in QJnrnpll Ham ^rlynnl IGxbraty Cornell University Library KFP 117.Z9B58 Landlord and tenant in Penns 3 1924 024 706 024 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024706024 LflNDLORDjNDTENflNT IN PENNSYLVANIA. RELATIONS TO EACH OTHER, RIGHTS AND DUTIES, WITH SPECIAL CHAPTERS ON COAL, OIL, GAS AND FARM LEASES, AND PRACTICE AND PLEADING IN REPLEVIN, WITH NEW FORMS OF LEASES AND PRO- CEDURE IN DISTRESS. SUPPLEMENTARY TO JACKSON & GROSS ON LANDLORD AND TENANT. WILLIS R. BI,ERLY, Esq. OF THE WILLIAMSPORT, PA., BAR Author of Rights and Duties of County and Township Officers, Mechanics' Liens, etc. ' PHILADELPHIA: Rees Welsh & Co. 501 sansom Street 1898 PREFACE. Apologies are usually the escape of the essence of egotism. Nor is any necessary for that which is both timely and practically useful. This work is designed to cover the legislative and judicial interpretation on Landlord and Tenant lav in Pennsylvania since the appearance of the first edition of Jackson & Gross' valuable treatise. Many questions have aiisen and been solved judicially in the last sixteen years, although legislation has been meagre on this subject. On the branches of oil and coal leases, there is a considerable body of decisions, which have been epitomized for this work and presented analytically, with a view to enlarge the scope of its usefulness. Forms have been added to meet new requirements. W. E. BIEELY. Getttsbtjeg, Pa., Maech 17, 1898. CONTENTS BY TOPICS. A cts of Assembly 16 Landlord and Tenant 34 The Relation and Incidents 24 Lease — General Principles ; . . 27 Lease — For Term of Years 36 Lease — Partners and Tenants in Common 37 Lease — Option to Buy 39 Lease — Covenant for Repairs 40 Lease — Building and Improvement. 41 Lease — Fixtures of Tenant 43 Lease — Chattels in connection with Realty 45 Lease — Personalty and Bailment 46 Lease — Farming and Cropping- 47 Lease — CoaJ Mining 50 Lease — Oil and Gas ; . . . 53 Liquor License 64 Holding Over 64 Surety, Liability 67 Assignment by Landlord 68 Assignment by Tenant 69 Surrender 71 Abandonment 72 Amicable Ejectment 73 Defalcation Proceedings 75 Proceedings for Possession 76 Measure of Damages 79 Sheriff's Sales 79 Certiorari 81 Mechanics' Lien 81 Notice 81 Married Woman 83 Evidence 84 Eviction 86 Ground Rent 87 Distress for Rent 88 Replevin 98 Rights of Landlord 110 Rights of Tenant 11& Forms of Procedure 12a (2) TABLE OF CASES. A. B. & L. Ass. vs. Wampole, 6 Supr. C, 238 80 Aderhold vs. Oil Well S. Co., 158 Pa., 401 80 Am. Acad. Music vs. Birt., 26 W. N. C, 35i 83 Anderson vs. Brinser, 129 Pa., 376 , 59 Ankermiller vs. O'Byme, 2 Mon., 766 31 Anewalt vs. Hummel, 109 Pa., 271 48 Appeal of Farmers Bank, etc., 1 Walker, 33 53 Appeal of C. B. Swartz, 119 Pa., 208 73 Appeal of Cambria Iron Co., 18 W. N. C, 361 92 Appeal of P. & A. D. Y. Co., 123 Pa., 250 11» Arrott S. P. M. Co. vs. Way Mfg. Co., 28 W. N. C, 387 84- Ashhurst vs. Phonograph Co., 166 Pa., 357 6& Ashvrorth vs. Love, 12 C. C. 273 104 Auer vs. Penn., 99 Pa., 370 71 Aye et al. vs. Brovyn et al., 178 Pa., 291 6S Ayers vs. Noving-er, 8 Pa., 412 US Bair et al. vs. Warf el, 5 Lane. L. R., 81 94 Baker Vs. Levels, 150 Pa., 251 ' 38 Baker vs. Kobb, 2 Del., 439 68 Balfour vs. E^lssell, 167 Pa., 287 58 Bandle vs. Erickson Co., 3 Supr. C, 389 117 Bank of Penna. vs. Wise, 3 Watts, 305 48^ Barnhart vs. Lockwood, 152 Pa., 82 62" Barnes et ux vs. Hess, 3 Kulp, 56 49" Barns vs. Wilson, 4 Lane. L. R., 247 31> Barber et al. vs. Hartman Steel Co., 6 C. C, 183 30' Barr vs. McGary, 131 Pa., 401 109< Bartley vs. Phillips, 179 Pa., 175 61 Bartley vs. Phillips, 165 Pa., 327 72; Bear vs. Bitzer, 4 H., 175 48. Beaty vs. Rankin, 139 Pa., 358 92: Becker vs. Werner, 29 P. L. J., 216 90. Bennett vs. Bemelmans, 163 Pa., 122 38 Bennett vs. Bemelmaus, 163 Pa., 109 3S Benz vs. Langan, 5 Northam., 139 27, 36, 75 Bergman vs. Roberts, 61 Pa., 497 76 Berridge et ux. vs. Glassey, 112 Pa., 443 37. Betz vs. Delbert, 16 W. N. C, 360 67 Binswagner vs. Deardon, ^ C. C, 653 83. Bittinger vs. Baker, 5 C, 68 48- (3) 4 TABLE OF CASES. Bodlne vs. Glading', 9 Harris, 50 39 Bogert vs. Batterton, 6 Super. C, 468 93, 94 Boice vs. Zimmerman, 3 Supr. C, 181 85 Borlin et al. vs. Comth., 110 Pa., 454 112 Bateler vs. Espen, 99 Pa., 313 40 Borland vs. Meurer, 139 Pa., 513 , 102 Borlin ShfC. vs. Gilmore, 16 W. N. C, 499 83 Bradford Oil Co. vs. Blair, 113 Pa., 83 54, 59 Bradley vs. Trust & Surety Co., 6 D. E., 217 40 Brady Overseers vs. Clinton Overseers, 148 Pa., 311 33 Brennan vs. Jacobs, 23 W. N. C, 453 , 31 Brisben vs. Wilson, 60 Pa., 458 94 Broad vs. Winsborough, 1 Northamp., 330 40 Brown vs. Beecher, 120 Pa., 590 54 Brown vs. Brightly, 14 W. N. C, 497 82 Brown vs. Brightly, 17 Phila., 252 82 Brown vs. Jaquette, 2 Del., 245 49 Brown vs. Stackhouse, 155 Pa., 582 , 95 Bunting's Est., 16 W. N. C, 335 88 Bush, Bunn & Co.'s Appeal, 15 P. P. S., 363 46 Butler vs. Bennett, 11 C. C, 88 70 Cadwallader vs. U. S. Express Co., 147 Pa., 455 29 Cairns vs. Llewellyn, 2 Supr. C, 599 66 Calhoun's Estate, 26 W. N. C, 303 28 Calhoun's Estate, 20 Phila., 46 .' 28 Callender Co. vs. Speer, et al., 29 P. L. J., 125 90 Camp vs. Casey, 7 C. C, 160 , 43 Carnegie Gas Co. vs. Phila. Co., 158 Pa., 315 27 Carver vs. Gough, 153 Pa., 225 44 Cascade Overseers vs. Lewis Overseers, 148 Pa., 323 33 Chamberlain vs. Dow, 16 W. N. C, 532 54 Chambers vs. Shivery, 6 D. E., 101 76 City of Allegheny vs. Campbell, 107 Pa., 530 26 Clark vs. Eberly, 8 W. & S., 226 76 Clark vs. Morse, 142 Pa., 321 100, 101 Cleminger vs. Bodin Gas Co., 159 Pa., 16 61 Coal Co. vs. Wright, 177 Pa., 387 51 Cochran vs. Howes, 3 Del. Co., 248 91 Cochran vs. Pew, 159 Pa., 184 61 Collins vs. Houston, 138 Pa., 481 107 Collins vs. Mechling, 1 Supr, C, 594 58 Com'th vs. Brown, 28 W. N. C, 149 86 Com'th vs. Knarr, 135 Pa., 35 65 Com'th vs. Moreland, 9 W. N. C, 272 89 Com'th vs. Nichols, 16 C. C, 669 89 Com'th vs. Penna. R. R. Co., 20 W. N. C, 448 70 TABLE OF CASES. 5 Com'th vs. Shertzer, 14 Lane. L. E., 70 : . . 98 Com'th vs. Sides, 12 Lane. L. R., 145 109 Com'th TS. Switzer, 26 W. N. C, 46 114 Conger vs. Transportation Co.,. 165 Pa., 561 61 Connay vs. Halsted, 73 Pa., 354 74 Conroy vs. Bitner, et al., 5 Del. Co., 261 93 Cooney vs. Bigg-erstafe, 34 P. L. J., 381 68 Cooke vs. Boynton, 135 Pa., 102 53 Cook vs. Polsom, 2 Del. Co., 314 45 Cooper vs. Potts, 174 Pa., 302 Ill Cornell vs. Friedensville Zinc Co., 2 Xorthamp., 309 53 Cosgrove vs. Hamill, 173 Pa., 207 43 Cox vs. Hartranft, 154 Pa., 457 101 Cravpford vs. Evans, 158 Pa., 390 113 Cryan et ux. vs. Riddlesperger, 7 C. C, 473 63. Cummings vs. Young, et al., 6 Mont., 161 81 Cunningham vs. Entrekin, 15 C. C, 183 121 Correll vs. Friedensville Zinc Co., 2 Northamp., 309 53- Dalzell vs. Lynch, 4 W. & S., 256 80' Darrah et al. vs. Baird, 101 Pa., 265 44 Darrah, Moore & Co. vs. Baird, 5 Outerb., 265 44 Davis vs. Davis, 115 Pa., 261 35, 77 Davis vs. Davis, 128 Pa., 100 95 Davis vs. Moss, 2 Wr., 346 44 DeCoursey vs. Trust Co., 81 Pa., 217 81 De Morat vs. Falkenhagen, 148 Pa., 393 71 De Morat vs. Howard, 6 D. K., 761 68 Dermond's Appeal, 153 Pa., 238 45 Devlin vs. Burns, 147 Pa., 168 117 Devlin vs. Snellenburg, 132 Pa., 186 110 Diehl vs. Boekins, 1 D. E., 479 121 Diehl vs. Woods, et al., 33 P. L. J., 152 86 Dietrick vs. Dietrick, 154 Pa., 92 119- D. L. & W. E. Co. vs. Sanderson, et al., 109 Pa., 583 50 Dosch vs. Diem, 176 Pa., 603 85, 86 Double vs. Heat & Light Co., 172 Pa., 388 82- Duffee vs. Mansfield, 141 Pa., 507 68 Duffield vs. Eosenzweig, 150 Pa., 543 59- DufSeld vs. Eosenzweig, 144 Pa., 520 59' Duffield vs. Hue, 136 Pa., 602 55 Duffield vs. Hue, 129 Pa., 94 55 Duke vs. Hogue, 107 Pa., 57 54, 59 Duke et al. vs. Hogue, S. C, 33 P. L. J., 3 59 Duke vs. Hogue, 33 P. L. J., 3 39 Dumn vs. Eothermal, 112 Pa., 272 35 Dumn vs. Eothermal, 119 Pa., 632 35 b TABLE OF OASES. Dunham vs. Loverock, 158 Pa., 197 56 Duncan vs. Sherman, 121 Pa., 530 102 Dunn vs. Mellon, 147 Pa., 11 113 Earle vs. Arbogast, 180 Pa., 409 '. . 120 Early vs. Ashworth, 17 Phila., 248 41 Efeerle vs. Bonaf on Ex'rs, 17 W. N. C, 335 33 Eberle vs. Girard Life Ins. Co., 4 Atl., 808 33 Edv^ards' Appeal, 105 Pa., 103 46, 112 E. S. Coal Co. vs. Wilbur, et al., 5 D. R., 202 52 Esterly M. Co. vs Spencer, 147 Pa., 466 95 Est. of GOman, 20 Phila., 61 84 Est. of Henry Muller, 16 Phila., 321 66 Est. of Morris E. Afflick, 16 Phila., 210 25 Est. Phares Young, 16 Phila., 215 117 Est. of P. H. Law, 20 Phila., 10 113 Est. Sam'l Dawson, 35 P. L. J., 63 110 Est. of Thad. Stevens, 11 Lane. L. E., 137 31 Euler vs. Johnson, 25 Pa., 350 76 Everhart vs. Bauer, 1 L. V. L. E., 157 40 Eauker vs. Anderson et al., 173 Pa., 86 63 arell vs. Betz & Son, 5 D. R., 310 64 aFennell vs. Guffey, 155 Pa., 38 58 J?erg-uson vs. Lauterstein, 160 Pa., 427 _ 47 Eerg-uson vs. Rafferty, 128 Pa., 337 108 Eernwood M. H. Ass'n vs. Jones, 102 Pa., 307 29 Einnegan vs. Penna. Trust Co., 5 Supr. C, 134 51 Eitzmaurice vs. Fabian, 29 W. N. C, 339 41 Ei'tzwater vs. Eoberts, 166 Pa., 454 108 Plorey vs. Heller Ex'rs, 1 Northam., 409 75 Eoulke vs. Cox, 21 W. N. C, 153 80 Eoulke vs. Millard, 108 Pa.,' 230 87 Eow vs. Roberts, 108 Pa., 489 114 Fowler vs. Eddy, 110 Pa., 117 75 Eriend vs. Oil Well Co., 165 Pa., 652 62 Eriend vs. Supply Co., 179 Pa., 290 29 Ereiler vs. Kear, 2 Mon., 747 84 Eullerton vs. Shauffer, 2 Jones, 220 48 Furbush et al. vs Chappell, et al., 105 Pa., 187 94 Furbush vs. Fisher, 2 Kulp, 497 91 Furman vs. Holmes, 6 C. C, 163 52 Galey Bros. vs. Kellerman, 123 Pa., 491 61 Gallagher vs. McLean, 6 D. E., 315 79 Gandy Adm'r vs. Dickson, 14 C. C, 637 .' 89 Gandy Adm'r vs. Dickson, 166 Pa., 422 89 Garman vs. Potts, 26 W. N. C, 305 52 TABLE OP CASES. ( Gas Co. vs. Poterle, 179 Pa., 68 61 Geiser Mfg. Co. vs. Crissing-er, 17 C. C, 46 47 Getz vs. P. & E. K. Co., 105 Pa., 547 116 Gibson vs. Oliver, 158 Pa., 377 61 Gibson vs. Vetter, 163 Pa., 36 74 Gill vs. Weston, 110 Pa., 313 , 60 Gillion vs. Finlay, 32 W. N. C, 134 38 Gilmore vs. Railway Co., 104 Pa., 275 119 Givens vs. Miller, 63 Pa., 133 77 Glasgow vs. Chartlers Oil Co., 152 Pa., 48 61 Goddard & Draper's Appeal, 1 Walker, 97 53 Gold vs. Gleason, 4 D. E., 6Q3 90 Goodman vs. Eothaker, 17 PMla., 345 68 Goodwin vs. Shoemaker, 5 Kulp, 321 76 Goss vs. Brick Co., 4 Supr. C, 167 69 Graham vs. Dempsey, 169 Pa., 460 72 Gray vs. Catawissa K. R. Co., 18 W. N. C, 9 115 Graver vs. Pehr, 89 Pa., 460 77 Gregg vs. Krebs, 19 C. C, 73 ■ 74 Grier vs. McAlarney, 148 Pa., 587 91 Grim vs. Eeinbold, 148 Pa., 446 107 Grossman's Appeal, 102 Pa., 137 73 Grove vs. Barclay, 33 P. L. J., 51 28 Guokert vs. Lowrie, 30 W. N. C, 469 73 Hackett vs. Carnell, 106 Pa., 291 121 Haldeman vs. Sampter, 2 Del., 106 75 Hall vs. Phillips, 164 Pa., 494 57 Hamilton vs. Pittock, 158 Pa., 277 Hamilton vs. Eettock, 158 Pa., 457 56 Hand vs. Suravitz, 148 Pa., 202 33 Harding vs. Seeley, 148 Pa., 30 34 Harrington vs. Hamill, 3 Mont., 31 84 Harrington vs. Hamill, 5 Mont., 141 108 Harrisburg El. Lt. Co. vs. Goodman, 129 Pa., 306 107 Harris vs. Knowles, 26 W. N. C, 349 35 Harvey vs. Gunzberg, 148 Pa., 394 66 Hatfield's Est., 13 C. C, 351 131 Haynes vs. Sinnott, 160 Pa., 180 67 Hazlett et aJ. vs. McCutcheon, 158 Pa., 539 49 Heckman's Estate, 173 Pa., 15 C. C, 364; 3 D. E., 479 28 Heckman's Est., 173 Pa., 185 38 Heinoner vs. Jones, 159 Pa., 338 63 Hele vs. Stewart, C. P., 19; W. N. C, 129 39 Heller vs. Eoyal Ins. Co., 133 Pa., 153 37 Heller vs. Eoyal Ins. Co., 151 Pa., 101 27 Heller vs. Eoyal Ins. Co., 177 Pa., 363 37, 43 8 TABLE OF CASES. Heller vs. Royal, S. C, 17 C. C, 21 26 Heller vs. Royal, 4 D. P., 433 26 Henderson et al. vs. Ferrell et al., 183 Pa., 547 63 Henny vs. Ralph, 1 D. R., 720 120 Heritage vs. Wilfong, 8 P. P. S., 137 26 Hershey vs. Metzger, 9 Norris, 218 48 Hess vs. Weingartner, 5 D. R., 521 72 Hessell vs. Johnson, 142 Pa., 8 69 Hessell vs. Johnson, 129 Pa., 173 93 Hewitt vs. Mcllvaine, 10 C. C, 662 80 Hicks vs. Summerson, 27 W. N. C, 332 47 Hicks vs. Summerson, 134 Pa., 566 108 Hicks vs. Summerson, 142 Pa., 344 108 Hildreth & Co. vs. Davis, 6 Kulp, 322 43 Hilton's Appeal, 19 W. N. C, 429 35 Hinkson vs. Wagner, 3 C. C, 297 70 Hilke vs. Eisbeis, 104 Pa., 514 76 Hill vs. Sewald, 53 Pa., 274 44 Hirst's Estate, 147 Pa., 319 87 Hitchcock et al. vs. Bacon, 20 W. N. C, 511 86 Hoch's Appeal, 24 W. N. C, 27 52 Holland vs. Townsend, 136 Pa., 392 95 Hollis vs. Brown et al., 159 Pa., 539 115 Hollis vs. Burns, 100 Pa., 206 35, 39 Hooke vs. Forst, 165 Pa., 238 63 Hooke vs. Freeman, 13 C. C, 310 79 Hoover vs. Hoover, 10 C. C, 563 70 Hope's Appeal, 33 P. L. J., 320 50 Hope's Appeals, 29 W. N. C, 365 51 Horberg vs. May, 153 Pa., 216 62 Horn vs. Davis, 155 Pa., 57 46 Homer vs. Wetherell, 19 W. N. C, 197 77 Houser vs. Tully, 62 Pa 116 Howe Sewing Machine Co. vs. Sloan, 87 Pa., 438 90 Huber vs. Baum, 151 Pa., 626 40 Huddell et al., in Re., 16 Phila., 547 70 Hughes vs. Moody, 10 C. C, 305 74 Hunt vs. Scott, 3 C. C, 411 ' 49 Irvine's and Leidich's Appeals, 161 Pa., 451 110 Irwin vs. Mattox, 138 Pa., 466 48 Irvin vs. KutrufE, 152 Pa., 609 103 Israel vs. Clough, 5 D. R., 325 80 Jackson's Appeal, 3 Mont., 96 89 Jamestown, etc., Co. vs. Egbert, 152 Pa., 53 61 Jennings vs. McComb et al., 112 Pa., 518 37 Johnson et al. vs. Ash, 142 Pa., 45 87 TABLE OF CASES. 9 Johnson vs. Smith, 165 Pa., 195 31 Johnson's Appeal, 115 Pa., 129 37 Jones vs. Herron, 12 C. C, 183 102 Jones vs. Herron, 31 W. N. C, 263 102 Jones vs. Kroll, 116 Pa., 85 34 Jones vs. Nat'l Gas Co., 146 Pa., 204 63' Joyce vs. Lynch, 33 P. L. J., 377. . ." 82 Justice & Co. vs. Phila., 169 Pa., 503 119 Kaas' Appeal, 3 C. C, 55 25 Kaier vs. Leahy, 15 C. C, 243 28, 78, 82 Karns vs. McKinney, 74 Pa., 390 90 Earns vs. McKinney, 74 Pa., 387 91 Kauffman vs. Schaeffer, 2 Walker, 331. 48 Keely vs. O'Conner, 106 Pa., 321 114 Kennedy vs. Crawford, 138 Pa., 561 61 Kenney's Appeal, 22 W. N. C, 89 43 Kerns vs. McKinney, 74 Pa., 390 90, 91 Killeen vs. Haddock et al., 4 Kulp, 408 79, 82 King-sley vs. Coal Co., 144 Pa., 613 50 Kitchen vs. Smith, 101 Pa., 452 , 53 Kite vs. Giebner, 114 Pa., 381 54 Kleeman vs. Kemmerer et ux., 3 Lane. L. R., 99 119 Klein vs. McFarland, 5 S\ipi-. C, 110 98 Knauss vs. Brua, 107 Pa., 85 114 Knerr vs. Bradley, 105 Pa., 190 39 Kost vs. Theis, 20 W. N. C, 545 43, 68 Kroll vs. Jones, 116 Pa., 85 30 Kroll vs. Jones, 1 C. C, 485 30 Krumbhaar vs. Stetler, 10 C. C, 12 109 Kugel vs. Painter et al., 166 Pa., 592 30 Kunkle vs. People's Gas Co., 165 Pa., 133 57 LafEerty's Appeal, 20 W. N. C, 36 88 LafCerty vs. R. K. Co., 124 Pa., 297 119 Lamberton vs. StaufEer, 5 P. F. S., 284 48 Lane, et al. vs. Nelson, 167 Pa., 602 27, 71 Latimer vs. Groetzing-er et al., 139 Pa., 207 91 Lazarus Estate, 145 Pa., 1 50 Leahy's license, 3 D. E., 472 64 Leatherman vs. Oliver, 151 Pa., 646 60, 61 Lebanon Soh. Dist. vs. L. F. Sem., 22 W. N. C, 65 112 Leisenring's Appeal, 159 Pa., 537 74 Lerew vs. Einehart, 3 C. C, 50 80 Lewall vs. Lewall, 158 Pa., 626 99 Levs^is vs. Bonnert, 12 C. C, 366 101 Liebknecht's license, 3 D. E., 473 64 10 TABLE OF CASES. Liggett vs. SMra, 159 Pa., 350 '. . 61 Lightner, Agt. vs. Axe, 3 Del., 110 67 Lipper vs. Bouve et al., 6 Supr. C, 453 66, 71 Leinbach vs. Kauflman, 2 Walker, 515 76 Long vs. McLanahan, 103 Pa., 537 42 Long vs. Seavers, 103 Pa., 517 48 Loran's Estate, 10 C. C, 554 ' 38 Lynch vs. Versailles, etc., Co., 165 Pa., 518 62 Maher vs. McClellan, 8 Atl., 174 108 Marsh vs. Nelson, 101 Pa., 51 116 Marstellervs. Marsteller, l32 Pa., 517 118 Mary A. Duffee vs. Mansfield, 141 Pa., 507 68 Mather vs. Wood, 13 C. C, 3 113 Mather vs. Wood, 1 D. E., 793 113 Mathews' Appeal, 104 Pa., 444 26 Matthews vs. Gas Co., 179 Pa., 165 61 Maurer vs. Sheafer, 19 W. N. C, 439 52 May vs. Hazelwood Oil Co., 152 Pa., 518 60 May vs. Troutman, 4 Supr. C, 42 37 McBrier vs. Marshall, 126 Pa., 390 65 McCahan vs. Wharton, 22 W. N. C, 491 ■ 52 McCarty vs. Mellon, 5 D. R., 425 61 McClane vs. Peoples, etc., 178 Pa., 424 63 McClelland vs. Rush, 150 Pa., 57 36 McClintock et al. vs. Dana et ux., 106 Pa., 386 50 McClintock et al. vs. Loveless, 5 D. R., 417 67 McCormick vs. Bottorf , 155 Pa., 331 84 McElroy vs. Dice, 17 Pa., 163 96 McKeeby vs. Webster, 170 Pa., 624 120 McKenna vs. Paper Co., 176 Pa., 306 115 McKinney vs. Reader, 6 Watts, 34 96 McKnight vs. Nat. Gas Co., 146 Pa., 185 56 McMillan vs. Phlla. Co., 159 Pa., 142 '. 57 McNerny vs. City of Reading, 150 Pa., 611 115 Medary vs. Gathers, 161 Pa., 87 67 Merrell vs. Merrell et al., 5 Kulp, 125 25 Merrill vs. Trimmer, 2 C. C, 49 112 Merkel's Appeal, 25 W. K. C, 469 113 Mickle vs. Miles, 7 C, 20 46 Mill Creek Coal Co. vs. Andrukus, 12 C. C, 314 82 Miller vs. McCullough, Jr., 31 P. L. J., 223 114 Minning et al. vs. Sterret, 7 C. C. 73 80 Mitchison vs. Southcott, 17 W. N. C, 27 '. 88 Mogg vs. Stone, 4 Del., 170 76 Mohan vs. Butler, 112 Pa., 590 26, 77 Moore vs. Gardiner, 161 Pa., 175 73 TABLE OP CASES. 11 Morgan's Estate, 30 W. N. C, 509 30 Morgan's Est., 11 C. C, 536 30 Morgan et ux. vs. Yard, 30 P. L. J., 178 '. 69 Morgan vs. Bloecker et al., 6 D. E., 659 40 Morgan vs. Trustees Luzerne Lodge, 5 Kulp, 512 72 Morris vs. Shakespeare, 35 P. L. J., 496. 118 MiiMenberg vs. Henning, 19 W. N. C, 370 52 Muller vs. Bohringer, 3 C. C, 144 35 Mullen vs. Traction Co., 20 W. N. C, 203 70 Muller's Est., 14 W. N. C, 308 70 Murphy vs. Chase et al., 103 Pa., 260 i 94 Murphy vs. Losch, 148 Pa., 171 ' 71 Murphy vs. Marshall, 179 Pa., 516 98 Murray vs. Vaughn, 16 C. C, 657 89 Murtland vs. Callihan, 2 Super. Co., 340 57 Myers vs. Esray, 8 C. C, 281 90 Myers vs. Essery et al., 134 Pa., 177 '. 91 Myers vs. Kingston CoaJ Co., 126 Pa., 582 50 Natl. Pub. Co. vs. Shupe, 18 W. N. C, 379 114 Nav. K. K. & C. Co. vs. Tamaqua, 1 Walker, 468 53 Neeley's Est., 5 York, 199 101 Nelson vs. Orr, 29 P. L. J., 383 116 Nesbit vs. Godfrey, 155 Pa., 251 56 Newell's Appeal, 100 Pa., 513 39 Nichols vs. Jones, 166 Pa., 599 119 N. Pa. K. Co. vs. Davis, 36 Pa., 238 117 Norris vs. Gould, 15 W. N. C, 187 38 North vs. Williams, 120 Pa., 109 46 Oakford et al. vs. Nixon et al., 177 Pa., 76 31 O'Donnell vs. Luskin, 8 Mont., 109 26 Ogden vs. Hatry, 145 Pa., 640 62 O'Kie vs. Depuy, 3 C. C, 140 78 Oram's Estate, 5 Kulp, 423 80 Owens vs. Shovlin, 116 Pa., 371 34 Page vs. Middleton, 118 Pa., 546 90 Palairet vs. Snyder, 106 Pa., 227 87 Palmer vs. Truby, 136 Pa., 556 55 Palmer vs. Allen, 27 W. N. C, 514 57 Park vs. Holmes, 28 W. N. C, 288 97 Park vs. Holmes, 147 Pa., 407 97, 108 Patterson vs. Park, 166 Pa., 25 40 Patterson et al. vs. Pyle, 1 Mon., 352 74 P. C. Coal Co. vs. Greenlee et al., 164 Pa., 549 58 Pearce vs. Humphreys, 14 Sergt. & R., 25 100, 102 Pearson Ex. vs. P. Zinc Co., 1 C. C, 660 49 12 TABLE OF CASES. Penn Iron Co. Lt. vs. Diller, 113 Pa., 635 79 Peoples' Bank vs. Alexander, 140 Pa., 32 69 People's St. E. vs. Spencer, 156 Pa., 85 39 Perrin vs. Wells et al., 6 Kulp., 313 85 Perrin vs. Wells, 155 Pa., 299 92 Pettebone vs. Smith, 30 W. N. C, 325 30 Phila. Toll Co. vs. Br. Am. Ass. Co., 25 W. N. C, 370 35 Phila. vs. Weaver, 155 Pa., 74 72 PMla. Ball Chib vs. PMla., 182 Pa., 362 121 Phillips vs. Epp et al., 4 Del. Co., 426 41 Phillips vs. Epp et al., 2 Lack. Jurist, 41 41 Phillips vs. Coast, 130 Pa., 572 55 Phillips vs. Vandergrift, 146 Pa., 357 62 Phillips vs. Stroup, 1 Mon., 517 109 Phoenixville Borough vs. Walters, 147 Pa., 501 65 Pierce vs. Scott, 4 W. & S., 344 91 Pierce vs. Lewis, 9 C. C, 250 109 Pierce vs. Lewis, 27 W. N. C, 400 109 Pittsburg Jn. R. E. Co. vs. McCutcheon, 18 W. N. C, 527 119 Piatt & Co. vs. Johnson, 168 Pa., 47 32 Plummer vs. Hillside C. & I. Co., 160 Pa., 483 51 Plummer vs. Shulmyer, 12 Lane. L. E., 217 40 Pollman vs. Morgester, 99 Pa., 611 41 Poterie Gas Co. vs. Poterie, 153 Pa., 10 62 Poterie vs. P. Gas Co., 153 Pa., 13 .- 62 ^ Potter Assignee, etc., vs. Gilbert et al., 177 Pa., 159 51 Potter et al. vs. Lambie et al., 142 Pa., 535 25 Pottery Co. vs. GrifBn, 16 Phila., 569 , 30 Power & Co. vs. Howard et al., 22 W. N. C, 475 94 Provident Co. vs. Piss, 147 Pa., 232 88 Quigney vs. Quigney, 1 Northam., 20 78 Quinn vs. Wallace, 6 Wharton, 452 88 Eailroad Co. vs. Eby, 107 Pa., 166 117 Eailroad Co. vs. Water Co., 182 Pa., 418 120 Eamsdell vs. Owens, 12 C. C, 416 108 Eay vs. Nat. Gas Co., 138 Pa., 576 61 Eea vs. Ganter, 153 Pa., 513 64 Eeading vs Eeiner, 167 Pa., 41 116 Eeam vs. Harnish, 9 Wr., 376 48 Reams vs. Pancoaet, 33 P. L. J., 333 97 Eeams vs. Pancoast, 111 Pa., 42 73 Eeany vs. Fannessy, 14 W. N. C, 91 72 Reeves vs. McCome^ky, 168 Pa., 571 72 Eichards vs. McGrath, 100 Pa., 389 88, 96 Eichards vs. McGrath, 100 Pa., 389 96 TABLE OP CASES. 