, or in any court of law of said counties, have judgment against him, her, or them, for double the amount of damage proved to have been done, together with costs of suit ; one- half of said damage, or penalty, to go to the use of the poor of the dis- trict wherein the premises lie ; and in default of payment of said fine, the party convicted may and shall be committed to jail for not less than one nor more than twenty days ; said action to be brought in the name of the commonwealth, and the testimony of the owner, or occupant, of the premises, shall be admitted as evidence to establish the trespass. " Section .8. Any person in the counties of Clinton, Centre, Butler, Lawrence, and Mercer, who shall cut, break, or girdle, or otherwise in- jure, any fruit, ornamental, or other tree, vine, or shrub, or who shall enter any field, orchard, garden, or close, without the consent of the owner, or owners thereof, with intent to take, injure, or destroy, any fruit, or vegetables, therein growing, or being, without the consent of the owner, or owners as aforesaid, or who shall wi/fully deface, injure, break,, or destroy, any fence, wall, or gate, surrounding any orchard, garden, or close, as aforesaid, shall be guilty of a misdemeanor, and upon convic- tion thereof, before any justice of the peace, shall forfeit and pay a fine, not less than five nor more than fifty dollars, or suffer imprisonment, in the county jail, for not less than ten nor more than sixty days : Pro- vided, That nothing herein contained shall prevent the injured party from pursuing any civil remedy authorized by law." » Anie, page 351, Tf 652. a Ibid. 907. 728 TRESPASS. [chap. XIX. (5.) Ad of 1869. 1327. The act of 9th April, 1869,' relating to mountain and other wild lands in Union County, which enacts as follows : "SectioktI. That any person or persons who shall intentionally set fire said lands shall forfeit and pay a sum not exceeding five hundred dollars nor less than fifty dollars, or shall be confined in the county prison for a term not exceeding one year nor less than thirty days, or both, at the discretion of the court, on conviction at any of the courts of this com- monwealth ; one-half of said fine to be paid to the person or persons who make the information and the other half to be paid into the county treasury." (6.) Act of 1870. 1328. The act of 2d June, 1870,^ which, besides extending the act of 9th April, 1869,^ to the counties of Schuylkill, Lehigh, Berks, Lycoming, Centre, Snyder, Luzerne, and Union, enacts as follovx'S : "Sbctioit 1. That it shall be the duty of the commissioners of the several counties of this commonwealth to appoint persons under oath, whose duty it shall be to ferret out and bring to punishment all persons who either wilfully or otherwise cause the burning of timber lands, and to take measures to have such fires extinguished where it can be done ; the expenses thereof to be paid out of the county treasury, the unseated land tax to be first applied to such expenses. "Section 2. That the provisions of the act of ninth April, one thou- sand eight hundred and sixty-nine, entitled ' An act to prevent the firing of mountains and other wild lands in the county of Union,' and of this act, be and the same is hereby extended to the counties of Schuylkill, Lehigh, Berks, Lycoming, Centre, Snyder, Luzerne, and Union." (7.) Act of 1871. 1329. The act of 19th May, 1871,* which exempts the county of Lycoming from the provisions of the act of 1870.^ (8.) ^c. Kennedy, 3 Legal Gazette, 277 ; S. C, 2 Luzerne Legal Register, 131. '■ Eckert v. Ferst, 10 Philadelphia, 514, and authorities there cited ; Alli- son's Appeal, 27 P. f". Smith, 221 ; Alter v- Bowman, 2 Legal Chronicle, 323. " Wilkesbarre and Seneca Lake Coal Company «. Elliott, 2 Luzerne Legal Kegister, 31 ; Minnig's Appeal, 1 Norris, 873. * Stewart's Appeal, 6 P. P. Smith, 413, BEC. II.J THE REMEDIES. 731 CHAPTER XX. OUSTEE. SECTION I. DEFINED. 1334. The second wrong a stranger may inflict on the landlord or tenant of demised premises is that of ouster of chattels real, which is the turning out of the tenant from the occupation of the premises during the continuance of the term.^ SECTION II. THE EEMEDIES. 1335. As this injury affects both landlord aud tenant, either may resort to the legal remedy appropriate to his position. I. The Tenants Remedies.' 1336. The tenant may resort to — (1.) Indictment for forcible entry and detainer.' (2.) Action of ejectment.' (3.) Action of trespass.' 1337. Another probably obsolete remedy for the tenant in case of a particular species of ouster is the writ of quare ejecit infra terminum? This writ is, substantially, an action on the case, as it was derived from the statute of 2d Westminster, chapter 24 (13 Edward I), which is in force in Pennsylvania," and to which we have already referred.' 1338. Blackstone, in his Commentaries,* says : ' 3 Blackstone's Commentaries, *199. 2 See Chapter VII, Section II, page 201 ei seq. 3 See Chapter X, Section III, page 233 et seq. * See Chapter II, Section XII, page 341 et aeq. " Ktzherbert's Natura Brevium, *197. 6 Roberta's Digest, *157. ' Ante, page 192, \ 827. « Page *207. 732 OUSTER. [OHAP, XX. "The writ of quare ejecit infra terminum lieth by the ancient law, where the wrongdoer or ejector is not himself in possession of the lands, but another who claims under him ; as where a man leaseth lands to another for years, and, after, the lessor or reversioner entereth, and maketh a feoffment in fee, or for life, of the same lands to a stranger : Now the lessee cannot bring a writ of ejectiori firmce or ejectment against the feoffee ; because he did not eject him, but the reversioner : neither can he have any such action to recover his term against the re- versioner, who did oust him ; because he is not now in possession. And upon that account this writ was devised, upon the equity of the statute Westminster 2, c. 24, as in a case where no adequate remedy v/as already provided. And the action is brought against the feoffee for deforcing, or keeping out, the original lessee, during the continuance of his term ; and herein, as in the ejectment, the plaintiff shall recover so much of the term as remains ; and also shall have actual damages for that por- tion of it whereof he has been unjustly deprived." 1339. As the statute of 2d Westminster (supra) is in force in Pennsylvania this writ may probably be resorted to. But our statutory action of ejectment is a preferable remedy.^ It is sim- pler than an action on the case, and when the possession of the demised premises is obtained by ejectment the damages may also be recovered by an action of trespass for mesne profits. One ob- jection in England to the action of ejectment was that it would not lie for rents commons and incorporeal hereditaments f but in Pennsylvania the Supreme Court has held that ejectment may be maintained notwithstanding the grant under a lease may have been an incorporeal interest.' II. The Landlord's Remedies. 1340. The landlord may (by accepting a surrender from the tenant) resort to the action of ejectment, and also to a writ of entry sur disseisin, etc. The latter remedy is a real action, and the case of Witherow v. Keller* is the only instance recorded in our Reports as having been resorted to, except in cases of common recovery. In that case the action was discouraged by our Supreme Court, though admitted to be in existence in Pennsylvania. » Karns v. Tanner, 16 P. P. Smith, 297. 2 3 Blackstone's Commentaries, *199. » Karns v. Tanner, 16 P. F. Smith, 297, 308. ♦ 11 Sergeant & Kawle, 271. SBC. II.J THE REMEDIES. 733 1341. As real actions can only be brought by a tenant in fee, a disseised tenant for years cannot sustain one.' 1 3 Blackstone's Commentariea, *222; see Lyle v. Eicharda, 9 Sergeant & Eawle, 367, per Dttncan, J. In regard to the law of real actions, we would refer our readers to Eoberta's Digest of British Statutes, *144; Eeport on the Civil Code, made in 1835; Booth on Eeal Actions, 734 DISTURBANCE OF AN BASEMENT. [CHAP. XXI. CHAPTER XXI. Disturbance of an Easement. SECTION I. THE BA8EME1TTS. 1342. The third wrong which a landlord or tenant may suffer from a stranger is the disturbance of an easement appurtenant to the demised premises. 1343. These easements have already been discussed in a former part of the work, to which the reader is referred.' 1344. But with regard to the right of support to land or houses we desire to make some additional observations. It is evident that on the adoption from the civil law of the theory that one must enjoy his own property in such a manner as not to injure his neighbor's, no one has the right to excavate the soil of his own premises in such a way, or to such an extent, as to cause the falling in of the adjacent soil. If one does so he is liable to the owner thereof in an action of trespass on the case.* But in the absence of negligence, the builder of a house is not liable when an injury occurs from the mere excavation of a cellar on his own premises ; it is the duty of the adjoining owner to protect his own property.' Where, in a city, a man's house is built below the grade of the public street, he cannot recover damages from the adjacent landowners for filling up the street to the grading and thereby causing water to flow on to his premises ;* but if a land- owner cuts a ditch whereby the water from his land falls on his ' See Chapter II, Section V, page 40 et seq. 2 Altwater v. Woods, 1 Weekly Notes, 23 | S. C, 22 Pittsburgh Law Jour- nal, 41 ; Bell v. Reed, 31 Legal Intelligencer, 389 ; S. C, 22 Pittsburgh Law Journal, 49; 1 Weekly Notes, 70; Crown « McKee, 8 Legal Gazette, 167; S. C, 23 Pittsburgh Law Journal, 137; see &\?o Northern Transportation Com- pany «. Chicago, 14 Otto (104 U. S); Eichart v. Scott, 7 Watts, 460. ' Myers v. Winters, 23 Pittsburgh Law Journal, 66 ; Dunlap v. Walling- ford, 1 Pittsburg, 127. * Bontz V. Armstrong, 8 Watte v. Sergeant, 40 ; see also Young v. Leedom, 17 P. F. Smith, 861. SBC. II.] THE REMEDIES. 735 neighbor's and injury results therefrom, he becomes liable for the damage.' SECTION II. THE EEMEDIES. I. Action of Trespass on the Case. 1345. The first remedy to which a landlord or tenant may re- sort for the disturbance of an easement is an action of trespass on the case for the recovery of damages.^ This action has already been fully discussed.' II. Assize of Nuisance. 1346. The second remedy to which a landlord or tenant may resort for the disturbance of an easement is an assize of nuisance, for abating the nuisance and recovering damages. 1347. It, however, only lies between freeholders.* It is an un- usual remedy in Pennsylvania, but the books contain several in- stances where it has been resorted to, namely, in the cases of Livezey v. Gorgas,* Barnet v. Ihrie,* Sherer v. Hodgson,' and Maris v. Parry,* and to these cases, and to Brackenridge's Miscel- lanies,' the curious reader is referred for a knowledge of an action which may probably never again be resorted to in Pennsylvania. 1348. Such an action, it may be worthy of note, must be ' B.&JSV. Hinkleman, 18 P. F. Smith, 324. ' Jones V. Park, 10 Philadelphia, 166, and cases there cited; O'Keson v. Patterson, 5 Casey, 22 ; Union Petroleum Company v. Bliveu Petroleum Company, 22 P. F. Smith, 173; Lindeman v. Lindsey, 19 Ibid. 93; Stickler V. Todd, 10 Sergeant & Eawle, 63 ; Kipka v. Sergeant, 7 Watts & Ser- geant, 9. ' See Chapter VII, Section I, page 192 et seq. * Pitzherbert's Natura Brevium [183] ; Langley v. Norris, Lilly's Reports of Assize, 54 et seq. ' 1 Binney, 251 ; S. C , 2 Ibid. 192. For the pleadings and proceedings in this case, see Brackenridge's Law Miscellanies, 438. ^ 17 Sergeant & Rawle, 174. In the report of this case all the forms of procedure are given in full. Ibid. 173 to 186; seethe opinion by Gibson, Ch. J., at page 211 ; S. C, 1 Rawle, 44; see also Roberts's Digest, *144, note. ' 3 Kawle, 211. ' Ibid, 413. » Page 538. 736 DISTURBANCE OF AN BASEMENT. [CHAP. XXI. brought in the county wherein the land lies/ though it may be adjourned into a foreign county to plead.'' III. Writ of Quod Permittat Prosternere. 1349. The third remedy to which a landlord or tenant may re- sort for the disturbance of an easement is the writ of quod per- mittat prosternere, for abating the wrong and recovering damages. 1350. It is applicable where an easement of a right of way or of a watercourse is obstructed or impeded. It lies when a man builds a house, or a wall, or other thing, which is a nuisance injurious to the freehold of another.' And it lies only against the tenant of the freehold.* 1351. The form of the action is given in Fitzherbert's Nat- ura Brevium.* The only instance recorded in our Reports where this remedy was resorted to in Pennsylvania is a case at Nisi Prius, at Chambersburg.° IV. Abatement. 1352. The fourth remedy to which a landlord or tenant may resort for the disturbance of an easement is that of abatement, which is the removal or tearing away of the obstruction or nui- sance. 1353. But this remedy cannot be resorted to by any citizen if the nuisance be exclusively a common or public one ; but where there is a public and private nuisance, the public may abate it, or those individuals to whom it is a private nuisance may of their own act abate it.' Private citizens have no right of action, either ' Fleyer v. Crouch, 3 Dyer, 283 *, pi. 82. 2 Whalley's Case, Ibid. 375 a, pi. 19. ' Fitzherbert's Natura Brevium, [124]. * Kosewell v. Prior, 12 Modern, *636, *639. * Page *124 ; see also 2 Coke's Second Institutes, chapter 24, page [404] ; Penruddock's Case, 5 Coke's, 100 b. ' See opinion by Duncan, J., in Lyle v. Richards, 9 Sergeant & Kawle, 867. ' Grifath V. McCuUum, 46 Barbour (N. Y.), 561, and cases there cited; Brown «. Perkins, 78 Massachusetts (12 Gray), 89, 101; see also Pearoe v. Dart, 7 Cowen (N. T.), 609; Pilcher v. Hart, 1 Humphreys (Tenn.), 524; Meeker v. Van Rensselaer, 15 Wendell (N. Y.), 897; Kendrick v. Bartland, 2 Modern, 253; Gleason v. Gary, 4 Connecticut, 418; Casebaer v. Mowry, 5 P.P. Smith, 419. SEC. II.] THE REMEDIES. 737 in law §)r equity, for the suppression of a public nuisance, unless they aver and prove some damage to themselves.' When the nuisance is occasioned by another, the party injured may abate it without demand for its removal,' but if occasioned by one and continued by another, before abating the party aggrieved must demand its removal.' 1354. Moreover, the act of abating a nuisance does not debar the aggrieved party from an action to recover the damages sus- tained.* But if the party aggrieved abate the nuisance he cannot have an action nor recover damages f nor does his assent to the erection of a nuisance take away his right to abate it afterwards f nor does the remedy by injunction supersede that of abatement / nor is an abatement a bar to a perpetual injunction to prevent a renewal of the nuisance.' 1355. The abater of a nuisance must not remove the obstruct- ing materials farther than is necessary,' nor convert the same to his own use.'" He must proceed in a reasonable manner, and should commit the least practicable injury in accomplishing the object." 1356. When the erector or maintainer of an obstruction to a public or private way is indicted under the 73d section of the act of 31st March, 1860, the court may direct the abatement of the same." V. Injunction. 1357. The fifth remedy for the disturbance of an easement is by an injunction. 1358. It is a remedial writ issuing, in England, out of the 1 MeohlingB. K.ittanning Bridge Company, 1 Grant, 416 j Flanagan e. Phil- adelphia, 8 Philadelphia, 110, and cases there cited. ' Jones V Williams, 11 Meeson & Welsby, 176. ' Ibid. ; Lonsdale v. Nelson, 2 Barnewell & Creswell, 302 (9 English Com- mon Law Reports, 96) ; Winsmore v. Greenbank, Willes, 577, 583. * Pierce „. Dart, 7 Cowen (N. Y.), 609, 612. » Baten's Case, 9 Coke, 183 b. " Piloher v. Hart, 1 Humphreys (Tenn.),524, 535. ' Bemis v. Upham, 13 Pickering (Mass.), 169, 171. « Stevens u. Stevens, 11 Metcalf (Mass.), 251, 257. » Forsdick v. Collins, 1 Starkie, 138 ; Dyer v. Depui, 5 Wharton, 584, 597. w Ibid. « The Stater Moffett, 1 Greene (Iowa), 247, • Moffett ». Brewer, Ibid. 348 ; City of Indianapolis v. Miller, 27 Indiana, 394. " See act of 1861, Pamphlet Laws, 402. 47 738 DISTURBANCE OF AN BASEMENT. [CHAP. XXI, Court of Chancery, and has been in practice in that country from an early date, an injunction having issued in the time of Henry I.' It was probably adopted from the Civil Law, as it resembles the Koman interdict. 1359. In Pennsylvania the writ issues out of the Supreme Court, by virtue of the 3d section of the 5th article of the Con- stitution of 1874," when a corporation is a party defendant,' and out of the Courts of Common Pleas by virtue of the confirmatory provisions contained in the 20th section of the same article.* The former provision of the Constitution does not affect the concur- rent jurisdiction of Courts of Common Pleas." 1360. It is a prohibitory writ specially prayed for by a bill in equity, in which the plaintiff's title is set out, preventing or re- straining a person from committing or doing any act which is con- trary to equity or law.° It is not a writ of right, but of grace.'^ Nor will it be issued in Pennsylvania until the party applying for the injunction shall have entered security for all damages that may be sustained by reason of such injunction, as required by the act of 5th May, 1844.* 1361. The act of 1844 was, however, modified by the act of 17th March, 1853,' which provides that the act of 1844 shall not apply in cases where the commonwealth is plaintiff; and the same condition was further extended, by the act of 6th November, 1856,^° to cases wherein any city or county of the commonwealth may be libellant, plaintiff, or complainant. Moreover, the act of 8th April, 1846," provided that no Court of Chancery in Phila- delphia should issue an injunction to restrain the erection of pub- lic works, until the question of title and damages had been tried at law. Fairmount Park," Penrose Ferry Bridge," House of Cor- ' 1 Spence's Equity, 108, note a. ' Pamphlet Laws of 1874, page 13. « See Wheeler v. Philadelphia, 27 P. P. Smith, 338. " Pamphlet Laws of 1874, page 15. ' McGeorge v. Hancock Steel and Iron Company, 11 Philadelphia, 602. 6 Stockdale v. Ullery, 1 Wright, 486. ' Hilliard on Injunctions, 16. ^ Pamphlet Laws, 564 ; ante, page 85, 7. » Ihid. 208 '» Ibid. 797. »» Ibid. 272. '2 Wolbert v. Philadelphia, 12 Wright, 439. " Flanigan v. Philadelphia, 8 Philadelphia, 110. SEC. II.] THE REMEDIES. 739 rection,' or any public building in Philadelphia,' have been con- sidered as public works within the meaning of the act of 1846. But this act does not extend to the cleaning of streets.' 1362. The act of 14th February, 1866,* provides that where a special injunction has been granted by any Court of Common Pleas, or District Court, an appeal to the Supreme Court shall be allowed without affidavit or security, and the act of 14th Febru- ary, 1867,' extended the latter act to injunctions granted by the Court of Nisi Prius in Philadelphia. 1363. The courts of Pennsylvania having jurisdiction as well in equity as in law, injunctions will issue where the acts complained of are contrary to equity as well as those which are contrary to law.* But the general rale is, that a court of equity will not in- terfere by injunction when the plaintiff has an adequate remedy at law.' But the court will not decline jurisdiction where the remedy at law is doubtful.' Therefore, to oust the jurisdiction, the remedy at law must, be full, complete, and adequate.' 1364. Injunctions are, Jird, preliminary or interlocutory, and, secondly, perpetual. The former are granted upon preliminary application, being provisional merely, and conclude no rights, while the latter are made on final decree, forming a part of it, and are an adjudication upon the merits of the cause.'* 1365. Where an injunction is prayed for to restrain the obstruc- tion of a right of way, a clear and undoubted right to the ease- ment must be shown, otherwise the court will refrain from grant- ing relief until the right is established at law." Nor will the court grant relief by injunction where the plaintiff has allowed the de- 1 Windrime. Philadelphia, Ihid. 361. 2 Wheeler?;. Eice, Ibid. 116. 5 City Sewage Utilization Company r. Davis, Ibid. 625. * Pamphlet Laws, 28. " Ibid. 26. 6 Stockdale v. UUery, 13 Wright, 486 ; Wistar ». McManes, 4 P. P. Smith, 818, 328. ' Mulvany v. Kennedy, 2 Casey, 44 ; Gallagher v. Fayette County Railroad Company, 2 Wright, 102 ; see also Gilder ti. Merwin, 6 Wharton, 522, 540. * Weir V. Mundell, 3 Brewster, 594. ' Skilton V. Webster, Brightly, 203; Gallagher v. Payette County Railroad Company, 2 Wright, 102 ; Mulvany v. Kennedy, 2 Casey, 44 ; Strasburg EaiU road Company v. Echternacht, 9 Harris, 220. »» See Bispham's Equity, If 403. 11 King V. McCully, 2 Wright, 76. 740 DISTURBANCE OF AN EASEMENT. [CHAP. XXI, fendant the use of water for twenty years and has received com- pensation therefor, even though the defendant has since become insolvent ;' and where a canal company is entitled to all the water of a stream to supply its canal, it will not be enjoined from in- creasing the height of its dam because thereby a mill below the dam is deprived of water.'' 'Hot will an injunction be granted to A. against B., when C. (a railroad company constructing its road) in passing over the lands of B., interferes with an easement of A. in the land of B.' It may be said that courts of equity will not gen- erally entertain jurisdiction in cases of private nuisance or dis- turbance of easements, until the complainant's right has been es- tablished in an action at law.* 1 Heilman ». TTnion Canal Company, 1 Wright, 100 ; see also Erie Canal Company v. Walker, 5 Casey, 170. ' Spangler's Appeal, 14 P. F. Smith, 387. • Mulvany v. Kennedy, 2 Casey, 44. * Khea v. Forsyth, 1 Wright, 503 1 King v. McCully, 2 Wright, 76 ; Hieskell V. Gross, 7 Philadelphia, 317 ; S. C, 3 Brewster, 430. SBC. I.] NDISANOBS BY STRANGER. 741 CHAPTER XXII. IfuiSANCES NEAE DEMISED PREMISES. SECTION I. NTJISAirCJSS BY STBANGEK. 1366. The fourth wrong which a landlord or tenant may suffer from a stranger, is a nuisance maintained on premises in the vi- cinity of those deriiised. 1367. A nuisance, in its largest sense, signifies anything that worketh hurt, inconvenience, or damage.' As between a stranger and a landlord or tenant anything on the part of the former that unlawfully does a real injury or damage to the reversion or pos- session of the demised premises, may be said to be a nuisance. Thus, a stranger may create a nuisance to the premises demised as follows : (1.) By erecting or maintaining anything offensive so near the premises as to render them useless or unfit for habitation ; as, for example, a factory, smith's forge, tobacco-mill, limekiln, tan- nery, pigsty, or privy, may be made so offensive as to become a nuisance to the demised premises.'' (2.) By erecting or maintaining works whereof the vapor or smoke will be injurious to the tenant's crops or cattle.' (3.) By corrupting or poisoning the watercourses which run through the demised premises.* (4.) By obstructing a way or watercourse appurtenant to the demised premises.* 1 3 Blackstone's Commentaries, *216. 2 Aldred's Case, 9 Coke, 59 a ; Penruddock's Case, 5 Ibid. 100 ; Taylor's Landlord and Tenant, g 200; Dill v. Haugh, 9 Weekly Notes, 417. ' Pennsylvania Lead Company's Appeal, .38 Legal Intelligencer, 84 fA. D. 1881), and authorities there cited ; Brown v. Torrence, 7 Norris, 186; S. C., 6 Weekly Notes, 280 ; 4 Rolle's Abridgment, 89. * Aldred's Case, 9 Coke, 59 a; Fitzherbert's Natura Brevium, *184; see also Pottstown Gas Company v. Murphy, 3 Wright, 257 ; Casebeer v. Mowry, 5 P. F. Smith, 419. ' Aldred's Case, 9 Coke, 69 a; see anie, Chapter XXI, page 734 eteeq. 742 NUISANCES NEAR DEMISED PREMISES. [OHAP. XXII. (5.) By failing to keep open drains on his premises which are connected with drains on the demised premises.' (6.) By allowing noxious weeds to grow on lands adjacent to the demised premises.^ (7.) By keeping a disorderly house or a place for prostitution.' 1368. With regard to the nuisance of noxious weeds, the act of 22d March, 1862,* provides for the destruction of Canada thistles as follows : "Section 1. That from and after the passage of this act, it shall be the duty of every person or persons, and of every corporation hold- ing lands in this Commonwealth, either by lease or otherwise, on which any Canada thistles, or weed commonly known as Canada thistle, may be growing, to cut the same, so as to prevent such weeds or thistles from going to seed, and the seed of the same from ripen- ing ; and any person or persons, or corporation as aforesaid, who shall or may have land as aforesaid, in the said counties, and who shall neglect or refuse to comply with the provisions of this act, shall forfeit and pay a fine of fifteen dollars, one-half to the county treasurer, and the other half to the use of 'the person suing for the same, who shall be a compe- tent witness to prove the facts, to be recovered as other debts of the like amount before any justice of the peace, or in any court of record in said county. " Section 2. That if any person or persons, or corporation, so hold- ing land as aforesaid, on which Canada thistles, or the weeds 'commonly known as such, shaU be growing and likely to ripen seed thereon, shall neglect or refuse to cut and destroy the same, so as to prevent the seed thereof from ripening, it shall and may be lawful for any person or per- sons, who may consider themselves aggrieved, or about to be injured by such neglect or refusal, to give five days' notice in writing to such person or persons, or corporation, to cut and destroy such weeds or thistles ; and on their neglect or refusal to cut and destroy the same at the end of five days, it shall and may be lawful for any person or persons so aggrieved, or believing themselves about to be injured thereby, to enter upon, or hire other persons to enter upon such premises, and cut down and destroy such Canada thistles ; and the person or persons so employed, shall be entitled to recover from such person or persons, or corporation, owning or holding such land, compensation at the rate of two dollars per day, to be sued for and recovered as debts of like amount, before any justice or court in said counties." 1369. And as to the growing of wild carrots and Canadian 1 Hale on Fitzherbert's Natura Brevium, 427. » See infra, TfT[ 1368, 1369. » See^osi, page 744, \ 1376. * Pamphlet Laws, 164. SBC. II.] XHB REMEDIES. 