13 Richards vs. McGrath, 100 Pa., 399 88 Kiddle vs. Mellon, 147 Pa., 30 58 Eiddleburger C. & I. Co.'s Appeal, 114 Pa., 58 Ill Eiegelman vs. Poclit, 8 Lane. L. R., 382 36 Einehart vs. Olwine, 5 W. & S., 163 48 Roberts vs. Messing-er, 26 W. N. C, 70 93 Rohrer vs. Cunningham, 138 Pa., 68 92 Rorer's Est., 5 C. C, 73 113 Rohrheimer vs. Hofman, 103 Pa., 409 29 Rundall vs. Stedge, 2 C. C, 608 37 Sacks et ux. vs. Schimmel, 3 Supr. C, 426 118 Sanders vs. Sharp, 153 Pa., 555 .' 61 Schooley et al. vs. Butler Mine Co., 175 Pa., 261 51 Schott vs. Harvey, 9 Out., 223 114 Schott vs Harvey, 105 Pa., 222 114 Schuyler vs. Phila. Coach Co., 29 W. N. C, 343 83 Scott vs. Fox Op. Inst. Co., 38 P. L. J., 368 29 Scott vs. Swain, 19 W. N. C, 547 67 Secor vs. Shippey, 7 C. C, 555 74 Seeger vs. Pettit, 77 Pa., 440 44 Seltzer vs. Bobbins et al., 181 Pa., 451 85 Seltzer vs. Bobbins, IS W. N. C, 113 79 Shaaber vs. Beading, 150 Pa., 402 32 Shaw & Co. vs. Phila., 169 Pa., 506 120 Shenk vs. Shaeffer, 8 Lane. L. B., 49 78 Shermer vs. Paciello, 161 Pa., 69 69 Shoemaker's Appeal, 106 Pa., 392 50 Shoemaker vs. Coal Co., 177 Pa., 405 51 Shoemaker vs. Shoemaker, 7 Kulp, 528 108 Showaker vs. Boyer, 3 C. C, 271 28 Shultz vs. Wall, 134 Pa., 262 116 Silfies vs. Laubach, 4 Northam., 196 85 Singer S. M. Co. vs. Cope, 1 Northam., 185 47 Skiles vs. Sides, 1 Supr. C, 15 91 Smiley vs. Gallagher, 164 Pa., 498 57 Smith & Co. vs. Phoenix Pottery Co., 1 Lane. L. B., 143 30 Smith Am. Organ Co. vs. Abbott, 11 C. C, 319 47 Smith vs. Carter, 17 Phila., 344 78 Smith vs. Crossland, 106 Pa., 414 117 Smith vs. Mishler, 7 Lane. L. B., 169 92 Smith vs. Pringle, 30 P. L. J., 100 ■ 117 Smith vs. Snyder, 168 Pa., 541 32 Snyder vs. Baring, 4 Supr. C, 196 88 Spackman's Appeal, 16 W. N. C, 79 28 Sp'eigle vs. McFarland, 1 Walk, 354 76 Spencer vs. Clinefelter, 101 Pa., 219 96, 97 14 TABLE OF CASES. Stag-e -vs. Boyer et al., 183 Pa., 560 63 Stambaugh ts. Yeates, 2 E., 161 48 Standard Paint Co. vs. Prince Mfg. Co., 133 Pa., 474 52 Stark vs. Hight, 3 Supr. C, 516 37, 111 Starr vs Simon, 9 C. C, 15 94 Steiner vs. Marks, 172 Pa., 400 63 Stern vs. Jones et al., 7 Kulp, 19 117 Stewart vs. Lawson, 181 Pa., 549 74 Strange vs. Austin, 134 Pa., 96 113 Stranghellen vs. Ward, 16 Phila., 134 112 Strawick vs. Munhall, 139 Pa., 358 81 Stull vs. Thompson, 154 Pa., 43 33 Supplee vs. Timothy, 124 Pa., 375 82 Sutton vs. Poulke et al„ 2 C. C, 529 86 Swab vs. Miller, 9 Atl., 667 108 Sweatman's Appeal, Reading Iron Works, 150 Pa., 360 42 Swint to use, etc., vs. McCalmont Oil Co., 184 Pa., 202 33, 39 Taylor vs. Maule, 2 Walker, 539 45 Teller vs. Boyle, 132 Pa., 56 64, 71 Teufel vs. Rowan, 179 Pa., 408 112 Thomas vs. Pyle, 2 C. C, 258 75 Thompson vs. Christie, 138 Pa., 230 61 Tlmmes vs. Metz, 156 Pa., 384 110 Titusville Novelty Works Appeal, 77 Pa., 103 54 Townsend vs. Underbill, 6 C. C, 544 45 Towt vs. McCaully Bros., 173 Pa., 314 120 Traeger vs. Hartnett, 15 W. N. C, 300. 67 Tufts vs. Spengler, 1 Northam., 25 47 Twibill vs. Brown, 1 C. C, 350 112 Underwood's Est., 5 C. C, 621 37, 68, 83 Van Beil vs. Shive, 17 Phila., 104 75 Vanderlin vs. Hovis, 152 Pa., 11 56 Van Steuben vs. Central E. E., 178 Pa., 367 30 Vanvoorhis vs. Oliver, 39 P. L. J., 114 62 Veditz vs. Levy, 1 C. C, 266 81 Venture Oil Co. vs. Pretts, 153 Pa., 451 56 Vetter's Appeal, -99 Pa., 52 46 Walbridge vs. Pruden, 102 Pa., 1 92 Walker vs. Githens, 156 Pa., 178 32 Walsh vs. Greenwood, 6 Kulp, 477 98, 105 Ward vs. Phila., 18 W. N. C, 561 26 Warner vs. Aughenbaugh, 15 S. &E., 9 107 Warner, vs. Caulk, 3 Wh., 193 97 Watterson Adm. vs. Fuellhart, 169 Pa., 612 101, 102 TABLE OF CASES. 15 Watts vs. Lehman, 107 Pa., 106 44 Watts & Son vs. Lehman, 33 P. L. J., 78 121 Wayne vs. Lapp, 180 Pa., 278 43 Weber vs. Eorer, 151 Pa., 487 97 Weightman vs. Harley, 20 W. N. C, 470 72 Weinman & Co.'s Est., 164 Pa., 405 110 Western Pa. Gas Co. vs. George, 161 Pa., 47 61 Westmoreland Coal Co.'s Appeal, 4 Norris, 344 50 Westmoreland, etc., N. G. Co. vs. Dewitt, 130 Pa., 235 .54, 60 Wenger vs. Campbell, 104 Pa., 33 38 Wettengel vs. Gormley, 160 Pa., 559 ,57 Whltton vs. Milligan, 153 Pa., 377 95 Wilbur vs. Hankins, 19 C. C, 222 79 Wilcox vs. M. L & S. Co., 147 Pa., 540 29, 82 Wilcox vs. Palmer, 163 Pa., 109 32 Wilcox vs. Phil. Sec. Co., 15 W. N. C, 367 86 Wilke vs. Campbell, 5 Supr. C, 618 82 Willard vs. Earley, 23 W. N. C, 122 115 Williams vs. GufEey, 178 Pa., 342 63 Williams vs. McAnany, 13 C. C, 191 83 Williams vs. Ladevp, 171 Pa., 369 66 Williams vs. Short, 155 Pa., 480 58 Wills vs. M. N. Gas Co., 130 Pa., 222 61 Wilson vs. Barns, 17 W. N. C, 27 115 WiJson vs. Coal Co., 161 Pa., 499 51 Wilson vs. Goldstein, 12 C. C, 337 38 Wilson vs. Goldstein, 153 Pa., 534 60 W. N. Gas Co. vs. Johnson, 123 Pa., 576 59 Wodcock vs. Robinson, 28 W. N. C, 288 41 Wolf vs. Guffey, 161 Pa., '376 61 Wolfe vs. Arrott, 109 Pa., 473 118 Woodburn's Est., 138 Pa., 606 55 Wood Co. Pet. Co. vs. W. Va. Trans. Co., 34 P. L. J., 7 60 Woodmansie & Garside vs. Boyer, 3 Lane. L. R., 365 Ill Wood vs. Sharpless, 174 Pa., 588 50, 85 Wright vs. Coal Co., 182 Pa., 514 51 W. S. Co. vs. Haas, 151 Pa., 115 77 Wunder vs. McLean, 134 Pa., 334 ' 114 Wyke vs. Wilson, 173 Pa,, 12 89 Yeager vs. Tool, 1 Dauphin Co., Reporter 120 Yeany vs. Keck, 183 Pa., 533 'J8 Young vs Jones, 1 L. V. L. R., 175 35 Young vs. Walters, 5 C. C, 127 49 LANDLORD AND TENANT I N PENNSYLVANIA. ACTS OF ASSEMBLY RELATING TO. Landlord's Claim Preferred in Assig-ament by Tenant 16 Waste, in Case of Owners not in Possession 16 Exting-uishnient of Ground Kent 17 Orphan's Court Jurisdiction in Ground Rent 19 Exemption of Leased Sewing' Machines and Type Writers 21 Timber and Bark Contracts 21 Trespass on Fields, Gardens, etc 23 ASSIGNMENT OF TENANT. An Act to provide for payment of rent in cases of assignments for the benefit of creditors. Section 1. Be it enacted, etc., That in all cases where a tenant or tenants shall make any assignment for the benefit of creditors, of goods and chattels, upon demised premises and which are liable to distress by the landlord for rent, the landlord shall be first entitled to receive, out of the proceeds of the sale of such goods and chattels by the assignee or assignees, any sum or sums of money due him for rent of such demised premises at the time of the making of such assignment, not exceeding one year's rent; Provided, That if the proceeds of the sale by the assignee or assignees shall not be sufficient to pay the landlord and the costs of the assignment, the landlord shall be entitled to receive the proceeds of sale, after deducting so much for costs as he would be Hable to pay in case of a sale under distress. Approved the 26th day of May, A. D., 1891. WASTE. ACTION ATJTHOEIZED TO PEEVENT BY OWNEK, OUT OF POSSESSION. An Act permitting any person having a contingent interest in any real estate in this Commonwealth, and not being in posses- (16) WASTE. GROUND RENT. 17 sion of the same, to commence and prosecute a snit or suits at law or equity to prevent waste upon said real estate, and to re- cover damages for waste committed or done to such real estate. Section 1. Be it enacted, etc., that from and after the pas- sage of this act, it shall be lawful for any person or persons hav- ing a contingent interest in any real estate in this Common- wealth, and not being in possession of the same, to commence and prosecATte any suit or suits at law or in equity to prevent the com- ir.i^sion of waste to such real estate, or to recover damages for waste committed or injury done tO' such real estate, in the same manner and form as they might or could do was such interest ^•ested and the person or persons having such interest, in actual pobsession of the same; Provided, That before -any suit at law or equity is commenced, the said, person or persons having such contingent interest, shall apply to the court of common pleas of the county where such land or part of the same is sitiiated, for the ai>pointment of some suitable person to take and receive any and all moneys that may be so received in any suit or suits, which person shall, after recovery of judgment and before any money or property 2iasses, give such bond with such sureties as may be approved by said court, and shall hold any and all such moneys received as aforesaid, subject to the orders of said court. Such receiver shall receive such compensation for his services as the court may allow. .^l^proved the 8th day of June, A. D., 1S91. GROUITD REN"T. EXTINGUISHMENT OF AND PROVIDING FOE KECOED OF SAME. An Act relating to the extinguishing of ground-rents, and providing a means, where ground-rent has been extinguished by payment or presumption of law, for recording such extinguish- ment, and making the same binding and effectual. Section 1. Be it enacted, etc., That in all cases in which a ground-rent has been or may be extinguished by payment or by presumption of law, but no deed of extinguishment or release 2 18 GEOUA'D EEXT. thereof appears of record, it sliall and may be lawful for the owner or owaiei-s of tlie land out (of) which the said rent issues, or any person interested, to apply hy netition, under oath or affir- mation, to the court of common as of the county in which the laiid out of which the re;nt - *as reserved is situate, set- ting forth the reservation of the rent and the name of the pre- sent holder or holders, owner or owners of said rent if known, and if not known then stating the name of the last recorded owner, and also the fact that said ground-rent has been extin- guished, and the method or means" whereby it became extinguish- ed, and asking for an issue tO'defemine the question of its extin- guishment by a juiy. "Whereupon ;the court shall direct an issue to be framed to try the question whether said ground-rent has been extinguished, and shall make such order for giving notice to all parties to said issue, and all other parties interested therein, if any such exist, as the court shall see ■S.t either by personal ser- vice, publication or othenvise. i. Section 2. The issue to be framed as provided by the first section of this act shall be a real issue, in the usual form, to de- termine whedier the said ground-rent has been extinguished i)y payment or presumption of law, in which issue the last known o^vvner or o-ivners of said rent shall be the plaintiff, and the cove- nantor in the deed under which the ground-rent was resers'ed and the petitioner shall be the defendants; and in case of a rent reserved by deed dated and recorded more than twenty-one years . before the filing of said petition, the burden of proof shall be on the plaintiff to show that said rent is not extinguished by pay- ment or presumption of law. Section 3. If upon the trial of said issue the verdict of the juiy shall be for the defendants, thereby establishing the fact that the said rent has been extinguished by payment or pre- sumption of law, the court shall, after entering final judgment on said verdict, enter a decree declaring tliat said gTonnd-rent is released, merged and forever extinguished, and a certified co]iy of said decree when duly entered shall be recorded in the office GEOU^'D EENT. 19 of the recorder of deeds for the proper coimty, shall be indexed in said office in the name of the last recorded owner or owners of said rent as grantors, and shall have the same force and effect as a deed of extinguishment ly executed by the real owner of said rent and duly recoxdad in-,said .office. Section 4. At any time before final judgment any person or persons claiming by petition, under oath or affirmation, to be interested in said rent, shall be admitted as parties plaintiff in the issue, with the same effect as if made plaintiff therein on the order of the court awarding the issue. Section 5. Any party aggrieved by the judgment of the court may appeal thereupon to the Suj)reme Court or Superior Court as in other cases. ApproA'ed the lith day of June, A. D., 1897. GEOUisTD EENT. ' JURISDICTION OF OEPHANS' COrET IN CEETAIN CASES. An Act authorizing the several orphans' courts of this Com- monwealth to decree the sale, mortgaging, leasing or convey- ance upon ground-rent, of lands devised or held with remainder to a class of persons, some or -all of whom are unborn, and to validate certain sales and conveyances heretofore made by de- cree of court in such cases. Section 1. Be it enacted, etc., That the several orphans' courts of this Commonwealth shall have jurisdiction to decree the public or private sale, mortgaging, leasing or conveyance upon gTO'Und-rent, of lands within their respective counties which have been or shall be devised or granted for life, or for the life of another, and with remainder limited to a class of persons, some or all of who'in may not be in being at the time of the decree for such public or private sale, mortgaging, leasing or conveyance upon ground-rent; Provided, That the court to which such ap- plication may be made shall be of the opinion that it is for the in- terest and advantage of those interested, or who may become in- 20 GROUND EEHT. tevested therein, that such lands should be sold, mortgaged, leased or conveyed upon ground-rent, and that the same may be done without injury or prejudice to any trust, charity or pur- pose for which such lands may be held, and that the same may be done without violating any law which may confer an im- munity or exemption from sale or alienation. ' Section 2. That the proceedings for such public or private sale, mortgaging, leasing or conveyance upon ground-rent shall be in all respects the same as are now provided by existing laws in cases where contingent remainders or executory devises are limited, and a decree of the court is sought for the sale, mort- gaging, leasing or conveyance upon gTound-rent of the land. And the decree of court made under this act shall have the same effect as to title, discharge of liens, and in all other respects as in the instances last above enumerated. And the purchase mo- ney, mortgage-money, gTound or other rent reserve shall in all respects be substituted for the land sold, mortgaged or let, as re- gards the enjoyment and ownership thereof after i^ayment of liens, and shall be held for or applied to the use and benefit of the same persons and for the same estates and interests, present or future, vested, contingent or executory as the lands so sold, mortgaged or let had been held. And the court shall make such order or orders as to the distribution or investment of such funds as may be requisite to protect the interests of all persons who are or may become entitled thereto, or to any part thereof, whether such persons, or any of them, are in being at the time of such order and have vested interests therein, or may come into being before the remainder is actually vested in possession upon the determination of the particular estate and become entitled to have the remainder open and let them in. Section 3. All sales, mortgages or lettings, or conveyances upon ground-rent, heretofore made under decrees of the orphans' court, or courts of common pleas of this Commonwealth iii cases within the scope and operation of this act, and which have been fully consummated in good faith, are hereby validated. Approved the 15th day of June, A. T)., 1897. EXEMPTION. TIMBER AND BAEK CONTRACTS. 21 EXEMPTION EEOM DISTRESS. An Act to exempt serving machines and typewriting macliines, leased or hired, from levy .or sale on execution or distress for rent. Sewing Machines and Section 1. Be it enacted, etc., That Typewriting Ma- hereafter all sewing machines and type- chines leased or writing machines, leased or hired liy any hired exempt from person or persons residing in this Com- levy.&c.ActofJune ^onwealth, shall be exempt from levy 25, 1895 (p. 1., p. 282) i n ,• ,- , . and sale on execution or distress lor rent due by such person or persons so leasing or hiring any such sew- ing machine or sewing machines, type writing machine or type- writing machines, in addition to any articles or money now exempt by law; Provided, That the owner or owners of such sewing machine o-v sewing machines, typewriting machine or typewriting machinesi, or his or their agent or the person or persons so leasing or hiring the same, shall give notice to the landlord or his agent that the instrument is leased or hired. "&^ TIMBER AISTD BARK CON"TRACTS. An Act to provide for the making, acknowledging and recording of deeds, conveyances and contracts for the sale and convey- ance of standing or growing timber or bark thereon, and defin- ing the interest vested by such deeds, conveyances and con- tracts, and making valid the record of deeds, conveyances and contracts therefor. Section 1. Be it enacted, etc.. That Mav sell timber or ^^ shall be lawful for the owner or owners bark by deed, &c. of land, timber or bark, or for any person Acknowledgment. or persons ha^^ng an interest therein, to Title conveyed. grant, bargain and sell, or contract to sell. Shall vest an inter- . ^^^^^^ conveyance or contract in writ- est in land. . ' . , , ■ mg, signed by the grantor or grantors therein, and proved or acknowledged by them, as now required' by law of this Commonwealth for the Z\i TIMBER AND BAEK CONTRACTS. signing and acknowledging of deeds, all or any right, title, claim or interest such grantor or grantors may have in or to any standing or growing timber, or the bark thereon, upon any lands in this Commonwealth; and any such deed, convey- ance or contract shall be taken and deemed as a deed, convey- ance or contract conveying and vesting an interest in land. Section 2. All such deeds, convey- Deeds, &c,, may be re- ^,1.1 i J J -iiri: ances or contracts, made or to be made corded, When re- ' corded shall be no- ^^^^ proved or acknowledged, as provided tice to subsequent in. the^ first section of this act, may be re- purchasers, &c. Re- corded in the office for recording of deeds cords or certified ^^ ^^^g county where such land is located in copies shall be evi- ^^ j i,- ^ j. ^i , -^ the same manner and subiect to the same dence. . . , rights and restrictions as to the time and manner of recording and indexing the same as is now provided by the laws of this Commonwealth for the recording of deeds, and when so recorded shall be notice to subsequent purchasers, mortgagees or other lien creditors notwithstanding the time for the cutting and removal of said timber or bark may be limited by the terms of said deeds, conveyances or contracts, and the records of such deeds, conveyances or contracts, or duly certified copies of such records, shall be evidence in all eases where the original deeds, conveyances or contracts would be evidence. Section 3. All deeds, conveyances, or Deeds recorded within contracts for standing or growing timber, six months after or the bark thereon, which may have been passage of act shall ^^ or ■ acknowledged by the grantors be good, &c. Proviso ^^ . , a a ■ ^i ta % ^^ as to subsequent ^^^^^■®"^' '^^^^ ^corded m the office for the judgment creditors, recording of deeds where such land is lo- &c. cated, or which shall, within six months from and after the passage of this act, be proved or acknowledged and recorded in the manner di- rected by the laws of this Commonwealth for the proving, ac- knowledging and recording of deeds, shall be as good and effect- ual in law, to all intents and purposes, as if the same had been proved or acknowledged and recorded within tlie time deeds are TIMBER AND BAEK CONTRACTS. — TEESPASSING. 23 now required to be recorded: Provided, That notliing in this act contained, shall extend oi' be deemed or construed to operate ;igainst siibsequent judgment, i^ecognizauce, attainder, forfeiture or lien whatsoever, or against any subsequent bona fide mort- gagee or mortagees, purchaser or purchasers, or any estates, lands, tenements or hereditaments mentioned or contained in t^aid deed, conveyance or contract for timber or bark, before such deed, conveyance or contract was or shall be proved or acknoAV- ledged and recorded agreeably to the directions of this act. Section 4. All laws or parts of laws Repeal. inconsistent herewith be and the same are hereby repealed. Approved the 22d day of May, A. D., 1895. DAXIEL H. HASTINGS. PElsTALTY FOR TEESPASSmG OX FIELDS, GAEDEl^TS, ETC. AN ACT To amend an act, entitled ''An act to protect fruit, gardens, growing crops, grass, et cetera, and punish trespass," approved the eighth clay of June, Anno Domini one thousand eight hundred and eighty-one, so as to protect hemes and nuts by punishing trespass. Section 1. Be it enacted, etc., That Section 1, Act of June section one of an act, entitled ''An act to 8, 1881, cited for protect fruit, gardens, gTOwing crops, amendment. grass, et cetera," approved the eighth day of June, Anno Domini one thousand eight hundred and eighty-one, which reads as follows, viz: "That any person or persons who shall "wilfully enter or break down, through or over any field, orchard, garden or yard fence, hot-bed or greenhouse, or who shall wrong-fully club, stone, cut, break, bark or otherwise mutilate, or damage any field crop, nut, fruit or ornamental tree, shrub, bush, plant or vine, 24 TRESPASSING. LANDLORD AND TENANT, ETC. trellis, arbor, hot-bed, hot or greenhouse, or who shall trample, or in any wise injure, any , grain, grass, vine, vegetables or other growing crop, or who shall wilfully take or carry away any grain, corn, rye, wheat or other field crop, fruit or vegetable, plants, fruit or ornamental trees, vines or shrubs, whether the same be attached to the soil or not, shall subject said person or persons to a penalty of not less thaji five, nor more than fifty dollars for each and every offense," be and the same is hereby amended to read as follows: That any person or persons who shall Damages to fences, wilfully enter or break iovm, through or crops, plants trees, ^^^^,^, ^^^ gg|^|^ orchard, garden or yard a fine. Nuts or^be^ ieiice, hot-bed or greenhouse, or who shall ries included. ■\vrongfully club, stone, cut, break, bark or otherwise mutilate or damage any field crop, nut, fruit or omanlental tree, shrub, bush, plant or vine, trellis, arbor, hot-bed, hot or greenhouse, or who shall trample or in anywise injure any grain, grass, vine, vegetables, or other growing crop, or who shall wilfully take or carry away any grain, corn, rye, wheat or other field crop, fruit or vegetaljle, plants, nuts or berries, or any fruit or ornamental trees, ^'ine or shrul.is, whether the same be attached to the soil or not, shall be subject to a penalty not- exceeding fifty dollars for each and every offense. Approved the ISthday of June, A. D., 1895. Daniel H. Hastings. LANDLORD AND TENANT. THE EELATIOJT AXD IXCIDEXTS. i. The term "landlord" in the act of March 21, 1772 (1 Sm. L., 372) is not "Landlord" defined, used in its strictest sense as a pei-son re- ceiving rent, but is considered to extend to every person whose title is connected to and consistent with the possession of the occupier, and would LANDLORD AND TENANT, ETC. 25 be disturbed or divested by any claim adverse to such possession. (Merrell vs. ilerrell efal., 5 Kulp., 125.) 2. Where the tenant purchases in fee Rent passeth to the land leased, the rent accrued at the .grantee as realty, time, but not payable until some future time, passes tO' the purchaser, under the grant of "all the right, title and interest," for the rent not yet due is real and not personal estate. Citing Littleton, Sec. 228: ''By a grant of the reversion the rent passeth." Whereon Coke explains: "The reason thereof is because the rent is incident to the reversion and passeth away by the grant of the reversion as with the superior, witho-ut saying cum pertinentiis." (Young vs. Jones, Eeeder, J., 1 Lehigh A^'alley Law Reporter, 175.) 3. Payment of rent in currency, with Payment in kind, the landlord's consent, although the lease calls for gold of certain weight and fine- ness, is an accord and satisfaction, and a statement to a third party that tenant would pay the premiums in gold is nudum pactum. (Est. of Morris E. Afilick, 16 Pliila., 210.) 1. The defendants in an execution Relation created by ^^^^^ g^j^ ^f ^.^^1^ ^^.^^^ permitted to hold holding after execu- ., , , , -nn i\ i- i- after sale by sheriit and by his grantee to another, witliO'Ut proceedings to dispos- sess. They cropped the farm and the assignees of the sheriff's deed proceeded to carry away part of the crop. Held the latter were trespassers. The relation of landlord and tenant, quasi, was created between the execution defendants and the holders- -of the sheriff's title, by their holding over. (S. Potter et al. vs. Lambie et al., 142 Pa., 535.) 5. The status of a vendee of land be- Vendee before fore conveyance is that of a tenant at will conveyance. and he is liable only for use and occupa- tion. (Kaas' Appeal, 2 C. C, 55.) Ha LANDLORD AND TENANT, ETC. 6. In the lease o£ a right to quarry Relation stone the relation of landlord and tenant as to is created and tenant is entitled to legal stone quarry. j^Q^i^g ^o quit. (O'Donnell vs. Luskin, 8 Mont, 109.) 7. By licensing a wharf, a municipal- Municipality ity does not assume a position towards the not a landlord. licensee analogous to landlord. (City of Allegheny vs. Campbell, 107 Pa., 530.) 8. Where, while a tenant of a rail- Confidential relation, road corporation M. took proceedings by foreclosure adverse to the landlord, with- out notice, and received a deed, equity set aside the deed as covinous, (ilatthews' Appeal, 104" Pa., 444.) 9. The tenant has no right to attorn Tenant cannot attorn to the holder of an adverse title; his para- to a stranger. mount duty is to hold and defend the pos- session for his landlord, and surrender it to him at the end of the term. The title of a stranger, not claim- ing by or under the lessor cannot come in question (Heritage vs. Wilfong, 8 P. F. S., 137), unless the title of the landlord has ■actually come to an end by his own act, or been divested by law. (Clark, J., Mohan vs. Butler, 112 Pa., 590.) 10. In the absence of mistake or Nor challenge fraud, a tenant, although ha\dng the Icg&l landlord's title. title to the gi'ound, as he discovered after leasing, cannot challenge the title of his landlord nor defend against the rent. (Trunkey, J., in "Ward vs. Phila., 18 W. ISr. C, 561.) 11. "When a landlord, after the leased Ilntry by landlord with huilding was destroyed by fire, enters into consent of lessee. In- possession, with the consent of the tenant, surance of term. to rebuild, this entry operates as a re- scission and suspends payment of the rent, , nor can the parties make an agreement to the prejudice of a LANDLORD AND TENANT, ETC. LEASE. 27 third party witliout his consent. The tenant's insurer against liability for rent was discharged from liability, notwithstand- ing an agreement between the landlord and tenant that the rent should go on. Held that a letter from the insurer promising not to claim a discharge from its liability "by reason of the landlord entering for the purpose of rebuilding," was not a waiA'er of right to defend. (Heller vs. Royal Ins. Co., 133, Pa. 152). But see second hearing, 151 Pa. 101, for modification maintaining right of tenant to recover the insurance notwith- standing; and for further aifirmance, same case, 177 Pa., 262. (s. c. 17 C. C, 21;4D. R, 433.) [SEE JACKS0:N" and gross, page 57.] LEASE. 1. The rule of construction which at- Written and primed taches more relative importance to written. terms. than printed clauses, cannot be unquali- fiedly adopted where the written portion is contested and other clauses become important. (Lane et al. vs. Xelsbn, 167 Pa., 602; 4 Kortham, 221.) 2. In a lease for a term of a year, "Occupy" interpreted, under which tenant moved out, the word "occupy" was construed to have reference to the entire term and did not mean during the time of actual habitation. — Ibid. 3. When a lessee accepts a lease Effect of lease signed signed by the lessor but not by himself, by lessor alone. he is bound by it the same. A notice from lessor that the lease is forfeited, followed by assent and the execution of a new lease, Avorks forfeiture of the former. A sub-lessee is also bound by the forfeiture. (Car- negie Gas Co. vs. Phila. Co., 158 Pa., 315; Beuz vs. Langan, 5 Xortham, 139.) 28 LEASE. 4. A lessee who goes into possession Signed by lessee alone, f oi- a term under a lease signed only by liim is bound by it. (Kaier vs. Leahy, 15 C. C, 243). 5. A lease under seal executed by Signed by agent. landlord's agent without autlinrity creates a tenancy at will. (Loran's Estate, 10 C. C, 554.) AVhere ratification in writing by principal was held in- effectual. — Ihicl For effect of leasing through agent for the purpose of trans- ferring to a corporation subsequently, see Heckman's Estate, 172 Pa., 185. 6. That the house is habitable is ■ Contract implied. implied. (Showaker vs. Boyer, 3 C. C, 271.) A contract to pay rent is implied from use and occupation. (Spackman's appeal, 16 W. jST. C, 79; Grove vs. Barclay, 33 P. L. J. 51). 7. Where a member of lessee's fam- oecupation^ ^^^' ^^^^^ ^"^ ^^^^^^' P^^^ *^^® ^'^"* ^^^^ ^°^' tinues in possession, such member will be- come a tenant from the death of lessee. (Calhoun's Estate, 26 W. X. C, 303; 20 Phila., 46.) 8. Where the lessee is merely used Lease for a purpose, for a primary purpose to hold until the or- ganization of the company to which the lease is assigned, the lessor cannot hold him on default of the company. (Heckman's Estate, 172 Pa., 185; 15 C. C, 264; 3 D. K., 479.) 9. A lease "for one year with the lease interpreted. privilege of three years" is a lease from year to year at option of tenant. (Gillion vs. Einley, 22 AV. K C, 124.) LEASE. 29 10. When a tenant rents a floor lie Eent of floor. Right rents the inside and has no right to a sign to sign outside. outside. (Hele vs. Stewart, C. P.; 19 W. N. C, 129.) But see opinion of Ewing, J. in Scott vs. The Fox Optical Instrument Co., 38 P. L. J., 368, where he held that one who leases a floor for his business, rather than a room, is entitled to advertising signs on the outside. 11. Where tenants bind themselves Gas bill as rent. to pay the gas bills as part of the rent, the unpaid bills may be included in the dis- tress. (Fernwood Masonic Hall Asso. vs. Jones, 102 Pa., 307.) 12. A covenant to keep, etc., and Clause to deliver peaceably deliver up, etc., is not repugnant possession. to the clause of renewal, as it has reference to the end of the tenancy whensoever that comes. (Wilcox vs. Montour I. & S. Co., 147 Pa., 540.) 13. Exchange of premises and Mutual covenants, mutual covenants equitably interpreted. (Cadwallader vs. U. S. Express Co., 147 Pa., 455.). 14. A written lease reserved $64.58 Reduction of rent re- ^v month, and the judges found as fact, served, verbally, -uj^Jer submission, that the landlord had ®^°*'* ■ verbally agreed to accept $50 per month temporarily, owing, to the dullness of the times ; held that the agreement to reduce the rent was revocable at the option of the lessor. (Rohrheimer vs. Hofman, 103 Pa., 409.) 15. A lease of land with a servitude car- Servitude with land, ries with the possession such servitude, un- less excepted. (Friend vs. Supply Co., 179 Pa., 290.) 30 LEASE. 16. One railroad cannot, lease its Power of railroad to franchises to another unless it can show lease franchises. authority from the sovereign in express terms or by necessary implication. (Van Steuben ys. Central E. E. of K J., 178 Pa., 367.) 17. A railroad company cannot lease Eminent domain not the privilege of eminent domain. (Barber leasable. et al. vs. Hartman Steel Co., Ltd., C. C. C, 183.) 18. A railroad company leased land Lease for railroad "for the purpose of more conveniently purposes, public. transacting the business of the company and for the better accommodation of the public, so long as the same shall be used for railroad purposes." Held that when the railroad company sold out to one who used it as a private siding, the lease terminated and the possession be- longed to the lessors. (Kugel vs. Painter et al., 166 Pa., 592.) 19. A covenant by tenant to pay Taxes taxes. State and local, does not* cover an and assessments. assessment for local improvements. (Pet- tebone vs. Smith, 30 W. X. C, 325.) But where a tenant agreed to pay all taxes and assessments, he was liable for sidewalks, and if he refused to build, the land- lord might do so at tenant's cost. (Pottery Co. vs. Griffin, 16, Phila., 569; Smith & Co. vs. Phoenix Pottery Co., 1 Lane. L. E., 143). 20. The landlord is entitled to taxes Preference. in preference to general creditors of an es- tate, when the taxes were a part of the rent. (Morgan's Estate, 30 W. JST. C, 509; 11 0. C, 536.) 21. In a lease for a term uncertain. Indeterminate term, with an annual rent reserved, providing that a continuance at the end of tlie tenn should renew for a year, it was held to be a lease for a year. (Kroll vs. Jones, 116, Pa. 85; 1 C. C, 485). LEASE. 31 22. A lease wliicli gives tenant right Burnt timber. to use fallen or burnt timber, the remoYal of which may benefit the growing timber, covers a large area devastated by forest fire. (Estate of Thad- deus Stevens, 11 Lane. L. R., 137). 23. A lease with waiver of right to Lease waiving error, writ of error with tei-mination of lease on notice, etc., binds the lestee and the penal- ties of act of May 25, 1874, for suing out writ for delay, will be enforced. (Ankemiiller vs. O'Byme; 2 Mon., 766). 24. An agreement for the use of a Quiet possession a cov- ^^'^^1 ^or advertising purposes, is treated aa enant not against a lease. When the advertising company acts of others. found a similar work going on at a por- tion of the same party wall, it consid- ered itself evicted and refused to pay the rent. Suit was brought and on verdict for the defendant, the case was reversed as the landlords had done nothing to evict the defendants. (Oak- ford et al. vs. Mxon et al., 177 Pa., 76.) Every lease implies a covenant of quiet enjoyment, but it only extends to the acts of the lessor himself and to injuries in- flicted under title paramount. It is not an indemnity to the lessee. (Bams vs. Wilson, 4 L. L. Rev., 247.) 25. A covenant for quiet possession is Broken by previous broken when landlord had previously rent- renting, ed to another who held possession. (Bren- nan vs. Jacobs, 22 W. N. C, 453.) 26. In a suit against the surviving Prior parol lease. partner to recover rent, evidence is admis- sible to show that the firm was in posses- sion under a prior parol lease and never accepted or entered under the written lease. (Johnson vs. Smith, 165 Pa., 195.) 32 I.EASE. / 27. Where a tenant had a written Tenant from ye^r to lease, but gave notice that he would quit, year — notice. however held on for another year, without any acceptance, and was given one month's notice by the lessor, held that his tenancy was from year to year. (Smith vs. Snyder, 168 Pa., 541.) 28. A lessor who jDrovided in his lease Landlord's one year that the whole year's rent should fall due rent, upon tenant's financial embarrassment, etc., is entitled to a year's rent over other creditors. The contract is not against public policy. (Piatt & Co. vs. Johnson, 168 Pa., 47.) 29. Where an agent of a landlord in- Insufficient affidavit, formed the tenant that objectionable on objectionable houses controlled by the agent and land- nouses, [qp^ wiould be removed, but no such agree- ment was in the lease, held that the failure to remove them, in consequence of which tenant abandoned, was no defense to the action for rent. (Wilcox vs. Palmer, 163 Pa., 109.) 30. Wliere tenant holds over from New lease. year to year, a new and different agree- ment, made after the termination of the written lease, may be proven by any proper evidence. (Walker vs. Githens, 156 Pa., 178.) 31. A tenant covenanted to pay gas Gas and water bills — and water bills as part of his rent, and forfeiture. when he failed herein, a forfeiture was wrought and the assignee of the lessor was justified in entering judgment in ejectment pursuant to the war- rant in the lease. (Hand vs. Suravitz, 148 Pa., 202.) 32. Where a tenant has received no- Tenant at will, no in- tice to quit and is merely a tenant at will, terest in damages. he has no interest in the property entitling him to damages for opening a street. (Shaaber vs. Eeading, 150 Pa., 402.) LEASE. 33 33. Tlie lease providing that the rent Parol evidence inad- shall be paid in money, parol evidence is missible to contra- inadmissible to show that before the exe- dict lease. cution of it, the lessee was induced to sign, by a statement that part of the reoit would be taten out in boarding. ISTor could she show that the roof was leaking, at the time and during her tenancy. (StuU vs. Thomp- son, 154 Pa., 43.) 34. Evidence of a contemporaneous Evidence to vary, parol agreement which does not establish fraud, mistake or trust is inadmissible to vary a written lease. (Eberle vs. Bonafon Exs., 17 AV. ^. C, 335; Eberle vs. Girai-d Life Ins. Co., 4 Atl., 808.) 35. "Where father and son sign a lease, To explain. but the father owned the property alone, evidence to explain title is admissible. (Swint to tise vs. llcCalmont Oil Co., 184 Pa., 202.) 36. An agreement of a married wo- A lease for lives. man and her husband to pay taxes, etc., for a tenancy, on consideration, held a lease for lives and a freehold in lands. (Brady overseere vs. Clin- ton overseers, 148 Pa., 311.) 37. A husband of a woman who be- Under poor laws, for came a pauper leased a house and paid the settlement. i-ent for a year, and occupied it from April 2, 1890, to April 1, 1891. There was a lease and occupancy for an entire year, sufficient to give lessee a settlement under act of June 13, 1836. (Cascade overseers vs. Lewis overseers, 148 Pa., 333.) 38. The word "lease" is equivalent to "Lease" means term, "term" in the phrase "-with the privilege of four years' additional lease." And where the lease provided for a term of four years, additional, after one year's tenancy, and if he should continue to the end of 3 M LEASK. said term, then .for four years more, held it was not a lease from year to year, but for the term covenanted. (Harding vs. Seeley, 148 Pa., 20.) 39. "At a yearly rent of the interest Rent uncertain. and taxes accruing thereon," is not a rent certain to give a justice jurisdiction under the act of March 6, 1872. (Davis vs. Davis, 115 Pa., 261.) 40. A lease with a clause that the For a year with tenant should hold for a year, and "if he privilege, etc. continued after the termination of the con- tract, then he shall have the privilege 'of staying there for another five years," is a lease for a year only. (Jones vs. KroU, 116 Pa., 85; and cases cited on p. 88.) 41. A landlord can only follow goods Clause for rent to when removed from the premises fraudu- become due for the lently or clandestinely, under the act of *®^"^' 1772 (in the absence of a special provision ih the lease), notwithstanding there was a clause that the whole rent for the term should become due and be colle(ft.ed by distress, if the tenant removed "during the continuance of the lease." "If now it appeared in the lease that any removal of' the goods should be treated as a fraudulent or clandestine removal the requirements of the statute would be oomplied with." (Owens vs. Shovlin, 116 Pa., 371.) 42. Whether the removal was clan- Fact for jury. destine or fraudulent was a question of fact for the jury. Ibid. [SEE JACKSON AIS^D GROSS, p. 20, et seq. J 1. Where a tenant leased verbally at Monthly lease. a yearly rate, but payable monthly in ad- vance, and thus held ov©r for more than a year, paying monthly in advance, held that this was not a LEASE — STATUTE OP FRAUDS. 35 lease by the year, but from moiitb to month. Tbere was no lia- bility beyond the month of occupancy. (Hollis vs. Bums, 100 Pa., 206.) In tenancy by the month, a month's Notice. notice to quit is sufficient. Hid. An infant lessee holding from month Infant's ratification, to month, who holds over after coming of age, and pays rent, ratifies his rental dur- ing infancy, and is liable for rent accrued. (Harris vs. Knowles, 26 W. N. C, 249.) 2. A covenant in a lease to sell only Restraint of trade. , lessor's beer, without agreement of lessor to furnish it, is in restraint of trade and void. (Muller vs. Bohringer, 3 C. C, 144.) 3. Leasehold mo^rtgages depend on Mortgage statutes wholly for validity as liens. The of leasehold. omission of reference to record of lease or the recording of it "with mortgage, is fatal. (Hilton's Appeal, 19 W. N. C, 429.) A leasehold is an insurable interest. leasehold insurable. (Phila. Toll Co. vs. Br. Am. Assurance Co., 25 W. E". C, 370.) STATUTE OF FKAUDS. 