743 thistles in the townships of Union, Chapman, and Washington, in the county of Snyder, the act of 9th March, 1872,^ provides as follows : "Section 1. That from and after the first day of May next it shaU be unlawful for any person or persons to permit any wild carrots or Ca- nadian thistles to grow on any land owned or occupied by them, within the limits of the townships of Union, Chapman and Washington, in the county of Snyder ; and any person or persons who shall permit any such wild carrot or Canadian thistles to grow in any land owned or occupied by them, within said townships of Union, Chapman and Washington, in the county of Snyder, as aforesaid, shall for every such offence, and for every season's continuance of the same, and after one month's notice, forfeit and pay, for the use of the common schools in the townships where such offence is committed, the sum not exceeding twenty-five dol- lars, to be recovered as debts of like amount are by law recoverable ; and it is hereby declared to be the duty of the school-directors to sue for the same ; and in case said school directors shall fail to bring such suit, after having been notified of such offence having been committed, it shall be a misdemeanor in office." SECTION II. THE BEMEDIES. I. Abatement. 1370. The first remedy to which a landlord or tenant may re- sort for a nuisance is that of abatement, which is the removal or tearing away of the nuisance.' II. Action of Trespass on the Case. 1371. The second remedy to which a landlord or tenant may resort for a nuisance is the action of trespass on the case for the recovery of damages.^ Though the nuisance be removed the plaintiff is entitled to his damages which accrued before.* But if the party who is aggrieved abates a nuisance, he shall not have an action of trespass of the damages mesne.* 1 Pamphlet Laws, 286. = 3 Blackstone's Commentaries, *50 ; see ante, page 736, T[ 1352 etseg., where^ the remedy of abatement of nuisance is discussed. s Aldred's Case, 9 Colie, 59 a; see ante, page 192 et seq., where the actioni is discussed. * Viner's Abridgment, [31] ; Pierce v. Dart, 7 Cowen (N. T.), 609; Glea- Bon V. Gary, 4 Connecticut, 418. * Viner's Abridgment, [42]. 744 NUISANCES NBAK DEMISED PEBMISBS. [CHAP. XXII. III. Assize of Nuisance. 1372. The third remedy to which a landlord or tenant may re- sort for a nuisance is an assize of nuisance, for abating the wrong and recovering damages.' 1373. An abatement is a bar to an assize of nuisance." IV. Writ of Quod Permittat Prosternere. 1374. The fourth remedy to which a landlord or tenant may resort for a nuisance is a writ of quod permitted prosternere^ to which we have already alluded.* V. Indictment. 1375. The fifth remedy to which a landlord or tenant may resort for a nuisance is by indictment^ under the 42d, 43d, or 73d sections of the act of 31st March, I860,* which enacts as follows: "SECTioisr42. If any person shall keep and maintain a common ill- governed and disorderly house or place, to the encouragement of idle- ness, gaming, drinking or other mishehavior, to the common nuisance and disturbance of the neighborhood or orderly citizens, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding five hundred dollars, or to undergo an imprisonment not exceeding one year, or both, at the discretion of the court. " Sbctiost 43. If any person shall keep and maintain a common bawdy house, or place for the practice of fornication, or shall, knowingly, let or demise a house, or part thereof, to be so kept, he or she shall be guilty of a misdemeanor, and on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment not exceeding two years. " Section 73. Any person who shall erect, set up, establish, maintain, keep up or continue, or cause to be erected, set up, established, main- tained, kept up, or continued, any public or common nuisance, shall be guilty of a misdemeanor, and on conviction, shall be sentenced to pay a fine, and sufier an imprisonment, or either, or both, according to the dis- cretion of the court under the circumstances of the case ; and where the said nuisance shall be in existence at the time of the conviction and sen- ' Viner's Abridgment, title Nuisance (H) ; Fitzherbert's Natura Brevium, *183 ; 6«e ante, page 735, 1[ 1346, where we have already referred to this remedy. * Tate V. Parrish, 7 Monroe (Ken.), 825. ' Coke's Second Institutes, 405. < See ante, page 736, \ 1349. ' See ante, page 201 et seq., where indictment is discussed. 6 Pamphlet Laws, 360, 402. SEC. II.] THE REMEDIES. 745 tence, it shall be lawful for the court, in its discretion, to direct either the defendant, or the sheriff of the proper county, at the expense of the defendant, to abate the same : Provided aZso, That all obstructions to private roads, laid out according to law, shall be nuisances, which would be nuisances in cases of obstructions to public roads or highways." 1376. It is seen by the act of 1860 that an obstruction to a private way is a nuisance, and that the obstructor is liable to a fine as well as to imprisonment. VI. Injunction. 1377. The sixth remedy to which a landlord or tenant may re- sort for a nuisance is an injunction to restrain the same.' • Story's Equity Jurisprudence, ?| 925, 926 ; Warwick v. Wah Lee & Co., 10 Philadelphia, 160 ; Bispham's Equity, § 439 1 see ante, page 737 et seq., where the remedy of injunction is considered. 746 FAILURE TO PAT OVERPLUS. [OHAP. XXIII. CHAPTER XXIII. Failttee to Pay Oveeplus. SECTION I. THE OFFICBB'S DUTY. 1378. The fifth wrong which a tenant may suffer from a stranger in regard to the demised premises, is the failure on the part of the sheriff or constable to pay over to him the over- plus proceeds of the sale of a distress after the payment of the rent due to the landlord, and the costs of the distress and sale. 1379. By the 1st section of the act of 21st March, 1772,^ it is provided that after the sale of the distress the distrainer must, after the satisfaction of the rent and the charges of the distress, appraisement, and sale, leave the overplus, if any, in the hands of the sheriff or constable for the use of the owner of the goods dis- trained. 1380. As a general rule it is a constable who is called in by the distrainer to superintend the appraisement of goods seized as a distress for the non-payment of rent. A constable is also gen- erally called on to seize goods as a distress, but this he is not bound to do." The act of 1772 only requires his assistance, or that of a sheriff or under-sheriff, after the distress is made, should an appraisement and sale become necessary.' And for the purpose of making an appraisement such officer may be compelled to as- sist, and for any failure in discharging his duties his sureties are liable. If a constable act as bailiff he acts officially, and he and his sureties are liable for money collected, or neglected to be col- lected by him, under a landlord's warrant.* ^ 1 Smith's Laws, 370 ; see ante, page 99. 2 McElroy v. Dice, 6 Harris, 163; "Wells v. Hornish, 3 Penrose & "Watts, 30, 33. " Ibid. I see ante, page 99. * Commonwealth v. Sheppard, 2 Clark, 393. SEC. II.J THE tenant's REMEDIES. 747 SECTION II. THE TENANT'S KEMEDIES. I. Action of Trespass on the Case. 1381. The first remedy to which a tenant may resort for the failure on the part of the officer to pay over the surplus money is an action of trespass; on the case.' But justices of the peace have no jurisdiction. II. Indictment. 1382. The second remedy to which a tenant may resort for the failure on the part of the officer to pay over the surplus money is by indictment under the 7th section of the act of 28th March, 1820/ which enacts as follows: " That from and after the passage of this act, if any constable shall re- ceive money by virtue of an execution or other process, and shall neglect or refuse, upon application to him made by the party interested, to pay the amount thereof to the party entitled to receive the same, or to his, her or their agent or legal representatives, he shall be deemed guilty of a misdemeanor in oflBce, and upon conviction thereof in the Court of General Quarter Sessions of the Peace of the proper county, he shall be sentenced to pay, at the discretion of the court, a fine of not less than twenty dollars, nor exceeding one hundred dollars, and shall stand committed until the money so withheld shall be paid, together with the interest, flue and costs, and moreover, shall, for seven years thereafter, be incapable of holding the office of constable, or the appointment of deputy constable." 1383. Should the constable be induced to do his duty by any promise of reward, the party promising is not bound by his promise, as the same is without consideration.* III. Actions of Debt or Scire Facias. 1384. When a sheriff or under-sheriff fails to pay over the sur- plus money the tenant may resort to actions of debt or of scire facias upon the recognizance under the 4th section of the act of 28th March, 1803,'' which enacts as follows : ^ See ante, page 192 et seg., where this remedy Is discussed. 2 Seitzinger v. Steinberger, 2 Jones, 379. ' 7 Smith's Laws, 308. « See Smith v. Whildin, 10 Barr, 39. ' 4 Smith's Laws, 48. 748 FAILURE TO PAT OVERPLUS. [CHAP, XXIII. ""Whenever the commonwealth, or an individual or individuals, shall be aggrieved by the misconduct of any sheriflf or coroner, it shall and may be lawful, as often as the case may require, to institute actions of debt or of scire facias against such sheriff or coroner, and their sureties, their heirs, executors or adininistrators, and if when in such suits it shall be proved what damage hath been sustained, and a verdict and judgment shall be thereupon given, execution shall issue for so much only as shall be found by the said verdict and judgment with costs ; which suits may be instituted, and the like proceedings be thereupon had, as often as damage shall be so as aforesaid sustained : Provided always, That such suit or suits against such sureties, their heirs, executors or administrators, shall not be sustained by any court of this common- wealth, unless the same shall be instituted within five years after the date of such obligation or recognizance." 1385. It has been decided that before fixing the liability of the sheriff his sureties may be sued.^ But mere misconduct of the sheriff is not sufficient. The plaintiff must show that he has sus- tained damage thereby.^ 1386. The act of 3d April, I860,' provides that recognizances entered into by sheriffs shall continue a lien on the real estate of the sheriff for ten years from the date. The act of 13th April, 1868,* limits actions upon sheriff's bonds and recognizances in Philadelphia to five years. 1 See Smith v. Commonwealth, 9 P. F. Smith, 820, 327, and cases there cited. ^ Commonwealth J). McCoy, 8 Watts, 154 ; see also Commonwealth j;. Allen, 6 Casey, 49 ; Commonwealth v. Lelar, 1 Harris, 22 ; Commonwealth v. Cent- ner, 9 Harris, 266 ; Commonwealth v. Lyle, 1 Weekly Notes, 90. ^ Pamphlet Laws, 650. t Ibid. 948. SEC. II.] THE LANDLOKD'S REMEDY. 749 CHAPTER XXIV. Refusal to Pay One Year's Rent. SECTION I. THE OFFICER'S DUTY. 1387. The sixth wrong which a landlord may suffer from a stranger is the refusal of a sheriff or constable to pay him arrears of rent, not exceeding one year's, out of the proceeds of the sale of the tenant's chattels taken in execution. 1388. The landlord's right to such a preference arises from the provision of the 4th section of the act of 21st March, 1772,' which was supplemented by the 83d and 84th sections of the act of 16th June, 1836.'' Of this the authors have already treated at some length.' 1389. When such a sale occurs of the chattels of a tenant, which were liable to the distress of the landlord, it is the duty of the officer making the sale to retain such rent a reasonable time to allow the landlord an opportunity to make his claim, and such reasonable time would be until the return-day of the execution.* SECTION II. THE LANDLOBD'S KEMEDT. 1390. The proper remedy which a landlord has against a sheriff or constable for refusing to pay over the arrears of rent not ex- ceeding one year's is an action of trespass on the case,'^ which we have already discussed.' But in practice the usual way is to take a rule on the sheriff to pay the amount of rent due out of the pro- ceeds of the sale.^ ' 1 Smith's Laws, 870; anU, page 130, 1[ 198. » Pamphlet Laws, 777 ; ante, page 131, \ 199. ' See ante, Chapter Y, page 130 et seq. * Pisher v. Allen, 2 Philadelphia, 115. ' See ante, page 199 (25). • See ante. Chapter VIII, Section I, page 192 et seq. ' West's Administrators d. Sink, 2 Teates, 274. 750 KEFUSAL TO ALLOV EXEMPTION. [CHAP. XXV. CHAPTER XXV. Eepusal to Allow Exemption. SECTION I. THE OFFICER'S DUTY, 1391. The seventh wrong which a tenant may suffer from a stranger is the refusal of the sheriff or constable superintending the appraisement of a distress to allow him or his family the ben- efit accorded by the exemption acts of 9th April, 1849/ 26th April, 1860,^ 14th April, 1851,' 8th April, 1857,* 27th Novem- ber, 1865,^ 17th April, 1869,° 4th March, 1870,^ and 13th May, 1876,^ or of the privileges still existing under the common law.' As to these rights the reader is referred to a former part of the work, where they are fully considered." SECTION II. THE TENAKT'S REMEDIES. 1392. For the refusal of the sheriff or constable to grant the tenant or his family the exemptions under our acts of Assembly, or the privileges still existing under the common law, the tenant may resort to — (1.) Action of trespass vi et armis}'- (2.) Action of trespass on the case." ' Pamphlet Laws, 633 ; ante, page 112, T[ 138. 2 Ibid. 581 1 ante, page 114, If 140. ' Ibid. 613; ante, page 115. * Ibid. 425; ante, page 116, f 142. » Ibid, of 1866, 1227 \ ante, {lage 116, If 143. » Ibid. 69; anU, page 117, If 144. ' Ibid. 85; ante, page 117, If 145. ^ Ibid. 171 ; ante, page 118, If 148. ' Ante, page 105 et seq "" Ante, Chapter "V, pages 106-125. " See ante, page 353, f 658 (1) ; see also ante, page 341, f 632. •2 Ibid. 199 (26) ; Ibid 192 e< seq. ; see also Van Dresor v. King, 10 Casey, 201. SBC. I.] NUISANCES BY LANDLORD OR TENANT. 751 THE WRONGS AGAINST A STRANGEE, AND THE REMEDIES THEREFOR. CHAPTER XXVI. Nuisances on Demised Premises. SECTION" I. NUISANCES BY LANDLORD OB TENANT. 1393. The first wrong which a stranger may suffer from a landlord or tenant is the maintaining of a nuisance on demised premises. 1394. In former parts of this work' nuisances by a stranger adjacent to the demised premises were considered. When main- tained by a landlord or tenant to the injury of neighboring prem- ises they also become nuisances against a stranger. It then re- mains only to speak of nuisances erected or maintained on the premises by the landlord or tenant, to the detriment or damage of a stranger. I. Nuisance Defined. 1395. As we have already stated/ a nuisance, in its largest sense, signifies anything that worketh hurt, inconvenience, or dam- age. As between a landlord or tenant and a stranger, anything on the part of the former that unlawfully does a real injury or dam- age to the premises of the latter may be said to be a nuisance. 1396. While a thing may not be a nuisance per se, yet it may become such by the manner in which it is used or carried on. Thus, a coal-yard may be so negligently conducted on the premises as to become a nuisance to the neighborhood.' 1397. Though certain things have been adjudged nuisances per se,a defendant is not concluded from showing that in his par- ticular case the thing can be so carried on as not to offend against the comfort or health of any one. Thus, a special injunction to restrain the erection of an abattoir and slaughter-house near a populous portion of the city of Philadelphia was refused on the 1 See pases 735-737; Chapter XXII, page 741. 2 Ante, page 741, ^ 1367. ' Barrow v. Richard, 8 Paige (N. T.), 851. 752 NUISANCES ON DEMISED PREMISES. [CHAP, XXVI. ground that the afndavits did not establish the fact that they will be a nuisance.' 1398. If a business be lawful and carried on reasonably, and does not affect the health, comfort, or ordinary uses and enjoy- ment of neighboring property, it cannot be a nuisance, in fact or in anticipation." However, what may not be a nuisance in one locality may be such in another. As was said by Lord Chancellor Westbury," " If a man lives in town, it is necessary that he should submit himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are ac- tually necessary for trade and commerce, and also for the enjoy- ment of property, and for the benefit of inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint because to himself individually there may arise much discomfort from the trade carried on in that shop." II. Nuisances per se. 1399. Our courts have adjudged the following things or occu- pations nuisances per se : (1.) A privy well which leaks into adjoining premises.* (2.) A fruit stall on the footway of a street.* (3.) A bone-boiling establishment, if carried on in a populous part of the city.* , (4.) A pigsty in a city.' (5.) A powder magazine in a thickly settled locality.' (6.) A disorderly house, or a place for prostitution.' '■ Sellers k. Pennsylvania Kailroad Company, 10 Philadelphia, 319 ; S. C, 1 Weekly Notes, 295, where Allison, P. J., reviews numerous authorities. ■* Rhoads v. Dunbar, 7 P. P. Smith, 274, and cases there cited. s St. Helen's Smelting Company v. Tipping, 11 House of Lords, 641, 650; see also Ehoads v Dunbar (supra), 287 ; Huckenstine's Appeal, 20 P. F. Smith, 102. * Jacobs V. "Worrell, 15 Legal Intellisrencer, 139. 6 Commonwealth v. Wentworth, 4 Clark, 324; S. C, 1 Brightly, 318. ' Smith V. Cnmmings, 2 Parsons, 92. ' Commonwealth v. Van Sickle, 4 Clark, 104; S. C, Brightly, 69. 8 Weir's Appeal, 24 P. F. Smith, 230 ; Dilworth's Appeal, 10 Norrls, 247; S. C. 9 Weekly Notes, 183 ; see, also, Cheatham v. Shearon, 1 Swan (Tenn.), 213. ° See ante, page 744, ^ 1375. SBC. I.] NUISANCES BY LANDLORD OR TENANT. 753 III. Not Nuisances per se. 1400. The following things or occupations have been declared not to be nuisances per se : (1.) A Chinese laundry in a basement, if conducted without in- jury to the business of a tradesman in the next story.' '2.) Brick-burning, though near a town or city.' (3.) An abattoir and slaughter-house, though located near a populous part of a city.' (4.) A planing-mill.* (5.) A blacksmith's shop, though in a city.' (6.) A livery stable in a town or city.° IV. Landlord's Liability. 1401. Though a landlord, after a demise, has no more right of entry on the premises than a mere stranger, except for the pur- poses stated in a former part of this work,' yet under the fol- lowing circumstances he is liable to a stranger for a wrong suffered from the manner in which the premises are occupied : First. Where a nuisance existed thereon prior to the demise, even though the damage arising therefrom only became active from the action of the tenant in using the demised premises for ordinary purposes.* Second. Where, in the letting, the lessor reserved some ease- ment or right incidental to the demised premises, or covenanted to repair the same, and, under such rights, commits or causes to be committed some injury to a stranger.' Tliird. Where a nuisance arises wholly from the nature of the premises."" ' Warwick v. Wah Lee & Co., 10 Philadelphia, 160. 2 Huckenstine's Appeal, 20 P. P. Smith, 102. ' Sellers v. Pennsylvania Kailroad Company, 10 Philadelphia, 319. < Rhodes v. Dunbar, 7 P. F. Smith, 274. " Eaub V. Tamany, 5 Luzerne Legal Register, 114; S. C, 1 Legal Chroni- cle, 80. * Kirkman v. Handy, 11 Humphreys (Tenn.), 406. ' See ante, page 340, f 627. 8 House v. Metcalf, 27 Connecticut, 631, 640; Piskw, Dodge, 4 Denio (N.Y.), 311 ; Rex v. Pedley, 1 Adolphus & Ellis, 827 (28 English Common Law Re- ports, 220); Roswell v. Prior, 12 Modern, 639. ' Paynes. Rogers, 2 Henry Blackstone, 349; Bush jj. Steinman, 1 Bosan- quet & Puller, 404 ; Leslie v. Pounds, 4 Taunton, 649. '0 Somers's Appeal, 6 Weekly Notes, 440. 48 754 NUISANCES ON DEMISED PREMISES. [CHAP. XXVI. Fourth. Where, before the expiration of a term, a tenant creates a nuisance, and the landlord renews the lease knowing of the ex- istence of the nuisance.^ V. Tenants Liability. 1402. "Where the tenant covenanted to keep the premises in good repair and operated dye-works on them in a carele,ss manner, he, and not the landlord, was held liable in damages for the nui- sance which was created.'' Where the nuisance arises from a use of the premises which is not contemplated by the lease, the tenant is liable.3 VI. Landlord and Tenants Liability. 1403. Where the premises are let for a purpose which, in the very nature of things, becomes a nuisance, both landlord and tenant are liable to a stranger for such a nuisance.* SECTION II. THE REMEDIES. 1404. For a nuisance on the demised premises, to the injury of a stranger, the following remedies may be resorted to : (1.) Abatement. (2.) Action of trespass on the case. (3.) Assize of nuisance. (4.) Writ of quod permittat prosternere. (5.) Indictment. (6.) Injunction. All of these remedies were discussed in former parts of the work, to which the reader is referred.^ 1 See The Peoples. Townsend, 3 Hill (N. T.), 479; Vedder d. Vedder 1 Denio (N. Y.), 257. 2 Somers's Appeal, 6 Weekly Notes, 441. ' Kich V. Basterfield, 4 Common Bench, 805 (56 English Common Law Reports, 780). * See Roswell v. Prior, 12 Modern, 635, 639 ; see also Commonwealth v. Park, 1 Gray (Mass.), 553 | Rex v. P^dley, 1 Adolphus & Bllis, 822 (28 Eng- lish Common Law Reports, 220). ' See ante, Chapter XXII, Section II, page 743 et seq. SBC. I.J EMBLEMENTS DEBINBD. 755 CHAPTER XXVII. Detention of Outgone Tenant's Emblements. SECTION I. EMBLEMENTS DEFINED. 1405. The second wrong a stranger may suffer in regard to demised premises is the illegal detention of an outgone tenant's emblements or way-going crops. 1406. The English word "emblement" comes from the French word " emhkr " or " emblaver," to sow with corn, and emblements, as was stated in a former part of the work,^ according to the common law, are those growing crops of annual growth which are raised by the labor of the tenant, and to which he is entitled at the end- ing of a tenancy of uncertain duration, without any fault on his part. Thus, corn, hops, flax, hemp, roots planted annually, and the like, are emblements ; but fruit-trees, grass, and the like are not.' 1407. Our Supreme Court (Mr. Justice Read delivering the opinion) has defined emblements as follows : " The vegetable chat- tels called emblements are the corn and other growth of earth which are produced annually, not spontaneously but by labor and industry, and thence are called frudus industriales. The grow- ing crop of grass, even if grown from seed, and though ready to be cut for hay, cannot be taken as emblements ; because as it is said the improvement is not distinguishable from what is natural product, although it may be increased by cultivation."^ 1408. But we have seen that by the custom of Pennsylvania the way-going crop is confined to fall grain, sown in the autumn, before the expiration of the lease, and cut in the summer after it determines.* This includes as well the straw as the grain.^ And ' See Chapter II, Section V, page 51 et seq., where the authors have treated of emblements generally. 2 Coke upon Littleton, 55 b ; Comyn's Landlord and Tenant, *356. 3 Eeiff V. ReiflF, 14 P. F. Smith, 134, 137. * Ante, page 51, \ 64, 2. ' Craig v. Dale, 1 Watts & Sergeant, 509. 756 OUTGONE tenant's emblements. [chap. XXVII. the tenancy may be for a definite period instead of uncertain du- ration.' But where there is a lease for years, and the tenant sows spring grain before his term expires, which matures in the fol- lowing summer, after his term is ended, such a crop is not a way- going crop." Where, however, the duration of the term is uncer- tain, and the lessee's interest therein is dissolved by the act of the lessor, the former is entitled to the larger emblements under the common law.' I. When Outgoing Tenant is entitled to Emblements. 1409. In Pennsylvania the outgoing tenant is by implication entitled to a way-going crop or emblement as follows : (1.) Where there is a demise for years, or for a certain definite period, and the tenant sows the land in the autumn with grain which comes to maturity in the following summer after the expira- tion of the lease.* This is by the custom of Pennsylvania, which is a departure from the common-law doctrine laid down by Lit- tleton, that a tenant for years, having a certain interest, and know- ing the determination of it, has no right to the crop of grain sown by him during the demise and coming to maturity after its expiration.' (2.) Where there is a tenancy of uncertain duration, which is determined by the act of the lessor, the lessee is entitled to the emblements or way-going crop under the common law.^ For example, under the following circumstance the lessee has been ad- judged entitled to the emblements : a. Where there is a tenancy from year to year,^ the tenant is en- titled to the way-going crop, though there is proof of bad hus- bandry.^ Under the common law in the case of a tenancy from 1 Ante, page 51, f 64, 2. 2 Ibid. ' Bittinger v. Baker, 5 Casey, 66, 71 ; Hunter v. Jones, 7 Philadelphia, 233 ; S. C, 2 Brewster, 370. * Demi v. Bossier, 1 Penrose & Watts, 224 ; Stultz v. Dickey, 5 Binney, 286 ; Comfort v. Duncan, 1 Miles, 229 ; Porsythe v. Price, 8 Watt, 282, and cases there cited. 5 Littleton, J 68; Coke upon Littleton, 55 ; see also Comfort v. Duncan, 1 Miles, 229. ' Ibid. ; Bittinger v. Baker, 5 Casey, 66, 70 j Hunter v. Jones, 7 Philadel- phia, 233 I S. C, 2 Brewster, 370. ' Clark t.. Harvey, 4 P. P. Smith, 142. Ibid. SBC. I.] EMBLEMENTS DEFINED. 757 year to year, a tenant is not entitled to the emblements if the no- tice to quit does not proceed from the landlord.^ But under the custom of Pennsylvania the authors are of opinion that such a dis- tinction does not prevail b. Where there is a tenancy at will and the landlord dissolves the tenancy.^ c. Where the demised premises are sold at sheriff's sale, though under a judgment antedating the lease, the lessee is entitled to the way-going crop sown by him prior to the levy and condemnation, in preference to the sheriff's vendee." d. Where the demised premises are sold by the lessor, and though the purchaser obtain possession under an ejectment by the former against the tenant, the tenant's right to the way-going crop remains.* (3.) Where the tenancy is put an end to by the act of God, For example : a. If a tenant for the life of lessor, or of a stranger, sow crops, etc., and before severance the lessor or stranger die whereby the tenancy is extinguished, the lessee has a right to the emble- ments.* b. If a tenant for his own life sow crops, etc., and die before severance, his personal representatives may enter and take the emblements.* (4.) Where the tenancy is dissolved by act of law. Thus : a. If a lease be made to husband and wife so long as they con- tinue in that relation, and they be divorced, the husband will be entitled to the emblements.' b. If there be a lease by a husband of his wife's land, and they be divorced while the tenant's crop is growing, the wife has no right to take the crop from him.' 1 Comyn's Landlord and Tenant, *357. 2 Coke upon Littleton, 55 b. " Bittinger v. Baker, 5 Casey, 66 ; sec also Miller v. Clement, i Wright, 484. * Briggs V. Brown, 2 Sergeant & Kawle, 14. " Coke upon Litileton, 55 b ; Oland's Case, 5 Coke, 116 6. 6 Ibid. ' Ibid. « Gould V. Webster, 1 Tyler ( Vt.), 409 ; see also Bittinger v. Baker, 5 Casey, 66, 70, and other illustrations there cited. 