1. Where a lease is for more than Lease parol. three years, under the statute of frauds (March 21, 1772), it must be in ^vriting, otherwise, it becomes a tenancy at the will of the landlord, and after three months notice to quit, proceedings may be had before a justice to regain possession. But where the tenant has held for more than a year and p^aid the rent, it will be construed as a lease from year to year. (Dumn vs. Eothermal, 112 Pa., 272.) 2. '\\Ti ether the writing was a lease ftuestion for jury, for one year was a question for the jury. (2d appeal. 119 Pa., 632.) 36 LEASE FOR, TERM OP YEARS. 3. Where a lessor's agent executed a Agency. lease under seal, as agent, ^\'itliout ratifica- tion in writing by the lessor, the tenant held only at will, when the three years specified carried the term beyond the three years from the making of it. The lease was admissilde on the ques- Evidence. tion of rental value. (Trunkey, J., in Jen- nings vs. McComb et al., 112 Pa., 518.) 4. A lease, for five years, with option Extension. of tenant to extend five years, on written notice, is not within the statute of frauds, as the term in the renewal is created by the lease itself and the lessor may accept oral notice of its extension in lieu of "written. (McClelland vs. Rush, 150 Pa., 57.) 5. If there was no -svritten assign- Assignment by ment, but delivery of possession, the au- parol. thority for assignment being written, the assignee held the estate for the term, un- der the exception in the first section of the statute of frauds of March 21, 1772, which extends to the 2d section. (Benz. vs. Langan, 5 Northam., 139.) 6. An oral promise of one to pay the Surety by parol when rent of a tenant, if not evicted, the land- not liable. lord not releasing said tenant from liabil- ity to pay, is void under the statute of frauds, because it is not an independent engagement, but an agreement to pay the debt of another. (Eeigelman vs. Focht, S T,anc. L. P., 382.) FOR TEEM OF YEARS 1. Where a lease of a naiTow strip lease for term of ground was made to the mdow of one of years. who had built liy mistake upon the strip of land of the lessor, and the recital was to her, "her hdrs and assigns," and subsequently, after the sitxia- LEASE PARTNERS AND TENANTS IN COMMON. 37 tion described, came these words, "for the term of five years, from the first day of December next, for the yearly rent of three dollars," with a covenant binding her and "her heirs and as- signs," the lease is not perpetual, but is clearly limited to a term of years, the limitation qualifying and lessening' the grant in fee. (Trtinkey, J., in Benidge and -wife vs. Glassey, 112 Pa., 443.) 2. A lease for years is a chattel real; Chattel real. and the building erected on it, also. (Stark vs. Hight, 3 Supr. C, 516.) PAETNEES AXD TENANTS IN COJIJION. 1. Co-partners, having a lease of a Privilege of renewal '^°^'^' '^'i*^ ^^''^ "S^* °^ renewal, for which of lease by a part- $1)800 was bid, have such an asset therein nership is an asset that must be accounted for in the settle- and must be ac- ment of the partnership accounts, and one coun.,ea tor. partner cannot take such renewal in his own name or for his own benefit without accounting to his co-partners therefor. (Green, J., in Johnson's Appeal, 115 Pa., 129.) 2. Where a partner's interest is sold Partnership at sherifli's sale the landlord can only claim property. the surplus after the partnership is closed. (Kimdall vs. Stedge, 2 C. C, 608.) 3. "Where partners knew that a por- Partnership — act of tion, of tlieir property v.^as occupied by a one for all, in tenant under an unexpired lease, and they leasing. authorized him to effect a lease of the whole, he has authority to buy up the un- expired lease at a reasonable sum, and pay it out of the rental of the whole. (May vs. Troutman, 4 Supi-. C, 42.) _ , . 4. A tenant in common cannot be Tenant m common , , , ,, , , cannot be held for ^^^<^ *°^' "'^' etc., except by express agree- use, etc. ment upon sufficient consideration. (Un- derwood's Estate, 5 C. C, 621.) 38 LEASE PARTNERS AND TENANTS IN COMMON. 5. The right of minor joint heirs to Eights of minors can- re-enter under a lease surrendered cannot not be waived by be forfeited by one of the joint heirs who heir of age. jg ^f ^ge. (Wilson vs. Goldstein, 12 C. C, 337.) 6. Owner of option to land held by Tenants in common, tenants in common must account to his associates for profit, and equity will com- pel it. (Yeany vs. Keck, 183 Pa., 532.) Joint lessors. Y. As to rights of joint lessors, see (Wenger vs. Campbell, 104 Pa., 33.) 8. In the absence of an express con- Between tenants tract one tenant in common cannot recover in common. from another for use and occupation. (iS^orris vs. Gould, 15 ^Y. K C, 187.) 9. When a tenant holds from tenants Tenants in common — in common, who appointed one of their Revocation of agen- number agent to receive the rent, and one ^y' of them revolves the authority on his be- half thus given and notifies the tenant, the latter cannot pay his proportion of the rent to the agent, but must pay it to the one who notifies him. (Bennett vs. Bemel- mans, 163 Pa., 122.) 10. The lessee of one tenant in com- lessee of one mon is lawfully in possession of the whole holds all. tract demised and an entry by the other tenant, pending the lease, coupled mth the unlawful taking of lessee's property, makes him trespasser ah initio. The remedy of the othei* tenant in common is by ac- count against his co-tenant, or by suit for mesne j)rofits, or use and occupation, but he cannot exercise manucaption on the crop — which belongs to the lessee until severance and division, when raised for the half. (Baker vs. T^ms, l.")0 Pa., 251.) LEASE WITH OPTION TO BUY. 39 11. Until notice to the contrary Heceipt for rent by either co-tenant joining in a lease may re- one co-tenant. ceive the rent and give a binding receipt. An assignment by one tenant to a third party, neither having given notice, does not amount to an appor- tionment, or affect the rights of the other. (Swint to use vs. McCalmont Oil Co., 184 Pa., 202.) A partition of lands held in common Affect of partition, does not divest the lease, for oil purposes. (Duke vs. Hogue, 33 P. L. J., 3.) WITH OPTION TO BUY, 1. AVhere A. leased a lot to B. for a Lease with privilege year at a fixed rental, with a covenant to to buy. sell at a fixed sum, and B. within the year tendered the price, at that moment his tenancy ceased and he was entitled to specific performance, (i^ewell's Appeal, 100 Pa., 513. Case of unilateral contract. Bodine vs. Glading, 9 Harris, 50, distinguished; Hollis vs. Bums, 100 Pa., 206.) 2. Where the tenant exercises his Exercise of oj)tion to buy during the term of his lease, option, he becomes a vendee and the tenancy ceases. There can be no claim for rent thereafter. (Knen- vs. Bradley, 105 Pa., 190.) 3. A lessee of land with an option to Has an equitable buy has an equitable interest, and when interest. he takes his option, he becomes owner ah initio. (People's St. E. vs. Spencer, 156 Pa., 85.) 4. A tenant mth an loption to buy Bound by has such an interest as will be affected by mechanic's lien. a mechanic's lien, and to keep the lien re- vived, a sci. fa. must issue within the five 40 LEASE — COVENANT FOE REPAIRS. years as tlie act of 1836 directs. (Morgan vs. Bloecker et al., 6 i). E., 659.) COVENANT FOE EEPAIES. 1. Where E. leased a hotel to B. for Eepairs, five years, with a clatise that tenant should mechanic's lien. make all necessary repairs, but no altera- tions or improvements without the lessor's consent, a mechanic's lien filed for work done at the instance of the tenant, was stricken off and held that unless the landlord was to pay for the repairs there could be no lien, without his consent. (Boteler vs. Espen, 99 Pa., 313.) 3. A landlord need not make repairs Landlord not bound unless he covenants to do so. A tenant without agree- who covenants to- repair, cannot evade 1^^^^- payment of the rent on the ground that the premises became untenantable. (Hu- ber vs. Baum, 1.31 Pa., 626; Everhart vs. Bauer, 1 L. Val. L. P., 157; Plummer vs. Shulmyer, 12 Lane. L. E., 217.) 3. When a tenant covenants to make . Tenant repairs and holds over, he is bound l.iy the cannot complain. stipulation and he cannot set up com- plaints made by him that the premises were out of repair, against an action for rent. (Patterson vs. Park, 166 Pa., 25.) 4. When a covenant to repair is al- Condition precedent, leged as a condition precedent, whether question for jury, such condition was a fact is a question for the jury. (Bradley vs. Trust and Se- curity Co., 6 D. E., 217.) 5. In proceedings for possession. Landlord's breach, where defense is made to recovery on the recognizance for appeal from the justice, averring a breach of covenant to repair by the landlord, held that the afllda^'it was sufiicient. (Broad vs. Winsborough, 1 Xorthamp., 330.) LEASE BUILDING AND IMPROVEMENT. 41 6. An oral promise to make repair& Oral promise inadmis- by landlord not put in the lease, cannot be sible, when. available to tenant, without proof of mis- take or fraud in the omission. (Wodcock vs. Eobinson, 28 W. N". C, 288.) 7. A landlord who is not boimd by Dangerous roof. his lease to repair, is not responsible for boards left dangerously loose on a roof of an outhouse, by a workman. (Fitzmaurice vs. Fabian, 29 W. IST. C, 339.) 8. Owners out of possession are not Pavement liable for injuries caused by their neglect out of repair. to repair a dilapidated pavement in front of their property in Philadelphia. (Early vs. Ashworth, 17 Phila., 2-i8.) 9. Where store room was so damaged Tenant not released by fire as to become untenantable, unless by fire. the lease required the landlord to repair and rebuild, or discharged the tenant, he must pay. But if the premises leased be a part of the whole building, he may be released. (Phillips vs. Epp et al., 4 Del. Co., 426; 2 Lack. Jurist, 41; 6 Kulp, 405.) BUILDIKG AND IlIPEOVEMENT. 1. P. leased to M. a hotel for one Building clause year, wi'h the option of five, on giving 60 interpreted. clays notice, and a cla^^se that tenant shall erect an addition, for which tenant was to have a credit of $100 on the first year's rental. Tenant lield over, without gi"\dng notice, and did not erect the addition. Ill suit by P. for the rent and damages, held he could recover as the covenant to build was within the first year and an induce- ment to lease. Assent to holding over was no waiver of the right to have building erected the first year. (Pollman vs. !Morgester> 99 Pa., 611.) 42 LEASE BUILDING AND IMPROVEMENT. 2. AVhere 0. at a nominal rent took Building contract, a lease of an old furnace and water power, mechanic's lien. with agreement to "repair, improve and rebuild," and at the end of his term of ten years, the improvements to belong to the lessors, or at the end of three years, one half to the lessor and one half to the lessee, held to be a building contract, and the subject of a mechanic's lien, on general principles. But in this case, where the claim was for engines, boilers, etc., held not contemplated by the con- tract of lessors, and no right to lien was acquired. Distinction between new buildings and old ones repaired, drawn by Trunkey, J. (Long vs. McLanahan, 103 Pa., 537.) 3. Where a tenant agreed with a Landlord's right to landlord prospectively, to lease the prem- compensation for ises for a teiiu of years, and the landlord bnilding. erected buildings thereon, and after the lease was executed, binding on lessee's as- signs, the tenant made an assigMiment for the benefit of creditors and the assignee abandoned the premis'es — held that the landlord had a subsisting cause of action for damages against the lessee. (Sweatman's Appeal, Heading Iron AA'orks, 150 Pa., 369.) 4. As to agreement tO' rebuild and Hebuilding insurance, effect on insurance, see Heller vs. Eoyal Ins. Co., 177 Pa., 262. 5. AA'hen a bam was burned before Sam not rebuilt in the farm tenant went on, and the landlord time. Measure ol who bad agreed to rebuild, did not have damages. ^^ ready for tenant's crop, the measure of damages was the difference between the rental value of the farm agreed upon, and that without it, duiiiig the time it was being built. (Wayne vs. Lapp, 180 Pa., 27S.) LEASE FIXTURES OF TENANT. 43 6. A tenant, in equity in-oeeedings ., , ^ ._ , against him, set up his right to remove laducement to lease, -y ' . , £,emoval of im- improYements as an inducement tO' lease, provemeEts. hut offered no proof. Hehl not responsive to the bilL (Kenney's Appeal, 22 ^Y. N. C, 89.) 7. Where the buildings were burned Discharge by and there was no covenant to rebuild, the fire. lessee of apartments is discharged from paying rent after the fire, althoiigli he used the cistern on the premises after the fire. (Camp vs. Casey, 1 C. C, 160.) S. An affidavit of defense of a land- Insufficient lord was held insufficient, where in answer affidavit. to his tenant's suit for the price of im- provements by the tenant, agTeed upon in the lease, he made various indefinite claims of damages for de- faults by tenant. (Cosgrove vs. Hammill, 173 Pa., 207.) 9. A tenant of mortgaged premises Eight to set off which were sold and bought by the mort- improvements. gagee can set off against tjie subsequently accruing rent, the value of improvements made under agreement with his landlord, the mortgagor. (Kost vs. Theis, 20 W. K C, 545.) 10. AVhere, by an independent agree- Improvements. ment a landlord was bound to pay tenant ajjpraised value of improvements, the tenant was not entitled to have a judgment by confession opened on this gi'ound to let him into a defense. (Hildreth & Co. vs. Davis, 6 Kulp, 322.) FIXTUEES OF TENANT. 1. A tenant, who purchases machin- Tenants' fixtures, ery, etc., placed by former tenants, as fix- tures in a factory, adding thereto, and be- 44 LEASE l^'IXTURES OP TENANT. fore the end of his term became bankrupt, the landlord taking' possession of the same, cannot maintain Cannot maintain trover for such fixtures, because while at- suit tached they are a part of the freehold. He could have removed them during his Mig^ht have term and while in possession. (Da^-i- vs. removed. Moss, 2 Wr., 346, cited; Darrah et al. vs. Baird, 101 Pa., 26.5.) 2. "When a tenant attache- to the Fixtures, removable land fixtures for his business the law in when, favor of trade presumes that he intended to remove them before the end of his temi; it is only on leaving them that the intention to make a gift to the landlord is imputed to him. Hill vs. Sewald, .53 Pa., 271." AVhere a landlord would have been entitled to the fix- tures, by forfeiture under his lease, had he gained due and legal possession by its terms, he could not anticipate the event, and by taking possession forcibly prevent the lessees from removing the fixtures, on a naked claim of right. Trover will lie against the landlord for such taking. (Trunkey, J., in Watts vs. Lehman, 107 Pa., 106.) In Darrah, Moore & Co. vs. Baird, 5 Outerb., 26.3, the landlord was in exclusive possession before the tenant undertook to remove the fixtures. o. A tenant may remove trade fix- Trade fixtures — tures during his term, if that was hi« in- intent, tention when he placed them there. But if he intended them to be permanent and had in view purchasing the property, under a lease which cove- nanted tO' deliver the property "in as good condition as it now is 4. or may be made by improvements," he When the tenant ootild not remove the tobacco house and cannot disturb kitchen addition which he erected at a them. cost of about $1,400. Hill ^-s. Sewald, 53 Pa., 274. and Seeger vs. Pettit, 77 Pa., 440, followed. (Carver vs. Cough, 153 Pa., 22.-).) LEASE CHATTELS IN CONNECTION WITH REALTY. 45 5. D. let a, bakery to K. with author- Tenant's improve- i^y to make improvements and a privilege ments by authority of purchasing. W. furnished a heater and of landlord. subsequently for the debt levied on K.'s property, including the heater and fix- tures. The landlord, D., claimed the heater as his property, whose value the auditor deducted from his claim for rent. The amount of rent due was not found by the auditor and the court sent back tlie record for correction. (Dermond's Appeal, 153 Pa., 238.) 6. A tenant may, during his term. Range Removable remove a range which he puts up for his business, if not affixed to the freehold nor intended to be a part thereof. (Townsend vs. Underbill, 6 C C, 544.) '7. AVhere a lease of sugar refinery Independent had a clause for retaining improvements machinery. by landlord, and an allowance for same, held lessee might remove during his term, new and independent, machinery. (Cook vs. Folsom, 2 Del. Co., 314.) 8. The landlord having failed to pay Claims for fijctures of tenant at the end of the for fixtures. term, as agreed upon, cannot set up against a suit for their value that the ten- ant did not yield possession till ousted by the sheriff. (Taylor vs. Mauls, 2 Walker, 539.) [SEE JACKSOX AND GEOSS, p. 65.J CHATTELS IX COiSTNECTIOX WITH EEALT'X. 1. E,. leased to S. a planing mill with Rent for Chattels in fixtures and personalty on the premises. connection with The personalty was sold by sheriff on ex- realty, ecution of V. against S., wherein E. ' claimed both the property and the pro- ceeds of sale, as well as sued the sheriff in trespass. Held that 46 LEASE PERSONALTY AND BAILMENT. R. could take the proceeds as far as made from tenant's goods, but as to the portion to \Yhich he set up title he is relegated to his action, and V. took that part of the proceeds. That rents may issue from personalty necessary to the enjoyment of lands and tenements was settled in Mickle vs. Miles, Y C, 20. 2. Having set up adverse title as to Estoppel, part of the money proceeds, he is barred from taking any of that, on the authority of Bush, Bunn & Co.'s Appeal, 15 P. F. S., 363. (Vetter's Ap- peal, 99 Pa., 52.) OF PEESOXALTY, AND BAILMENT. 1. A landlord leased a hotel, and lease of goods with "^"^th it furniture for its use, "with a right right to purchase, to purchase. Until paid for and sale corn- bailment, pleted, held a bailment. Distinction be- tween sale, conditional as to parties and absolute ^s to creditors, and a mere bailment discussed. (Ed- ward's Appeal, 105 Pa., 109.) 5. Where a piano was leased on Lease of piano on monthly payment for 25 months, with monthly plan. the privilege of lessee to pay up, and pur- chase the same, during the term, but "\rith a clause that gave lessor the right of entry and removal on de- fault of rental, trespass would not lie against lessor for such re- moval, though possession was gained by artifice, and the instru- ment was removed against tlie protest of the lessee. (ISTorth vs. Williams, 120 Pa., 109.) 3. A piano, where lessee failed to Recoverable in make payments to assignee of lessor, was trespass. recoverable in trespass. (Horn vs. Da^'is, 155 Pa., 57.) Bailment to 4. Pumiture left with tenant for use, tenant. with the privilege of buying, when the rent is paid and a sum certain, but neither LEASE FOR FARMING AND CROPPING. 47 being paid, may be replevied by tbe bailor from the purchaser thereof at sheriff's sale, under judgment against the teaiant, with notice of the claim of title. (Ferguson vs. Lauterstein, 160 Pa., 427.) 5. Where a horse was leased in terms for $125, and ownership stated to remain in the lessor until paid, held to be a sale. (Mitchell, J., in Hicks vs. Summerson, 27 Lease of Horse held to be Sale. W. N. C, 332.) Organ lessee liable for same. bott, 11 C. C, 319.) Election of Remedy. 6. The lessee of an organ who agrees to insure in case of fire and does not, is liable for the price of the organ, to the lessor. (Smith Am. Organ Go. vs. Ab- 7. Where a lessor of a machine exer- cised his choice in a case, he was bound by his election. (Geiser Mfg. Go. vs. Cris- singer, 17 C. G., 46.) Bailment instead of Lease. 8. As to what facts make a bail- ment where a soda fountain was leased on monthly payments with the privilege of purchasing same, see Tufts vs. Spengler, 1st IST'Oi^ham., 25. Same as to a sewing machine; Singer Sewing Machine Go. vs. Gope, 1 Northam., 185. FOR FAEMIXG AND CROPPING. Landlord's Share of crop — severance. 