758 OUTflONE tenant's emblements, [chap. XXVII. II. When Outgoing Tenant is not Entitled to Emblements. 1410. The outgoing tenant is not entitled to a way-going crop or emblement as follows : (1.) Where there is a demise for years, or for a certain definite period, say from April 1st, 1824, to April 1st, 1825, and the ten- ant sows the land with spring grain before the expiration of the term, he is not entitled to the crop coming to maturity after the term is out, whether the lease be upon a money-rent or upon shares.^ (2.) Where the lessee determines the tenancy by his own act, whether the act be a direct or indirect dissolution. For example, under the following circumstances the tenant has no right to the emblements :^ a. Where there is a tenancy at will, and before the severance of the crops, etc., the lessee voluntarily determines it.^ b. Where the lessee is ejected for the breach of a condition on his part.* But where a tenant for years upon condition sublets land, and the under-tenant sows crops, etc., and then the tenant for years breaks the condition, by means of which the sub-tenant is ousted, the latter is, nevertheless, entitled to the emblements.* c. Where there is a demise to a widow for twenty years, durante viduitate, and she marries." SECTIOIS^ IL THE REMEDIES. 1411. The tenancy having come to an end, and the lessee having quitted possession of the premises, he is entitled to free ingress, egress, and regress to reap and carry away the emble- 1 Demi v. Bossier, 1 Penrose & Watts, 224 ; see also Howell v. Sehenck, 24 New Jersey Law (4 Zabriskie), 89. 2 Coke upon Littleton, 65 b; Comfort v. Duncan, 1 Miles, 229,231. ' Ibid.; Viner's Abridgment, title Emblements, 11. « Hunter v. Jones, 7 Philadelphia, 233; S. C, 2 Brewster, 370, and author- ities there cited. ^ Oland D. Burdwick, Croke-Elizabeth, 460 ; Doe dem TTpton v. Wetherwiok, 3 Bingham, 11 (11 English Common Law Reports, 16) ; Comyn's Landlord and Tenant, *358. 6 Wicks V. Jordan, 2 Bulstrode, 213 ; see also Bittinger v- Baker, 5 Casey, 66, 70. SBC. II.] THE EEMEDIES. 759 ments.^ He may dispose of them as he may of any other article of personal property, and the purchaser will have similar rights. But the party who is entitled to re-enter to take away the emble- ments, has no right to the exclusive occupation of that part of the land whereon the emblement grows.^ 1412. For an interference with the emblements, the outgone tenant, his devisee, personal representative, or vendee, may resort to the following remedies against the landlord or any other per- son who takes or destroys them, or does anything to the preju- dice of the tenant's rights therein : (1.) Action of trespass quare clausum fregit} (2.) Action of trespass on the case,* which is the proper remedy if the lessee be disturbed in his right of egress and regress. (3.) Action of trover and conversion.' (4.) Action of replevin.' 1 Coke upon Littleton, 56 a. 2 Shaw V. Bowman, 10 Norris, 417; Shepherd's Touchstone, *244. 5 Smith's Landlord and Tenant, *256| note. < See Stultz v. Dickey, 5 Binney, 285; Porsythe v. Price, 8 Watts, 282; Briggs V. Brown, 2 Sergeant & Eawle, 14 ; Clark v. Harvey, 4 P. F. Smith, 142; Eeifff. Eeiff, 14 Ibid. 134; Miller v. Clement, 4 Wright, 484. 5 See opinion of Mr. Justice Brackenridge in Stultz v. Dickey, 5 Binney, 292 ; Coke upon Littleton, 56 a. « Demi v. Bossier, 1 Penrose & Watts, 224 ; Comfort v. Duncan, 1 Miles, 229 ; Bittinger v. Baker, 5 Casey, 66 ; Craig v. Dale, 1 Watts & Sergeant, 609. ' Diffendorfer «. Jones, Nisi Prius, Lancaster, 1782, cited by Supreme Court in Stultz V. Dickey, 5 Binney, 289. 760 DISTRESS OF STRANGER'S CHATTELS. [CHAP. XXVIII. CHAPTER XXVIII. "Wrongful Distress of Stranger's Chattels. SECTION I. "WHEN PKIVILEGED FROM DISTRESS. 1413. The third wrong which a stranger may suffer in regard to demised premises is a distress of such chattels as are privileged. I. When on Premises in the Way of Trade. 1414. In a former chapter^ we saw that the chattels of a stranger left on demised premises, occupied by a person exercising a pub- lic trade or business, to be wrought, worked up, or managed in the way of his trade or business, are privileged from distress. For example, the following things have been adjudged to be thus privileged : (1.) A horse left at a blacksmith's shop to be shod.^ (2.) An animal left at an inn to be fed.' (3.) An animal left on the premises to be pastured.* (4.) A horse taken to a mill with grain to be ground. (5.) Chattels sent to a mill, fair, market-house, factor, commis- sion merchant, auctioneer, or mechanic, to be ground, sold, re- paired, or made up.* • Chapter V, Section I, page 106. 2 Coke upon Littleton, 47 a ; 3 Blaekstone's Commentaries, *8. 3 Ibid. ■* Cadwalader v. Tindall, 8 Harris, 422. s Read t). Burley, Croke-Elizabeth, 549, 596; 2 Bacon's Abridgment, title Distress (B). 6 Coke upon Littleton, 47 a ; Osbastin v. James, 2 Lutwyche, 1S80 ; Karns V. McKinney, 24 P. F. Smith, 387; Brown v. Sims, 17 Sergeant & Rawle, 1 38 ; Bevan v. Crooks, 7 Watts & Sergeant, 452 ; Howe Sewing Machine Com- pany V. Sloan, 6 Norris, 438; S. C, 6 "Weekly Notes, 265; Briggs v. Large, 6 Casey, 287 ; Brown jj. Arundel, 10 Common Bench, 54 (70 English Common Law Reports, 54) ; Williams v. Holmes, 8 Exchequer, 861 (20 English Law and Equity Reports, 360) ; Wood v. Clark, 1 Crompton & Jarvis, 484; Brown V. Shevill, 2 Adolphus & Ellis, 138 (29 English Common Law Reports, 82) ; 2 Bacon's Abridgment, title Distress (B) ; Gilman d. Elton, 6 Moore, 243; Hunley v. Wyatt, 1 Bay (S. C.) 102; SEC. I.] WHEN PRIVILEGED FROM DISTRESS. 761 (6.) Chattels sent to a warehouse or wharf to be stored or cared for.' (7.) Chattels in the custody of a carrier." (8.) Chattels of a lodger or boarder, at an inn or boarding-house, used in the character of a lodger or boarder.' (9.) A beast sent to a butcher to be killed.' (10.) Chattels with a pawnbroker.^ 1415. In England it has, however, been held that this privilege does not extend to horses and carriages standing at a livery stable f nor to the machinery or thing that worked or conveyed the chat- tel, such as a weaver's loom sent with wool, a barge sent with salt, or a brewer's cask sent with beer.' II. When on Premises for Agisting or Feeding. 1416. In the case of Cadwalader v. TindalP our Supreme Court (A.D. 1853) decided that where a tenant receives the cattle of a stranger to be pastured at hire on the demised premises they are not subject to a distress for rent due by the tenant. And so the Constitutional Court of South Carolina (A.D. 1822) held that a horse sent to a livery stable, to be fed and taken care of, was priv- ileged from distress.^ 1 Brown v. Sims, 17 Sergeant & Rawle, 138; Karns v. McKinney, 24 P. F. Smith, 387 ; Briggs v. Large, 6 Casey, 287; Thompson v. Mashiter, 1 Bing- ham, 383 (8 English Common Law Keports, 510) ; Matthias v. Mesnard, 2 Carrington & Payne, 353 (12 English Common Law Reports, 613). 2 Gisbourn v. Hurst, Salkeld, 249. 3 Kiddle v- Welden, 5 Wharton, 9; Karns v. McKinney, 24 P. P. Smith, 389; Jones v. Goldbeck, 8 Weekly ISTotes, 533 ; Erb v. Sadler, Ibid. 13. * Brown u. Shovill, 2 Adolphus & Ellis, 138 (29 English Common Law Reports, 82). 5 Swire v. Leech, 18 Common Bench (N. S.), 479 (114 English Common Law Reports, 477). 6 Parsons v. Gingell, 4 Common Bench, 545 (56 English Common Law Re- ports, 545); Francis v. Wyatt, 3 Burrows, 1498; but see contra, infra, ][ 1416 ; see also note x, by Sir Edward Vauqhan Williams, to Poole v. Longueville, 2 Williams's Saunders's Reports, 675, edition of 1871. ' Wood V. Clarke, 1 Crompton & Jarvis, 484; Muspratt v- Gregory, 1 Meeson & Welsby, 633 ; S. C, 3 Ibid. 677 ; Joule v. Jackson, 7 Ibid. 450. 8 8 Harris, 422. ' Youngblood v. Lowry, 2 McCord, 39, where Bat, J., reviews the English authorities to the contrary. See supra, ^ 1415. 762 DISTRESS OP STRANGBR'd CHATTELS. [CHAP. XXVIII. III. When on Premises by Consent of Lessor. 1417. When chattels are on the demised premises by the con- sent of the lessor they are not liable to distress. Thus where the landlord was privy to a sale by the tenant of the eatage of pasture to a stranger, and the purchaser put his cattle on the demised land to consume the eddish, it was held that they were privileged from distress.' But when the landlord's consent is conditional, the condition must be promptly fulfilled.' IV. When Formerly Belonging to an Ex~tenard. 1418. When the chattels of a tenant have been fairly sold toan innocent purchaser, they cannot be distrained for rent due by the vendor, though such purchaser be the succeeding tenant and the goods remain on the demised premises.^ Thus in Clifford v. Beems,* where an outgoing tenant sold certain chattels to the incoming tenants, our Supreme Court held that such goods were not liable to a distress for the rent due by the outgone tenant, although continued on the premises by the new tenants. And in Beltz- hoover v. Waltman^ it was decided that the property of a tenant holding by a renewed lease cannot be distrained for arrears of rent for the previous term, if a stranger has acquired an interest in the property. V. When Belonging to the Tenant, but in Ousfodia Legis. 1419. When chattels are levied upon on an execution or foreign attachment at the suit of a stranger, they are exempt from dis- tress.° But where goods were taken in execution and released on a stranger's claim, and an interpleader issue, when they were dis- trained on, it was held that the landlord's right of distress was superior to that of the claimant in the interpleader.' 1420. The distraining on chattels in the custody of the law is a wrong against the officer who made the levy, and the execution ' Harsford v- Webster, 5 Tyrwhitt's Exchequer, 409. 2 Welsh V. Rose, 6 Bingham, 638 (19 English Common Law Reports, 185). 8 Ex parte Grove, Atkyns, 104 ; Clifford v. Beems, 3 Watts, 246. « 3 Watts, 246. ' 1 Watts & Sergeant, 416. ' Pierce v. Scott, 4 Ibid. 344; see ante, page 637, ^ 1135 «< seq. 1 Gilliam v. Tobias, 11 Philadelphia, 313; S. C, 2 Weekly Notes, 371. SBC. II.J THE REMBDIES. 763 creditor has no remedy against the distrainer, but against the offi- cer, who may maintain an action of trover or trespass against the party who wrongfully divested him of the fruit of his levy.' SECTION II. THE BEMEDIES. 1421. When the chattels of a stranger are distrained on while on the demised premises in the way of trade, for agistment, or with the consent of the landlord, or were formerly belonging to the tenant and fairly sold by him to an innocent stranger, the ac- tions of trespass de bonis asportatis,^ trespass on the case,' trover,* or replevin' are open to him. When chattels are levied upon on an execution or foreign attachment at the suit of a stranger and then distrained on, the officer who made the levy may maintain trover or trespass against the party who wrongfully divested him of the fruit of his levy.* The plaintifiP at whose suit the levy was made cannot sustain an action against the landlord ; his remedy is against the officer, if his execution is not satisfied from the chat-> tels taken by the latter under it.' 1 Taylor v- Manderson, 1 Ashmead, 130. 2 See Horsford ». Webster, 5 Tyrwhitt's Exchequer, 409. 8 See Pierce v. Scott, 4 Watts & Sergeant, 344. 4 See Briggs v. Large, 6 Casey, 287; Swire v. Leach, 18 Common Bench, N. S., 479 (114 English Common Law Reports, 477). 6 See Earns u. McKinney, 24 P. P. Smith, 387; Brown v. Sims, 17 Ser- geant & Eawle, 138; Kiddle v. Welden, 5 Wharton, 9; Cadwalader v. Tin- dall, 8 Harris, 422. « See Taylor v. Manderson, 1 Ashmead, 130. ' Ibid. 764 DISTEAINING CHATTELS AFTER REMOVAL. [CHAP. XXIX. CHAPTER XXIX. Distraining Stranger's Chattels after Eemoval. SECTION I. EIGHT OF EEMOVAL. 1422. The fourth wrong which a stranger may suffer from a landlord or his bailiff is the following up and distraining on his chattels after their removal from the demised premises. 1423. At common law no chattels could be distrained on ex- cept those on the demised premises, unless the party distraining had view of those belonging to the tenant while they were being removed. But this was remedied so far as regards the tenant's chattels by the fifth section of the act of 21st March, 1772,' and the act of 25th March, 1825,^ where the removal was fraudulent. However, these acts in no way affected the right of a stranger to remove his chattels on the demised premises, in order to avoid their being distrained on f therefore if the distrainer follow such chattels and seize them he becomes a trespasser. SECTION II. THE BEMEDIES. 1424. Where the stranger's chattels are distrained off the demised premises, he may resort to the following remedies : (1.) Action of trespass de bonis asportatis.* (2.) Action of trespass on the case." (3.) Action of trover and conversion.^ • See anie, Chapter VI, Section I, page 188 et seg. ' Ibid. 189 et seq. ' Adams v. La Comb, 1 Dallas, 440 j Sleeper v. Parrish, 7 Philadelphia, 247; Scott J). McEwen, 2 Ibid. 176. * See anie, page 355 (8). ' Ibid. 199 (30). « Ibid. 374, et seq. SEO. II.] THE REMEDIES. 765 (4.) Action of replevin.' 1425. " When no actual damage is proved beyond the mere taking," says Judge Hare, " and there is nothing to show that this was oppressive or wanton, the jury should limit the compen- sation awarded to the injury actually proved."^ I Adams v. La Comb, 1 Dallas, 440 ; Sleeper v. Parrish, 7 Philadelphia, 247; Scott V. MoEwen, 2 Ibid. 176 ; see ante, page 420 (34). ' Scott V. McEwen, 2 Philadelphia, 176. 766 DECEASED TENANT'S CHATTELS. [CHAP. XXX. CHAPTEE XXX. DisTEAiNiNQ Deceased Tenant's Chattels. SECTION I. DECEASED TENANT'S CHATTELS EXEMPT FBOM DISTRESS. 1426. The fifth wrong which a stranger may suffer from a landlord or his bailiff is the distraining of the chattels of a deceased tenant. 1427. In Mickle's Administrators. Miles/in deliveringthe opin- ion of the Supreme Court, Mr. Justice Lowrie says : " It is agreed that the goods of a deceased lessee are not liable to distress." And in Hoskins v. Houston,^ President Judge Lewis, in delivering the opinion of the Court of Common Pleas in Lycoming County, says : " It has been held In England, in Braithwaite v. Cookrey, 1 H. Bl. 465, that a landlord may distrain upon an administratrix for arrearages due before and since the death of the intestate ; but it is believed that a distress cannot be made in a case like the pres- ent, upon a fair construction of the Acts of 1772, 1794, and 1834. In this case there was no personal representative of the deceased, no person upon whom to serve the notice of distress under the Act of 1772, no one to replevin, no one to contest the amount of the rent, no one to receive the overplus, if any, after the sale of the goods ; and it would seem to follow that a distress cannot be made, and the goods sold according to the Act of 1772, where the tenant dies, and no personal representative is raised to take charge of his estate and interests. Besides, upon the death of the tenant, the Act of the 19th April, 1794, as re-enacted on the 24th Febru- ary, 1834, took away the preference which the landlord enjoyed in the lifetime of the tenant, and gave a preference to claims more imperative in their nature, because resting upon the foundation of necessity and humanity. Upon the death of the tenant, his goods 1 1 Grant, 320, 328. ' 2 Clark, 489, 469. SEC. II.] THE EEMEPIBS. 767 became the estate of a decedent, to be administered by an officer of the law, according to the course of administration prescribed by law. New duties arose upon that event, new liabilities were cre- ated, and new preferences were given by law By the terms of this act, 'all debts of a decedent,' without any exception, are directed to be paid according to the order of preference therein prescribed ; and by that order, rents not exceeding one year, in- stead of being placed first in order of payment, are placed second in grade. This order of priority cannot be maintained, if the landlord be allowed to distrain upon the goods of the decedent. If the remedy by distress exists, in such a case, the act of Assem- bly becomes a nullity, so far as it prescribes the order of pay- ment." SECTION II. THE EEMBDIES. 1428. Where the landlord or his bailiff distrains on the chat- tels of a deceased tenant, the personal representative of the dece- dent may resort to the following remedies : (1.) Action o{ trespass guare clausum fregit.^ (2.) Action of trespass on the case." (3.) Action of trover and conversion.' (4.) Action of replevin.* • See Mickle's Administrator ?). Miles, 1 Grant, 320; see also arefe, page 355, f 662 (2). « Sea ante, page 199, f 832 (31). s Ibid. 381, Tf 727 (20). « Ibid. 420, f 778 (35). 768 FOREIGN ambassador's CHATTELS. [OHAP. XXXI. CHAPTER XXXI. Distraining Foeeign Ambassador's Chattels. SECTION I. FOREIGN AMBASSADOE'S CHATTELS EXEMPT FBOM DISTEESS. 1429. The sixth wrong which a stranger may suffer from a landlord or his bailiff, is the distraining of the chattels of a foreign ambassador or official, or any of his domestic servants. 1430. The act of Congress of 30th April, 1790, Chapter 9,^ enacts as follows : " Section 25. Whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a state, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized and received as such by the President, or any domestic or domestic servant of any such minister is arrested or impris- oned, or his goods or chattels are distrained, seized, or attached, such writ of process shall be deemed void. " Section 26. Whenever any writ or process is sued out in violation of the preceding section every person by whom the same is obtained or prosecuted, whether as party or as attorney or solicitor, and every of- ficer concerned in executing it, shall be deemed a violator of the laws of nations, and a disturber of the public repose, and shall be imprisoned for not more than three years, and fined at the discretion of the court. " 1431. According to the law of nations, which forms a part of the municipal law of Pennsylvania, a foreign ambassador or official is presumed to be governed by the laws of his own country, and not by the laws of the country to which he is accredited.' I I TTnited States Statutes, 117 ; Eevlsed Statutes, ?? 4063, 4064. ' 1 Vattel's Law of Nations, chapter viii ; Eespublica v. De Longchamps, 1 Dallas, 111. SEC. II.J THE REMEDIES. 769 SECTION II. THE REMEDIES. 1432. Where the chattels of a foreign ambassador or official are distrained on, the following remedies may be maintained against the distrainer : (1.) Action of trespass quare dauaum fregit.^ (2.) Action of trespass on the case.' (3.) Action of trover and conversion.' (4.) Indictment under the act of Congress of 1790.* 1 See ante, page 420 (36). = Ibid. 192. » Ibid. 381 (20). * Ibid. 201. 49 770 DISTRAINING STRANGER's CHATTELS. [CHAP. XXXII. CHAPTER XXXII. DisTEAiNiNG Stranger's Chattels. SECTION I. TENANT'S LIABILITY. 1433. The seventh wrong which a stranger may suffer in re- gard to demised premises is the distress of his chattels left in charge of the tenant. 1434. In a former part of the work^ we saw that the chattels of a stranger on the demised premises, unless there in the way of trade, are liable to the distress of the landlord for any arrears of rent due by the tenant. SECTION II. THE EEMEDT. 1435. When a stranger's chattels which are left in charge of a tenant are seized to satisfy the rent of the tenant, the latter be- comes liable over to the stranger in an action of trespass on the case.' 1 See ante, page 141, Tf 230 (7). = See O'Donnel v. Seybert, 13 Sergeant & Eawle, 54. SKO. I.] landlord's liability. 771 CHAPTER XXXIII. Sbakching foe Tenant's Chattels on Stranger's Premises. SECTION I. LANDLORD'S LIABILITY. 1436. The eighth wrong which a stranger may suffer, is an entry on his premises by the landlord, or his bailiff, in search of the tenant's chattels clandestinely removed thereon. 1437. In Pennsylvania, where a tenant fraudulently or clan- destinely removes his chattels from the demised premises for the purpose of depriving his landlord of the remedy of distress, the Act of 21st March, 1772,' authorizes the landlord, within thirty days after the removal, to follow and seize them, provided that in the interval the same have not been bond fide sold to an innocent party. 1438. But ill following the chattels the landlord or his bailiff must be careful not to commit a trespass on the premises of the stranger, even though the entrance thereto be open. Says Mr. Justice Duncan, in delivering the opinion of the Supreme Court, in Hobbs v. Geiss :" " I do not mean to say, that one neighbour en- tering into the house of another for a civil purpose is a trespasser; but it is in general true, that an action of trespass lies for going into the house of another, although the door be open ; for every man's house is his castle, and he is not obliged to keep the door shut. 5 Bac. Ah. 177. But if the owner has unlawfully gotten the goods of another into his house, and he goes in, (the door being open,) to take them away, this action does not lie, because the owner of the house was the first wrongdoer. Cro. Eliz. 246. 2 Roll 56. 2 Lev. 1185. But if he enters, even on a strong sus- picion, and has probable cause for that suspicion, still, if the goods 1 See ante, page 100; see also Chapter VI, page 188 et seg. » 13 Sergeant & Eawle, 418. 772 SEARCHING FOR TENANT*S CHATTELS. [CH AP. XXXIII. are not there, he is a trespasser. This is a much stronger case than following goods of the defendant to distrain them in another man's house. These discretionary visits are forbidden by the law : the sanctity of a man's dwelling-house is one of the just boasts of the provisions of the common law : it would be a vain boast if every landlord could enter it to search for his tenant's goods. At no time even of the feudal system, when landlords exercised most tyrannical power, could he do this. If the defendant's goods had been stolen, and he had just cause to suspect they were in the plaintiff's house, he could not have justified; for even on a war- rant to search for stolen goods, the informer must proceed with great caution. There must be an oath that the party has had his goods stolen, and has strong reason to believe they are concealed in such a place. If the goods are not found there, he is a tres- passer." SECTION II. THE EEMEDIES. 1439. When in the search for chattels clandestinely removed the landlord or his bailiff fails to find the tenant's goods upon the premises of a stranger, the latter may maintain an action of tres- pass quare dausum fregU or vi el armis against the former.' 1 Hobbs V. Geis3, 13 Sergeant & Rawle, 420. ADDENDA ET CORKIGENDA, including decisions in 6th Odterbridge, 2 Pennypackee, and 14 Weekly Notes. (In the text and notes.) PAGE 7, line 23. For " present" read fomen^etf. ., 13, line 13. For " aUen" read alien. 14, line 28. After the word "tenures" a(Jd be allodial yet. U, note 3. For "57 "read 571. 19, note 1. Add Stover- v. Cadwallader, 2 Penny- 1 ' packer, 117. 20, note 1. Add see Reukauff v. Johnson, 13 Phila., V - 87. 21, note 2. Add see Reukauff v. Johnson, 13 Phila., 87. 21, T[ 25. Add And so with a lease for more than three years. Auer v. Penn, 11 Norris, 444. 23, ^ 28, line 10. Add a reference to Reukauff v. Johnson, 13 Phila., 87. 24, T[ 30. 3 lin^e 3. Add She is bound by all the covenants of a lease executed by her, and has power to waive the benefit of the exemption law. Lloyd V. Underkqfler, 13 Phila., 160. 26, note 4. Add Noll v. Kline, 1 Del. Co. R., 101. 27, T[ 34. 3. Add When the commencement of the term is capable of being reduced to a cer- tainty by an event to occur after the d(Xte of the lease, it is not void by reason of uncertainty. Grotz v. Lehigh and Wilkes-Barre Coal Co., 1 Luzerne Leg. ■Reg., 53, 57. 27, last line. After the word "crop" add Brown v. Jaquette, 13 Norris, 113; S. C, 8.W, , i ADDENDA ET CORRIGENDA. PAGE N. C, 475, and cases there oited. An agreement to farm on shares, each party furnishing one-half the seed, stock, etff., does not constitute/ a partnership, hut is a lease on shares. Brown v. Jaquette, I.hid. But one hired to work land, re- ceiving a share of the produce for his labor, is a cropper, not a tenant. 28, line 6. For " number of bushels " read portion. 28, note 6. Add Followed in, Vetter's Appeal, 3 Out., 52. 30, If 36, Mne 8. For " acts of 26th March," etc., read act of 19th April, 1883. 30, note 6. For " pages," etc., read page 504 et seq. 31, T[ 36. 11 line 2. After the word " one " add An implied renewal does not revive' a judgment once extinguished and dead. Smith v. Prin- - f/fe, 3 Out., 275,'276. : 31, 1 36. 12 line 9. After the word "assigning" add But where the transfer is prohibited under penalty of forfeiture., the mortgaging of the leasehold will constitxUe a sufficient ground of forfeiture. Becker v. Werner, 2 Out., 655. 32, line 5. After the word "covenant" add A farm lease ends with the death of the tenant, his personal represfintaiives becoming tenants at wUl. JaquMis EstaJte, 1 Chester Co. R., 197. 35, T[ 37. 12. Add As to a clause of confession of judg- ment in a lease for a term certain, the same has referep.ce to the rent becoming due duririg that term only, and does not extend to rent accruing afterwards. Smith V. Pringle, 3 Out., 275. 36, note 2. Add Followed in Vetter's Appegi, 3 Out , 52. 37, line 9. Add Where a landlord agrees orally with. a tenant holding over under a lease ADDENDA ET CORRIQENDA. 3 PAGE • Mnder seal to change the time of payment of the rent from the beginning to the end of the month, the landlord is hound by, the subsequent agreement, as it is not void for want of a new and sufficient consideration. Wilgus v. Whitehead, 8 l^orris, 191 ; S. C, 6 Weekly Notes, 537. 55, note. Add reference to Muller's Estate, 14 W. N. C, 308. 55, note, line 38. After the word "determine" add refer- ence to Stover v. Cadwallader, 2 Pen- ny packer, 117. 5G, line 18. Add Auer v. Penn, 11 Norris, 444. 79, Note. Add Mut in the recent case of Richards V. McGrath, 4 Out., 389, Mr. Justice Trunhey, speaking for the Supreme Court, seems to hold that " where a sale of goods under a distress for rent has been commenced, and the tenant tenders .the landlord the difference between the amount realized by the sale and the full amount of rent claimed, with costs, the refusal of the tender and the continuance of the sale renders the landlord liable, in an action for trespass, for the value of the goods afterwards sold, notwith- standing the proceedings before the tender were legal and regular." 86, ^ 107. 9 (3). Add or at treasurer's sale for taxes, to stay waste. See ad of 13/A June, 1883, P. L., 89. 86, note 3. Add act of 5th June, 1883, P. L., 79. 87, note 9. Add see also act of ISth June, 1883, P. L., 89, and act of 5th June, 1883, P. L.,79. 96, T[ 116. Add A distress is similar to an execution. Richards v. McGrath, 4 Out., 389, 401 . But the seizure of propei'ty need not be •1 ADDENDA ET CORRIGENDA. PAGE ■," • an ad.up.1 seizure. Purbush et al. v. Ghappdl et al, 14 W. JST. C, 349. 105, note 2. Add But fixtures slightly dttaohed, which (lie tenant may remove at his pleasure during the term, and which may be re- moved without destroying their character or injuring them, may be distrained. Furhush et al. v. Ghappdl d al., 14 W. N. C, 349. in, T[ 146, line 10. After the word "clerk" add see Ad of ISth June, 1883, P. L., 116, by which, wages of servant-girls, vnshei'WOmen, clei'lts and others are included. 118, line 32. After the word " clerks " see Act of 17th , May, 1883, P. L., 34, and ActoflSth i':' Jime, 1883, P. L., 116; 118, note 4. Add see Golloh's Appeal, 2 Penhypacker, 1?'0. 124, t 172. 13 line 3. After the word "claim," cut out balance of sentence. 124, note 2. Add. see Gollur^'s Appeal, 2 Pepnypacker, 130. ' ■ 125, note 1. AM Ibid. 127, note 12, line 7. Add see Kendig & Rifev. Kendig, 2 Pear- son,„89. 129, note 1. Add see Christman v. Geise, 1 Chester Co. R., 342.' 136, T[ 215, line 2. For "are superseded" read were super- seded. 136, t 215, line 3. For "direct" read directed 136, i 215, iine 7. For " is " read was. 137, line 2. For "empowers" read empowered. 137, line 5. For " continues " read continued. 137, line 6-7. In place of sentence commencing, " In another portion," etc., read The Ads of 1870 and 1879 have, however, been re- pealed and supplied by the Ad of \Wi April, 1883, P. L., 9; see post, page 503et,seq. ADDENDA ET COERIGENDA. PAGE 142, last line. Add For gas consumed where the lessee covenants to pay for the same. Fern- wood Masonic Hall Asso. v. Jones, 6 Out., 307 ; S. C, 13 W. N. C, 405. 174, note 5. Add see Maberry v. Dudley, 2 Penny- paeker, 367. 177, note 5. Add see Allegart v. Smart, 2 Pennypacker, 320. 197, note 8. Add Walbridge v. Pruden, 6 Out., 1 ; S. C, 13 W. N. 0., 529. 201, note 1. Add see Commonwealth v. LeeaU, 27 Pitts- burgh L. J., 233. 202, line 7. Add But the execution of a distress warrant is not such process. Commonwealth v. Leech, 27 Pittsburgh L. J., 233. 212, line 2. Add or for a term at the will of the lessor. Heg V. McGrath, 32 P. F. Smith, 310. 212, note 7. Add see Brown v. Brightly, 14 W. N. C, 497, 498. 213, note 2, line 3. To the word "court" add reference to Hollis V. Burns, 13 W. N. C, 242, note ; S. C, 4 Out., 206. 215, liote 9. Add see Becker v. Werner, 2 Out., 555. 217, note 5. Add Auer v. Penn, 3 Out., 37.0 j S. C, 11 W. N. C, 213. 218, line 2. Add As to what is sufficient evidence of a surrender to go to a jury, see Bradley v. Brawn, 6 W. N. C, 282 ; Sharpless v. Weigl^, 7 Ibid., 376 ; Milling v. Becker, 15 J^., 182 ; Auer v. Penn, 3 Out., 370; S. C, 11 W. N. C.,213. 218, note 1. Add Auer v. Penn, 3 Out., 370; S. C, 11 W. N. C, 213. 218, note 2. Add Ibid.; Beany v. Fannessy, 14 W. N. C, 91. 218, note 4. Add see Donnon v. Moore, 1 Chester Co. R., 65. ADDENDA ET CORRIGENDA. PAGE 219, 1 359. 5 line 6. Adid Rent previously accrued ig not affeeted. Hall V. Bardsley, 5 W. N. C, 553. 219, note 1. Add Auer v. Pmn, 11 Norris, 444. 223, line 16. For "14th" read IQth. 229, note 1. Add see Wilson v. Huhbell, 1 Penny- packer, 413. 243, 1 414, line 13. Add see Act of 5th June, 1883, P. L., 80, to prevent waste by production of petro- leum pending ejectment. 255, line 31. Add Ibid. 260, note 10. Add see Nwolls v, McDonald, 5 Out., 514. 285, I 502, line 6. After the word " ejectment " add see Grossman's Appeal, 6 Out., 137. 294, line 7. After the word " intention " add reference, to Brown v. Brightly, 14 W. N. C, 497. 294, note 3. Add WHgus v. Whitehead, 8 Norris, 191 ; 6 W. N. C, 537. 294, Tf 520, line 1. To word "lease" add reference to Ibid. 314, note 7. Add see Wilson v. HubbeM, 1 Perinypacker, 413. • ' 354, note 1. Add Richards v. McGrath, 4 Out., 389. 355, T[ 661. Add (3) By a. tenant where there is a dis- tress for more rent due. Richards v. McGrath, 4 Out., 389. 369, note 2. Add Newell's Appeal, 4 Oat., 513. 376, note 5. Add Darrach v. Baird, 5 Out., 265. 388, note 4. Add see Elkins v. Griesemer, 2 Penny- packer, 52. • 389, note 4. Add see post, page 409, 1 760. 389, line 24. Add (16J) For growing crops severed by one in possession under claim of tiile. Reniok v. Boyd, 3 Out., 655. 391, note 3. Add see RenicJc v. Boyd, 3 Out., 555. 409, T[ 760. Add This act does not apply.: to the case of growing crops. Renick v. Boyd, 3 Out., 555. 411, note 8. For " page 399 " read page 402. ADDENDA BT COERIGENDA. i PAfeE 418, note 3. Add see Bonnon v. Moore, 1 Chester Co. R., 64. 437, note 8; Add see Bradford v. Frederiok, 5 Out., 445. 458, note 1. Add Walbridge v. Pruden, 1 Out., 1 ; S. C, 13 W. N. C, 529. 464, note 1. Add see Allegaert v. Smart, 2 Penny- packer; 320. 514, note 5. Add Sohleppi v. Gindek, 14 W."N. C, 31. 536, note 2. Add see Reukaufv. Johnson, 13 Phila., 87. 566, note 5. Add Vetter's Appeal, 3 Out., 62. 577, note 4. For " 10 Norris, 889," read 10 Norris, 88. 582, note 5. Add see Mayherry v. Dudley, 2 Penny- packer, 367. 587, note 1, line 2. For "Myers v. Bums," read Myers v. Burns. 591, note 3. Add see Richards v. MoGrath, 4 Out., 389; Christman v. Geise, 1 Chester Co. R., 342. 593, 1 1Q79 (3), line 1. For " chap. 17," read ckap. 12. 593, note 3, line 1. . For " see post, page ," read see post, page 641 . 619, note'4. Add see Richards v. McGrath, 4 Out., •" ■ 389, 401. 620, T[ 1098. Add The distress is similar to an execution. Richards v. McGrath, 4 Out., 389, . 401. 624, note 1. Add see Spencer v. Clinefelter, 5 Out., 219. 624, note 5. Add Ibid. 625, note 6. Add Richards v. McGrath, 4 Out., 389, 397. 626, Tf 1113. Add.^ sale of a' distress should cease when , . sufficient is realized. See Richards ' v. McGrath, 4 Out., 397, 401. 626, note 1. , Add Richards v. McGrath, 4 Out., 397. O ADDENDA BT CORRIGENDA. PAUE ', 628, f 1120 (2). Add The tender may be made after com- mencement of sale. Richards v. Mc- ft-aEED. [See Express Covenants.] COVENANTS IN LAW. [See Implied Covenants.] COVENANTS NOT EUNNING WITH THE LAND, defined, 994, 996 not available to assignee, nor bound by, though named, 994 subsequent to breach, covenants will not run with the land, 980 instances of, on the part of lessor, 995 on the part of lessee, 997 COVENANTS RUNNING WITH THE LAND — PAMAGBS. 785 [The references are to the paragraphs.] COVENANTS RUNNING WITH THE LAND, defined, 933, 977 privity of estate in, between contracting parties, 933 endures during continuance of the term, 933 all implied covenants are, 933 bind covenantor and personal representatives by privity of contract, 977 bind assignee though unnamed, when, 977 availability of, by assignee, 978 divisibility of, 979 bind assignee ])ra tanto, when, 979 , when covenants cease to run with the land, 980 rules deducible from Spencer's case, 981 if covenant touch something in esse at the time of demise and is part of prem- ises, 981 (1) if assignee is named if covenant touch something not in esse at time of de- mise, 981 (2) at common law, grantee of reversion or assignee of lessor, could not take advantage of, nor was bound by, 983 remedied by statute of 32 Henry VIII, 984 [See Coven ants Running with THE Reversion.] COVENANTS RUNNING WITH THE REVERSION, defined, 982 at common law real covenants did not run with the reversion, 982, 983 remedied by statute 32 Henry VIII, 984 transfers to the grantee or assignee the privity of contract, 984, 990' [See Statute 32 Heney VIII, Chaptee 34.] CROPPER. one hired to work land upon certain share of crop, 35. 2, note owner of land cannot distrain upon crop, 35. 2 whole crop cannot be sold for debt of either owner or cropper, 52. 3 If worker agrees to return certain number of bushels he becomes tenant, and is liable to distress, 53. 2 not entitled to way-going crop on sale of premises, 64. 6 CROPS. [See Way-goinq Crop.] growing distrainable, 128. 3, 230 (5), 1102 CULTIVATION, COVENANT FOR PARTICULAR MODE OF. [See Husbandry.] runs with the land, 992 (11) to cultivate in husbandlike manner, 992 (11) to lime and dung the premises durante termino, 992 (11) • to leave fifteen acres every year for pasture absque cultura, 992 (11) CUSTODY OF THE LAW, THINGS IN. privileged from distress, 128. 6, 1135, 1419 distrainer not liable at instance of tenant or plaintiff in execution, 1135, 1136 liable at instance of officer who took goods in execution, 1136, 1420 cannot be replevied,' 736 (3) D. DAMAGES. [See the respective action.] double or treble, meaning of, 666 (1) In assumpsit, 307 50 786 DAMAGES — DECLARATION. [The references are to the paragraphs.] DAMAGES {contimied). (2) In covetiant : for breacli of a covenant, 296 of covenant for title, 949 of implied covenant for quiet enjoyment, 950 (3) In replevin [See Eeplevin, Action of, (27) Damages, recovery of.] writ of inquiry to ascertain damages, when granted, 916 (4) In trespass [See Teespass, Action of, (9) Damages m.] (5) In trespass on the case, 335 (6) In trespass vi et armis for the mesne profits, 503 (7) In trover and converswn, 733 DATE OF LEASE. lease valid without date, if there is delivery, 27. 3 DEBT, ACTION OF, 308-315 (1) For rent : origin of, 308 founded on privity of contract, and follows estate, 308 remedy of, passes to grantee of reversion, 308 at common law, heir, or personal representatives could not have, on an- cestor's contract, 309 statutory remedy, 309 in what county action will lie, 310 if brought in wrong county, may be demurred to, 310 when transitory, when local, 311 difference between, and assumpsit, 299 ' and covenant, 308 superseded by action for use and occupation on parol lease, 312 declaration in, 310, 311 need not be on the deed, 310 in the detinet, when, 311 in the debet, or detinet, when, 311 pleas in, 313, 314 non est factum, or nil debet, if rent reserved by deed, 313 under nil debet, payment presumed prior to last receipt, 313 non demisit, riens in arrere, or non tenuit, upon oral lease, 313 eviction, or infancy, 315 statute of limitations, 315, 749 assignment of term, when, 314 (2) On replevin bond [See EEPLEVIN, Action of, (12) Replevin bond and pro- ceedings tliereon.J DECLAEATION. [See the respective action.] (1) In assumpsit : for use and occupation [See Use and Occupation, Action foe, declara- tion in.] for waste, 113. 3, 304 (2) In covenant : for rent, 295 for breach of covenant, 940 (3) In debt: for rent [See Debt, Action of, (1) For Eent, declaration.] on replevin bond [See Eeplevin, Action of, (12) Eeplevin bond and pro- ceedings thereon.] DECLARATION — DISSOLUTION OF TENANCY. 787 [The references are to the paragraphs.] DECLARATION {conHmted). (4) In ejectment [See Ejectment, Action of, (13) Declaration in.] (5) In replevin [See Ebplevin", Action of, (16) Declaration or narr. in.] (6) In trespass, 664 (7) In trespass de bonis asportatis, 664 (8) In trespass on the case, 333 (9) In trespass quare clausum fregit, 664 (10) In trespass vi et armis for the mesne profits, 503 (11) In trover and conversion [See Teovek and Conveesion, Action of, (7) Declaration in.'] " DELAY," PBOSECUTING WITHOUT. meaning of, in replevin bond, page 609, note 3 DELIVEE UP PEEMISES, COVENANT TO. in reasonable good condition and repair, without qualification, compels lessee to rebuild in case of destruction of premises, 1042 does not extend to rebuilding when premises are destroyed by public enemy, 1043 in condition at time of leasing, wear and tear excepted, without covenanting to repair or rebuild, does not bind lessee in New York to put up new build- ing in case of destruction, 1044 with all the appurtenances, consisting of grist-mill, etc., does not bind lessee in Virginia, to rebuild appurtenances, in case of destruction, 1044 DEMAND OF EENT. not necessary as a general rule, prior to distress, 232 exceptions, 232 " DEMISE." in lease, imports on part of lessor, implied covenant for title, 924 " DEMISEEUNT." in lease, imports on part of lessor implied covenant for title, 924 " DEMISI." in lease, imports on part of lessor implied covenant for title, 924 DEPENDENT AND INDEPENDENT COVENANTS. [See Expebss Cove- nants.] DESCEIPTION OF PEEMISES IN LEASE, should be accurate, 27. 7 DETINUE, ACTION OF, 696-700 antiquity and nature of, 697, 698, 776 practically obsolete, 697, 700 cases where it has been held to lie, 699 general conditions as to when it will lie, 699 lies where distrainer refuses tender before impounding, 700 where distress becomes void by subsequent illegal acts, 700 difference between, and replevin, 776 replevin more effectual, and preferable to, 698, 776 DISSOLUTION OF TENANCY, various modes of, 355 788 DISTRESS FOR RENT. [The references are to the paragraphs.] DISTEESS FOR RENT, 115-235 [See Wrongful Distress ; Excessive Distress ; Second Distress ; Fraudu- lent Removal to avoid Distress ; Resistance to Distress.] (1) What is distress, 116 origin and nature of, 117, 118 originally held as a pledge, 126 remedy of, extremely tyrannical, 1112 (2) British statutes in force, 119, 1079 statute of Marlebridge, 52 Hen. Ill, CSi. 4, text of, 1079 (1) of 52 Hen. Ill, Ch. 15, text of, 1079 (2) of 1 and 2 Phil. & M., Ch. 12, text of, 1079 (3) of 17 Chas. II, Ch. 7, text of, 1079 (4) not in force, but from whence act of 1772 was compiled, 1080-1090 i I from § I of 2 Wm. & M., Ch. V, texts of, 1081 II from ? Ill of 2 Wm. & M., Ch. V, texts of, 1082 III from § IV of 2 Wm. & M., Ch. V, texts of, 1083 IV from ? I of 8 Anne, Ch. 18, texts of, 1084 V from § I of 11 Geo. II, Ch. 19, texts of, 1085 VI from ? II of 11 Geo. II, Ch. 19, texts of, 1086 VII from J VIII of 11 Geo. II, Ch. 19, texts of, 1087 VIII from i XII of 11 Geo. II, Ch. 19, 1091 IX from ? XIII of 11 Geo. II, Ch. 19, 1091 X from § XXII of 11 Geo. II, Ch. 19, texts of, 1088 XI from J XXIII of 11 Geo. II, Ch. 19, texts of, 1089 XII probably suggested by § XVI of 11 Geo. n, Ch. 19, texts of, 508, 1092 (3) XIII probably suggested by § XVII of 11 Geo. n, Ch. 19_ texts of, 509, 1092 (3) XIV from gj VI and VII of 8 Anne, Ch. 18, texts of, 1090 not in force, and f;rom whence act of 1721 was not compiled, 1092 ? II of 2 Wm. & M., Ch. 5, text of, 1092 (1) ij II, V, VIII of 8 Anne, Ch. 18, text of, 1092 (2) ii IV-VII, IX-XI, XVI-XXI of 11 Geo. II, Ch. 19, text of, 1092 (3) (3) Acts of Assembly relative to, 120, 121, 122 actofl772, textof, 120 of 1825, text of, 121 in Philadelphia, Pittsburgh, and Allegheny, remedy by, 121, 122 difference between, in England and in Pennsylvania, 1077, 1093-1104 (4) To what demises incident, 117 when and how made, 122, 230, 1163 by whom may be made, 125, 226 when remedy of distress lies, 123 right of, personal, and may be waived, 183 cannot be subrogated or assigned for benefit of another, 182 lessee for years assigning whole term cannot distrain, 194 from year to year, assigning part of term, may distrain, 194 assignee who sub-lets may distrain on possessioner, 195 exists even if note or judgment has been obtained for rent in arrear, 183 DISTRESS FOR RENT. 789 [The references are to the paragraphs.] DISTRESS FOE RENT {continued). (5) Prerequisites in, 124 when demand of rent necessary prior to, 232 rent must be certain to make chattels liable to, 177 what is suificiently certain, 179 what is too uncertain, 178 where it is for produce, distress cannot be for money, 180 payable in advance, if due may be distrained for, 181 when and how cannot be made, 231, 1158 for part of rent at one time and part at another, 227, 1148 for interest on rent in arrear, 228 (6) Requisites of a rightful distress, 1163 (7) Notice of, when given, 120 how served, 189 if distress sold without, distrainer trespasser, 189, 1125-1128 English decisions under, 1081 note 2, page 595 [See Wrongful Distress.] (8) Replevy of, when it should be made, 184 may be made so long as not actually sold, 185, 770 [See Replevin, Action of.] (9) Impounding of, on premises for five days allowed, 184, 1104 even for a reasonable time after five days, 184, 1104, 1124 if tenant objects to, should be removed after reasonable time, 184, 1104 in England, 1103 in Pennsylvania, 1104 out of county, or more tlian three miles, 1129j 1130 in several places, 1131-1133 tender of rent after, 1118-1124 [See Weongful Distkbss.] (10) Appraisement of, may be made sixth day after distress, 184, 190, 1143 if made earlier, distress void and distrainer trespasser, 190 trespass against distrainer, and trover against purchaser, 190 if not made in case of replevy of, 1143 how and by whom made, 120, 185, 1380 sheriff or constable must attend, 185 English decisions under, 1081, page 596, Note 2 (11) Sale of, imperative unless owner of goods intervene, 185, 1098 after appraisement six days' public notice must be given of, 1094 without appraisement and publication distrainer trespasser, 186 difference in, in England and in Pennsylvania, 1093-1098 growing crops, 1099, 1100 English decisions under, 1081, page 596, Note 3 (12) Costs of, varies in different parts of State, 235 includes cost of sustaining cattle, 187 (13) Overplus of, paid to owner, 120, 1379 [See Overplus Pkoceeds of Distress.] (14) Set-off to, [See Set-off against Rent.] 790 DISTRESS FOR RENT. [The references are to the paragraphs.] DISTRESS FOE RENT {continued). (15) Release of. releases surety, 299 [See Sueety, (1) For Bent.l (16) Rescue o/, ■when tenant may make, 233, 234 [See Rescue.] (17) Things absolutely privileged from, 128 1. Things annexed or pertaining to freehold, 128. 1 fixtures, 128. 1, 172. 1 extent of rule as to, 128. 1, 65 criterion of annexation, 65. 3 flowers, shrubs, and trees growing in the soil, 128. 1, 172. 2 the product of them while unsevered, 128. 1 but flowers, etc., planted in pots or tubs, are liable to, 128. 1 so growing corn, grass, hops, roots, fruit, pulse, etc., are liable to, 128. 1-3, 1100, 1102 difference in England and in Pennsylvania, 1099-1102 2. Things left for the purpose of trade or occupation, 128. 2, 1138 animal in a blacksmith's shop to be shod, 128. 2, 1414 (1) at an inn to be fed, 128. 2, 1414 (2) on the premises, for agisting or feeding, 1414 (3), 1416 at a liyery stable to be fed, 1416 not privileged in England, 1415 taken to a mill with grain to be ground, 128. 2, 1414 (4) sent to a butcher to be killed, 1414 (9) chattels sent to a fair, market-house, factor, commission merchant, auc- tioneer, mechanic, etc., to be sold, repaired, or worked up, 128. 2, 1414 (5) sent to a warehouse or wharf to be stored, 128. 2, 1414 (6) in the custody of a carrier, 128. 2, 1414 (7) but the thing that worked or conveyed the chattel is liable to, 128. 2, 1415 of a lodger or boarder at an inn or boarding-house, 128. 2, 1414 (8) with a pawnbroker, 1414 (10) corn and grain at a mill to be ground, 128. 2, 1414 (5) 3. Things of a perishable nature, 128. 3, 172. 4 fresh meat, milk, and perishable fruit, 128. 3 sheaves or cocks of grain and hay, 128. 3, 1102 4. Things in actual use, 128. 4 tools or machines, being used, 128. 4 horse or carriage, being used, 128. 4 wearing apparel, 128. 4 5. Animals, /eras natnrx, 128. 5 cats, deer, dogs, and rabbits included, 128. 5 exception as to animals kept for profit or special purpose, 128. 5 6. Things in the custody of the law, 128. 6 levied upon on execution or foreign attachment, 128. 6, 1419 in hands of receiver, unless he has possession of premises, 128. 6 [See Execution, Goods in.] (18) Things conditionally privileged from, 1. Beasts of the plough, and implements of husbandry, 129. 1 exception as to tenant's cattle feeding upon premises, 129. 1 2. Beasts which improve the soil, at common law, 129. 2 not so in Pennsylvania, 129. 2 DISTRESS FOR RENT — DIVESTING ACT. 791 [The references are to the paragraphs.] DISTRESS FOE RENT {continued). (19) Other things privileged from, chattels of strangers on premises by consent of lessor, 131, 1417 sold, but remaining on premises, 1418 of foreign ambassador, 130, 1429, 1430 exception when engaged in business, 130 of deceased tenant, 133, 1426, 1427 (20) Tilings exempt by statute from, chattels of an insolvent for more than one year's rent, 133, 134 selected and claimed by tenant, his widow, or children, to value of $300, 138, 172. 13, 169 entitled to, even if deceased tenant have waived exemption, 140, 172. 13 (21) Exemption acts, historical sketch of, 132-143 act of 1849, text of, 132 by and against whom it cannot be claimed, 139 by tenant's assignee or sub-tenant, 139. 12 sewing machines of seamstresses, 144 of private families, 145 pianos, melodeons, and organs, leased or hired, 148 (22) Exemption, claim of, under, by tenant, his widow, or children of goods to value of $300, 138, 172. 13 when and how made, 152 if goods be less than $300 tenant may claim all, 153 but cannot claim money from sale of chattels, 153 remedies if officer, after distress, refuses, 154, 1392 when administrator liable for selling exempt goods, 1681 such refusal does not affect purchaser's title, 154 unrecognized sub-tenant or assignee not entitled to, 165 joint or co-tenants out of partnership property no right to, 149, 170. 1 tenant fraudulently concealing property loses right to, 170. 3 non-resident, out of State, not entitled to, 147, 170. 6, 173 a corporation not entitled to, 170. 2, 172. 17 tenants entitled to, summary of, 170 remedies for officer's refusal to allow, 154, 1392 [See Exemption, Claim of.] things privileged or exempt from, summary of, 172 (23) Fraudulent removal of chattels liable to, [See Feaudulent Removal op Chattels to Avoid Distress.] DISTRESS FOE TAXES, act of 1834, text of, 214 goods of occupier of premises liable to, 123. 4, 214, 215, 952 (3) act of 1870, text of, 952 (4) in Philadelphia personal or real property of delinquent owner wherever found liable to, 215, 952 (4) act of 1879, text of, 952 (5) any personal property upon premises liable to, 952 (5) act of 1881, unconstitutional, page 507, note 1 [See Collectoe of Delinquent Taxes; Collectok of Taxes.]' DIVESTING ACT. test of, 11, page 9 [See Tenueb.] 792 DOGS — EASEMENTS. [Tha referenoea are to the paragraphs,] DOGS. seen worrying sheep may be killed, 1279 known to worry sheep, shall be killed, or compensation made for damage done, 1279, 1281 appraisement of damage done by, in certain counties, 1280 appointment and power of appraisers, 1280 payment of damage out of county treasury, 1280 owner of, doing damage, liable in trespass vi et armis, 1281, 1317 joint action lies against owners of several, killing and wounding sheep, 1318 each owner liable for whole damage done by all, 1318 action lies without proof of joint-ownership, when dogs jointly engaged, 1318 seen iu iuclosures with cattle, etc., without owner, may be killed in certain counties, 1282, 1283, 1317 taxation of, and protection of sheep, under act of 1878, 1284 act to be adopted by the several counties by ballot, 1284, page 710 cities may tax, and provide for destroying dogs found at large, 1285 liability of owner of, for trespasses committed, 1319 when entry of, upon stranger's land a trespass, 1319 fierce dogs are nuisances, and party bitten may kill them, 1319 exception as to dog defending master's home, 1319 distrainable for rent, when, 128. 5 DOOES. outer, cannot be broken open to distrain, 1158 may be opened by ordinary means, 1158 when may be broken open to distrain, 1157, 1158 inner, goods fraudulently removed, 1158 when sheriff may break open, iu replevin, 823 DOUBLE OE TEEBLE COSTS, meaning of, 913 DOUBLE OE TEEBLE DAMAGES, meaning of, 666 DEAIN, EIGHT OF. defined, 61. 1 duty and responsibility of beneficiary of, 61. 2 of owners of lands and mines through lands of others, 61. 3 drainage of swampy lands, 61. 3 EASEMENTS. [See the particular easement.'] definition of, 49, 678 pertain to demised premises, and lessee entitled to, 678 principal, 49 other, 62 created by deed, how extinguished, 63 long-continued use when it does not give title to franchise, 52. 4 acquired by prescription measured by mode of enjoyment, 52. 5 EASEMENTS — EJECTMENT, ACTION OF. 793 [The references are to the paragraphs.] EASEMENTS (continued). detention or obstruction of, by landlord, 677-691 tenant's remedy by trespass on the case, 78, 679, 332 (5), 684 recovers damages, but does not supply, 679 by indictment under act of 1860, 78, 680 [See Indictment (4) Foe Obstruction of Easement.] by bill in equity for specific performance, 78, 681-689 [See Specific Pekfokmance, Bill in Equity fob.] by assumpsit, 78, 690 exemplary damages awarded to compel restoration of, 691, 634 disturbance of, by stranger, 1342-1365 landlord's or tenant's remedy, by trespass on the case, 134.5, 332 (5) by a.ssize of nuisance, 1346 [See Assize of Nuisance.] by writ of quod permittat prosternere, 1349 [See Quod Permittat Peostekneee.] by abatement, 1352 ' [See Abatement.] by iujuuctiou, 1357 [See Injunction, Weit of.] "EFFECT," PROSECUTING WITH. in replevin bond, meaning of, 790 means with success, and extends to continued prosecution to end of suit, 790 failure to retiSrn writ after service is not, 790 English decisions construing, page 609, note 2, 4 EFFLUXION OF TIME, DETEEMINATION OF TENANCY BY. where lease for definite term, without notice to quit, 356 tenant holding over, tenant at sufferance, 356 landlord's remedy, by re-entry, with not more than necessary force, 356 liable for trespass to tenant's property, if he commit wanton damage, 356 but not in trespass quare clausum fregit, 356 landlord cannot proceed under act of 1772, or of 1863 without requisite notice to quit, 356 EJECTMENT, ACTION OF, 378-501 [See Ejectment, Amicable Action of; Teespass vi et aemis fob the Mesne Pbofits, Action of.] (1) Sistory of, 379, 446 based on acts of 1806 and 1807, 379, 389, 420 extended to Federal Courts by act of Congress, 379 possessory remedy and mode of trying title, 380 seldom resorted to in landlord and tenant cases, 380 when resorted to, 378, 380 at common law, and equitable ejectment, 381 at common law, effect of two successive verdicts, 382, 393, 397, 398, 424, 428, 429, 446, 447 when equitable, one verdict conclusive, 383, 393, 397, 398, 424, 428, 429, 446 447 (2) Acts of Assembly relative to, synopsis of, 384-415 text of, 416-445 tenant to notify landlord of service of writ or declaration in, 385, 416, 461 landlord may join with tenant as defendant, 385, 416, 461 794 EJECTMENT, ACTION OP. [The references are to the paragraphs.] EJECTMENT, ACTION OF {continued). description of land to be filed, 388, 419 nonsuit against one of several plaintiffs and verdict for the others, 390, 421 to recover vacant land which has been sold for taxes, 391, 422 alias and pluries writs of habere facias possessionem, where defendant re- enters after execution, 392, 423 to recover purchase-money, one verdict conclusive, 394, 425 executors and administrators of deceased creditor may sustain action in their own names, 395, 426 not to abate by assignment, 396, 427 for specific performance of contract to sell vacant land, service in, 399, 430, 402, 433 against non-resident, service in, 400, 431 notice of, to purchaser or mortgagee, 401, 406, 432, 437, 475 when plea may be entered for defendant, 403, 434 rule on adverse party to commence second or third, 407, 412, 438, 443, 466 costs in, in Erie county, 408, 409, 439, 440 judgment in trespass quare clausum f regit e quivalent to judgment in, 410, 441 action for mesne profits not to abate on death of defendant, 411, 442 writ of error to be taken out within a year, 412, 443, 448, 466 rule on purchaser at sheriff's sale, etc., to bring, 414, 445 (3) British statute relating to costs, text of, 415 (4) Nature of, does not abate by death of either party, nor by sale of premises, 459 right of possession must be in plaintiff, 460 notice by tenant to landlord, of writ and declaration, 461, 479 landlord suffered to become co-defendant, 461, 484 when landlord may be party to the record, and when not, 461, 484 when name of tenant may be stricken off, 461 tenant not bound to defend unless indemnified, 461 may set up outstanding lease or life estate, 462 failing to bring suit for two and a half years after dispossession by stranger, held an abandoment of term, 463 judgment confessed by tenant who is a co-defendant, of no effect, 462 against landlord by default without notice, 461 none against defendant until second term, 465, 481 stopped by tender of arrears of rent and costs, 467 (5) Limitation, statute of, relative to, 386. 