1. Where a landlord who had rented his farm to his son from year to year on shares of crop and on an execution against the landlord his share of the crop then growing was sold, in a subsequent contest between the purchaser of this interest and the purchaser of the real estate upon which the crop grew, held that no severance was wrought by the sale of the crop, that severance only took place when the crop was harvested and the purchaser of the realty was entitled to the 48 LEASE FOR FARMING AND CROPPING. landlord's share of the crop, for rent from the date of acknowl- edgment of the sheriff's deed. Hershey vs. Metzger, 9 Norris, 218; Lamberton vs. Stauffer, 5 P. F. S., 284; Fullerton vs. Shauffer, 2 Jones, 220; Einehart vs. Olwine, 6 W. & S., 163; Eeam vs. Hamish, 9 Wr., 376; Stambaugh vs. Yeates, 2 E., 161; Bank of Penna., vs. Wise, 3 ~Watts, 305 ; Bittinger vs. Baker, 5 C, 68; Bear vs. Bitzer, 4 PI., 175, and other cases reviewed by Green, J. (Long vs. Seavers, 103 Pa., 517.) 2. "Where a farm is leased on shares. Division of shares, the crop is to be first harvested then di- vided and if the landlord takes any of the crop before division the tenant may maintain trover for it. (Kauffman vs. Schaffer, 2 Walker, 331.) 3. A renter of a farm may not, with- out compensation to the landlord use hay , •', , and corn-stalks he mav find iipon the stalks — custom, , „ , , -^ , ^ , rented farm when he moves thereon. A custom which wotild permit this is unrea- sonable. (Anewalt vs. Hummel, 109 Pa., 271.) 4. One who' upon consideration of a Tenant or Cropper, certain sum has verbally rented a field for two successive crops is not a cropper biit a tenant, and is entitled to all the products of the land for any use, consistent with good husbandry; hence he cannot be deprived of its pasturage as matter of law. (Irwin vs. Mattox, 13b Pa., 466.) 5. A farm lease required that tenant Crops set aside to ten- pay and work out all taxes assessed against ant as exempt and ^^^ f^j^^^_ ^f^gj. ^-^^ landlord disti'ained removed cannot be ,i . ,i . j. ■, ■ t J.^ , . , , , , the growing crop the tenant claimed the replevied by land- ° & i Iqj,^ ^\'lieat crop as exempt and it was set aside to him. He was dispossessed, but cut and threshed the wheat and removed it. The wheat was then sold for taxes and bought by one of defendants, who were sued by the LEASE FOR EARMING AND CROPPING. 49 landlord in an action of replevin for the wheat and straw. Held the landlord oould not recover. (Hazlett et al. vs. McCutcheon, 158 Pa., 539.) Manure goes ^- ^'^ ^^^^ ^ ^^™^ i^ ^^^^"^ ^o^' J^ars with land, "^i" ^^r life the manure made from the farm produce goes with the land, when the lease does not give tenant the right to remove it. (Pearson, Ex', vs. Priedensville Zinc Co., 1 C. C, 660.) 7. When the farm tenant agreed to Straw. leave the straw on the farm, but removed it, replevin lay — and the owner was en- titled to the full value of the straw — not merely of the manure it would have made. (Hunt vs. Scott, 3 C. C, 411.) 8. If a tenant is limited in the number Hay limit of stock, of horses and cattle and bound to feed the hay and not sell it, if he removes any hay at the end of his tenancy he is liable, to the landlord for its value in assumpsit. (Young vs. Walters, 5 C. C, 127.) 9. An injunction against a tenant to Injunction where prevent removal of hay and straw, which Ineffectual. had been sold by sheriff, was refused, it appearing also that tenant had brought more hay and straw upon the premises than he pro>posed to take away. (Barnes et ux. vs. Hess, 3 Kulp, 56.) 10. One who agTces to farm land Lease on shares paying one half the product as rent, has not partnership. a lease on shares, and an agTeement that each shall furnish one-half the stock does not make of it a partnership. (Brown vs. Jaquette, 2 Del. Co., 245.) 11. Under sTich agreement the land- Sheriff's sale divests lord might distrain and failing to do so. Eights. or to give notice of his claim, a sale by the sheriff will divest the landlord's rights as well as the tenant's. Ibid. 4 50 LEASE — FOR COAL MINING. 12. Where the tenant covenanted to Eepairing' fences, keep) fences in repair and the landlord to furnish the materials, but did not so furn- ish, the tenant must find them and claim damages for cost and extra labor. (Wood ys. Sharpless, 174 Pa., 588.) FOE COAL MINING. 1. A tenant for life, when not pre- Coal mining' eluded by restraining words, may not only lease. work open mines, but may work them to exhaustion. Following Westmoreland Coal Co.'s appeal, 4 ISForris, 344. A lease by trustees under a will granting power to lease for coal mining, is not a sale — but a proper conversion of the proceeds to the purposes of the will. Shoemaker's Appeal, 106 Pa., 392; McClintock et al. vs., Dana et ux., 106 Pa., 386. Where a perpetual lease was a sale and severance. (D. L. & AV. P. Co. vs. Sanderson et al., 109 Pa., 583.) 2. A lease of coal-lands upon a fixed Leasehold — royalty payable by the lessee whether a term of certain quantity of coal per annum be mined or not, for a certain period "and for such other and longer time as the lessee shall continue to pay the rent, as named in this instrument," is not invalid l)y reason of uncertainty in the term. (Myers vs. Kingston Coal Co., 126 Pa., 582.) 3. A grantor "demised and leased" lease amounting all the coal inlands for 99 years at a price to sale. per ton and a minimum per year. Held, a sale of all the coal in the tract. ISTot material if no coal was mined during the grantor's life nor the entire term — but what rentals accrtted after the death of the grantor went to the administrator as personalty. Kingsley -^-s. Coal Co., 144 Pa., 613, and Hope's Appeal, 33 P. L. J., 320, followed. (Lazarus Estate, 145 Pa., 1.) LEASE-^FOR COAL MINING. 51 4. A written lease of coal or ore, though not under seal convej's the title to the ore or coal in fee. (Plummer vs. Hill- side C. & I. Co., 160 Pa., 483.) Oil lease is distinguished from coal. Ibid. Parol conveys — Distinguished from oil. 5. A coal lease had a clause reser^^ing E,ent — burden to the lessee the right to abandon, "if the of proof. coal prove faulty in strata or unmerchant- able in quality." In an action for rent the burden, was on the lessee to show that the coal was immer- chantable. (Wilson vs. Coal Co., 161 Pa., 499.) Size of coal. Inter-dependent clauses. Sale in place. 6. For construction of clause as to size of coal see Schooley et al. vs. Butler Mine Co., 175 Pa., 261. 7. For interpretation of iuter-depend- ent clauses in mining lease, see Potter Assignee, etc., vs. Gilbert et al., 177 Pa., 159. 8. As to sale of coal in place see Coal Co. vs. Wright, 177 Pa., 387; Hope's Appeals, 29 W.-IST. C, 365. 9. For royalty and selling price at Royalty. breaker. See Shoemaker vs. Coal Co., 177 Pa., 405.' Royalties — Custom as to operation of mines and use of coal. See Wright vs. Coal Co., 182 Pa., 514. 10. ISTotwithstanding a lease of coal land for mining purposes was recorded, those claiming under it were trespassers, as against others who maintained the actual open, adverse, exclusive and peace- able possession of the land, without inter- ruption for the full period of twenty-one years. (Finnegan vs. Penna. Trust Co., 5 Sup. Ct., 134.) Adverse possession gives title unaf- fected by lease records. 52 LEASE. FOR COAL MIKING. 11. For a good affidavit of defense a3 Good defense— to minimum and marketable ore, see miuimuin ore. Muhlenberg vs. Henning. 19 W. IST. C, '370. Profitable mining in iron lease, see Garman vs. Potts, 26 W. N. C, 305. 12. The right to mine coal under Sheriff cannot claim leasehold held to be a chattel real and the interpleader. sheriff is not entitled to interpleader as he runs no risk from third party claimant. (Maurer vs. Sheaf er, 19 W. E". C, 439; Fumian vs. Holmes, 6 C. C, 162.) 13. Where lessee claims that the ore is insufficient, the burthen of proof is upon him. (j\IcCahan vs. Wharton, 22 Burthen of proof. W. jST. C, 491.) 14. For a case where right of for- feiture of a lease for clay and ochre had not accrued. See Hoch's appeal, 24 Clay and ochre, W. K c., 27. 15. Lessees of a coal mine who failed Removal of to renew lease are entitled to a reasonable improvements. time to remove their improvements, when the lease gave them that option; and les- sors were entitled Hb appraisement under their option, but must take all or none. (E. S. Coal Co. vs. Wilbur et al., 5 D. R., 202.) 16. A mining lease joined in by husband and Avife and their trustee, sub- sequent to valid and subsisting liens, is discharged by an Orphans' Covirt sale of the land for the payment of the husband's debts, after the death of both husband and wife. (Standard Paint Co. vs. Prince ]\Ifg. Co., 133 Pa., 474.) Mining lease dis- charged by sale under prior liens. LEASE. FOR OIL AND GAS PURPOSES. Oo 17. Where a lessor claiming that the Injunction. lessee has forfeited his rights, proceeds by force to destroy his tramway and bnild on the gronnd, an injunction, till hearing, will lie to restrain such lessor. (Cooke vs. Boynton, 135 Pa., 102.) 18. The refuse taken out of land Mining refuse. under a mining lease belongs to the land- lord. Correll vs. Friedensville Zinc Co., 2 Northam., 309.) 19. Where a landlord has a lien for landlord relegated coal rents, upon loose pei-sonal goods and to other fund. also upon the proceeds of the leasehold and fixtures, he must take the latter so that laborers may be paid out of the former. (Appeal of the Farmers' Bank of Schuylkill Co., 1 Walker, 33.) 20. Where the landlord superintends Repair of road, the mining of coal by the tenant, he is liable for repair of road caved in bv min- ing. (NnY. E. E. & C. Co. vs. Tamaqua, 1 Walker, -468.) 21. Sub-tenaut under coal lease was liable to pay rent for whole amount of coal during fii*st j'ear. (Goddard & Draper's Appeal, 1 Walker, 97.) Sub-tenani's liability. FOE OIL A^'D GAS PURPOSES. 1. A lessee- of land for oil purposes, Oil lease more than who has exclusive possession has more a license. than a mere license, and though he may not conduct away the gas without liability to account for it, will not have such taking defalked against a suit by hirti against the landlord for taxes on the premises, paid by him during his term. (Kitchen vs. Smith, 101 Pa., 452.) 54 LEASE. FOE OIL AND GAS PURPOSES. 2. A lessee of oil lands "for the sole Lessee's easement purpose of drilling and operating for oil to surface. and gas," has an easement of entry and examination with a right of possession of the particnlar place of operation; and an easement of ingress, egress, and the usual incidents of the grant. ("Westmoreland, etc., J^. G. Co. vs. Dewitt, 130 Pa., 235.) 3. The oil and gas are ferae naturae, Nature of lessee's belonging to the owner, until the lessee control— exclusive has drilled a well and controls the gas, right to all the gas. ^j^gj^ ^n ^-^^ g^g ^^tj^i^ the land becomes his, and it is immaterial whether he con- ducts it away in a pipe or ftores it in a well for emergencies. His rights are exclusive and the lessor cannot grant them to others, nor evict him through his agents. Equity will restrain the lessor from such acts. Ibid. 4. Where an oil lease which bound Covenant that runs lessee "to continue with due diligence and with the land. without delay to prosecute the business to success or abandonment," and the lessee assigned his rights therein to others, two wells being in running stage, held that the covenant was not the personal matter of the iirst lessee but that it run with the land and bound the assignee. (IBradf ord Oil Co. vs. Blair, 113 Pa., 83.) '5. A lease of land to a partnership to Chattel real. bore and dig for oil is not a license, but a chattel real. Citing Duke vs. Hague, 107 Pa., 57; Kite vs. Giebner, 114 Pa., 381; Titusville Xovelty Works Appeal, 77 Pa., 103. A sheriff's sale closed out all the firm interests in the leasehold. (Brown vs. Beecher, 120 Pa., 590.) See case of Chamberlain vs. Dow, 16 W. X. C, 532, where a lease for 99 years was held to be a chattel, for which no title passed on sale of interest of tenant in common, for which ejectment could be maintained. LEASE FOR OIL AND GAS PURPOSES. 55 6. One in possession, under faith in Right to compensa- his title, who drills an oil well, though he tion for drilling oil be ousted subsequently by ejectment, has ^® ■ a right to enough of the proceeds of the oil flown during his occupancy to com- pensate him for drilling the well, and when, pending the action, a writ of estrepement issued and a receiver was appointed under act June 5, 1883, p. 1. Y9, the funds coming into the hands of the receiver axe applicable to his just claim for reimbursement. (Phillips vs. Coast, 130 Pa., 572.) One drilling for oil but- who obtains gas and is evicted, cannot recover for cost of operation out of the gas proceeds. (Palmer vs. Truby, 136 Pa., 556.) 7. In a lease for oil, where the lessee Lessee restricted to is restricted tO' certain specified sites he his sites. cannot maintain ejectment as to ,land be- yond these sites. But equity will restrain tlie lessor from drilling on the premises outside these sites and lessening the production of his wells. The lessor being dead, both the lessee and his assignee were incompetent under the act of j\Iay 23, 1887, p. 1. 158, to testify to an illegal waiver of for- feiture by the decedent. (Dufiield vs. Hue, 136 Pa., 602. Citing same case, 129 Pa., 94.) 8. A testator, having leased his land life tenants' right, for oil, taking part of product as rent, bequeathed his income to life tenants and the part of rent resei-ved in oil goes to the life tenants absolutely. (Woodbum's Estate, 138 Pa,, 606.) 9. Although a lessee of lands for oil Obligation to drill— is obliged to sink as many wells as- are distinguished from reasonably necessary to get the benefit of ?**• the oil, in view of operations for the same on adjoining lands the same measure of duty does not apply to gas wells, owing to the characteristics of the business and where a lessee drilled one paying gas well, the 56 LEASE. — FOE OIL AND GAS PURPOSES. lessor not liaviug fixed a location for other wella as his lease pro- A'ided, it Avas error to charge lessee with failure to comply -ndth his covenant. (McKnight vs. Ifat. Gas Co., 146 Pa., 185.) Inchoate and vested right. Evidence of leases. Hovis, 152 Pa., 11.) 10. A right to mine for oil, etc., i? an inchoate title, until found, then the right to produce hecomes vested. (Vent- ure Oil Co. vs. Fretts, 152 Pa., 451.) 11. Evidence to explain different leases on the same premises for similar oil purposes, held relevant. (Vanderlin vs. 12. Under an oil lease for 21 years, A day a year with option to lessees to terminate at any in oil lease. time tliey found it would not pay, they paid one year's rent, June 12, 1S90, and on June 12, 1891, notified lessor of the termination. Held they owed the rent for another year, commencing June 12, 1891. (Xesbit vs. Godfrey, 155 Pa., 251.) 13. Tenants in common may create a Tenants in common — partnership by their agreement, hut a partnership. mere agreement to drill another well at the common cost does not create a partner- ship. The presumption is against such new relation. (Dunham vs. Loverock, 158 Pa., 19Y.) 14. A lessee of oil lands who take- a second lease from another lessee cannot evade paying the rent under the last, on the ground that the first lessor has the better title. (Hamilton vs. Rettock, 158 Title of landlord can- not be questioned by tenant. Pa., 457.) Option defined. 15. An option is an unaccepted offer with terms and conditions, on which the owner is willing to sell or lease, within a stated time, if the holder elects. The latter nmst give notice of LEASE. FOR OIL AND GAS PURPOSES. 0>7 his election to bind the offer. (McMillan vs. Phila. Co., 159 Pa.^ 1420 16. Where oil and gas lands contigu- T> • r -1 1 J ous are devised to three children, one tract Devise of oil lands — ' shares of royalties. ^ each, the royalties from the lease which covered all, though all accruing from wells on one tract, are divisible equally among the three. (Wettengel vs. Gormley, 160 Pa., 559.) 17. An agent of lessee cannot ex- Evidence of construe- plain the forfeiture clause in an oil lease, tion of lease. as having been so construed to the lessor before execution, when it contradicts the plain terms of the lease. (Hall vs. Phillips, 164 Pa., 494.) 18. Pour were lessees in an oil lease. Shares in lease — An agreement by three, but not the- evidence. fourth, showed that one was to have an eighth interest. Other evidence showed that plaintiff who claimed one-fourth, was entitled to one-half of the eighth interest of the one. Held, that plaintiff was entitled to one-sixteenth interest only. (Smiley vs. Gallagher, 164 Pa., 498.) 19. Where lessee. did nothing in the- lessee liable. time stipulated, but surrendered, and it became known that wife of lessor was in- terested in the land, but no new lease was made as proposed, held lessee was liable for the rent and royalty of the first six months., (Kunkle vs. People's Gas Co., 165 Pa., 133.) 20. Under act May 6, 1891, P. L. Joint tenancy. 41, a joint tenant cannot recover against his co-tenants for contribution to expense of drilling wells, without their consent. (Murtland vs. Callihan,, 2 Super. C, 340.) 21. Where the lease was for oil pur- Reimbursement — poses, but gas was found instead, the lessee- when not allowed, -was held not entitled to re-imbursement out of the gas. (Palmer vs. Allen, 27 W> K C, 514.) 58 LEASE. FOR OIL AND GAS PUEPOSES. 22. A stipulation for additional Stipulation not price if oil be found in "jjaying quanti- ambiguous. ties" is not ambiguous. (Collins vs. Mech- ling, 1 Super. C, 594.) Heservation waived. 23. When a lessor, who had reserved four acres of the land leased, from di*illing purposes, but subsequently in writing per- mitted lessees to drill on reserved ground and accepted the fruits, the lessee could continue after the three years specified and while oil and ga's were produced in paying quantities, as the lease pro- vided. (Balfour vs. Eussell, 167 Pa., 287.) 24. Where defendants agreed to pay for oil and gas wells drilled through a coal vein, and assigned their interests and other wells were drilled, held they were liable for the penalty for each well so drilled. (P. C. Coal Co. vs. Greenlee et al., 164 Pa., 649.) Assig'nors liable for penalty. Assignee's liability. fey, 1S5 Pa., 38.) 25. The assignee of an oil lease is liable for all rents and royalties while he holds the assignment. (Fennell vs. Guf- 26. Covenants running with the land, in an oil lease, bind the assignee benefited and the statute of limitations does not run against a suit for royalties. (Williams vs. Short, 155 Pa., 480.) Statute of limitation as to royalties runs not. 27. An indefinite term for oil pro- Xessor as trespasser, duction, in a lease, will not excuse a lessor, after a year, for attempting to terminate the lease— though the lease was unsuccessful — the first year. (Piddle vs. Mellon, 147 Pa., 30.) LEASE. FOR OIL AND GAS PURPOSES. 59 28. Where the lessor drills on land lessee's measure leased for oil, outside the sites to which of damages. his lessee is restricted, the measure of damages to lessee is the difference in value of the leasehold before and after the injury. (Duffield vs. Eosenzweig, 150 Pa., 520.) With reference to same case, 144 Pa., 520. 29. While a lessee's liability for Assignee liable only brokeu covenants in an oil lease continues for covenants bro- after his assignment of the lease, his . .^ ^ assignee is liable only for covenants privity, ° , . , . . . broken during his pnvity of estate and not for prior breaches by his assig-nor. The assignment did not relieve the lessees from their contracts. The covenant ran with the land until the breach. (Bradford Oil Co. vs. Blair, 113 Pa., S3. Distinguished. Williams, J., in Washington STatural Gas Co. vs. Johnson, 123 Pa., 576.) 30. The lessee of oil lands being dead Estoppel. and the widow and children in possession, when the property was purchased by the one setting up the lease as an estoppel, it was not presumed in his favor that the occupants were holding over under the lease. Eaiowledge of the existence of a lease does not relieve the one dealing with the lessor from inquiring of the person in possession whether he claims othc'rwise than under the lease. (Anderson vs Brinser, 129 Pa., 376. 31. Under the statute of 32 Henry VIII, ch. 32, in force in Pennsylvania, a Tenancy in common — ... j: i i 1 1 j? ,..."' , , . tenant m common ■ ot a lease-hold lor partition and notice. life or years, is entitled to partition and notice thereof, so his rights may not be affected and concluded. Without notice, he is not bound by partition at the instance of those holding the estate of inheritance or free-hold. (Duke et al. vs. Hogue, 107 Pa., 57; s. c. 33-, P. L. J. 3.) 60 LEASE. FOR OIL AND GAS PURPOSES. 32. Under the Act of April 27, 1S55, Leasehold the lien of a leasehold mortgage duly ac- mortgages. knowledged and recorded is not divested by a sheriff's sale on a subsequent judg- ment. (Gill vs. Weston, 110 Pa., 312.) The act applies to oil land, although passed before the discovery of jaetroleum, which is a mineral substance obtained from the earth liy a proce--^ of mining. Ibid. 33. Where a lease stipulated fen- a Rental and ' rental, in case a well was not completed in forfeiture. q months and with a forfeiture clau?e, it was held that though the lease was for- feited the lessor was entitled to his rental. (Leatherman vs. Oliver, 151 Pa., 646.) In an oil and gas lease, where after trial the premises were notoriously abandoned, and the lessor slept on his rights as to rental, held the facts as stated in the affidavit of defence, were sufficient to raise an issue for a jury. (May vs. Hazelwood Oil Co., 152 Pa., 518.) 34. Where a brother for himself and Forfeiture waives as next friend of his minor sister — tenants rental. in common, declares a forfeiture of an oil lease — he cannot afterwards recover the damages in the lease. (Wilson vs. Goldstein, 1.52 Pa., 524.) 35 A clause of forfeiture is not 'CE. 2. A married woman gave a joint Married woman's judgment note with her husband for rent judgment note sus- ^^ ^.^jUe^.^ ^^l^j^,!^ distress had been made tained in settle- , , , . i j r, iJi i . „ , upon property she ciaimed lor herseit and ment of rent. f l f j , , . , her sons. The levy was released and judg- ment entered. Held the release of distress was a valid considera- tion for the note, and judgment was properly entered against her upon it. McCormick vs. Bottorf, 155 Pa., 331, cited (Kams vs. Moore, 5 Supr. C, 381.) 3. As to claim for rent between hus- Between husband' band and wife, joint occupants, she being and wife. owner, held that the presumption was he held with her assent and that no rent was payable. (Estate of Gilman, 20 Phila., 61.) i. Where a married woman leased Suit by her against ^^^^' separate estate before the act of 1887, firm of her hus- to a firm whereof her husband was a mem- band, ber, she could maintain a suit against the firm, with her husband's assent, for breach of covenant of the lease, notwithstanding the adverse relation in the cause. (Freiler vs. Kear, 2 Mon., 747.) EVIDENCE, 1. Evidence of custom as to other Custom in properties, in relation to leasing is inad- leasingf. missible in an action for rent. (Arrott, S. P. M. Co. vs. Way Manufacturing Co., 28 W. K C, 387.) 2. A tenant who seeks to recover Impure water damages from illness caused by impure misrepresentations, -well on the premises must satisfy the jury that the water caused the sickness and that ■the landlord knowingly deceived the tenant in regard to the water. (Harrington vs. Hamill, 3 Mont., 31.) EVIDENCE. 85 3. Where it was a question whether Parol evidence of certain tenant houses on a farm leased were rental value. included in the lease, parol evidence of their rental value, as bearing on the proba- bility of their inclusion, was admissible. (Boice vs. Zimmerman, 3 Sup., 181.) 4. Under act May 23, 188Y, the de- Evidence of clarations of the landlord as to a parol parol lease. lease made by him, are admissible after his Act of 1887. death to prove the terms, as between two parties, each claiming under the deceased. (Silfies vs. Lauback, 4 E"ortham, 196.) 5. A leasehold having been sold en a Evidence — mechanic's lien and ejectment brought record of judgment, against the landlord in possession, who had ousted his tenant, held that the record of the judgment against the tenant was admissible in evidence to show that at the time of the sheriff's sale the judgment stood unopened and unappealed from. (Seltzer vs. Robbins A al., 181 Pa., 451.) 6. In trespass the burthen of proof Burden on is on him who defends under the lan(J- bailiff. lord's warrant. ISTo presumption lies in favor of the constable. (Perrin vs. Wells et al., 6 Kulp, 313.) 1. While no presumption of regu- Presumption. laritj- exists, where constable swcn.r-; he posted three regular notices, there being no evidence to the contrary, it will be presumed that the notice was legal in form and time. Ibid. 8. On admissibility of declarations of Declarations, parties and of record of feigned issue, in trespass, see Dosch vs. Diem, 176 Pa., 603. 9. Evidence of the value of the lease Value of lease. is inadmissible. (Wood vs. Sharpless, 174 Pa., 588. 86 EVICTION. EVICTION. 1. In an action for ^vrongful evic- tion, where title on one side is claimed from one deceased, the declarations of the deceased in the absence of the party af- fected are not evidence. (Dosch vs. Diem, 176 Pa., 603. Eviction— evidence of declarations. Sufficient averment. Insufficient defense. , Eviction without damagfes. to recover damages. 511.) Forcible detainer defined, 149.) 2. For sufficient averment of eviction to bar recovery see Wilcox vs. Phila. Sec. Co., 15 W. X. C, 367.) 3. A tenant who retains possession cannot set up eviction as a defense to the rent. (Sutton vs. Foulke et al., 2 C. C, 529.) 4. Where a lessee was evicted by city authorities who tore down the building as dangerous, the landlord acquiescing and desiring it, does not give the tenant a right (Hitchcock et al. vs. Bacon, 20 W. IN". C, 5. Forcible detainer by landlord as against the tenant involves possession by latter, subsequently detained by for".e. (Commonwealth vs. Brown, 28 W. N. C, 6. A landlord who boarded and When not lodged with his tenant, and upon being- eviction, ordered off, ceased boax-d, but held his room, was held not to have evicted his ten- ant. (Diehl vs. Woods et al., 33 P. L. J., 152.) [JACKSOITMWD GEOSS, Sec. 882.J GROUND RENT. 87 G-ROUND RENT. 1. Where a ground rent was created Ground rent, by deed, after the Act of April 32, 1850, extinction of. to be payable annually forcYcr, unless ex- tinguished within ten years from its date, this option could not be exercised after the time limit, and the rent discharged by fair construction of said act. (Palairet vs. Snyder, 106 Pa., 227.) See full discussion of ground rent in same case by A. S. I'reedly and William Henry Rawle. 2. A lien of ground rent is dis- Ground rent charged by sheriff's sale and the proceeds discharged by must go to the liens in order of priority. A private sale does not divest a ground rent. (Eoulke vs. Millard, 108 Pa., 230.) 3. Where a ground rent was reserved Legal tender — by deed dated June 11, 1808, payable in money of contract. Spanish milled dollai-s, a tender of the amount in such dollars in 1890 was valid. The owner demanded "lawful silver money of the United States." In 1792 Congress adopted the Spanish milled dollar as the standard of value of the U. S. dollar authorized to be coined by that act. (1 U. S., St. at L., 248.) In 1857 Congress demonetized Spanish silver milled dol- lars. The Supreme Court says: "The Court below properly held that the plaintiffs were obliged to receive the kind of money the contract called for." (Johnson et al. vs. Thomas Ash, 142 Pa., 45.) 4. A redeemable ground rent owned Descent, by one who is insane, when paid off be- come personalty and at his death passed to kis next of kin. (Hirst's Estate, 147 Pa., 319.) 88 GROUND RENT. DISTRESS FOR RENT. 5. In an action on a ground rent deed Terra tenant. tlie terra tenant cannot set off damages arising from a breach of covenant, occur- ring while the title was in his predecessor. (Provident Co. vs. Fiss, 147 Pa., 232.) 6. The rights of an owner of ground Partition. rent are not affected by partition, nor sub- ject to payment of mdow's interest. (Bunting's Estate, 16 W. E". C, 335.) 7. In proceedings on ground rent. Judgment cures the failure of the docket to show statement defect. iiled and naming jDarties to the deed does not invalidate the judgment obtained. (Mitcheson vs. Southcott,' 17 W. IS^. C, 27.) 8. A ground rent landlord cannot re- Cannot enjoin. strain the removal of brick clay from the laud. (Lafferty's appeal, 20 AV. K C, 36.) [JACKSON" A^TD GROSS, p. lO.J DISTRESS FOR RENT. 1. "Prior to the Act of 1772 a land- Distress not a lord could only hold the distrained goods pledge. as a pledge for enforcing payment uf the rent. That act provides for selling the' goods, and has been held to be imperative on the landlord, which would sccui to give to the distress the character of an execution. (Quinn vs. Wallace, 6 Wharton, 452.)" (Eichards vs. McGrath, 100 Pa., 399.) 2. All the steps necessary to a regular Distress must be distraint and sale of tenant's goods for rent regular. in arrear are laid down in Snyder vs. Bor- ing, 4 Supr. Ct., 196. DISTRESS FOB RENT. 89 A landlord's warrant by parol is not sncli "legal process," as when its service is „,>f i«™„i J ^ ^° resisted by the tenant's removal of the not legal process. ■' goods before appraisement, a prosecution will lie against the tenant for the act. (Commonwealth vs. Xichols, 16 C. C, 669.) 3. xVn outer door cannot be forcibly Outer door cannot opened to serve a warrant of distress. be forced. Where the landlord picks the lock after the tenant locked the door and carried away the key, he committed a trespass. (Commonwealth vs. Moreland, 9 W. K C, 272, followed. Murray vs. Vaughn, 16 C. C, 657.) 4. A lease provided for sale of ten- ant's goods off the premises on three days' Must follow law, ,. J 1 £ 1 J- ii 1 X . ,, 1 notice, and also for sale of the goods to not the lease. ,11 . landlord as security for the rent. Held, when the landlord distrained he must fol- low the law and not his lease. (Wyke vs. Wilson, 173 Pa,, 12.) 5. Eight to distrain ceases with death Dies with of tenant. This rule is not changed by a tenant. stipulation in the lease that it shall bind the executors of the parties, nor is it affect- ed by the tenant's insolvency on a stipulation that for thirty days after removal the goods shall be liable to distress. (Candy admr. vs. Dickinson, 14 C. C, 637; 166 Pa., 422.) 6. Landlord cannot distrain for rent Kent does not become until due. (Jackson's appeal, 3 Mont., due by sale on gg ■) ^ ' And it does not become due where he sells the goods bona fide on the premises. In case of fraudulent removal apportionment of rent is made under local laws in Philadelphia and Allegheny Co. Ibid. 90 DISTRESS FOE RENT— WHAT MAY BE DISTRAINED. 7. A trustee can issue a warrant in A trustee may his own name and make avowry that lessee is his tenant. (Callender Co. vs. Speer et al., 29 P. L. J., 125.) 8. Under a lease, with forfeiture Distress before clause, the landlord may distrain for rent forfeiture. in arrear first, and forfeit afterwards. An attempt of tenant to mortgage his lease hold \vhere there is a covenant against "assignment" is a nullity. (Becker vs. Werner, 29 P. L. J., 216.) \YHAT MAY BE DISTEAIXED. 9. Distraint may be made upon Goods removed goods removed in day time and delivered in day time. to transportation company under clause. against removal at any time. (Gold vs. Gleason, 4 D. E., 603.) Goods loaned 10. Household furniture loaned to a not exempt. boarding house keeper are not exempt from levy and distress. (Myers vs. Esray, 8 C. C, 281.) 11. Unless the goods> of a stranger, Goods of a stranger found stored on the premises, are neces- liable. sarily put in possession of the tenant in the course of his business, as in Karns vs. Mc- Kinney, 74 Pa., 390, or goods entrusted to an agent to be sold on, commission, as in Howe Sewing Machine Go. vs. Sloan, 87 Pa., 438, the property stored or consigned is liable to distress. (Page vs. Middleton, 118 Pa., 546.) 12. Furniture leased to a boarding Leased property house keeper upon rented premises, under liable for rent. a lease providing for monthly payments until the value be fully paid, when the furniture "should beccme her property absolutely," is liable to DISTRESS FOR RENT — WHAT MAY NOT BE DISTRAINED. 91 distress for rent in arrear. (Karns vs. McKinney, 74 Pa., 387, followed. Myers vs. Esery et al, 134 Pa., 177.) [See Act June 25, 1895, p. 1. 282, for exceptions.] 13. Landlord can hold property sold Goods sold but by the tenant, but remaining on the premi- not delivered. ses, undelivered, though not formally dis- trained. (Furbush vs. Fisher, 2 Kulp, 497.) WHAT MAY IsOT BE DISTRAINED. 14. An executor cannot distrain on Executors cannot dis- a lease made by the heirs, although he has train on lease made made a subsequent agreement with an as- signee of their lessee, reducing the rent. (Grier vs. McAlarney, 148 Pa., 587.) 15. A personal covenant in a lease that a penalty shall be paid for violating Penalty in lease not .i -, ■ . ij-t^^-x i- , . , . , , „ the lease is not ground for distraint as lor rent in arrear, there being no implication that the penalty was to be distrained for. (Latimer vs. Groetzinger et al., 139 Pa., 207.) 16. Goods in the hands of a commit- Goods of a tee of a lunatic are' not liable to distress lunatic. £(jj. j,gj^|. ^^^g before the finding of the in- quisition. (Cochran vs. Howes, 3 Del. Co., 248.) 17. Where goods in possession of the Goods in . . tenant were siezed under a writ of re- custodia legis. plevin, by the sheriff, and left on the premises, the landlord could not distrain them, as they were in the custody of the law. (Skiles vs. Sides, 1 Supr. C, 15; Pierce vs. Scott, 4 W. & S., 344.) cited with approval. 92 DISTRESS FOK RENT WHAT MAY NOT BE DISTRAINED. 18. A tenant sub-let premises for a Sub-tenant attorned to Pa^ «^ his term and in an action of re- landlord— not liable plevin for his goods distrained by the land- to distress when. lord, for rent in arrear by another le-see, held that the sub-tenant cannot be preju- diced by the surrender of the term by his lessor to a new tenant and his goods were not liable to distress for such rent. (Hes?el vs. Johnson, 129 Pa., 173.) 19. AVhere the assignee of a lea.-e, at Extinguished by de- its termination, surrenders possession to termination of estate, the owner, he cannot issue a landlord's warrant to collect rent alleged to be due him for a portion of the demised premises, and he and his bailiff are mere trespassers, whose acts the sub-tenant need not respect. OYalbridge vs. Pruden, 102 Pa., 1.) 20. A landlord who had permitted Agreement not to his tenant to sublet and agreed not to. dis- distrain. tress the sub-lessee, will be a trespasser if he distrains. "Whether he so agreed is a question for the jury. (Perrin vs. AYells, 1.55 Pa., 299.) Right of distress is lost by accepting drafts and receipting for rent. (Appeal of Cambria Iron Co., IS W. N. C, 361.) 21. When landlord had notice that Exemption of the tenant sold an organ which was leased organ. to tenant's daughter, with notice, and re- lease by landlord, the organ was held ex- empt, under Act May 13, 187G, pi. 171. (Rohrer vs. Cunning- ham, 138 Pa., 68.) 22. AA'^here there is an express waiver Waiver of exemption of the right to ecsemption from execution, applies to all. it applies to a landlord's wan-ant as well as an execution on a judgment for rent due. It is immaterial whether the jtistice notes the exemi>tion in his record or not and the justice has jurisdiction to the amount of $300 under the Act of May 20, 1879, P. L., 191. (Beaty vs. Rankin, 139 Pa., 3.58; Smith vs. Afishler, 7 Lane. L. R., 169.) DISTRESS FOR RENT RIGHT OP TENANT TO REPLEVY. 9." 23 A leased sewing machine on the premises is not exempt under the Act of Leased goods. ^^^^ ^^ ^g^^^ p_ -^^ 3g_ ^^^ ^^^^ ^^ ^^_ emption is a personal privilege, not assign- able or available by another. (Bogert vs. Batterton, 6 Supr. Ct., 4:08. [Bui; see Act of June 25, 1895, p. 1. 282, where notice of the lease is given.] 24. A waiver of exemption in the Waiver of original lease will apply to a supplemental exemption. lease for additional premises. (Conroy vs. Bitner et al., 5 Del. Co., 261.) 25. Where the property levied upon Minor children's was that of the minor children, left by goods exempt. their father and given them by the mother and the landlord was notified, his distress wa- a trespass, althovigh the lease waived exemption. (Roberts vs. Messinger, 26 W. :N'. C, 70.) EIGHT OF TElsrANT TO REPLEVY. 26. The landlord's right to distrain Distress — eomputa- must be followed strictly and completely, tion of five days. and a sale before the full five days between seizure and appraisement renders the land- lord a trespasser ab initio. Where a Sunday intervenes, the day of seizure (Tuesday) being excluded, so must Sunday be excluded from the computation, as the 5th "juridical day" is Monday and the appraisement could not be properly made until Tuesday. (Davis vs. Davis, 128 Pa., 100.) 27. In an action of replevin to re- Constable as agent cover goods sold under a landlord's war- and as officer. rant and bought by plaintiff, it is incum- bent upon the plaintiff to show notice of distress and cause of taking before appraisement, when consta- 94 DISTRESS FOR RENT RIGHT OF TENANT TO REPLEVY. ble acted as agent o£ the landlord and not as officer. Regularity will only be presumed as to his acts as officer. (Murphy vs. Chase et al., 103 Pa., 260.) 28. A constable need not accept and Need not accept serve a landlord's waii-ant. The warrant and serve warrant, is a right given the landlord and Avhen the constable accepts it and executes it he is the agent of the landlord and has no justification by virtue of the warrant. (Bair et al. vs. Warfel, 5 Lane L. R., 81.) 29. There must be a seizure, but an Actual seizure in actual seizure of the particular goods is not distress. necessary. It Avill be sufficient, if the land- Movable fixtures. II- X- J. J.1 x X i; 1 • 1 • lord gives notice to the tenant of his claim and declares the goods which he names shall not be removed till the rent is paid. Fixtures Avhich the tenant has a right to remove from the freehold, during his term, such as aspinning miile, fastened to the floor vdth wood screws, may be distrained. (Furbush et al. vs. Chappell et al., 105 Pa., 187.) 30. The right to replevy the goods Ifot confined to distrained upon is not confined to five five days. days, if no sale has been made. (Brisben vs. Wilson, 60 Pa., 458, followed. Starr vs. Simon, 9 C. C, 15.) 31. Only the tenant, and not £^llother Only tenant can for him, can maintain replevin for goods maintain. distrained. (Power & Go. vs. Howard et al., 22 W. ?f. C, 475.) 32. Where tenant does not replevy. Replevin his . the landlord having postponed the sale to remedy. give him an opportunity he cannot main- tain trespass. (Bogert vs. Battertou, 6 Supr. Ct, 468.) DISTRESS FOR RENT RIGHT OF TENANT TO REPLEVY. 95 33. Under the Act of 1772 replevin is the remedy of a stranger whose goods are improperly distrained. (Esterly Ma- chine Co. vs. Spencer, 147 Pa., 466.) 34. If a landlord distrains goods I'C- longing to a stranger who has them in possession of the tenant for sale on com- mission, knowing the facts, he is a tres- passer. Esterly Machine Co. vs. Spencer, 147 Pa., 466, is distinguished because there the landlord could avail himself of replevin, while here he could not. (Brown vs. Stackhouse, 155 Pa., 583.) Proper remedy for stranger. Trespass sustained where replevin could not be available. Sale under distress. Adjournment. Impounding. 35. Bailiff may make reasonable postponement of sale and need not sell on the day fixed by the notice. An adjourn- ment for one week is reasonable. The landlord, meantime, has the right to im- pound the goods on the premises and may take exclusive pos- session of that part wherein they are impounded. An offer of the landlord to lease to a sub-tenant and cautioning him not to pay more rent to the mesne-tenant does not affect the validity of the proceedings. (Holland vs. Townsend, 136 Pa., 392.) Sufficient notice of sale. (Davis vs. Davis, 128 Pa., 100, distinguished.) 