1, 417 runs against county or municipality, but not against commonwealth, 386. 1,464 applies to all corporeal hereditaments, 386. 1 begins to run upon accruing of right of, 386. 1 suspended by owner's entry, 386 complete and sufficient title may be gained by, 386. 2, 464 what will stop the running of, 386. 3-4 when landlord must prove that he is not barred by, 451 reconveyance necessary after statute has run, 386. 4 relating to certain townships in Luzerne County, and as to titles claimed under State of Connecticut, or the Susquehanna Company, changed, 417 EJECTMENT, ACTION OP. 795 [The references are to the paragraphs.] EJECTMENT, ACTION OF {continued). period of, extended in favor of persons under disabilities, 417 action must be brought within one year after entry, 386 (6) Estrepement, writ of, to stay waste may issue pending, 387, 418 dissolution of, during vacation, by president judges, 413, 444 bond of indemnity required, 404, 435 not in ejectment for specific performance, 405, 436 ISee EsTEEPEMENT, Weit of.] (7) Title requisite to support, 449-454 distinction between, on a legal title, and on an equitable title, 450 landlord can recover on tenancy and ending of term, 451 his title cannot be denied unless unable to prove demise, 451 how far tenant may defend his possession and resist landlord's, 452, 462 landlord must prove possession of tenant, 453 tenant's disclaimer of possession, 454 where plaintiff claims title by twenty-one years' adverse possession, 464 (8) Parties in, in whose favor action will lie, 455 in whose favor action wiU not lie, 456 when action will lie, 457 when action will not lie, 458 (9) Pre-requisiles in, entry not necessary in Pennsylvania, 469 right to enter sufficient, 469 (10) Notice to quit in, when requisite, 470, 472 when not, 471 character of, 471 (2). (4) upon whom served, 473 (1) how served, 473 (3) waiver of, 473 (5). (6) (11) Prsecipe in, 474 what it must contain, 474 when it will stand in place of narr., 474 what may be pleaded in abatement, 474 (12) Writ in, 475 in description should tally with praecipe, 475 if premises occupied by other persons sheriff may add name, 475 service of, how made, 476 when iusufacient and set aside, 477 where action is to enforce specific performance, 430, 478 where action is for unseated land, 433, 478 if served on tenant he must notify landlord, 479, 461 letum of, 480 prima facie evidence of defendant's possession, 480"! possession, question of fact for jury, 480 conclusive of service for purpose of writ of error, 480 (13) Appearance of defendant in, to be entered by second term, 481 plea will be entered by court in default of, 481, 483. 1 796 ACTION OF. [The references are to the paragraphs.] EJECTMENT, ACTION OP {continued). (14) Declaration in, when filed, and what it must contain, 482 notice of, to be given by tenant to landlord, 461 (15) Plea in, not guilty, and when court may enter it, 483. 1 dispenses formal joining of issue, 483. 2 defence of defendant under, 483. 2. 5 separate defence on separate titles, 483. 3 in abatement, 483. 6 (16) Admission of defence in, when landlord may be admitted to defend, 484 admission not proof of tenancy, 484 purchaser of defendant's interest, pendente lite, admitted, 484 (17) Trial in, who begins, 485 (18) Evidence in, 486-494 how far back title must be shown, and whether it must be perfect, 486 when unnecessary to show possession out of commonwealth, 487 how far it is necessary for plaintiff to prove possession, 488 where fraud at sheriff's sale is alleged, 488 intruder in action against plaintiff's ancestor, dying in possession suffi- cient, 489 title out of commonwealth by purchaser at treasurer's sale sufficient, 489 in action by purchaser at sheriff's sale, return ' of writ conclusive as to land levied on, 490 sale under mortgage in loan office, purchaser must produce mortgage and precept, 490 tax books and receipts of payment, when admissible, 491 draft of land and abstract of title, when admissible, 491 verdict and nonsuit against defendant in another suit, when admissible, 492 hurden of proof upon plaintiff denying title under judicial sale, 492 when plaintiff may give defendant's title in evidence, 492 when value of land inadmissible, 492 what evidence of title defendant may give, 493 what he cannot give, 494 (19) Verdict in, 495-499 its form and matter must be sufficiently certain, 495 where prsecipe contains sufficient description, general finding for plaintiff good, 495 costs must accompany verdict, 495 one of several cestuis que trust, suing in name of warrantee, can recover whole tract, 496 tenant in common in sole possession when ousted, recovers only his inter- est, 496 in ejectment for purchase-money, verdict conditional, stating time for payment, 497 effect of failure to perform condition, 497 defendant may tender purchase-money, or ask for conditional verdict, 497 where vendee pays money into court, 497 verdict for nominal damages and costs, 497 EJECTMENT, ACTION OP — EMBLEMENTS. 797 [The references are to the paragraphs.] EJECTMENT, ACTION OF {continued). on sale of land in consideration of labor, vendee has absolute verdict on tender of performance, 498 defence of parol gift will not make verdict for plaintiff conditional, 498 disailirmanee of sales, and as to refunding purchase-money, 498 where plaintiff's title is aliened after suit, what he recovers, 498 effect of prior verdict, 499 co-defendant not in possession, after disclaimer entitled to, 499 for one-half the premises, erroneous ; for undivided half, good, 499 (20) Judgment in, 500 grounded on verdict and effect of difference, 500 where one of several defendants dies before judgment, 500 where one of several defendants confesses judgment and the others con- test, 500 where time is given for payment of purchase-money, 500 where plaintiff in writ includes more land than defendant claims, 500 (21) Execution in, by writ of habere facias possessionem, 501 may contain fieri facias or capias ad satisfaciendum for costs, 501 if sheriff takes too much land, summary restitution ordered, 501 stayed if plaintiff bound in equity to make title to part, 501 when sheriff may break open doors, and call posse comitatus, 501 tenant cannot be dispossessed by, unless he have been served, 501 when new writ may be obtained, 501 when alias and pluries writs, 501 when scire facias becomes necessary, 501 when plaintiff is put to new action, 501 EJECTMENT, AMICABLE ACTION OF, 502 warrant of attorney authorizing, customary in leases, 502 need not be made under seal, 502 cannot be revoked, 502 judgment in, how confessed, 502 effect of, 502 EJECTMENT INDEX. to be kept by prothonatary, 432 when purchaser or mortgagee not affected by notice of ejectment, 401, 432, 475 EMBLEMENTS, 64, 1405-1412 definition of, at common law, 64. 1, 3, 1406 by our Supreme Court, 1407 manure not, 64. 8 derivation of word, 1406 at common law, 64. 1, 1407 by custom of Pennsylvania, 64. 2, 1408 way-going crop, confined to fall grain cut in summer, 64. 2, 1408 includes straw, 64. 2, 1408 whether tenancy be definite or uncertain, 64. 2, 1408 when outgoing tenant entitled to, 1409 under tenancy for years, when land is sown with fall grain, 1409 (1) under uncertain tenancy, determined by act of lessor, 1409 (2) whether notice to quit proceed from lessor or not, 1409 where tenancy determined by act of God, 1409 (3), (2) a where tenancy dissolved by act of law, 1409 (4) 798 emblb'Jients — estate in reversion. [The references are to the paragraphs.] EMBLEMENTS {continued). when outgoing tenant not entitled to, li'*^ under tenancy for years, when land is sown with spring grain, 1410 (1), 64. 2 whether lease be upon money, rent, or shares, 1410 (1) where tenancy determined by act of lessee, 1410 (2) when sub-tenant is not affected, 1410 (2) b cropper not entitled to, 64. 6 free ingress, egress, and regress' to reap and carry away, 1411 exclusive occupation by party entitled to, not allowed, 1411 sale of by lessee, and purchaser's rights, 1411 remedy for detention of, or interference with, by trespass guare dausum fregit, 1412 (1), 662 (3) by trespass on the case, 1412 (2), 332 (5) by trover and conversion, 1412 (3), 727 (1) by replevin, 1412 (4), 778 (1) EMINENT DOMAIN. how it may terminate tenancy, 362 taking of part of premises by, does not extinguish lease, 362. 2 ENCUMBRANCES, COVENANT AGAINST. [See Incumbeances, Covejjajjt Again-st.] ENTEY. not a prerequisite before bringing ejectment, 469 without tenant's consent to rebuild premises destroyed by fire is an eviction, 883 (1) ENTEY AD TEEMINUM PE^SETEEIT, WHIT OF. now practically obsolete in Penni^ylvania, 376 like other real actions, supplanted by ejectment, 376 when it will lie, 377 ENTEY SUE DISSEISIN, ETC., WEIT OF. real action, and lies in Pennsylvania, 1340 cannot be sustained by disseised tenant for years, 1341 EEEOE, WEIT OP. accompanied by affidavit and recognizance, supersedeas in landlord and ten- ant cases, 533 ESTATE IN COMMON, definition of, 13. 4th ESTATE UPON CONDITION. [See Condition, Estate upon.] ESTATE IN COPAECENAEY. definition of, 13. 3d ESTATE IN EXPECTANCY. in remainder or reversion, 17 ESTATE IN JOINT-TENANCY, definition of, 13. 2d in Pennsylvania exists only in trust estates, 13. 2d ESTATE IN POSSESSION, 17 ESTATE IN EEMAINDEE. definition of, 17. 1 ESTATE IN EEVEESION. definition of, 17. 2 ESTATE IN REVERSION — EVIDENCE. 799 [The references are to tlie paragraphs.] ESTATE IN SEVERALTY, definition of, 13. 1st ESTATE IN USE OE TRUST, definition of, 16 ESTOVERS, COMMON OF. defined, 56 ESTREPEMENT, WRIT OP. a preventive remedy where tenant commits waste to freehold, 186 derivation and signification of the word " estrepemeut," 107. 1 issues under act of 1822, when, 107. 2-5 act of 1822, text of, 107. 3 on petition of landlord, purchaser, or mortgagee, or judgment creditor, after inquisition, 107. 5 by associate judge as well as by president judge, 107. 6 during continuance of term, without previous notice to quit, 107. 4 after expiration of term, notice to quit having been given, 107. 4 without previous notice to quit in tenancy for years, 107. 4 after notice to quit in tenancy from year to year, 107. 4-10 when tenant threatens to commit waste, 107. 5 mstarwes of its issuance, summary of, 107. 8 does not issue, when, 107. 5 after tenant has forfeited his term, 107. 5 when waste is committed by stranger, 107. 5 dissolved, how, 187. 6. 11 [See Ejectment, Action of (4) Estrepemeut, writ of.] EVICTION. [See Quiet Enjoyment Implied Covenant foe ; Quiet Enjoy- ment, Express Covenant foe.] defined, 882 (1), 294. 1, 361, 361. 4 by landlord, how it may happen, 361. 2 by stranger, how it may happen, 361. 6 suspends accruing rent, 294. 1, 882 (1), 361. 4 before rent due, excuses payment of accruing rent, 294. 1 from part of premises suspends accruing rent for whole premises, 882 (Ij by paramount title suspends only part of rent, 882 (1) plea of, in covenant, 294. 1 in debt, 315 in ejectment, 882 EVIDENCE. [See the respective action.] (1) Under a^it of 1772, 512 0/1830,267 0/1836,550 of 1863, 589 of 1865, 608 (2) In Ejectment [See Ejectment, Action of, (17) Evidence in.] (3) In Replevin [See Replevin, Action op (22) Evidence on part of plaintiff in replevin of distress for rent. (23) Evidence on part of defendant in replevin of distress for rent. (24) Evidence on part of plaintiff in replevin founded on right of property, (25) Evidence on part of defendant in replevin founded on right of property.] none admitted to contradict sheriff's return of writ. 783, 894 800 EXCESSIVE DISTRESS FOE RENT — EXECUTION, GOODS IN. [The references are to the paragraphs.] EXCESSIVE DISTRESS FOE RENT. (1) Distress for more rent than due ; remedies for, 82. 6, page 65 by trespass on the case at common law, 1110, 332 (12) though distress be less than rent due, 1110 distress after tender, makes distrainer liable for, 1110 distrainer not liable in trespass for, 1107 by trespass on the case, under 52 Senry III, 1107 damages against landlord without proof of malice or want of cause, 1108 damages against constable, 1108 count, under statute, may be abandone'd, and trover substituted, 1109 by trover and conversion, Tin (8), 1109 when count of trover may be added under 52 Henry III, 1109 count under statute may be abandoned at trial, llOt when no rent due, trover cannot be joined with trespass, liu9 by replevin, 778 (10) (2) Distress on more chattels than necessary : extremely tyrannical, and should be restrained, 1112 breach of Mosaic precept, 1112 when excessive distress is justifiable, 1112 every trifling excess does not make excessive distress, 1113 question for jury whether distress is excessive or not, 1113 distress disproportionate to an excess of rent due makes, 1113 remedies for, 82. 7, page 65 by trespass quare claiisum fregit, 1115, G6Q (10) where distress is obviously excessive, 1115 where excessive distress is abused, 1115 where distrainer turns tenant's family out of possession, 1115 by trespass on the case under 52 Henry III, 1111 by replevin, 778 (11) after judgment in replevin, action for, cannot be maintained, 1117 what plaintiff recovers, 1114 in case of taking growing crops in two fields, 1114 lodger or boarder may maintain action for, 1116 tenant liable to stranger when the latter's goods are seized for former's rent, 1116 right to action for, personal and does not pass to assignees, etc., 1117 recovery of surplus realized from sale of, no bar to an action for, 1117 EXECUTION. [See the respective action ; Execution, Goods in.] (1) In Ejectment [See Ejectment, Action op, (20) Execution in.] (2) In Replevin [See Eeplevin, Action op, (30) Execution ire.] EXECUTION, GOODS IN. how right of distress is affected by, 198, 231 (13) officer making levy liable in trespass, 1136 act of 1772, ? IV, text of, 198 compared with the statute of 8 Anne, § I, 1084 English decisions under 8 Anne, § I, 1084 of 1836, text of, 199 by constable, though after attachment, within act, 200 effect of act, 201 EXECUTION, GOODS IN — EXEMPTION, CLAIM OF. 801 [The references are to the paragraph.-.] EXECUTION, GOODS IN {continued). landlord entitled to claim a year's rent from sale of, 198, 199, 1137, 1387 right depends npon power to distrain, 204 exception, 200 how right to claim lost, 204, 206, 212 proceedings on, not stayed without landlord's consent, 200 rent, payable in advance, may he claimed from sale of, 202 due by tenant may be claimed from sale of sub-tenants, 203 by sub-tenant to tenant, may be claimed from sale of his, 203 by assignee to tenant cannot be claimed, 203 may be claimed to day of levy, 204 to last levy, if more than one levy of, 204, 1137 but not to day of sale of, 204 from sheriff for using premises between levy and sale, 204 not confined to the current year, 207, 1137 claim for, when made to sheriff, 208, 1389 how sheriff compelled to pay, 211, 1390 how far preferred to costs, 199, 209 out of proceeds of sale of, 198, 199 taxes, cannot be claimed by landlord, from sale of tenants, 210 not subject to replevin, 736 (3) EXECUTOES OE ADMINISTEATOES. lease by executor when voidable, 30. 6 by administrator upon order of court, 30. 7 rent, when payable to, 44, 27. 6 by, 45 suits by, and against not to abate by death, etc., 752 actions by executors and testamentary trustees not to abate by death, etc., 757 administrator who distrains and sells exempt goods personally liable, 168 EXEMPTION, CLAIM OF. [See Distkess foe Eent, (20) Exemption, Claim o/.] history of exemption acts, 132, 135-138 (1) Under act of 1849, 138 property to the value of $300 exempted, 138 by and against whom privileges cannot be claimed, 139 how interpreted, 169 unmarried defendant is entitled to, 169 (2) Under act of 1850, 140 applies to widow and children of insolvent, 140 when claim should be made, 161 (3) Under act of 1851, 140 applies to widow and children of any decedent, 140 preferred to all claims except for purchase-money, 155 may claim independent of share under intestate laws, 140 against mechanics' liens, 140, 151 whether decedent has waived it or not, 115 when claim should be made, 161 (4) Under act of 1859, 142 widow or children may elect money, etc., 116 51 802 EXEMPTION, CLAIM OP — EXPRESS COVENANTS. [The references are to the paragraphs.] EXEMPTION, CLAIM OF {continued). (5) Under act of 1865, 143 widow or childreii may elect realty, 143 conveyances from them passes good title, 143 how made and proceedings under, 143 when may be made out of realty, 149 may be waived by debtor, 151 effect of waiver of, 151, 157 oral agreement to waive, void if without consideration, 151 cannot be assigned, 151 standing of, 156 where realty is under execution when debtor must m&ke, 157 remedy for officers refusal to allow, 154, 1389 appraisement of^ 138, 157 when it may be set aside, 158 remedy against officer for refusal to make, 159 how debtor must make, 162, 163 when cannot be made a second time, 167 forfeiture of right to, 162, 163 when and by whom may be made, 163, 164, 166, 170 by whom cannot be made, 170, 171 EXPECTANCY, ESTATE IN. in remainder or reversion, 17 EXPRESS COVENANTS, definition of, 968 termed covenants in deed, 930 distinction between, and implied covenants, 930 covenantor and covenantee, 968 no particular technical language necessary to make, 968 language importing agreement or promise alone essential, 968 may be in any part of lease, 968, 975 may be in forjn of condition, provision, exception, restriction, lecital, or license, 968 covenants implied by construction from words of letting are, 968 construction of, 969 more strictly construed than implied, 969 law will not raise implied covenants where there are, 970 control implied, 970 continue to end of term granted, binding representatives of lessor, 971 joint or several, 972 construction of, 972 right of action depends upon quality of interest of covenantees, 972 liability of covenantors determined by language of, 973 examples of, 973 dependent and independent ; precedent or subseqnmt, 974 construction of, 974, 975 as independent, rather than as dependent, 975 precedency of covenant, 974 mutual covenant, 974 independent covenant, 974 either real or personal, 976. [See Covenants Ednning with the Land ; Covenants Running with the Re version ; Peksonal Covenants; Covenants not Running with the Land.] EXPRESS COVENANTS — FENCES, 803 [The references are to the paragraphs.] EXPEESS COVENANTS (coniinued). instances of, on the part of the lessor, running with land and reversion, 891 on the part of the lessee, runnimg witli tLe land and reversion, 993 when void, S98 how discharged or suspejjded, 999 r, FEES. [See Costs.] FENCES. [See Counties ; Steays ; Partition Fekces.] in England, need not inclose land to keep wandering animals ont, 1176 in Pennsylvania, lawful fences must inclose land to keep wandering auimalB out, 1177 party injuring strays for damage done on stccount of land not heing in- closed by sufficient fences liable to owner of strays, 1288 trespass lies, if fences lawful, for damage done by strays, 1174 if fences neigkborly and sufficient to keep out cattle not hreacTiy, 1178 if fences sufficient to protect crops from orderly cattle, 1178 lawful, 5 feet high, etc., around improved land, by act of 1700, 1182, 1287 act of 1700 does not apply to unimproved land, 1290 history of modification of acts of 1700, 1729, and 1784, touching lawful fences in different counties, 1183-1199 risum^ of what are lawful fences, in various parts of State, 1200 in Alleghany, 4i feet high, etc., by act of 1808, 1221 Cumberland, 4i feet high, etc., by act of 1821, 1237 Erie, 4i feet high, etc., by act of 1857, 1552 Fayette, except in boroughs of Uniontown, Connellsville, Boonsville, and Bridgeport, 4i feet high, etc., by act of 1820, 1236 Juniata, in township of Lack, 4i feet high, etc., by act of 1871, 1275 McKean,6 feet high, etc., by acts of 1700, and 1729, 1182, 1204 Perry, 4J feet high, etc., by act of 1821, 1237 Philadelphia, in rural parts, 4i feet high, etc., and partition fences in built up parts of city, 6 feet high, by act of 1862, 1258 Potter, 5 feet high, etc., by acts of 1700, and 1729, 1182, 1204 Washington, 4i feet high, etc., by act of 1808, 1221 in all other parts of State, 5 feet high, etc., by act of 1700, 1182 protruding into Schuylkill feiver, 1212 viewers of, appointment and duties of, under act of 1700, 1182 quorum and compensation of, 1225 township auditors to act as, 1242 borough auditors to act aa, 1245 board of surveyors in Philadelphia to act as, 1258 as to delinquents in repairing, 1263 building inspectors in Philadelphia, to act as, 1273 school directors in Pittsburgh, to act as, 1243 in Doylestown, to act as, 1244 malicious injury to, punishment of, 1247, 1264 railroad companies to keep up, in Bradford County, 1271 in Centre County, 1269 in Erie County, 1265, 1270 in McKean County, 1271 in Venango County, 1271 in Warren County, 1266 tenant to keep up, 964 (5) landlord not bound to keep up, 963 (4) 804 FENCES — FORCIBLE DETAINER. [The references are to the paragraphs.] FENCES {continued). live, in Erie County, 1267 {See Live Fences.] partition [See Paktition Fences.] FEUDAL TITLES. [See Tenuee.] FIEE. [See Accident.] FITNESS OF PREMISES. [See Waeeanty of Fitness op Peemibes.] FIXTURES. defined, 65. 1 kinds of, 65. 2 what fixtures may be removed by the tenant, 65. 3. 6 depends upon criterion of annexation, 65. 3. 4 what fixtures cannot be removed by the tenant, 65. 5 gas-fixtures personal property, and pass not by sale of real estate, 65. 6 right of removal of, exists only during term and occupancy, 65. 7 applies to lessee of tenant for life ; remainder-man not bound by their agreement, 65. 7 lost by forfeiture, or surrender of lease, 65. 7 erected for trade purposes, may be seized for tenant's debts, 65. 8 attached to, or temporarily detached from premises, privileged from distress, 128. 1, 231 (5) remedies for distraining, 82. 11, page 66 by trespass quare clausum fregit, 662 (14) by trespass on the case, 332 (16) by trover and conversion, 727 1.21) by detinue, 700 by replevin, 778 (15) by rescue, 233 (7) severed from realty by trespasser or wrong-doer, may be replevied, 778 (49) FORCIBLE DETAINEE. [See Adveese Title.] (1) By Tenant against Landloed : defined, 618, 623 distinct from forcible entry, 619, 622 act of 1860 supersedes acts of 1700 and 1810, and British statutes, 242, 621 decisions prior to act of 1860, 623 • remedies by landlord against tenant for, 74 by Indictment under act of 1860, 618 what it must set forth, 624 estate of prosecutor must be averred, 622 restitution when tenant has legal rights to possession, which must be aveiTed in indictment, 244 will not lie when tenant uses no more force than necessary to main- tain his rightful possession, 244 prosecutor may testify, by act of 1879, 620 by ejectment for recovery of premises, 625 (2) By Landloed against Tenant : defined, 669, 670 remedies by tenant against landlord for, 77 by indictment under act of 1860, 671 by trespass on the case for recovery of damages, 673 by ejectment for recovery of premises, 673 by covenant for recovery of damages, 674 by assumpsit for use and occupation, where there is an oral lease, 676 I'OECIBLE ENTRY — FORFEITURE OP THE TERM. 805 [The references are to the paragraphs.] FORCIBLE ENTRY. [See Foecible Detainee.] defined, 241, 628 violence in entering must amount to breach of the peace, 244 one forcibly breaking openi the door of his own property forcibly detained from him by claimant of bare custody of it, is not guilty of, 623 British statutes relative to, 242 acts of 1700 and 1810, 242 statutes and acts supplied by act of 1860, 243 difference between, and forcible detainer, 619, 622, 623 defendant in, may be convicted of one, and acquitted of other, 619, 243 for non-payment of rent unlawful, 241 for what purposes landlord retains right of entry during tenancy, 627 possession of prosecutor must be quiet and actual, 244 remedies by tenant against landlord for, 76 by tenant in common against co-tenant, 244 after expiration of tenancy, landlord liable to indictment for, 244 but not to trespass or ejectment, 244 prosecution before magistrate, 245 by indictment under act of 1860, 629 prosecutor may testify by act of 1879, 630 restitution when tenant has legal right to possession, which must be averred in indictment, 244 by trespass for recovery of damages, 631 FOEEIGlSr AMBASSADOR. governed by laws of his own country, 1431 chattels of, exempt from distress by act of Congress, 1430 text of act of Congress, 1430 remedies against distrainer, 1432 FORFEITURE OF THE TEEM, tenancy may terminate by, 358 how it occurs, 358 by breach of condition, expressed or implied in lease, 358 at common law, only lessor, his heir or executor, could re-enter upon, 358. 1 where limitation was affixed remainder-man might re-enter upon, 358. 1 under statute 32 Henry VIII, assignee of reversion may re-enter upon, 358. 1 ■who may enter for condition broken, 358. 1. 2 conditions that work, not favorites of the law, 358. 3 subsequent recognition of -tenancy cannot set up, 358. 4 when lessor may re-enter upon, 358. 4 waiver of, by lessor : when optional, 358. 4 by acceptance of rent, when, 358. 5. 6 mere knowledge of breach and failure to act does not amount to, 358. 4 exception where lessee permitted to make improvements after breach, 358. 4 in England by distraining for rent, otherwise in Pennsylvania, 358. 6 if condition single, discharged by one waiver, 358. 7 continuous, waiver only discharges particular breach, 358. 7 tenant's right to remove fixtures lost by, 65. 7 courts may grant relief against, 358. 8 806 FRAUDULENT REMOVAL OF CHATTELS, ETC. — "GRANT." [The references are to the paragraphs.] FEAUDULENT REMOVAL OF CHATTELS TO AVOID DISTRESS, 174-176, 319-326 ■what is, 175, 319 (1) Under act of 1772, text of, 320 compared with, statute 11 Geo. II, 1085 English decisions under, 1085 before rent due (excepting in Philadelphia, Pittsburg, and Alleghany), tenant may make, 175, 322 and landlord cannot follow and distrain, 175, 322 after rent due tenant cannot make, 175, 322 landlord may follow and distrain for thirty daj's after, 174, 321, 1437 whose goods he may so seize, 175, 321 ■when he may distrain on high^way or wheresoever found, 175, 321 ■when he becomes trespasser on premises of stranger, 175, 321, 1438 stranger's remedy against landlord, 1424 (2) Under act of 1825, text of, 320 before rent due in Philadelphia, Pittsburg, and Alleghany, landlord may follo^w and distrain for thirty days after, 175, 320, 326 landlord's afBdavit necessary, 176, 323, 324 distinction between, and act of 1772, 324, 326 procedure, 324, 325 FRUIT. trees, trespass for damaging, 1331 remedies, 84. 