36. The full five days having been al- lowed for the tenant to replevy, an ap- praisement was held on Monday, February 7, and notice was given immediately,, fix- ing the day of sale Pebruary 13. Held valid six days' notice. There is nothing in the Act of 1772 re- quiring the landlord to wait till the day after appraisement to give the notice of sale. Davis vs. Davis, 128 Pa., 100, did not involve this question, but the one whether when the last of the five days which the tenant has to replevin the goods fell on Sun- day, his right to five full days for legal action, was satisfied. It was held it was not. (Wliitton vs. Milligan, 153 Pa., 377.) 96 DISTRESS FOR RENT RIGHT OF TENANT TO REPLEVY. 37. "Making the distress, when the When trespass will •claim is wholly false, is a mere trespass. lie and when not. But when the landlord distrains for more rent than is due, or makes an excessive distress, 'he shall be grievously amerced for the excess of such dis- tress.' lie is liable to an action for distraining more rent than is due. McElroy vs. Dice, 17 Pa., 163." (Richards vs. McGrath, 100 Pa., 389; Spencer vs. Olinefelter, 101 Pa., 219.) 38. After a distress has been lawful- Trespasser ly made the landlord may commit an act ab initio. in itself a trespass, and thereby become a trespasser ah initio. JSTotice and appraise- ment are essentials for the legality of a sale. If either of these be wanting, as prescribed by the statute, the sale is without authority, and the landlord is a trespasser from the beginning, as is a sheriff who sells goods he seized in execution upon notice of , only 5 days. (Eichards vs. McClrath, 100 Pa., 399.) 39. The omission to give notice to When waived. the tenant, of the distress and the cause of it, does not make the landlord a trespasser, if the goods were replevied before sale. (McKinny vs. Header, 6 Watts, 34; Richards vs. McGrath, 100 Pa., 399.) 40. A tenant ought to be permitted Tender during to pay the money necessary to satisfy the sale. warrant, whenever he can, with the same effect as if the money were made by sale of his goods. The chief object of the statute is to enable the landlord to collect his rent, not to sacrifice his tenant's property. After part of the goods was sold the plaintiffs tendered a sum of money. If that sum was less than the real balance, after the correction of the mistake in selling the sewing machine, and be- fore renewing the sale the defendants proposed to make the cor- rection, which the plaintiffs refused, the tender was insufficient. (Richards vs. McGrath, 100 Pa., 401.) DISTRESS FOR RENT RIGHT OF TENANT TO REPLEVY. 97 A tender of rent by tenant must be satisfactorily proved. (Reams vs. Pancoast, 33 P. L. J., 333.) 41. Where a landlord distrained for Payment and a sum claimed to be due and the defend- defalcation. ant claimed a defalcation for unliquidated damages, it was held that the distress was not excessive and the landlord was obliged to take into account only actual payments or what are equivalent. (Spencer vs. Cline- felter, 101 Pa., 219.) 42. In replevin, when the question Eent in arrear — is how much rent was in arrear, it is error evidence. for the court to reject evidence of over- payments in other quarters than the one for which distraint was made. (Weber vs. Porer, 151 Pa., 487.) Distinguishing Warner vs. Caulk, 3 Wh., 193, where the equitable defence of landlord's default was distributed over the term, according to the English rule. 43. The Supreme Court declined to Record of judgment amend the record of an in-tgular judg- iu replevin — ment in a replevin suit for rent, as that amendment. ^^^g ^-^e province of the lower court. (Park vs. Holmes, 147 Pa., 407.) 44. Where a distress was not ^nlfully Measure of damages and wantonly excessive, no exemplary for illegal distress. damages will be alloiwed. The true mea- sure is the fair value of the goods, -with the cost of replacing them, and other actual injury, to which interest may be added. Tnmkey, J. (Richards vs. McGrath, 100 Pa., 399.) 45. The landlord is allowed costs in Costs. replevin where the verdict was partly for the plaintiff. (Park vs. Holmes, 28 W. N. C, 288.) 7 98 DISTRESS FOE RENT REPLEVIN. 46. A tenant whose goods were dis- When tenant trained in the act of removal, on July 1, removed goods. when he alleged no rent was due, but the landlord claimed two months in arrear, was held to have no standing as against an amicable ejectment. (Murphy vs. Marshall, 179 Pa., 516.) 4Y. A mere unexecuted intent to Covenant against remove will not justify action under a removal. lease, by distraint for balance of rent for term. (Klein vs. McFarland, Supr. C, 110.) 48. When the tenant refuses to de- Larceny by liver to the sheriff goods levied upon and tenant. removed to other premises by the former, larceny is the proper charge. (Common- wealth vs. Shei-tzer, 14 Lancaster Law Rev., 70.) 49. Tenant, in order to have allow- Defalcation. ance, should, by proceedings before a jus- tice, have amount of his claim of defal- cation ascertained, so that he may present it in the action of re- plevin. (Walsh vs. G-reenwood, 6 Kulp, 477.) [JACKSO^T AJSTD GEOSS, page 96.J REPLEVIN. PEACTICE AND PLEADING. In Pennsylvania replevin is the prop- Form of action " ®^ form of action to recover goods in the possession of another regardless of the manner in which that possession was ob- tained. The- claimant may follow the property through several transfers of possession, and replevy it in whatsoever hands he finds it. This form of action survives to the legal representatives of either party, who can be brought in on scire facias and substi- REPLEVIN. PRACTICE AND PLEADING. 99 tuted. A married woman in possession of the goods should be named as co-defendant. If she is not, she may intervene on averment of title. (Lewall vs. Lewall, 158 Pa., 626.) Duty of sheriff. Plea of return. This being an action for the very goods claimed, upon the vrit, it is the duty of the sheriff to deliver them to the plain- tiff, upon bond for double their value, pending the suit. If the defendant desires a return of the goods, in case of recovery, he must plead his claim for such return. This transforms the defendant to Transformation plaintiff in action, and upon the trial gives in action. him the opening and closing. He is called, in this relation, the avov^ant, because he not only avows and justifies his taldng of the goods, but claims that he should recover the same in the action. Security for costs. If the defendant resides beyond the jurisdiction, he may be ruled to give se- curity for costs. The precipe in this action states the Praecipe. parties in the usual form and requests the Prothonotary to issue a writ of replevin for goods and chattels as enumerated in the accompanying list, stating the value thereof, and if they were distrained for rent, the amount claimed. The writ substantially follows the Summons. praecipe and commands the sheriff tO' cause the goods to be delivered, upon "sureties and safe pledges." It is returnable like other original Return. process and amendable likewise. If the sheriff finds the goods and executes the writ according to its full tenor, his return thereon is: "Replevied, summoned and delivered." If he fails to find the goods, his re- turn is "eloigned," whereupon an alias may issue. 100 REPLEVIN. PRACTICE AND PLEADING. In case the goods were distrained, the Boad of plaintiff. sheriff shall take bond from the plaintiff in Assignment of bond. ^^^^^^^ ^j^g ^^^^g of ^^^ goo^^^ ^^^^^ ^-^^^ j^g will i>rosecute his claim with effect (suc- 'cess) and if defeated, return the goods. The value of the goods for the purpose .of ascertaining the amount of such bond, shall lie found by the oath or affirmation of one or more credible per- sons, not interested in the replevin or the distress, summoned by the sheriff for that purpose. When this bond is taken, upon re- quest of the avowant (defendant) the sheriff shall assign it to him, at his costs, by endorsing and attesting it under his hand and seal, in the presence of two credible witnesses. In case this bond' be- comes forfeited the assignee may sue and recover thereon in the name of the sheriff to his own use. (Olark vs. Morse, 142 Pa., 311.) But the court may, by rule, give such Power of court. relief as justice shall require and such Suit. judgment shall operate as a defeasance to the bond. If the plaintiff is defeated in the action, the avowant may sue on the bond, notwithstanding he fails to sue out a writ of return (dc retorno habendo), with the sheriff's return of "elongata," which is equivalent to the goods disappeared. The failure of the sheriff to take ade- Tailure of sheriff. ^^^^^^ °^' ^^^^' si-^i"eties does not invalidate the -writ, but subjects him to an action by the defendant, the former remedy being case, now merged in trespass by act of 1887, known as "the Pro- cedure Act." If the sheriff talte insufficient sureties, the meas- ure of the defendant's damages is not the amount of rent due, but the value of the goods distrained. Sufficiency of And such sureties must be sufficient at sureties. the end of the trial. It is of no avail that they were so, when taken. This rule ap- plies to plaintiff's bond, and is the nUe adhered to in Pearce vs. HumiDhreys, 14 S. & E., 25. But on a claim projierty bond, EEPLEVIN. PRACTICE AND PLEADING. 101 the rule was laid down in AVatterson ■ Rule as to Admr. vs. Fuellhart, 169 Pa., 612, that C. P. bond. the sheriff is only held to reasonable care and diligence in selecting sureties, and it is enough if they were solvent and sufficient when taken. On such a bond it was held the sureties were liable only for the value of the goods. (Neely's Estate, 5 York, 199.) The sheriff may take a bond with Warrant to confess Avarrant to confess judgment. Bvit such judgment. judgment is cautionary only. (Clark vs. Morse, 142 Pa., 311.) It gives the Pro- thonotary no right to assess damages. (Lewis vs. Bonnert, 12 C. C, 366.) The sheriff takes this bond and de- Indemnity, livers the specific goods to the plaintiff at his peril, and he should see to it that it contains ample indemnity. Where there are two defendants (as Assignment to a landlord and bailiff), and one avows and several. the other makes cognizance, they may take assignment and sue jointly upon the bond; or it may be assigned to avowant only. Such assigiiment is not a waiver of a right to hold the sheriff, for if the bond fail in fruits, the sheriff is still liable for taking insufficient pledges. But the assigTiee cannot recover special damages, unless he gave the sheriff notice Notice of special ^f j^ig intention to sue for them. The n i- , f- 1 -i-i sureties are held to the end of the suit Sureties liabuity. i- n i i i ^ i and are not relieved by the defendant giving time to the plaintiff. iNTeither can they take the goods and deliver them to the avowant, mthout the plaintiff's consent. They cannot set up in defense, matters passed upon in the replevin suit. (Cox vs. Hartranft, 154 Pa., 457.) Obligors in a plaintiff's bond are held to prosecute the case to the end. (Clark vs. Morse, 142 Pa., 321; Duncan vs. Sher- 102 REPLEVIN. PRACTICE AND PLEADING. Fhila, and Allegheny. Defendant's claim of property. man, 121 Pa., 530; Borland vs. Meurer, 139 Pa., 513; Irvin vs. Kutruff, 152 Pa., 609; Watterson Admr. vs. Fuellhart, 169 Pa., 612.) In Philadelphia and Allegheny coun- ties, under the act of April 10, 1873, the sureties justify in court, and the sheriff is relieved. If the defendant interposes the claim of property, the sheriff may take his bond to hold the goods and deliver them up to the plaintiff in case judgment shall be for him and in all things abide the judgment of the court relating thereto. Then defendant may hold the property. Armed with this writ the sheriff may enter the defendant's house and search for the goods specified, and is justified though he find them not, seeing he does nothing in excess. English authorities go so far as to justify the sheriff in breaking an outer door, where entrance is refused, after notice of his intention, his authority and a proper demand. (Jones vs. Herron, 12 C. C, 183; 31 W. 1ST c., 263.) It is the duty of the plaintiff to point out the goods to the sheriff. There must be an actual delivery to the plaintiff of all the goods replevied, unless consent be given to a Eight of sheriff to enter. May break outer door. Duty of plaintiff. Delivery. symbolic delivery. Defendant's right to give bond. The sheriff should not remove the goods, until the defendant has had reason- able time to give the claim property bond, if he desires to hold them, for the wiit de proprictale prohcnida, employed in England, is not in- use here. If the sheriff fails to do this, he cannot justify. (Pearce vs. Humphreys, 14 S. & K., 25.) The defendant ha^dug appeared, the Appearance. plaintiff must declare mthin the time of the rule. KEPLEVIN. PRACTICE AND PLEADING. 10'"i If the defendant does not appear as Judgment by required, judgment by default may be default. taken, though this is a dangerous practice, in view of the almost certain motion to have judgment opened and defendant let in with his defense. The declaration in this action re- Declaration, quires certainty and pai'ticularity as to the place where the distress was taken, for this is material and a new assignment is not allowable. If the place Omission of be omitted the defendant may demur. If place. the plea of the defendant is non cepit, and the plaintiff cannot prove caption or that the property was in the place described, the latter will be non-suited. After avowry, however, a Effect of avowry. declaration which would have been bad for uncertainty, on demiurer, will be held as cured. Certainty to a general intent is now sufficient, espec- ially after verdict. There may be several counts averring General Counts. several takings at several places, a part at one time and a part at another, or some at one place and some at another. If the defendant answer as to one and not the other, the proper practice Partial answer. is to take judgment upon the unanswered count, by nil dieit, and not to demur or plead over, for thereby he discontinues. The declaration may be amended as to place of caption, as well Amendment. as other matters. It is important to aver the damages of the plaintiff. If the plaintiff, after being ruled, Non pros. fails to declare, judgment of non pros may be taken on motion, which at com- mon law, was "that the defendant shall have a return of the goods replevied, and his costs." Upon this judgment a writ of retorno Writ of return. liaheiido may issue. This judgment, how- ever, is liable to be taken off, even after J 04 REPLEVIN. PRACTICE AND PLEADING. defendant has sued upon his bond as assigned to him, and this would place him in an awkward situation. The better practice doubtless is, after Writ of inquiry, filing an avowry, to take out a writ of in- quiry to ascertain the amount of rent in arrear, and have a jury pass upon that as well as the value of the goods taken. Then he could have his writ for the return of the goods, and if "eloigned," proceed upon the bond. The defendant being ruled to plead, Pleas. must plead, make avowry or cognizance. However, failure to plead, has been cured after trial on the merits, but this is slovenly practice. The gen- eral issue is non ecpit. This puts every- General issue. ' thing in issue, relative to the taking. A In bar. plea of abatement in bar, averring prop- erty in another than the plaintiff, if sus- tained, would obviate avowry, and award the goods to the de- fendant. Property may be plead in bar, or cepif in alio loco. It is usual to plead ^ . , non ecpit and property together. But special. . ' .7 special property cannot be joined with non ecpit. (Ashworth vs. Love, 12 C. C, 273.) Other pleas in bar are the statute of limitations, justifica- tion and avowry or cognizance. In either case, the defendant, if sustained, is entitled to a return of the goods. Property covers either general ipr special, but the Burden of proof. onus probandi is all upon the one plead- ing it, and he is not required to give no- tice, under the rule of court. Property in any one but the plain- tiff, even a stranger, is covered by the plea. This is of so wide a shield that though it be the only plea, it does not admit even the color of title in the plaintiff, or that he ever had possession. While set-off has not a proper place Set off. ill replevin, where the inquiry is upon the amount of rent due at the time of dis- traint, proper claims gro\\'ing out of the contract may be con- REPLEVIN. PRACTICE AND PLEADING. 105 sidered. But the tenant must first proceed before a justice under the act of March 20, 1810. (Walsh vs. Greenwood, 6 Kulp, 477.) The plea of justification admits the Justification. taking but denies the plaintiff's right to the goods. It does not sound for a return as does an avowry. Where the defendant seeks a return of the goods he avows. Under the general issue, special matter of justification is excluded. Avowiy is not strictly a plea, but it . . , is a confession and avoidance, in that it Avowry not a plea. admits the taking and avoids the -wrongful consequence, by showing affirmatively a legal right. The difference between avow- Difference between , • xi j. i i ., J . ry and cognizance is that he who avows it and cognizance. '' _ *= . does so in his ewn right, while he who cognizes, does so in another's right, as his agent or servant. Thus the landlord makes avowry, while his bailiff makes cognizance. This arises in cases of replevin, where goods are distrained for rent, especially. Practice. and the plea may be made in general terms, though the scholarly and profes- sional practice is to pursue a clear and definite form, as if a decla- ration were being filed. The avowry What it should should show eveiy material fact, includ- show. ing a lawful lease, on what lands, with rent reserved and the amount in arrear, by whom, and that the distress was lawful and regular, though the avowant need not set out a chain of ITo chain of title title as though he were about to sustain necessary. an action in ejectment. Generally loose avowry will be cured by failure to demur. Loose avowry cured, and on demuiTer is amendable. If more rent is claimed than is due, then the avow- Abatement — ry goes for what is due, but the whole 106 REPLEVIN. PRACTICE AND PLEADING. claim is abated if ayowant has title to only Payment into court, two of the three parts of the rent. Avow- ry is not abated by payment of rent into court, even though the avowant takes the money. The plaintiff may have discontinu- Siscontinuance ance, on payment of rent and costs, with on terms. leave. But the defendant cannot have stay, except he pay costs and deliver the replevin bond; and if the plaintiff claims special damages, he may still proceed for them. If the defendant's plea require a re- Replication, plication, and the j)laintiff fails to file one within the time of the rule, he will be non pressed. But if an avowry or cognizance be filed, plaintiff may reply, non-tenancy, or no rent in ar- What may be rear. The latter is an admission of the replied. demise and other allegations of the avowry Admission of demise. ^^^ p^^g ^]^q ^gg^g subsequent to tenure. If the lease be admitted, the title of the landlord cannot be challenged, except to show end by divestiture Ho demi it '^^ purchase. Non demisit would deny the tenancy, and non est factmn the lease, but the better course seems to be replication of the facts spec- ially. It has been held that under the No rent in arrear. plea of no rent in arrear, set-off is inad- missible and to travei-se an avo-wiy it must be done specially; as an eviction, payment or tender to avowant, a different place, former distress and sat- Traverse of isfaction, etc. A cognizance may also be Cognizance. traversed, as to authoi-ity of the bailiff. "Where a plea of plaintiff is denied Costs on demurrer, on demurrer, costs may be given the de- fendant, in the discretion of the court. REPLEVIN. PRACTICE AND PLEADING. 107 In case of numerous pleas by the de- f endant he may be ruled to elect, on which Election rulabl^. ^^ ^^^ ^.