3 not subject to distress, 128. 1. 231 (6.) FURNISHED HOUSE. in England implied to be reasonably fit for habitation, 963 (1) FURTHER ASSURANCE, COVENANT FOR, 1023-1027 what is, 1023 runs with the land, 1024, 991 (2) its effect, 1025 when specific performance may be enforced, 1026 remedies for breach of, 1027 &. GAMBLING INSTRUMENTS. [See Gaming, Device ok Machine Used foe.] GAMING, DEVICE OR MACHINE USED FOR. when seized cannot be replevied, 736 (6), 759 GAS FIXTURES, not permanently detached from freehold, privileged from distress, 128. 1 personal property, and pass not by sale of real estate, 65. 6 "GOODS" AND "CHATTELS.'' signification of, 768 may be let and action for rent maintained, but not distress, 35. 3 lease of, does not raise covenant for quiet enjoyment, 928 and house should contain schedule of goods, 928 covenant to redeliver goods at end of term, 928 GOODS IN EXECUTION. [See Execution, Goods in.] "GRANT." in lease, imports on part of lessor implied covenant for title, 924 GROUND -RENTS — HOLDING OVER. 807 [The references are to the paragraphs.] GEOUND-EENTS. rents-service according to Ingersoll v. Sergeant, 241, page 10 GUAEDIAN. lease by, 30. 10 appeal by, where party to a suit, 258 H. s HABENDUM. in a lease, office of, 34. 1 ascertains commencement, 34. 1 when term begins and ends in lease for years, 34. 2 in lease from date anterior or posterior to date of lease, 34. 3 HEIE. when rent payable to heir of lessor, 27. 6, 44 rent reserved in part of produce passes to heir, when, 64. 5 to purchaser at Orphans' Court sale, when, 64. 5 HIGHWAY, DISTEESS ON, 1134 HIGHWAY, IMPOUNDING ON". [See Distress fob Eent, (9) Impounding of] HOLDING OVEE. (1) In tenancy for years, or certain definite period : tenant becomes a mere tenant ' at sufferance, 356 [See Sufferance, Tenant at.] landlord may dispossess tenant with no more force than necessary, 356, 375 by entering peaceably not liable in trespass, nor to indictment for forcible entry, 373, 375 (1st) if landlord commit wanton damage, liable for trespass to personal property, but not in trespass quare clausum f regit, 356 by entering forcibly liable to indictment for forcible entry, but if legally entitled to possession tenant cannot recover possession, 373, 375 (2d) may recover possession under act of 1772 [See Act of 1772, etc.] may obtain possession under act of 1863 [See Act of 1863, etc.] cannot avail himself of act of 1772 or 1863 without requisite pre- vious notice to quit, 356 may maintain ejectment without previous notice to quit, 356 (2) In tenancy from year to year : tenant justifiable in, until three months' notice to quit be given before end of current year, 518 (3) Where landlord's reversion has been sold under judgment antedating lease : tenant becomes a tenant at will after notification of purchaser's election to determine tenancy, 565 [See Will, Tenant at.] tenant becomes tenant at sufferance before notification of purchaser's elec- tion to determine tenancy, 563 [See Sufferance, Tenant at.] purchaser may maintain action for use and occupation, 566 may obtain possession under act of 1836 [See Act op 1836,. Summary Proceedings under, etc.] may obtain possession by ejectment, 365. 2 [See Ejectment, Action of.] may enter peaceably after receiving his deed, 365. 2, 372 808 HOLDING OVER — IMPLIED COVENANTS. [The references are to the paragraphs.] HOLDING OVEE {continued). (4) Where deceased landlord's reversion has been sold at Orphans' Court sale: unlawfully, by former tenant not an eviction by good title, 926 HOES DE SON FEE, PLEA OF, 886 (14), (37) ; 867, 887 when plaintiff in replevin may make, in bar of avowry or cognizance, 887 throws burden of proof upon defendant that distress was made on premises, 887 HOESE-EACING. in Philadelphia, horses seized and sold for, cannot be replevied, 736 (5), 755 HTJSBANDEY. implements of, when privileged from distress, 128. 1 good husbandry implied on part of tenant, 964 (3) covenant for, runs with the land, 992 (11) bad husbandry does not deprive tenant of right to way-going crop, 64. 4, 1409 (2) « - . assumpsit lies for breach of implied contract for good husbandry, 302 (10) I. IMPLIED COVENANTS, defined, 924 termed covenants in law, 930 as binding as if expressed in most unequivocal terms, 930 determine with estate out of which lease is granted, 931 confined to covenantor during continuance of estate, and not binding on per- sonal representatives after decease, 931 follow the nature of the estate, 932 distinction between, and express covenants, 930 for title, raised by what words of leasing, 924 in an oral lease, 925 raised from general intent of parties, 926 of power to demise, raised by agreement to let, 926 for quiet enjoyment, not raised by mere agreement for a lease, 926 to deliver possession, when not implied, 926 how affected by express covenants, 927, 970 relate to lease of real property only, 928 do not extend to thing not in esse at letting, 929 run with the land, 933 [See Covenants Eunning with the Land.] On the part of the landlord: for quiet enjoyment [See Quiet Enjoyment, Implied Covenant for.] payment of taxes, 951 [See Taxes, Implied Covenant for Payment of.] On the part of the tenant : not to commit waste, 964 (1) [See Waste, Implied Covenant not to Com- mit.] to use premises in tenantable manner, 964 (2) for good husbandry, 964 (3) [See Husbandry.] to make ordinary and tenantable repairs, 964 (4) [See Eepaie, Implied Covenant to ; Eepairs in Absence of Stipulation.] to keep up fences, 964 (5) [See Fences.] to work quarry, 964 (6) [See Mines.] IMPLIED COVENANTS INDICTMENT. 809 [The references are to the paragraphs.] IMPLIED COVENANTS (continued). Not implied on the part of the landlord : that premises are tenantable, 963 (1) [See Wakeanty of Fitness of Pbem- ISES.] that premises will continue tcnantahle, 963 (2) [See Waebakty of Fitness OP Premises.] to Iceep in repair, 963 (3) [See Eepaik, Implied Covenant to.] to keep up tlie fences, 963 (4) [See Fences.] to rebuild premises, 963 (5) [See Eebuilding of Pkemises.] Not implied on the part of the tenant : to make extraordinary repairs, 965 (1) [See Eepaik, Implied Covenant to ; Eepairs in Absence of Stipulation.] to rebuild, 965 (2) [See Eestjild, Covenant to,] IMPOUNDING. [See Distress foe Eent, (12) Impounding of.} INCUMBEANCES, COVENANT AGAINST, 1015-1022 character and recovery thereunder, 1015 in prsssenti, or in future, 1017 what amounts to a breach of, 1016 outstanding incumbrance, a breach before eviction, 1016 the rule of damages, 1016, 1021 liability of lessor under, 1017 what constitutes an incumbrance, 1018 instances of incumbrances between vendor and vendee, 1019 of no incumbrances between vendor and vendee, 1020 does not run with the land, 1021 but breach before assignment passes right under, to assignee, 1021 remedies for breach of, 1023 INDICTMENT. procedure preliminary to, 339 how found, 339 when offender discharged on bail or set at liberty, 340 none possible after two years after committal of offence, 340 acts of Assembly relative to, to be strictly pursued, 341 common-law remedy abrogated, and indictment and sentence must follow act, 341 (1) For forcible detainer, 618 [See Forcible Detainer.] (2) For forcible entry, 629 [See Forcible Entry.] (3) For forcibly resisting a distress, 336 does not lie unless there was an assault, 336 what constitutes an assault, 336 resisting or ejecting distrainer is an assault, though a bailiff dis- train on oral authority, 338 penalty by act of 1860 ; text of act, 337 provisions of act embrace every legal process, 337 (4) For nuisances near demised premises, 1375 [See Nuisance.] under act of 1860 ; text of act, 1375 for keeping disorderly house, 1375 for maintaining bawdy house knowingly, or leasing premises for such purposes, 1375 for setting up or maintaining public or common nuisance, 1375 (5) For nuisance on demised prtmises, 1401 (5) [See NuiSANCB.] 810 INDICTMENT — INTEREST. [The references are to the paragraphs.] INDICTMENT (conUnued). (6) For obstruction of easement, 680 [See Easement.] under act of 1860 ; text of act, 680 upon conviction court may order abatement of obstruction, 680 (7) For officer's failure to pa/y over surplus, 1382 under act of 1820 ; tf xt of act, 1382 if constable induced to do his duty by promise of reward, such promise is without consideration, 1383 (8) For ouster, 1336 (1) [See Ouster.] (9) For trespasses committed on premises, 1321-1332 INJUNCTION, WEIT OF. in England issues out of Court of Chancery, 1358 antiquity and origin of, 1358 in Pennsylvania issues out of Courts of Common Pleas, 1359 out of Supreme Court, when corporation party defend- ant, 1359 jurisdiction of Supreme Court does not affect concurrent jurisdiction of Com- mon Pleas, 1359 a prohibitory writ, specially prayed for by bill in equity, 1360 preliminary or interlocutory and perpetual, 1364 prevents or restrains commission of acts contrary to equity or law, 1360, 1363 does not issue where plaintiff has full, complete, and adequate remedy at law, 1363 but issues where remedy at law is doubtful, 1333 a writ of grace, not of right, 1360 security for damages, condition precedent to issuance of, 1360 not necessary where commonwealth, county, or city is complainant, 1361 in Philadelphia will not issue to restrain erection of public works, 1361 where granted, appeal to Supreme Court allowed, 1362 issues to restrain obstruction of right of way, when, 1365 to restrain interference with easement, when, 1365 to abate or restrain nuisances, when, 1365, 1377 to stay tenant from committing waste when damage is irreparable, 108. 1. 2 INN. [See Boaeder or Lodger.] animal left at, to be fed, privileged from distress, 1414 (^ INQUIRY, WEIT OF. (1) III replevin of distress for rent : awarded to inquire damages where goods are returned to plaintiff, 903 on judgment on demurrer for plaintiff, 916 not awarded where jury fails to find rent and value of goods, 900 need not issue where verdict for defendant ascertains rent and value of goods, 900, 919 (2) In trespass : when damages awarded on, 666 INTEREST. accrues on rent from time it is due, 41. 2 on rent cannot be included in distress for rent, 288 JOINT OR SEVERAL COVENANTS — JUSTICES OF PEACE. 811 [The references are to the paragraphs.] J. JOINT OE SEVERAL COVENANTS. [See Expeess Covenants.] JOINT TENANCY, ESTATE IN. definition of, 13. 2d when it exists in Pennsylvania, 13. 2d JOINT-TENANT. [See Co-Tenant.] JUDGMENT. [See the respective action.] (1) Under act of 1772 : in default of tenant's appearance, 527 one judgment concludes tenant, but not landlord, 528 how far subject to review, 528 of 1825, 252 of 1830, 271 [See Act op 1830, etc., judgment] of 1836, 554 of 1863, 590-593 [See Act of 1836, etc.] (2) In as^impsit : for breach of contract, 937 (3) for use and occupation, 307 for waste, 113. 4 (3) In covenant : by landlord, 296 by tenant upon breach of implied covenant for quiet enjoyment [See Quiet Enjoyment, Implied Covenant poe, damages.] (4) lit ejectment, 500 [See Ejectment, Action of, (20) judgment in.] (5) In replevin [See Replevin, Action op, (29) judgment in.] (6) In trespass [See Teespass, Action of, (10) judgment in.] (7) In trespass on the case, 335 (8) In trover and conversion, 733 JUSTICES OF THE PEACE. (1) Proceedings tefore : under act of 1772, for recovery of possession where tenant holds over [See Act op 1772, etc.] of 1824, for timber cutting, 114. 4. 5 of 1825, for recovery of possession where tenant removes in Philadel- phia [See Act of 1825, etc.] of 1830, for recovery of possession for non-payment of rent [See Act of 1830, etc. ] of 1836, for obtaining possession where landlord's reversion is sold [See Act op 1836, etc.] of 1849, for obtaining possession upon sale of landlord's reversion at Orphans' Court sale [See Act of 1849, etc.] of 1863, for recovering possession at expiration of term [See Act OP 1863, etc.] of 1865, for recovery of possession in Philadelphia on lost lease [See Act of 1865, etc.] (2) Jurisdiction of: in case of death or disability of, 260 in cases of rent or set-off not exceeding $100, 216, 221-223 812 JUSTICES OF THE PEACE — LEASE. [The references are to the paragraphs ] JUSTICES OP THE PEACE {continued). (2.) Jurisdiction of: except in cities of first class, in all actions arising from contract, and all ac- tions of trespass and of trover and conversion, where sum demanded does not exceed $300, 656, 726 in actions of debt under replevin bond, when, 799 In cases of strays, 1300, 1311 [See Stkays.] in cases preliminary to indictment, 339 [See Indictment.] none, in actions of ejectment, replevin, slander, on real contracts for sale of land, for damages in assault, 754 in trespass on the case, 329 I.. LANDLORD AND TENANT, EELATION OF. [See Tenancy.] LANDLORD'S EEVEESION, SALE OF. [See Sale op Landlord's Eevebsion AT Sheriff's ok Coeonek's Sale; Sale of Deceased Landloed's ' Eevebsion at Oephans' Couet Sale.] LEASE. definition of, 21 parties to, 22 landlord or lessor, 22 tenant or lessee, 22 assignee, 22 [See Assignee.] sub-tenant, 22 [See Sub-tenant.] difference between, and agreement to lease, 23 [See Agreement to Lease.] requisites to valid, 24 for years should have certain commencement and certain determination, 24. 5th for over three years must be in writing, otherwise tenancy at will created, 24. 7th [See Will, Tenant at.] but possession and payment of rent under oral lease for over three years creates tenancy from year to year, 24. 7th [See Tenant feom Yeae TO Yeae.] for over twenty-one years must be in writing and recorded, 24. 7th. assignment of, should be in writing, 25 [See Assignment.] surrender of, when may be orally, or by abandonment of premises, 25 [See Surrender.] mortgaged, when, 26 made, how, 27 written or printed on paper or parchment, 27. 2 not on leather, linen, or other substances, 27. 2 no particular form of words necessary, 31 date of, 27. 3 [See Date of Lease.] names of parties iu, 27. 4 [See Names of Parties to a Lease.] rent reserved in money not essential to, 27. 5 some consideration should be expressed or implied, 27. 5 [See Eent.] description of premises important in, 27. 7 seal of, may be of wax, wafer, or scroll, 27. 8 delivery of, 27. 9 who may make, 30 LEASE — LIGHT, RIGHT OF. 813 [The references are to the paragraphs.] LEASE (continued). by administrator, 30. 7 [See EXECtJTOKS OK Administeatoes.] agent, 30. 12 [See Agent.] alien, 30. 5 [See Alien.] corporation, 30. 4 [S«e Coepokation.] executor, 30. 6 [See Executoes oe Administeatoes.] guardian, 30. 10 [See Guaedian.] lunatic, 30. 2 [See Lunatic] married woman, 30. 2. 3 [See Maeeied Woman.] minors, 30. 2 [See MiNOES.] mortgagee, 30. 8 [See Moetqagee.] trtisiee, 30. 9 [See Teusteb.] formal parts of, 32 premises of, 33 [See Peemises.] habendum of, 34 [See Habendum.] reddendum, of, 35 [See Eeddendttm.] ( covenants of, 36 [See Covenants ; Implied CoVENiTNTS ; Expeess Cov- enants; Covenants not Eunning with the Land; Covenants EUNNINQ with the LAND.] conditions of, 37 [See Conditions.] conclusion of, 37. u, rent in [See Ebnt.] waiver of exemption in, 36. 12 [See Exemption, Claim oe.] warrant of attorney authorizing amicable ejectment, when, 36. 12 schedule of goods, when advisable to affix to, 928 by joint tenant raises joint implied covenants, 932 lost [See Act of 1865, etc.] " LEASE." in lease, imports implied covenant for title, 924 equivalent to Latin word " demisi," 675 LEASING ON SHAEES [See Shaees, Land Let on.] "LET." in lease, imports implied covenants for title, 924 LESSOE'S TITLE. how lessee may protect himself against, 1006. LIEN. of wages on debtor's real estate, how obtained, 146 LIFE, TENANT FOE. estate of, how determined, 364. 1 LIGHT, EIGHT OF. exists in England, when, 55. 1 doctrine of, in England, 55. 2 does not exist in Pennsylvania, 55. 2 by grant or reservation, not by prescription, 55. 2 obstruction of lessee's windows by erection of party-waU by third person not an eviction, 55. 2 twenty-one years' adverse usage does not give, 55. S 814 LIMITATIONS, STATUTE OP — MESNE PROFITS. [The references are to the paragraphs.] LIMITATIONS, STATUTE OF. in debt for rent reserved by parol runs in six years, 41. 3, 749 for arrearages of quit-claims excepted, 749 detinue runs in six years, 749 distress for rent does not run, 872 (8) ejectment [See Ejectment, Action of, (3) Limitation, Statute of.] replevin, writ must issue within six years from unjust detention, 749, 769 may be pleaded in bar where action is founded on right of property, 848 (8) trespass runs in six years, 749 trover and conversion runs in six years, 749 LIVE FENCES. in Erie Ctounty, 1267 LIVE STOCK. progeny of, born during term becomes tenant's property, 35. 3 tenant not liable for destruction of, by death or by act of God, 35. 3 LIVEEY STABLE. horse standing at, privileged from distress, 1416 not in England, 1415 LODGEE. [See Boaedee oe Lodoeb.] LOST LEASE. recovery of possession in Philadelphia on [See Act of 1865, etc.] LUNATIC. lease by or to, voidable, 30. 2 M. MAGISTEATE IN PHILADELPHIA. substituted for aldermen, 247, 511, 582, 587 ex officio justice of peace, 247, 587 [See Justices of the Peace.] MANUEE. agricultural tenant cannot remove, 64. 8 removal of, by tenant from demised premises is waste, 105 injunction to prevent removal may issue, 105, 685 (9) MAEEIED WOMAN. lease by, without joinder, of husband void, 30. 2 made valid by accepting rent after becoming widow, 30. 8 must contain separate acknowledgment, 27. 11, 30. 2 lease to, valid, 30. 3 suit by feme sole not to abate upon marriage, 756 MEECEE COUNTY. proceedings in, to dispossess tenant for non-fulfilment of services reserved in lease, 262 MEEGEE. defined, 360 in tenancies for years, from year to year, or for life, 360. 1 when leasehold estate will not merge, 360. 2 MESNE PEOPITS. [See Teespass vi et Aemis foe the Mesne Profits.] MINES — NOTICE TO QUIT. 815 [The references are to the paragraphs.] MINES. in lease of, no implied covenant of veins of minerals arises, 963 (1) covenant to work quarry when implied, 287, 964 (6) working of, already opened is not waste, 104 working to exhaustion mines authorized by lease is not waste, 104 MINOE. lease hy or to, voidable, 30. 2 MONTH TO MONTH, TENANT FEOM. in England notice to quit is one month, 357. 6 in Pennsylvania, query, 357. 7, see Note 2, page 213 MOETGAGE. lease for years of colliery, mining lands, etc., may be mortgaged, 26 MOETGAGEE. may lease when in possession and authorized by mortgage, 30, 8 MULES. strays under act of 1807, 1257 [See Steays.] N. NAMES OF PAETIES TO A LEASE. omission of middle name or letter immaterial in, 27. 4 error in spelling immaterial in, 27. 4 variance in name of corporation immaterial in, 27. 4 entire omission of lessee's name in, invalidates lease, 27. 4 NON EST FACTUM, PLEA OF. in replevin when plaintiff may make, in bar to avowry, 886 (4), 889 puts in issue execution of lease only, admitting breaches, 886 (4) compels defendant to prove execution of lease, 889 NON-PAYMENT OF EENT. [See Eent, Non-payment of.] NON-PEOS, JUDGMENT OF. in replevin [See Eeplevin, Action op, (9) N(m-Pros.'\ NOTE. taking of, for rent no bar to distress, 183 NOTICE. [See Quit, Notice to.] in distress [See Distkess foe Eent, (13) notice o/.] in ejectment lis pendens no notice to purchase, unless indexed, 459 tenant to notify landlord of writ and declaration, 461, 479 in replevin : distrainer should be notified of writ, 800 of set-off or special matter of defence to rent to be given, 881 to sheriff to hold proceeds of tenant's goods on execution, 208, 1389 hy surety to landlord to collect rent from tenant, 229 to limit liability of surety for rent, 229 hy lessee of desire to renew, 1031 NOTICE TO QUIT. [See QtriT, Notice to.] 816 NUISANCE — OCSTER. [The references are to the paragraphs.] NtriSANCE. (1) By landlord or tenant on demised premises.: defined, 1395 per se, when a thing may hecome so, 1396, 1398 defendant may show that in his case the thing is not, 1397 instances of things or occupations nuisances per se, 1399 not nuisances per se, 1400 depends upon locality, 1398 landlord's liability to stranger for, when, 1401 tenant's liability to stranger for, when, 1402 landlord's and tenant's liability for, when, 1403 remedies by stranger for, 1404 by abatement, 1352, 1370 [See Abatement, (2) Of nuisance.'] by trespass on the case, 332 (27) [See Trespass on the Case.] by assize of nuisance, 1372 [See Assize op Nuisance.] by writ of guod permittat prosternere, 1374 [See Quod Pekmit- TAT PeOSTEENEKE, WeIT OP.] by indictment, 1375 [See Indictment, (4) For nuisance.] by injunction, 1377 [See Injunction, Wbit op.] (2) By stranger near demised premises : defined, 1367 how may be created, 1367 remedies by landlord or tenant for, 1370-1377 by abatement, 1370 [See Abatement, (4) Of nuisance.] a bar to assize of nuisance, 1373 by trespass on the case, 1371 [See Trespass on the Case.] by assize of nuisance, 1372 [See Assize op Nuisance.] by indictment, 1375 [See Indictment, (4) For nuisance.] by injunction, 1377 [See Injunction.] O. OEAL AGEEEMENT. to waive benefit of exemption laws void, if made without consideration, 151 OEAL LEASE. implied covenants in, 925 binding for only three years, 24. 7th goods liable to distress under, 29 OEAL NOTICE TO QUIT. sufficient, 519 oral notice during term by tenant to landlord " that their agreement is at an end,' entitles landlord to lease to another, 519 OEPHANS' COUET. effect of sale by. On interest of tenant for years in premises of deceased land- lord, 571 sale of deceased landlord's reversion by, terminates tenancy, when, 366, 571 OtrSTEE. defined, 1334 affects both landlord and tenant, 1335 tenant's remedies for, 85, 1336 by quare ejecit infra terminum, when, 1337 [See QUAEB EjEClT Infba Terminum, Weit op.] landlord's remedies for, 85, 1336 OVERPLUS PROCEEDS, ETC. — PERSONAL COVENANT. 817 [The references are to the para^aphs.] OVEEPLITS PROCEEDS OF DISTEESS. [See Distress foe Rent, (13) Over- plus o/.] to be paid to tenant, 1378, 1379 tenant's remedies for failure to pay, by trespass on the case, 1381, 332 (25) indictment 1382, 1383 debt, 1384, 1386 English decisions under, 1082, page 597, Note 1 P. PARTITION FENCES. erected by either landowner, 1291, 1292 notice of erection to be given to interested party, 1295 occupation of ground for erection of, not adverse, 1291 insertion of rails into old fence, 1291 destruction of by flood, how new fences erected, 1291 when and how erected, 1292 when delinquent cannot recover for damages sustained from neighbor's cattle, 1292 both landlords must contribute to erection of, 1292 jurisdiction of justice to enforce contribution remains, though title is questioned, 1292 illegally built on highway estops recovery for damage, when, 1293 agreement not to build does not estop recovery for damage, 1293 common property of adjacent land-owners, 1294 agreement between adjacent owners relative to maintaining of, personal, 1296 older than twenty-one years landmarks, and protected by act of 1860, 1297 though crooked constitutes boundary between acknowledged landmarks, 1297 in Philadelphia in rural districts four and a half feet high, etc., 1258 in built-up portions six feet high, etc., 1258 [See Fences.] covenant to maintain, runs with land, 992 (23) PARTY-WALL. acts of Assembly regulating, 60. 2-5 erection of, no breach of right of light, 55. 2 [See Light, Right of.] PASTURE, COMMON OF. defined, 57 not in common use in Pennsylvania, 57 instances of, 57 PENN. charter to William Penn by King Charles II, 3 act divesting the Penn family of their seignory, 5 PERPETUAL LEASES. may be created under common law of Pennsylvania, 1033 PERSONAL COVENANT. [See Covenants not Running with the Land.] definition of, 994, H96 applies merely to personal use and enjoyment of premises, 994 affects only covenantor during life, and assets in representatives' hands after decease, 994 does not run with the land, 994 instances of, on part of lessor, 995 on part of lessee, 997 52 818 PERSONAL ESTATE — POWER TO DEMISE. [The references are to the paragraphe.] PERSONAL ESTATE. implied covenants do not relate to, 928 PHILADELPHIA. [See the particular mbjeet.] summary proceedings in, to recover possession where tenant removes [See Act of 1825, etc.] to recover possession on a lost lease [See Act op 1865, ETC.] fraudulent removal of chattels in, to avoid distress [See Fkaudulent Ee- MovAL OF Chattels to Avoid Disteesb, (2) Under act of 1825.] PISCAEY, COMMON OF. defined, 59. 1 regulated by act of 1878, and supplement of 1881, 59. 2 provision of act of 1878, 59. 3 of 1881, 59. 4 angling open to all in large rivers of State, 59. 2 riparian owners alone right to draw seine, 59. 2 PLEADING. [See the respective action.'] PLEAS. [See the respective action.} (1) In assumpsit : for use and occupation, 306 [See Use and Occupation, Action op As- sumpsit foe, plea in.] for waste, 113. 4 (2) In covenant: for rent, 294 for breach of covenant, 941 (3) In debt: for rent [See Debt, Action op, pleas in.] on replevin bond, 804 [See Replevin, Action op, (12) Replevin hand and proceedings thereon.] (4) In ejectment [See Ejectment, Action of, (15) Plea in.] (5) In replevin [See Replevin, Action op, (18) Pleas to declaration in, (20) Pleas to avowry or cognisance.] (6) In trespass, 665 (7) In trespass on the case, 334 (8) In trespass vi et armis for mesne profits, 503 (9) In trover and conveirsioa [See Tkover AND CONVERSION, ACTION OP, (8) Fleas in.] POSSESSION, ESTATE IN, 17 POUND-BEEACH, ACTION OP. formerly a remedy for breach of pound by tenant, now abrogated, 349, 350 not guilty wag defendant's only plea, 350 [See Pound, Breach op the.] English decisions under, 1082, page 598, Note 1 POUND, BREACH OF THE. remedies for, 72 POWER TO DEMISE. in oral lease implied covenant of, 925 PRECIPE — QUIET ENJOYMENT. 819 [The references are to the paragraphs.] PE^CIPE. in ejectment, 474 [See Ejectment, Action of, (10) PrxcipeJ] replevin, 779 [See Beplevin, Action of, (9) Precipe.} PEEMISES. office of, in lease, 33 PEESUMPTION. of death of life-.tenant, 364 PEIVITY OF CONTEACT AND ESTATE, defined, 933 how determined by assignment, 933, 984 none between under-tenant and landlord, 519, 29 "PEODUCT" OF THE SOIL. meaning of, in act of 1772, 12a 1, 1087, Note 3 PEOGENY OF ANIMALS. born during term become tenant's property, 35. 3 PEOSTITUTION. premises used for, or for immorality, terminates tenancy, 363 lease for purposes of, void, 363. 1 where not avoided, 363. 1 premises for purposes of, nuisances per se, 1399 (6), 1375 indictment against keeper or letter of, 363. 2, 1375 PUMP ON DEMISED PEEMISES. when landlord liable for suffering pump to be out of repair, 1045 Q. QTJAEE EJECIT INFEA TEEMINUM, WEIT OF. substantially an action on the case and derived from 2d Westminster, 1337 when it lies, 1338 obsolete remedy for tenant in ouster, 1337 ejectment preferable remedy, 1338 QUAEEY. [See Mines.] QUIA EMPTOEES, STATUTE OF. not in force in Pennsylvania, 117, 11 QUAETEE TO QUAETEE, TENANT FEOM. holding over right to leave at end of current quarter without giving three months' notice, 357. 5 in England notice to quit is one quarter, 357. 6, 519 in Pennsylvania query, 357. 7, See Note 2, page 213 QUIET ENJOYMENT, EXPEESS COVENANT FOE. [See Quiet Enjoyment, Implied Covenant foe.] supersedes implied, 1001 distinction between, and implied, 1002 defined, 1002 no particular words necessary to create, 1003 820 QOIET ENJOYMENT. [The references are to the paragraphs.] QUIET ENJOYMENT, EXPEESS COVENANT FOE (continued), scope of, 1002 depends upon language of covenant, 1002 continues in force to end of term granted, 1002 to what acts, and to whom it extends, 1012 does not extend to oblige lessor to rebuild in case of destruction of premises, 361. 9, 1011 (11) effect of, 1003-1006 defines for what acta, and of whom, lessor is responsible, 1003 qualified by lessor, 1004 unqualified in favor of lessee, 1005 treach of, 1007-1011 what constitutes, 1007-1009 actual ouster or physical dispossession not necessary, 1007 interference with lessee's enjoyment, or immediate right of possession 1007 a lawful eviction in the assertion of title, 1008 a tortious act merely amounting to a trespass is not, 1008 unlawful disturbance by lessor even if covenant provides against lawful evictions only, 1008 constructive eviction when lessee yields, 1009 but lessee takes risk as to title being paramount, 1009 if lessee surrenders possession the burden is upon him, 1009 instances that constitute, 1010 that do not constitute, 1011 remedies for, 1014 binding on whom, and available by whom, 1013 runs with the land, 1013, 991 (1) QUIET ENJOYMENT, IMPLIED COVENANT FOE. [See QtJiET Enjoyment, Express Covenant fob.] defined, and meaning of, 934, 1000 runs with the land, 933 in every demise, whether oral or written, 934 in oral flemise imported by the relation of the parties, 925 in written demise raised by the word of leasing, 924, 934 none against lessor after expiration of his life estate, 931 tcope of, 934 extends only to possession of premises, 934 against lawful eviction by title, 934 does not embrace unlawful evictions by stranger without title, 934 lessee has remedy against wrongdoer, 1001 continues in force only so long as estate of lessor lasts, 931 IreacTi of, 935, 936 instances that constitute, 935 that do not constitute, 936 remedies for, 937 by covenant, 937 (1) [See Covenant, Action of.] by trespass on the case, 937 (2) by assumpsit, 937 (3) by bill in equity, 937 (4) damages, rule of, on breach of, 942-950 conflict as to, 942 QWIET ENJOYMENT — QUOD PERMITTAT PROSTERNERE. 821 IThe references are to the paragraphe.] QUIET ENJOYMENT, IMPLIED COVENANT FOB {cmitinued.) damages, on breach of an ordinary contract, 943 of a contract touching realty at common law, 944 where the vendor acts in bad faith, 946 of a warranty of seisin in a conveyance, 945, 949 between lessor and lessee in England, the loss sustained, 948 in Pennsylvania, the consideration paid and mesne profits, 949, 950 in Lanigan v. Kille, 950 where lessor acts in bad faith, 947, 950 (3) QUIT, NOTICE TO. [See tU respective proceeding.'] (1) Nature of: language of, to be clear, decisive, and positive, 473 (4), 519 need not specify date of ending of term, 519, 584 in the alternative to pay increased rent or quit, invalid, 519 copy of, admissible in evidence, 519 three months', what is, 585, 519 in tenancy for years or certain definite period, unnecessary, 356, 516 unnecessary to support ejectment, 356, 471 necessary before or after term to proceed under act of 1772, 516 before end of term to proceed under act of 1863, 584 in tenancy from year to year, three months before the end of current year requisite, 357 in tenancy from quarter to quarter, tenant need not give, 357. 5 in tenancy from monffi to month, week to week, 357. 6. 7, See Note 2, page 213 to tenant hy purchaser of landlord's reversion at judicial sale, 365. 1, 549 (2) Service of: served by whom, 473 (2) on whom, 473 (1), 519, 588, 268 to one joint tenant binds others, 519, 585 when, 473 (3), 516, 584, 585 how, 519, 588 may be given orally, 519 mistake in written notice may be corrected orally at service 519 (3) Waiver of, 520, 584, 473 (5) (6) [gee Waiver.] (4) In ejectment [See Ejectment, Action op, (10) Notice to quit in.} (5) Under Act of 1772 [See Act op 1772, etc., notice to quit under.] (6) Under Act of 1830, 268, 269 [See Act of 1830, etc.] (7) Under Act of 1836, 549 [See Act op 1836, etc] (8) Under Act of 1863, 549 [See Act op 1863, etc.] QUIT EENTS. debt for proprietaries, excepted from statute of limitations, 749 QUOD peemittat peosteeneee, weit of. when it lies, 1350 resorted to in Pennsylvania, 1351 applicable where easement is obstructed, 1350 landlord's or tenant's remedy for obstruction of easement, 1349 for nuisance, 1374 stranger's remedy for nuisance on demised premises, 1404 (4) 822 REAL ACTIONS — REDDENDUM. [The references are to the paragraphs.} R. EEAL ACTIONS. can only be brought by tenant in fee, 1341 EEAL ESTATE. valuation of, for taxation [See Taxes.] sales of, for taxes [See Taxes.] implied covenants relate only to, 928 may be sold for debts, 539 rights of purchaser, 540 EEAL COVENANTS. [See Covenants Eunwing with the Land.] defined, 977 difference between, and personal covenants, 994 at common law ran with the land, but not with the reversion, 982, 983 [See Covenants Eunning with the Eeveesion.] EEBUILD, COVENANT TO, 1068-1071 defined, 1068 not implied on part of landlord in case of destruction of premises, 963 (5) landlord only bound to restore premises to condition before demise, 1063 included in covenant to repair where made by landlord, 1069 [See Eepaie Covenant to.] binding on whom, and available by whom, 1070 runs with the land, 1070 remedies for breach of, 1071 EEBUILDING OF PEEMISES. [See Eepaie, Expeess Covenajit to; Ee- EuiLD, Covenant to.] by landlord, not implied, when, 963 (5), 1049 implied, when, 1056 (5) by tenant, not implied, when, 965 (5) implied, when, 1042, 1043 EECAPTUEE OF CHATTELS. of chattels rescued from distress, 347 right existed at common law, 347 must be exercised without creating breach of the peace, 347 justified in Woglam v. Cowperthwaite, 347 right exists by statute in cases of clandestine removal of chattels, 348 in cases of breach of the pound, 352 EECEIPT OF EENT. [See Acceptance op Eent.] EECEIVEE OF TAXES. duty of, 952 (6), 953 (2)-(4) to appoint collector of delinquent taxes, 215, 952 (4) [See Collectoe op De- linquent Taxes.] EECOEDING OF LEASE. lease, over twenty-one years, must be recorded, 24, 8th, 20. 2, b EECOUPEMENT. [See Set-opp Against Eent.] EEDDENDUM. defines amount of rent or compensation to be received by lessor, 35. 1 may reserve rent in certain quantum of product of premises, 35. 1 [See Kent; Shaees, Land Let On.] RE-ENTRY FOR NON -DELIVERY OF PREMISES. 823 [The references are to the paragraphs.] EE-ENTEY FOE NON-DELIVEEY OF PEEMISES. [See Ee-Entey foe Non- Payment OF Ebnt.] right of, must be authorized by lease, 354, 371 under what circumstances it becomes absolute, 371 when purchasers at Orphans' Court and judicial sales may make, 372 but purchasers at sales in partition by order of Common Pleas cannot make, 372 when landlord may resort to, with not more than necessary force, 354, 375 landlord entering forcibly, liable to indictment ; but if legally entitled to pos- session tenant cannot recover possession, 373, 375 (2d) when person having right of, enters peaceably he is not liable in trespass nor to indictment for forcible entry, 373 restitution of premises, when and when not awarded, 373, 374, 375 (2d) possession must be lawful before restitution is awarded, 373 entry not required to divest conditional estate, 374 where premises are held on condition, a breach thereof confers right of, 374 how tenancy may be determined to authorize, 355 1. By effluxion of time where demise is for definite period^ 356 tenancy expires without notice to quit, 356 tenant holding over becomes tenant at sufferance, 356 may be dispossessed with no more force than necessary, 356 if landlord commit wanton damage, liable for trespass to per- sonal property, but not in trespass quare clausum fregit, 356 landlord cannot avail himself of act of 1772 or 1863 without requisite previous notice to quit, 356 but ejectment will lie without notice to quit, 356 [See Effluxion of Time, Deteemination of Tenancy ey.] 2. By notice to quit, where tenancy is from year to year, 357 [See Quit, No ■ TicE to; Yeae, Tenancy feom Yeab to.] 3. By forfeiture of the term, 358. at common law, for breach of condition, only lessor, his heir or exec- utor could, 358. 1 where limitation was affixed remainder-man might, 358. 1 under statute 32 Henry VIII, assignee of reversion may, 358. 1 [See Statute 32 Henry VIII.] who may enter for condition broken, 358. 1. 2 when lessor may re-enter, and when he may waive forfeiture, 358. 4 [See FoEFEiTimE OF the Teem.] 4. By surrender, 359 [See Suekender.] 5. By merger, 360 [See Merger.] 6. By right of eviction of tenant, 361 [See Eviction.] where paramount title is established, 361. 7 where lessor's title becomes divested, under incumbrance ante- dating lease, 361. 10 7. By premises leiiig taken for public use, 362 [See Eminent Domain.] 8. By premises Icing used for an illegal or immoral purpose, 363 [See Prosti- tution.] 9. By death of tenant for life, 364. [See Life, Tenant for.] 10. By loss of landlord's reversion, 365 [See Sale of Landlord's Ee- version, etc.] 11. By sale of deceased landlord's reversion iy Orphans' Court, 365 [See Sale; of Deceased Landlord's Eeveesion.] 824 RB-BNTRY — RENEW THE LEASE, COVENANT TO. [The references are to the paragraphs.] EE-ENTEY FOE NON-DELIVEEY OF PREMISES (continued). 12. In Philadelphia, by non-payment of rent under act of 1830 [See Act of 1830; Ee-Entky fob Non-Payment of Eent.] 13. By non-payment of rent under act of 1830 [See Act of 1830; Ee- ENTEY FOB NoN-PaYMENT OF EeNT.] 14. In Philadelphia, by refusal of tenant to famish emdence of commencement of tenancy where lease is lost [See Act of 1865, etc.] EE-ENTEY FOE NON-PAYMENT OF EENT. [See Ee-entby foe Non-De- LIVEEY OF PeEMISES.] defined, 236 seldom resorted to, 236, 241 remedy supplied by acts of 1825 and 1830, 241 right of, must he reserved in the lease, 236 condition authorizing, construed strictly and not extended heyond express stipulation, 236 prerequisites to, 237, 468 not necessary where condition for, is " without further demand," 237 where clause authorizing, conditioned " that no sufficient distress be found," premises must be searched before making, 237 forfeiture of term, prevented by tender of rent, 237 by payment of rent within reasonable time, 239 [See Fobfeituee of the Tekm.] i at common law grantee of reversion could not make, 238 remedied by statute, 238 [See Statute 32 Henby VIII.] but where reversioner grants part, grantee cannot, 238 landlord may lose right of, how, 239 should act by attorney in fact to preserve evidence of, 240 forcible, unlawful, 241 [See Foecible Entby.] EELATION OF LANDLORD AND TENANT. [See Tenancy.] EEMAINDEE, ESTATE IN. definition of, 17. 1 RENEW THE LEASE, COVENANT TO, 1028-1040 definition of, 1028 express, 36. 11 runs with the land, 1029, 990 (7) grantee of lessor and assignee of lessee entitled to benefit of, 1029, 36. 11 breach of, assigned against executor or heir of lessor, 1029 notice of desire of renewal should be provided for in lease, 1031 cases with regard to time of making election of renewal, 1031 scope of, 1032 right of customary renewal, 1032 does not necessarily imply new lease with all former covenants, 1032 covenants for renewal, and covenants performed, not implied, 1033 perpetual renewals not favored, 1033 intention for, must be unequivocally expressed before enforced, 1033, 1034 enforced under common law of Pennsylvania, 1033 construction of, 1034 instances of, that amount to covenant for perpetual renewal, 1035, 685 (2) that do not amount to covenant for perpetual renewal, 1036 that have been specially construed, 1037 EENEW THE LEASE, COVENANT TO — EBNT. 825 [The references are to the paragraphs.] EENEW THE LEASE, COVENANT TO {coniiuued). tenant's remedies for breach of, 1038-1040 prerequisites to enforcement of, 1030 right of renewal must be result of express covenant, 1030 conditions precedent must be performed, 1030, 1038 must be guiltless of laches, 1038 election whether he will proceed for damages or for enforcement, 1038 damages by covenant or assumpsit, 1038 for enforcement by bill in equity for specific performance, 1038, 685 (2) when equity can be invoked, 1039 when not, instances of, 1040, 686 (5) "RENT." in lease, imports implied covenant for title, 924 EENT. [See Bent, Covenant to Pay ; Eent, Non-Payment op ; Eent-Chaege ; Eent-Seck ; Eent-Sebvioe ; Disteess poe Eent ; Second Disteess foe Eent.] defined, 38 kinds of, 39 out of what it may issue or be reserved, 38, note 2 ; 35 ; 1. 3 issues out of lauds and tenements corporeal, and also out of them and their furniture, 38, note 2 issues out of realty on demise of both real and personal property, 928 reserved in money not essential to lease, 27. 5 may be reserved in certain quantum of product of premises, 35 certain, 514 change of, does not create new tenancy, Taylor v. Winters, 6 Philadelphia, 126 due when, 40 demand of, when necessary, 40 [See Demand of Eent.] tender of, when necessary, 40 [See Tender op Eent.] mode of payment, 41. 1 right to distrain continues, though lessor take a note payable at future time, 41. 1 > interest accrues from the time rent becomes due, 41. 2 but the interest cannot be included in a distress, 228, 1163. 5th. sub-tenant justified in paying, to the paramount landlord, 42 but not to a mortgagee of the premises, 42 tenant may pay rent on account of taxes, 43, 213 [See Taxes.] when payable to administrator or executor of deceased landlord, 44 to heir of deceased landlord, 44 to whom payable when landlord dies within the term, 44 what rent payable by administrator or executor of deceased tenant, 45 when payable to landowner where premises are sold at sheriff''3 or orphans' court sale, 46 to the purchaser of the premises, 46 liability of deceased tenant's e.state for rent due, 45 one year's rent prior to decedent's death ei preferred claim, 45, 133, 134, 196 one year's rent may be claimed out of sale of tenant's chattels taken in execution, 198, 199, 1387 [See Execution, Goods In.] reserved on leases by parol affected by Statute of Limitations, 41. 3 other rents not ao affected, though arrears beyond twenty years presumed to be paid, 41. 3 apportionable, when, 47 826 RENT- [The references are to the paragraphs.] KENT {continued). remedies for enforcing payment of, 68 payable in advance may be distrained for, 181 distress for [See Disteesb fob Eent.] may be distrained for again and again until deficiency is made up [See Second Disteess foe Eent.] atispended by eviction, when, 294. 1 [See Eviction.] not suspended by destruction of premises by fire or accident, 286, 288 [See Ac- cident.] by untenantability of premises, 288 set-off against [See Set-off Against Eent.] EENT, COVENANT TO PAY. runs with the land, 282, 992. (1) to a stranger does not run with the land, 997. (1) action on, lies against assignee for part of rent, 979 annulled by eviction, loss of reversion, merger, surrender, or release, 289 " yielding and paying " constitute, 282 in Vermont such covenant held implied, 292 EENT-CHAEGE [See Annuity, Action of.] defined, 39 recovery of, by distress by virtue of a covenant, 39 by annuity, 317 if titles to our estates be allodial, all rents are either rents-charge or rents- seek, 11 EENT, NON-PAYMENT OP. Eemedies FOE Enfoecing Payment, 68 [See Disteess foe Eent ;Ee-Entky FOE Non-Payment op Eent ; Act of 1825 ; Act of 1830 ; Covenant, Ac- tion of; Assumpsit, Action of; Debt, Action of; Annuity, Action of.] EENT-SECK. defined, 39 if titles to our estates be allodial, all rents either rent-charge or rent-seek, 11 EENT-SEEVICE. defined, 39 if titles to our estates be feudal, rents reserved in conveyances in fee, and in leases are rents-service, 11 EEPAIE, EXPEESS COVENANT TO. (1) By the Landloed: when made by landlord, lessee's implied covenant ceases, 1051 covenant to pay for repairs exceeding certain sum, does not oblige land- lord to make repairs, 1052 covenant to put into repair, condition precedent to tenant's covenant to keep in repair, 1053 when no time of performance of, is agreed upon, landlord is not in default until notice of want of repairs is giveu, 1054 lessee's duty to give lessor notice to make repairs, 1054 lessor in default only after suificieut time allowed for making repairs, 1054 EEPAIR, EXPRESS COVENANT TO. 827 [The references are to the paragraphs.] EEPAIE, EXPRESS COVENANT TO {continued). (1) By the Landloed: scope of, does not extend to improvements of soil nor to tenant's good hus- bandry, 1055-1066 extends to restoration of things decayed, dilapidated, or destroyed, 1055, 1066, 1042, note 5 to rebuilding premises destroyed by fire, 1056 (5) runs with the land, 990, 1058 breach of, no bar to action on covenant to pay rent, 1060 instances of circumstances constituting, 1056 not constituting, 1057 remedies for breach of, 1059 tenant must seek remedy upon covenant, 1060 cannot quit premises nor cease paying rent, 1060 by bill in equity for specific performance cannot usually be main- tained, 1062 when specific performance may be decreed, 1062 where lessor agrees to reimburse lessee for repairs, latter may recover, 1066 but such promise does not include improvements to soil, or new buildings, 1066 damages in case of breach of, 1063-1067 general rule as to, 1063 tenant may recover expenses of repairs made by him, when, 1064 may leave premises unrepaired, and recover damages sustained by breach of, 1065 may recover for direct and immediate damages resulting from landlord's breach of, 1064 cannot recover for loss of custom in business by breach of, 1064 may recover damages for loss of use of portion of premises, 1065 landlord liable for injuries sustained from breach of, or from nui- sance, 1067 but where tenant suffers nuisance he becomes liable, 1067 (2) By the Tenant: scope of, when unconditional, not excepting damages by fire or accident, ex- tends to rebuilding, 1042 rule in Hoy v. Holt, 1042 rule in Pollard v. Shaaffer, 1043 does not extend to rebuilding where premises are destroyed by public enemy, 1043 does not follow common law, 1043 rule in Paradine v. Jane, 1043. [See Deliver Up Pkemises, Cove- nant TO.] when casualties by fire, etc., are excepted, lessor cannot be compelled * to rebuild upon receipt of insurance-money, 1049 upon breach of, lessor may maintain action against assignee of part of premises for not repairing his part, 979 tenantable repairs, meaning of, 1042, note 5 828 REPAIR, IMPLIED COVENANT TO — REPLEVIN, ETC. [The references are to the paragraphs.] EEPAIB, IMPLIED COVENANT TO. [See Bbpaie, Expeess Covenant to.] not implied on part of landlorci, 1045, 963. (3) even if landlord voluntarily repairs for benefit of tenant or premises, 963 (3) even if landlord be trustee under will wbich directs repairs, 1046 even if landlord receive insurance-money for premises destroyed, 1049 but by custom of Philadelphia County landlord must keep privy clean, 1050, 963 (3) implied on part of tenant in absence of express covenant to repair, 964 (4) [See Eepaies in Absence of Stipulation.] REPAIRS IN ABSENCE OF STIPULATION. [See Repair, Implied Cove- nant TO.] lessor not bound to make any, 1045, 963. (3) promise of lessor to repair, when after execution of lease, not binding, 1048 no presumption of contract to repair from lessor's actual repairs, 1047 but by custom of Philadelphia County, lessor must keep privy clean, 1050, 963 (3) lessor cannot enter premises to make repairs without tenant's assent, 1061 tenant bound to keep up ordinary repairs to prevent waste, 964 (4), 1041 to deliver up premises in good condition, reasonable wear and acci- dental injuries excepted, 1041 to remove temporary obstructions from drains, etc., 964 (4) to keep up the fences, 964 (5) not bound to make extraordinary or substantial repairs, 965 (1) to restore premises destroyed by fire, accident, etc., 965 (2) made by tenant cannot be set oS against rent, 1046 want of repairs cannot be set off against landlord's demand for rent, 1046 permanent repairs by tenant cannot be charged against landlord, unless made with latter's consent, 1046 REPLEVIN, ACTION OF, 734-922 origin of, 735 definition of, 735 in England, and in some of the United States, unjust taking and detention essential, 735 in some of the United States unjust detention alone essential, though taking was not tortious or illegal, 735 in Pennsylvania unjust detention alone essential, 735 (1) General ride as to when action will lie in Pennsylvania, 735 wherever one claims personal property in the possession of another, 735 without regard to manner of possession being acquired, 735 whether claimant has had possession or not, 735 whether claimant's property in goods be absolute or qualified, provided he have right to possession, 735 claimant may follow goods through successive transfers, wheresoever found, 735 whether form of goods or chattels be changed or not, 735 (2) Exceptions to general rule, and when action will not lie, 736 goods in hands of a tona fide purchaser, though vendor obtained them fraudulently, not liable to, 737 but goods in bauds of purchaser obtained fraudulently are liable to, 737 ■ return of consideration, when essential, 737 REPLEVIN, ACTION OF. 829 [The references are to the paragraphs.] EEPLEVIN, ACTION OF (continued). (3) Caveat emptor, when applied, 737 against party having an interest in the property, 738, 742 (4) British statutes in force in Pennsylvania, 743-747 statute of Gloucester, 6 Edward I, chapter i, text of, 734 plaintiff to recover damages and cost of writ, 743 statute of 2 Westminster, 13 Edward I, chapter ii, text of, 744 lord may avow reasonahle distress upon seizin of ancestor or predecessor, 744 pledges to pursue action and deliver distress, according to judgment, 744 two j udgments for distrainer conclusive, 744 statute of 7 Henry VIII, chapter iv, text of, 745 upon judgment for avowant may recover damages and costs, 745 statute of 4 James I, chapter 3, text of, 746 when defendant may recover costs, 746 statute of 17 Charles II, chapter vii, text of, 747 recognized as part of the common law of Pennsylvania, 747 procedure where plaintiff is nonsuited and verdict is given against plaintiff, 747 when the defendant may have execution, 747 procedure where judgment given upon demurrer for avowant or cog- nizor, 747 (5) Acts of Assembly, 748-762 act of 1705, text of, 748 when and how judges may grant writs of, 748 act of 1713, text of, 749 must be brought within six years from unjust detention, 749, 769 act of 1772, text of, 750 § I when and how distress for rent, without being replevied, may be sold, 750 compared with statute 2 W. & M., 1081 English decisions under, 1081 § VII cattle of tenant and growing crops may be distrained for rent and sold ; rights of purchaser, 750 compared with statute 11 Geo. II, 1087 English decisions under, 1087 § X avowry and conusance, what must be set forth, 750 compared with statute 11 Geo. II, 1088 English decisions under, 1089 ? XI plaintiff to give bond to prosecute action and return goods dis- trained, 750 defendant may have assignment of bond, and if forfeited bring suit thereon in his own name, 750 compared with statute 11 Geo. II, 1089 English decisions under, 1089 act of 1779, text of, 751 action does not lie for goods taken in execution for fines, etc., due the commonwealth, 751 act of 1834, text of, 752 for and against executors and administrators, not to abate from death, etc., 752 act of 1807, text of, 753 arrest and sale of stray cattle, 753 830 REPLEVIN, ACTION OP. [The references are to the paragraphs.] REPLEVIN, ACTION OF {continued). (5) Acts of Assembly : act of 1810, text of, 754 justices of the peace have no jurisdiction in, 754 act of 1817, text of, 755 when action will lie for horse seized for fast driving in Philadelphia, 755 act of 1845, text of, 756 action by feme sole not to abate upon marriage, 756 act of 1849, text of, 757 action by executors or trustees not to abate on death, etc., 757 act of 1850, text of, 758 when action lies for timber removed in defiance of writ of estrepe- ment 758 act of 1860, text of, 759 when action lies for property seized because employed in gaming, 759 act of 15th May, 1871, text of, 760 action lies for trees cut down by stranger, 1173 for property severed from realty, though title to the land was in dis- pute, 760 act of 19th May, 1871, text of, 761 when sheriff of Alloghahy County relieved from responsibility in taking bonds of indemnity in, 761 act of 10th April, 1873, text of, 762 when sheriff of Philadelphia County relieved from responsibility in taking bond of indemnity in, 762 (6) Nature of, 765-776 in Pennsylvania issues by force of act of 1705, 763 recovery therein, 764 does not abate by death of either party, 764 character and course of action, 765 in its inception a mixed action, 765 a demand for the thing and damages for the taking and detention, 765 if property be delivered to plaintiff defendant liable to damages for taking and detention, 765 if property be retained defendant liable to damages and for full value, 765 where founded on right of property, property cannot be recovered by defendant interposing claim-property bond, 765 provision in bond for return of goods a nullity, 765 in cases of distress landlord cannot interpose a claim-property bond, 766 landlord has no property in goods distrained, nor right to possession after service of writ, 766 landlord must return goods and look to bond as security for rent, 766 most usual remedy for unlawful distress for rent, 767 extends to cases of distress for ground-rent, 767 how far transitory, 768 eignification of terms "goods" and "chattels," 768 must be commenced within six years from unjust detention, 769 effect of removal, appraisement and sale of distress, 770 will lie so long as the distress has not been sold, 770 REPLEVIN, ACTION OF. 831 [The references are to the paragraphs.] REPLEVIN, ACTION OF {continued). in the deiinet, 771. 1st in the detinuit, 771. 2d in England, in rem, 772 in Pennsylvania, not altogether in rem, but also against defendant per- sonally, 772 if plaintiff fails to recover property he may recover damages for full value and for detention, 772 recovery in, a bar to trespass on the case, 773 when set-off to rent is proper in, 774 difference between, and all other actions, 775 and detinue, 776 why preferable to detinue to recover illegal distress, 698 (7) Parties in, in whose favor replevin will lie, 777, 735 in whose favor replevin will not lie, 736 (8) Property subject to, for what property replevin will lie, 778, 735 for what property replevin will not lie, 736 when replevin will lie, 735 when replevin will not lie, 736 (9) Prsecipe in, 779 commenced by issuance of, 779 accompanied by inventory of goods to be replevied, 779 what is sufficient inventory and description of goods, 779 what it should set forth, 779 where title to goods is to be tried, value thereof should be set forth, 779 party in possession of goods made defendant, 779 (10) Writ in, 7S0-783 commands sheriff to replevy goods, and to summon defendant's appear- ance, 780 issues against person having actual possession of goods claimed, 780 what should be set forth, 781 may be amended like other writs, 781 in Pennsylvania mixed, partly in personam, as well as in rem, 781 in fee bill not ranked under summons, but under other writs, 781 when alias and pluries writs may issue, 783 service of, 782 after replevin bond is furnished, served like other writs, 782 delivery of copy to defendant's agent, the former being out of State, not good, 782 sheriff should be accompanied by some one to point out goods, 782 sheriff may enter defendant's house to search for goods, 782 when sheriff may break open door, 823 if not found, sheriff and plaintiff not liable as trespassers, 823 if found, apprised and absolute possession given to plaintiff, 780, 823 sheriff cannot deliver more property than named in writ, 823 against furniture of hotel, served from the (ime officer goes into pos- session, 782 by sheriff or deputy, who if plaintiff cannot execute it, 782 832 REPLBVIN, ACTION OF. [The references are to the paragraphs,] EEPLEVIN, ACTION OF {continued), return of, 783 " replevied, summoned, and delivered," -when duly served, 783, 823 what it should shov7, 783 " eloigned " when goods cannot be delivered to plaintiff, 783, 823 if goods be destroyed, sheriff should so return, 783 if part be eloigned and part remain, sheriff should so return, 883 if defendant interpose claim-property bond, sheriff should so re- turn, 783 at trial, sheriff cannot contradict his return, 783, 894 (11) Writ de homine replegiando, 784-789 in force in Pennsylvania, and was issued in days of slavery, 784 issued during suspension of habeas corpus in 1863, 788 in frequent use in England prior to habeas corpus act, 785 when it issues, and when not, 785 original writ is vicoutiel, 786 sheriff cannot make a return of non nepit, 787 if party be removed or hidden, sheriff's return must be " eloigned," 787 in such case eloigner is in contempt of court, 787 in England capias withernam may issue upon return of " eloigned," 789 not in use in Pennsylvania, 789 if one be taken on capias withernam, how released by habeas corpus, 789 (12) Replevin bond and proceedings thereon, 790-813 when required and how made, in cases of distress for rent, 790 in cases founded on right of property, 790 conditions of, 790 meaning of prosecuting " with effect," 790 upon failure to prosecute " with effect," title to property in defendant pre- sumed, 790 [See" EFrECT," Prosecuting With ; "Delay," PitosEctrTrNGf With- OtTT.] sheriff's liability for sufficiency, except in Philadelphia and Alleghany counties, 791 extends to determination of suit, though sureties were sufficient when taken, 791 residence of sureties in county of sheriff, 792 in Philadelphia defendant's right to notice of application to approve, 792 a condition precedent to service of writ, 793 service of writ without bond void, and defendant need not appear, 793 liability of sheriff for serving writ without bond, 793 irregularity ;not cured by appearance, 793 when assignee may sue in his own name, 794 when suit on bond must be in name of sheriff, 794, 795 of avowant, 795 by assignment sheriff not released for taking insufScient sureties, 796 return of "nulla bona" to execution not conclusive of insufficiency, 796 what defendant may recover, and when his action is suspended, 796 how to bring suit after Eissigument, 797 sureties not released by allowing plaintiff time, 797 payment of amount of bond into court does not discharge sureties, 798 KEPLEVIIf, ACTION OF. 83i [The references are to the paragraphs.] EEPLEVIN, ACTION OF {cmitinued). jui'isdiction controlled by amount of rent due, not by amount oif bond, 799 distrainer to be notified of writ of replevin, 800 surety for rent entitled to subrogation on replevin bond, 801 surety on, cannot maintain replevin for the property replevied, 802 when defendant may take assignment of, and sue on it, 803 what declaration it must set forth, 803, 806, 807 what it need not set forth, 808 if plaintiff in replevin is bailiff, declaration sbould so state, 806 declaration in replevin may enumerate growing crops as property dis- trained, 807 pleas to declaration in suit of defendant in replevin on bond, 804 where pending action of replevin is pleaded, what must be shown, 805 surety in, as witness for principal, 809 surety's estate released by death, pending action on bond, 810 not within affidavit of defence law, 811 sureties alone can ask for stay of proceedings in action on, 812 in action on, by defendant in replevin, assignment to be produced, 813 (13) Neglect of sheriff to tnlce sufficient replevin iond, 814-822 sheriff's liability for taking no bond, or for insufficiency of surety, 814, 815, 818, 819 custom to take replevin bond in all cases, 816 sheriff must prove execution of replevin bond, 817 evidence of sureties, sufficiency of, how derived, 820 sureties on replevin bond to justify before proper court, 819 when unnecessary to prove execution of bond by sureties, 821 declaration in action against sheriff, what it should state, 822 (14) Claim-property bond in, 823-830 may be interposed to writ of replevin, when founded on property, 824 by interposing, defendant precluded from contesting number of articles in writ, 894 sheriff's return cannot be contradicted, 894 cannot be interposed by landlord in replevin of distress for rent, 766 form and conditions of, 824, 825 where some conditions are contrary to law, 825 bond with warrant of attorney to confess judgment valid, 825 supplies writ de proprietaie probanda in Pennsylvania, 826 prevents delivery of goods, and gives good title to defendant, 826 turns plaintiff's right of action into chose of action, 826 action on must be brought in name of the sheriff, 827 sheriff must allow reasonable time to get security on, 828 liability of sureties on, 829 not within affidavit of defence law, 830 (15) Appearance of defendant in, 831 when made, 831 upon default of, plaintiff having filed declaration, may enter conunon appearance, 831 but plaintiff cannot take judgment at once for want of, 831 difference in cases of distress and of property, 833 53 834 RBPLEVIU, ACTION OF. [The references are to the paragraphs.] REPLEVIN, ACTION OF (continued). (16) Declaration or narr. im, 832, 838 what it should set forth, 832, 833 when place of taking should be accurately described, 833 must be certain to a general intent, 833 defect in, cured by defendant's avowing, 835 in the detinet , 835, 771, 772 in the detinuit, 835, 771, 772 in the detinet and in the detinuit, when they may be combined, 835 number of counts in, 836 when plaintiff takes judgment by nil dicit, 836 when and how amended, 837 must be filed within twelve months or judgment of non pros., 838, 839 (17) Non pros., and of writ of retorno habendo, 839-842 defendant's judgment of non pros., and rule to open same, 839 what defendant takes by judgment of nonpros., 840 writ of retorno %abeivlo issues on, 840 when the writ is granted, and when not, 841 landlord rarely avails himself of the writ, 843 (18) Pleas to declaration in, where founded on property, 843-853 duty of defendant to plead, avow, or make cognizance, 843 failure to plead not cured by giving bond, nor by trial, 843 in abatement, peculiarity of pleas, 844 difference between in replevin and other actions, 844 when avowry on recognizance must be made, 844 what may be pleaded in abatement, 845 what pleas in abatement call for return without avowry or cog- nizance, 846 difference between pleas in abatement and pleas in bar, 847 in bar defined, 847 what may be pleaded in bar, 848 should set out any special title which defendant has to possession of property, 849 several pleas may be made together, 850 of cepit in alio loco, 851 justification, 848 (8) limitations, 848 (7) non cepit, 848 (1) property, 845 (l)-(5), 848 (2)-(6) no return day, or erroneous one in writ, 845. (6) what must be stated to have a return in cases of distress, 852 what part of plea plaintiff may traverse, 852 (19) Avowry or cognisance in, 854-865 should be drawn with precision, showing nature and merits of de- fendant's case, 861 who may make and when, 854, 864 who must join in and who must sever in, 864 by several, 864, 865 when both avowry and cognizance are necessary, 855 avowry, what is an, 856 what avowry should set forth and show, 856, 857 existence of every fact not traversed admitted, 857 cognizance, what is a, 858 REPLEVIN, ACTION OF. 835 [The references are to the paragraphs.] EEPLEVIN, ACTION OF {cmtinued). unnecessary to set out title of lessor or ground-landlord iu making, 859 by executor or administrator must show rent due before decedent's death, 859 maintained on agreement for a lease only where rent has been paid, 860 sufficiency of, 861 trial cures defects in, for rent in arrear, 861 landlord may recover less amount of rent than that avowed for, 862 landlord mast have title to all the land out of which rent issues, 862 muststateaccurately rent reserved, but not necessarily rent in arrear, 862 abatement of^ 863 when landlord may pay damages into court, 863 need not adhere to cause of distress, 863 (20) Pleas to avowry or cognisance, in cases of distress, 866 plaintiff may plead in bar to, as many pleas as he deems proper, 866 no general issue and some special point must be traversed, 866 of chattels distrained on the highway, whether bar to, 867 of chattels impounded out of county, or in several places, whether bar to, 867 instances of pleas that may be pleaded in bar to, 866 (l)-(38) instances of pleas not admissible to, 868 (21) Trial in, 869-873 tlie right to begin and conclude on trial, 869 tests of, 869 when plaintiff should commence, 872 when defendant should commence, 873 amendments in pleading, when allowed and when not, 870 by act of 1871, 870 surprise by change in pleas entitles continuance, 871 (22) Evidence on part of plaintiff in replevin erdici in, 335 TRESPASS ON THE CASE IN THE NATURE OF WASTK more &ec[uently resorted to than writ of waste. 111. 1 what landlord must set forth in his declaration, 111. 1 lies when, 111. 2. 4 by and against whom brought. 111. 4 distinction between, and trespass. 111. 3 venue of. 111. 5 TRESPASS, PLEA OF. in bar of avowry or cognizance, 866 (10) what plaintiff in replevin of distress must prove under, 883 TRESPASS QUAJBE CLAUSUM FREGIT, ACTION OF, [See Tebspabs, Action OP.] defined, 632. 3d • when it wiU lie, instances of, 662 when it will not lie, instances of, 663 TRESPASS VI ET ARMIS, ACTION OF. [See Trespass, Action op.] defined, 632. 1st distinction between, and action of trespass on the case, 328 when it will lie, instances of, 658 when it will not lie, instances of, 659 TRESPASS VI ET ARMIS FOR THE MESNE PROFITS, ACTION OF. lies for damages from wrongful retention of land by defendant in ejectment, 503 chattels severed from feeehold may be recovered by replevin by successful plaintiff in ejectment, S03 nominal damages in ejectment, and real damages by, 503 what plaintiff complains of in, 503 declaration in, what it must state, 503 pleas in, 503 when tenant may plead liberum teneimentnm, 503 statute of limitations, 503 852 TRESPASS VI BT ARMIS, ETC. — TRESPASSER AB INITIO. [The references are to tlie paragraphs.] TRESPASS VI ET AEMIS FOE THE MESNE PROFITS, ACTION OP {continued), mesne profits, how they may be secured to rendering of verdict, 504 plaintiff entitled to, even though he convey the premises, 504 no defence can be set up which would have been bar to ejectment, 504 plaintiff cannot give evidence of damages beyond time of lease in declarar tiou, 504 jury cannot find expense of plaintiff in prosecution, 504 when tenant may contest title of plaintiff, 505 verdict in ejectment against tenant may be introduced, 505 when abandonment of premises releases tenant's liability for mesne profits, 505 when tenant in common may maintain action against his co-tenant, 505 right to claim mesne profits does not abate by death of parties, 506 when right of action survives to heir-at-law, 506 plaintiff in ejectment may maintain action before and after end of suit, 507 act of 1879, text of, 507 TRESPASSER. [See Teespassee Ab Initio.] when landlord is, upon tenant, 628 for what purposes landlord may enter premises without becoming, 627 TRESPASSER AB INITIO. landlord becomes, by distraining in an irregular and unlawful manner, 1076 by distraining when no rent in arrear, 193, 1162 [See Weongpul Dib- TEEss FOE Rent.] by vexatiously distraining a second time, having abandoned first distress, 1148 [See Second Distress foe Rent.] by vexatiously distraining on more chattels than necessary, 1115 by abusing excessive distress, 1115 by distraining and turning tenant's family out of possession, 1116 landlord does not become, by distraining for more rent than due, 1107 by distraining on more chattels than necessary, 1111 [See Excessive DiSTEESS FOE ReNT.] by selling distress, when after impounding, tender of rent was made, 1118 [See Tendee of Rent ; Distress foe Rent, (9) Impounding of.] by not serving notice of distress if no sale is made, 1125 by not serving notice of distress on stranger when his goods are dis- trained, 1127 [See Disteess foe Rent (7) Notice of.] by irapounding distress out of county, or more than three miles, 1129 by impounding distress in several places, 1131 [See Impounding of Dis- teess FOE Rent.] by distraining on highway, 1134 [See Highway, Disteess on.] by distraining on things upon premises in way of trade without knowing their character, 1138 by distraining after termination of tenancy, 1139 [See Tenancy.] by having failed to appraise distress when goods are afterwards replevied, 1143 by distraining a second time, the first distress proving insuflicient, 1144 [See Second Disteess foe Rent.] by regaining possession by force, after being forcibly expelled or denied re-entrance after having made distress, 1156 [See Resistance to Dis- teess foe Rent.] TRESPASSING CATILB — TROVER AND CONVERSION, ETC. 853 [The references are to the paragraphs.] TRESPASSING CATTLE. [See Strays; Swine Running at Laege.] TROVER AND CONVERSION, ACTION OF, 701-733 (1) Natme of, 702-715 an action of trespass on the case, and springs from 2d Westminster, 702 lies for damages for conversion of chattels in which plaintiff has general or special property, 702 plaintiff must have right to possession, and there must be tortious taking or withholding, 707 lies where one lias obtained chattels by any means, and has appropri- ated them without owner's assent, or has refused to restore them, 703 generally lies for wrongful taking wherever trespass lies, 702 ■where taking is lawful trespass will not generally lie, but trover will, 702 signification of word " trover," 703 transitory in Pennsylvania, 704 barred by a replevin in which claim-property bond is interposed, 704 how far title to real estate may be brought in question in, 705 when tenant may maintain action for fixtures, and when not, 706 between co-owners of chattel, 708 for stolen property, 709 suspended until criminal prosecution sustained, 709 statute of limitations suspended until end of criminal prosecution, 709 for bank deposit, when it does not lie, 710 for chattels privileged from distress, when it does not lie, 711 for chattels distrained and sold collusively to constable distraining, 712 for chattel left with mechanic to be repaired, 712 when tenant may maintain for chattels illegally distrained, 713 in Pennsylvania equitable ; plaintiff need only prove a lien, 714 abates on death of defendant, 715 (2) British statute relative to, 716 (3) Acts of Assembly relative to, synopsis of, 717-726 act of 1713, 717 of 22d March, 1814, 718 of 26th March, 1814, 719 of 1816, 720 of 1824, 721 of 1833, 722 of 1840, 723 of 1855, 724 of 1876, 725 of 1879, 726 (4) When the action mU lie, instances of, 727 (5) When the action will not lie, instances of, 728 (6) Prerequisites in, 729 when demand and refusal of chattels taken necessary, and when not, 729 how demand must be made, 729 refusal to deliver, deprives party from making subsequent tender, 729 (7) Declaration in, 730 vsrhat it should set out, 730 conversion should be averred in, 730 what is conversion, 731 854 TROVER AND CONVERSION, ACTION OF — VERDICT. [The references arc to the paragraphs.] TEOVEE AND CONVERSION, ACTION OF {continued). (8) Pleas in, 732 usual plea general issue, not guilty of the premises, 732 plaintiff must make out his case fully, 732 defendant can defeat action by title in himself or stranger, 732 but defendant cannot set up alleged lien in stranger, 732 (9) Judgment and damages in, 733 for damages and costs, 733 measure of damages, rule as to, 733 after court is ready to charge jury,' tender of chattel in mitigation of damages too late, 733 TETTSTEE. when may lease, and under what conditions, 30. 9 TUEBAEY, COMMON OF, defined, 58 XT. UNDEE-TENANT. [See Sub-Tenant.] USE AND OCCUPATION, ACTION OF ASSUMPSIT FOE. an action on the case, and its origin, 297 springs from British statute of 2d Westminster, text of, 297 action in parol leases, statute concerning, 298 lies in favor of, and against executors or administrators, 298. 3-6 distinction between assumpsit, and debt, 299 difference between covenant, and assumpsit, 300 founded upon privity of contract, not privity of estate, 301 plaintiff recovers reasonable satisfaction for use and occupation, 301 proof of demise may be direct or presumptive, 301 instances of, when it lies, 302, 566 when it does not lie, 303 declaration in, 304 what it must disclose, 304 breach and damages, 304 action against persons jointly charged, 305 plea in, 306 generally '"non-assumpsit," 306 what may be given in evidence under, 306 " payment," or set-off of taxes paid, 306 judgment in, 307 USE OR TRUST, ESTATE IN. definition of, 16 V, VENDEE. may be substituted for vendor, where land is sold pending ejectment, 459 VERDICT. in ejectment, 495-499 [See Ejectment, Action op, (19) Verdict.] replevin, 895-901 [See Replevin, Action of, (26) Verdict.] WAGES — WASTE. 855 [The references are to the paragraphs.] W. WAGES. a preferred claim and lien on debtor's property, when, 146 act of 1872, text of, 146 contractors not entitled to benefit of act, 146 claims of laborers preferred over landlord's claim for rent, 146 WAIVEE. of forfeiiure of term [See Fokfbittjee of Teem.] of notice to quit, 520, 584 clause in lease " to surrender possession without further notice," a waiver, 520 payment of rent accrued since expiration of term, a waiver, 520 making of another lease after notice to quit, a waiver of, 519 delay in ejecting tenant after expiration of notice, not a waiver, 520 WAEEANTY OF FITNESS OF PREMISES, not implied in absence of stipulation, 963 (1) nor that they will continue fit during term, 963 (2) leasees eyes his bargain, 963 (1) lessor not bound to point out defects of premises, 963 (1) in demise of coal-mine, no covenant arises that land contains coal-veins, 963 (1) but if lessee is induced through fraudulent representations to lease, he may withdraw from tenancy, 963 (1) exception established in England in demise of furnished house, 963 (1) WASTE. \See Waste, Weit of.] defined, 98 voluntary, 99 permissive, 100 law of, accommodates itself to varying conditions of countries, 184 removal of manure by tenant is, 105 ploughing down sod and putting in corn, when, 105 cutting down timber or trees, 114. 3 [See Teees.] cutting timber to repair fences or houses not, 104 cutting timber by tenant for life or in dower of wild land is not, 104 working mines or quarries already opened is not, 104 working mines authorized by lease to exhaustion is not, 104 liability of waster, 114. 3. 4, 1170 recovery of place wasted, 114. 2 British statutes relative to, 101 aas of Assembly relative to, 102 equitable jurisdiction of Common Pleas and Supreme Courts in, 103, 108 (3) remedies for, 67 by estrepement, 107 [See Esteepembnt, Weit of.] by injunction, 108 [See Injunction.] by writ of waste, 110 [See Waste, Weit of.] by trespass on the case in the nature of waste, 111 [See Teespabs on THE Case in the Natuee of Waste, Action of.] by covenant, 112 [See Covenant, Action of.] by assumpsit, 113 [See Assumpsit, Action of, (2) For UKwte.] 856 WASTE — WAT, RIGHT OP. [The references are to the paragraphs.] WASTE {conHnued). remedies by statutes, 114 under 52 Henry III, chapter 23, tenant liable for waste done or suffered, 114. 1 under 6 Edward I, chapter 5, tenant liable to three times the waste, 114. 2 under acts of Assembly, 114. 3-8 WASTE, WEIT OF. seldom resorted to, 110. 1 maintained by whom, 110. 2 lies when, and against whom, 110. 2. 4 declaration, what it must show, 110. 3 WATEE. covenant to supply, in same manner as at time of leasing, 991 (17) runs with land, 991 (17) source of supply failing because of drought, no breach of, 991 (17) damages from, flowing on premises by adjacent owner filling up street to grading, when not recoverable, 1344 landowner cutting ditch causing water to fall on neighbor's land liable, 1344 WATEE-COUESE, EIGHT OF. defined, 54. 1 no riparian owner can interfere with stream, 54. 2 acquired by prescription or grant, 54. 3 twenty-one years' exclusive enjoyment affords presumption of, 54. 3 how and when upper riparian owner may pollute stream by prescription, 54. 3 how right to abut dam upon another's land is acquired, 54. 4 unreasonable obstruction of, a nuisance, 54. 5, 1367 (4) corrupting or poisoning of, a nuisance, 54. 5, 1367 (3) [See Nuisance.] remedy for obstruction of, by trespass on the case, 54. 6, 684 by assumpsit, 684, 690, 691 by bill in equity, 689 other remedies, 1370-1377, 1404 WATER EENT. paid by landlord, by custom of Philadelphia, 951 WAY, EIGHT OF. defined, 50 arises and gained, how, 50 by necessity, when, 51 extension of, 51. 1 location of, belongs to owner of outer land, 51. 2 lessee of wharf cannot interfere with public navigation, 51. 3 by prescription, when, 52 presumed by adverse enjoyment of twenty-one years, 52. 1 presumption not rebutted by equivocal declarations of landowner, 52. 2 not presumed through uninclosed woodland, 52. 3 long-continued use gives no title to franchise, when, 52. 4 measured by mode of enjoyment, 52.5 WAT, RIGHT OF — WRIT. 857 [The references are to the paragraphs.] WAT, EIGHT OF (continued). hy grant, when, 53 what it concedes, 53. 1 dedication of alley-way, and of land subject to be sold, 53. 2 does not imply that grantor may not maintain gate, 53. 3 owner of property subject to, may build over way, 53. 4 duty of claimant under party reserving, 53. 5 in consideration of another, not revoked by interruption of latter, 53. 6 express grant of, does not exclude implied easement, 53. 7 non-user of, does not bar, 53. 8 extinguishment, suspension, and revival of, 53. 8 appurtenant to land from which way is divided by navigable river, 53. 9 evidence admissible or requisite to establish, 53. 10 remedies \>j tenant for disturbance of, 78, 677-691, 684 by landlord or tenant, for disturbance of, 1345-1365 WAY-GOING CROP. confined to grain sown in the autumn and reaped in the summer, and includes as well the straw as the grain, 1408 [See Emblements.] cropper not entitled to, on sale of premises, 64. 6 landlord injuring, after ending of tenancy, liable in trespass, 64.7 remedies for interference with,, 1412 WEEK TO WEEK, TENANT FROM. in England notice to quit is one week, 357. 6 in Pennsylvania, query, 357. 7, See Note 2, page 213 WILL, TENANT AT. who is, 19. 3 oral lease for more than three years makes lessee, 24. 7 but possession and payment of rent under such lease creates tenancy from year to year, 24. 7th when tenant in possession becomes, 565 when entitled to emblements under common law, 1408, 1409 (2) b to way-going crop, 565, 1409 (2), c WITNESS. to lease desirable, but not necessary, 27. 10 WOODS. [See Trees.] WORD OF LEASING CREATING ACTUAL DEMISE, imports on part of lessor implied covenant for title, 924 WORDS. [See the particular word.'] WORDS IN A LEASE. importing implied covenant for quiet enjoyment, 924, B34 WRIT [See the respective action.'] of certiorari [See Ceetioeaei, Weit op.] ejectment [See Ejectment, Action oP, (11) TVrit.] entry ad terminum praieriit [See Entey ad Teeminum Pe.S;teeiit, Weit OF.] entry sur disseisin, etc. [See Entey Sue Disseisin, etc.] 858 WRIT — TBAE TO TEAR, TENANT FROM. [The references are to the paragraphs.] WRIT {continmd). error [See Ereob, Wkitof.] estrepement [See Esteepement, Weit of.] habere facias possessionem [See Habere Facias Possessionem, Wbit op.] homiiie replegiando {See Replevin, Action op, (11) Writ de homine replegiamdo.'] injunction [See Injunction, Weit of.] inquiry [See Inquiey, Weit of.] possession [See Haeeee Facias Possessionem, Weit op.] quare ejecit infra tmainum [See QuAEE Ejecit Inpea Teeminum, Weit OF.] quod permittat prosternere [See QuOD Peemittat Peosteeneee, Weit op.] replevin [See Replevin, Action op, (10) Writ in.'] rescous, form of, 343 [See Resoous, Action op.] restitution [See Restitution, Weit op.] retorno habendo [See Retoeno Habendo, Weit op.] waste [See Waste,. Weit of.] WRITING. unnecessary to create lease, 21 necessary to create tenancy for more than three years, 24. 7th, 8th to make assignment of lease, 25 WRONGFUL DISTRESS. in England illegal or irregular, 1074 distinction established by 11 George II, chapter 19, 1075 in Pennsylvania no distinction in, 11 George II, chapter 19, not being in force, 1076 difference in, in England and in Pennsylvania, 1077 what is a, 1076 instances of, 75. 7th requisites of a rightful distress, 1163 distress when no rent due, 1109 distress for more rent tban due, 1107, 1110 [See Excessive Disteess.] distress on more chattels than necessary, 1111, 1117 [See Excessive Dis- teess.] of stranger's chattels, 1414-1419 remedies, 1421 distraining by breaking open outer door, gate, or window, 1158 landlord responsible for making, 1159 not responsible for wrongful acts of bailiff, 1160 has remedy over against bailiff, 1161 WRONGS. (1) Against landlord, 66 remedies for, 67-74 (2) Against tenant, 75 remedies for, 76-82 (3) Against landlord or tenant, 83 remedies for, 84-88b (4) Against stranger, 89 remedies for, 90-97 y; year to year, tenant from. who is, 19. 2 how one becomes, 357 YEAE TO TEAR, ETC. — "YIELDING AND PAYING." 859 [The references are to the paragraphs.] YEAE TO YEAE, TENANT FEOM {continued). possession accompanied by payment of rent under oral lease for over three years creates, 24. 7th lease creating, determined by three mouths' notice to quit before end of cur- rent year, 357. 1 YEAES, TENANT FOE. who is, 19. 1 lease creating, should have certain commencement and certain determination, 24. 5th for over three years must be in writing, 24. 7th possession, accompanied by payment of rent under such lease, creates tenancy from year to year, 24. 7th no notice to quit necessary to determine tenancy for years, 356 holding over after expiration of term becomes tenant at sufferance, 356, 471 (8) holding over after sale of landlord's reversion becomes tenant at sufferance, 471 (8), 566 entitled to way-going crop, 1409 (1) [See Way-Going Ceop.] effect of Orphans' Court sale on Interest of, in the premises, 571 "YIELDING AND PAYING." in a lease, make covenant to pay rent, 292 in Vermont make an implied covenant, 292