^^^^ ^® plaintiff may plead double with leave of court. If one be determined for or against the plaintiff, it may evolve the other and end the case. If judgment be for the defendant on Judffment for de- demurrer it will be for "the return of the fendant. goods irreplevisable." Then follows the Inquiry into the writ of inquiry and the ascertainment of distress. costs and damages. In case of rent, it will be for the value of the distress and the rent in arrear. If the value of the distress be greater than the rent iu arrear the defendant will have judgment for his rent „ , and full costs; if less, then for the value Costs. . of the distress and full costs. If the ease goes to the jury, on the Cluestion for jury, issue of no rent in arrear, they will ascer- tain the amount due, if any, and may allow interest on it from the time of the distress. They are not confined to the value of the goods distrained. When the goods have not been de- Verdict for livered to the plaintiff and he recovers, the plaintiff. verdict will be for the value of the goods and damages for their detention, and a Execution. capias for their return. He may have ex- ecution. ("Warner vs. Aughenbaugh, 15 S. & K., 9; Han-isburg Elec. Lt. Co. vs. Goodman, 129 Pa., 206.) The damages for detention are meas- Damages for ui-ed by the interest on the value of the Detention. property, during the time the defendant was out of possession. (Collins vs. Hous- ton, 138 Pa., 481; Grim vs. Eeinbold, 148 Pa., 446.) Where the defendant retains, the Return of property judgment is not satisfied by return of the does not satisfy. property, and costs follow, under the stat- 108 REPLEYIN. PRACTICE AND PLEADING ute. (Shoemaker vs. Shoemaker, 7 Kulp., 528.) On trial, questions of possession, hire, _, . , „ ^ . . title and bona fides are for the iury. (Fitz- Trial— facts for jury, ^ ' ^ , ,, , water vs. Eoberts, 166 Pa., 454; Maher vs. McClellan, 8 Atl., 174; Swab vs. Miller, 9 Atl., 667; Fer- guson vs. Eafferty, 128 Pa., 337.) Tender of purchase money must be Tender. maintained at the trial and must include costs. (Hicks vs. Summerson, 134 Pa., 566, and 142 Pa., 344.) Where the verdict shows the value Coiista,bles' com- q£ ^j^^ goods to be in excess of the rent due, the constable is entitled to only a moiety of commission, as costs. (Harrington vs. Hamill, 5 Mont., 141.) If the verdict be for one defendant Diverse verdict. and against the other, the first only is en- Costs, titled to costs. (Kamsdell vs. Owens, 12 0. C, 416.) Upon a mere "judgment" entered on Verdict. a verdict partly for plaintiff and partly "Judgment." for defendant, a writ of fi- fa. issued. The court below, without reforming the rec- ord, refused to set aside the writ. On appeal, the Supreme Court reversed the order at the cost of the party suing out the fi. fa. (Park vs. Holmes, 147 Pa., 407.) If the verdict were generally for the General verdict. defendant, without finding damages, then Common law defendant would be entitled to his writ of remedy. retorno habendo, when plaintiff took the property. He cannot have a fi. fa. or ca. sa., but is relegated to his bond, at common law. The defendant is entitled to double Double costs. costs, if plaintiff does not prosecute -with effect, in case of distress. The costs meant REPLEVIN. PRACTICE AND PLEADING. 109 here are not the officer's fees, but the proper expenses of de- fendant in the suit. If the plaintiff is non-prossed the de- Costs on non pros fendant receives his costs as in other cases. and abatement. If the suit abates the plaintiff is not liable for costs. If the defendant receive judgment Judgment for he may proceed by writ of inquiry under defendant. the act of 1772, and have his costs and damages ascertained, or he may have his rctofito habendo at common law, and re- coui*se to the replevin bond. If he sues Suit on bond. on the latter, he will recover only the value of the goods to the extent of the rent due and costs of the replevin suit. In a suit on a replevin bond the state- Statement must ment should show the judgment in the show judgment. replevin suit, otherwise it does not author- ize a judgment for want of an affidavit of defense. (Ban- vs. McGary, 131 Pa., 401.) The failure of the plaintiff to state Value of goods. the value of the goods is demurrable, but, if passed, will be cured by a verdict. (Krumbhaar vs. Stetler, 10 C. C, 13.) A statement of plaintiff's claim may May go with jury, be sent out with the jury. (Phillips vs. Stroup, 1 Mon., 517.) The sheriff cannot fix a different Sheriff bound by value in a suit against him than that in judgment. the judgment against the obligors in the bond. (Comth. vs. Sides, 12 Lane. L. R., 145.) No exemption is allowable against an No exemption. execution issued on a judgment under a replevin bond. (Pierce vs. Lewis, 9 C. C, 250; 27 W. K C, 400.) [JACKSOIST AND GROSS, Sec. 735.J 110 EIGHTS OF LANDLORD. RIGHTS OF LANDLORD. Landlord's rig^ht to action for injury to his building as- sented to by lessee, 1. Painting an advertisement upon a demised building, mth the consent of the tenant, will not relieve the offender from an action by the landlord for damages to his reversion. (Devlin vs. Snellenburg, 132 Pa., 186.) 2. Under the act of 1836, the land- One year's rent. lord has a right to one year's rent out of proceeds of sale of tenant's goods, and this is not affected by his overclaim. (Timmes vs. Metz, 156 Pa., 384.) 3. The landlord need not distrain on Need not distrain goods of another upon the premises, so goods of a stranger, that the execution plaintiff may have the benefit. Ihid. 4. An assignee for the benefit of Preference on creditors who agrees to protect the land- assignee's fund. lord "to the same extent as he could be protected by a landlord's warrant," can only prefer his claim to the extent of one year's rent. Notice to him of the landlord's claim has the same effect as upon the sheriff. (Irvine's and Leidicli's appeal, 161 Pa., 451.) Assignment of tenant. Rent not accrued excluded. 5. "Where a tenant assigns for benefit of creditors, the landlord can claim rent only accrued at the time of assigiiment, and to charge the assigned estate for the time occupied by assignee he must prove an express agreement with the assignee. (Weinman & Co.'s Estate, 164 Pa., 405.) One year's rent is preferred, although the insolvent did not live on it at the time. (Est. Saml. Dawson, 35 P. L. J., 63.) RIGHTS OF LANDLORD. Ill 6. A corporation assignee of a lease Preference in sale of of a factory executed a mortgage to the corporate property, landlord under the act of April 27, 1855, and after sale of the corporation's prop- erty by a receiver, the landlord was entitled to preference for rent. (Cooper vs. Potts, 174 Pa., 302.) 7. Under the act of April 9, 1872, Wages has preference and supplement of June 12, 1878, claims over rent in certain for wages by mechanics, laborers and ^^^^^- otliers employed in or about mines, manu- factories, etc., iu case of death or insol- vency of tne owners, have a preference over the landlord's claim for rent, provided notice is given according to law, to the sheriff in case of execution, or to the landlord or his bailiff in case of distress. The notice is sufficient when directed Sufficient notice. to the constable, giving names, claim for wages at woolen mill and amounts. If the officer disregards the notice Proper remedy case, and does not pay the claims, the proper remedy against him is trespass on the case for official misfeasance. (Sliaxswood, J., in Simon Yeager, deft, below, vs. Oliver Tool, June 14, 1880; l\o. 137, May Term S. C, 1880; 1 Dauphin Co. Reporter, 120. "\Yoodmansie & Gar- side vs. Boyer, 2 Lane. L. P., 365.) 8.' The assignees of such claims are Assignee's same invested with all the rights of the claim- rights, ants. (Piddleburger Coal and Iron C'o.'s Appeal, 114 Pa., 58.) But see as to exception in case of as- Tenant's assignment signment by tenant. Act of May 26, excepted. 1891. 9. The landlord's claim is limited to One year only. one year's rent, as preferred. (Stark vs. Hight, 3 Supr. C, 516.) 112 EIGHTS OF LANDLORD. Where the landlord by defaults had Less by default. failed to exercise his rights under the lease to his claim on the fund in the hands of the sheriff, he could not take a whole year's rent. (Merrill vs. Trim- mer, 2 C. C, 49.) 10. In an action for rent a tenant Use of premises. cannot defend that the premises had for- merly been used as a joint and the land- lord failed to disclose this fact. (Twibill vs. Brown, 1 C. C, 300.) 11. A landlord who accepts overdue Acceptance of over- rent on his lease does not waive his right due rent not waiver ^^ declare all the rent due for the term as of lease rights. stipulated in the lease. (Teufel vs. Eowan, 179 Pa., 408.) 12. AVhen a sheriff has levied an ex- -_ . . „ . . ecution and received a notice of claim for Notice of rent, to , , n n .,. , sheriif— effect. ^'^^^ ^^^' from the landlord, if he stays the writ without the consent of the land- lord in writing, he does so at his own peril, and he and his bonds- men are liable to the landlord for the rent, under the act of June 16th, 1836. (Borlin et al. vs. Comfh., 110 Pa., 454.) 13. Where a landlord claims to own Inconsistent claim as the goods sold in an execution, he can- owner, and on fund not afterwards come in and claim the fund for rent. arising from the sale for rent. (Edward's Appeal, 105 Pa., 103; Stranghellen vs. Ward, 16 Phila., 134; Beilstein vs. Simon, 29 P. L. J., 382.) 14. Lessees estopped from denying Lessee estopped. title of lessors, notwithstanding an act vesting the title. (Lebanon Sch. D. vs. L. F. Sem., 22 W. N. C, 65.) RIGHTS OF LANDLORD. 113 15. Where a municipality under an Landlord not liable to act subsequently declared void, cut doAvn contribute for ten- part of a building occupied by a tenant to ant's damage from the damage of the same, in laying out a city's void act. . , ,i ^ ^ u ^ r street, tne tenant could not recover from the landlord. The city was held liable. (Dunn vs. Mellon, 147 Pa., 11.) 16. The heirs of a decedent are en- Eent due heirs of titled to the rents from a tenant of realty, decedent. sold in Orphans' Court, up to the date when the deed is delivered to the pur- chaser. (Strange vs. Austin, 134 Pa., 96; Estate of P. H. Law, 20 Phila., 10.) 17. Rent reserved passes to the heir. Rent to heir. although the lease reserves it to the lessor, administrators and assigns. (Merkel's Ap- peal, 25 W. IsT. C, 469.) 18. A lease gave landlord right to Plea"of distrain for rent, for thirty days after re- hors de son fee. moval of the goods, and under the plea hors de son fee, by the tenant, the ques- tion of whether the distraint was within thirty days was properly at issue. (Mather vs. Wood, 12 C. C, 3; 1 D. E., 793.) 19. Where a bond was executed that Bond against the tenant should not remove the goods removal. from the premises before September 1st. 1892, and they were not removed, but thereafter the tenants barred the landlord out so he could not levy, the bondsman was held not liable. (Crawford vs. Evans, 158 Pa., 390.) 20. Where a landlord boarded with Evidence of tenant and settled monthly, evidence of Payment. this rebutted the presumption that tenant was to be paid out of estate of landlord for nursing. (Rorer's Estate, 5 C. C, 73.) 114 RIGHTS OF LANDLORD. Waiver of right of forfeiture. 21. Where a lease provided for for- feiture upon assignment and the landlord dispensed vdih his right to declare for- feiture, it was gone, as when the rent is accepted unconditionally after the right accrued. (!N"at. Pubg. Co. vs. Shupe et al., 18 ^Y. 'N. C, 3Y9.) 22. Where a lease is broken, an en- try by the new lessee will be taken as by the landlord himself. (Miller vs. McCul- logh, Jr., 31, P. L. J., 223.) 23. A landlord cannot be held crim- inally for the act of his tenant, though he knew of it and did not dissent. (Comth. vs. Switzer, 26 W. X. C, 46.) Entry by proxy. Landlord not liable criminally for ten- ant. Liability of landlord for nuisance begun before leasing. 24. A landlord, whose lease did not bind him to make repairs, was held liable for damages for a nuisance consisting of a privy well and sewer connections in the cellar, which existed when he leased it to the tenant. The defect being in the construction, the tenant could not be held responsible. (Knauss vs. Brua, 107 Pa., 85. Followed in Fow vs. Eoberts, 108 Pa., 489, and Wunder vs. Mc- Lean, 134 Pa., 334.) 25. Under act of June 11, 1879, as "Owner" may be ten- to fire escapes from factories, the tenant in ant under fire escape possession is the "owner" contemplated by the law. (Schott vs. Harvey, 105 Pa., 222.) law, June 11, 1879. 26. (Keeley vs. O'Conner, 106 Pa., 321, following Schott vs. Harvey, 9 Out., 222.) declares escape must be considered safe by men of ordinary reason and pru- dence, with due consideration of the struc- ture and its uses, with reference to internal means of egress. Tenant liable for fire escapes. RIGHTS OF LANDLORD. 115 27. Equity will not relieve lessee Tenant's personalty after, lapse of years, when the landlord left on premises. took possession and did not give tenant his personal property, he not having demanded it. (Gray vs. Catawissa E. R. Co., 18 W. N. C, 9.) 28. A tenant who disclaims his lease Disclaimer of lease may be ejected and cannot set up a lease by tenant. after his disclaimer. (Willard vs. Earley, 22 W. K C, 122.) 29. An affidavit of defense, by ten- Untenantable prem- ant, who averred abandonment of prem- ises — Insufficient ises on accoimt of unhealthy drainage and amaavit. ^-j^^^ same was untenantable, against claim for rent and repairs iinder the lease, was, held insufficient. (Hollis vs. Brown et al., 169 Pa., 539.) 30. Where a party wall of a leased Defense against rent, house is taken down under the authority of the building inspector and the house becomes untenantable, lessee cannot defend against the rent. (Wilson vs. Barns, IT W. N. C, 27.) 31. A paper warehouse used for Non-liability of ten- more than twenty years collapsed. Held ant for collapse. that tenants were not liable in the absence of proof of notice of defects, or overload- ing, or unsuitability. ISTegligence not inferred from mere col- lapse. (McKenna vs. Paper Co., 176 Pa., 306.) 32. Where there was a dangerous Liability of landlord opening in a sidewalk, before the lease, for dangerous side- the landlord was held liable for injuries walk. sustained by one falling into the area, and must pay to the city, what it was compelled to pay in the first instance to the one injured. (See MclSTerny vs. City of Eeading, 150 Pa., 611.) It seems the 116 RIGHTS OF LANDLORD. RIGHTS OF TENANT. city might have recovered against the tenant as well. (Reading vs. Eeiner, 167 Pa., 41.) 33. Liability of landlord for guest's Landlord's liability property destroyed by fire. (Shultz vs. for guestsV Wall, 134 Pa., 262, citing Houser vs. TuUy, 62 Pa., held as insurer.) 34. In action for injury for prop- Joint remedy. erty taken by a railroad company, tenants and landlords may unite. (Getz vs. P. & E. R. R. Co., 105 Pa., 547.) The jury may sever the damages and may consider the in- jury caused tenants by removal of their business and deprecia- tion of the leasehold and also their personalty. Ibid. RIGHTS OF TENANT. 1. A son v^ho had an unrecorded Tenant's term as lease for the term of three years, although against mortgagee, there was no evidence that he paid any rent, being ousted by the mortgagee of his father, before the end of his term, recovered in trespass against mortgagee, which the Supreme Court affirmed, holding: "A tenant in actual possession under a valid lease may hold his term against a subsequent purchaser or mortgagee, though he had not paid the rent at the tiine the subsequent right was granted." (Trunkey, J., in Marsh vs. Nelson, 101 Pa., 51.) 2. Where the lease was in futuro Failure to give and the landlord refused to give posses- possession, sion, the tenant could recover damages in case. (Nelson vs. Orr, 29 P. L. J., 383.) 3. The landlord's interest was sold at Divestiture of land- sheriff's sale and the tenant declined to lord's title ends Ms pay the rent falling due after the sale. '^iff^t- Held that it was competent for the tenant to show in an action for possession, that EIGHTS OP TENANT. 1 1 7 the landlord's title was divested by law. (Smith vs. Crossland, 106 Pa.,' 414, and cases cited in plaintiff's brief. Also Bandle vs. Erickson Co., 3 Supr. C, 389.) 4. Under a yearly lease, with war- Yearly rent satisfied, rant to confess, etc., it was held that the judgment was satisfied when one year's rent was paid. (Smith vs. Pringle, 30 P. L. J., 100.) 5. Where a tenant settled his rent Sufficient defense. by a note and subsequently defended on the ground that the landlord did not keep his covenant to furnish steam, whereby he was damaged more than the rent claimed, the Supreme Court will not reverse an order discharging a rule for judgment for want of sufficient affi- davit of defense. (Devlin vs. Bums, 147 Pa., 168.) 6. A tenant is entitled to interplead Interpleader. when there is privity, the title of the other claimant being derivative from landlord. Stern vs. Jones et al., 7 Kulp., 19.) 7. A receipt for last year's or last Receipt. quarter's rent is prima facie evidence of payment of all that had accrued pre- viously. (Estate of Phares Young, 16 Phila., 215.) 8. ISTeither the act of April 13, 1846, Lessee's right to dam- nor the act of March 17, 1869, provides ages from R. R. Co. that the tender of a bond to and accept- Measure oi. ance by the lessor, or the approval of the bond to the lessor by the proper court, authorizes the Penna. R. R. Co. to enter upon land in the pos- session of the lessee. As an owner of the leasehold the tenant is entitled to security. (N. Pa. R. Co. vs. Davis, 26 Pa., 238.) The proper measure of damages is the value of the lease- hold interest over the rent received. And it was competent to prove the market value by the opinion of witnesses. (Trunkey, J., in Railroad Co. vs. Ely, 107 Pa., 166.) 118 RIGHTS OF TENANT. 9. Where a lease provides that a Misrepresentation of building shall not be used otherwise than dwelling by landlord, as a dwelling house, this stipulation fairly represents and declares the house to be in all respects fit and suitable for that ptirpose. If there be fraud in such covenant parol evidence to change its legal effect may be admitted, but it must be clear, precise and indubitable. Mis- representations as to the plumbing and drainage may be shown in a suit for the recovery of rent. Wolfe vs. Arrott, 109 Pa., 473.) 10. A tenant may rescind and avoid Rescission payment, when the landlord fraudulently misrepresented the premises necessary to tenant's business. (Morris vs. Shakespeare, 35 P. L. J., 496.) 11. Plaintiffs recovered damages in Deceit in renting an action of trespass for deceit in renting premises indepen- premises, which were leaky and not adapt- dently of lease. g^ ^g represented to tenant's business, and the judgment was sustained, on the de- ceit of landlord as an inducement to lease, and independently of the lease, it being unnecessary for that purpose to reform the lease. (Wolfe vs. Arrott, 109 Pa., 473, cited aud applied. Sacks et ux. vs. Schimmel, 3 Supr. C, 426.) 12. A justice's adjudication under Justice's adjudica- the act of April 8, 1830, that there was tion. When a bar. no lease and no rent due, is conclusive, unless appealed from or legally set aside, and is a bar to proceedings before another justice. (Dictum in Ayres vs. Novinger, 8 Pa., 412, disapproved; Marsteller vs. Marsteller, 132 Pa., 517.) 13. Where a tenant is in possession Land condemned of land demised to him after a line of rail- by Eailway Co. way was located over it, of which he had notice, he may recover for injuries to his growing crops occasioned by the construction, since his landlord RIGHTS OF TENANT. 119 was entitled to the culivation of the soil until actual occupation by the railway company. (Williams, J., in Lafferty vs. R. E. Co., 124 Pa. 297; following Gilmore vs. Railway Co., 104 Pa., 275; Pittsburg Junction R. R. Co.vs. McCutchen, 18 W.JS^. C, 527.) 14. A tenant for five years with priv- Tenant holding over, ilege of renewal for five years, sought to — Equity will not lie. restrain his landlord from ousting him, by proceedings in equity against said land- lord. Held that the tenant had an adequate remedy at law under the act of 1806, which must be pursued. (Appeal Pittsburg and Allegheny Drove Yard Co., 123 Pa., 250.) 15. When the tenant defends against Rent to be paid a suit for rent, on the ground that the into court. claimant's right repends on a will in con- test, the court will give judgment and order the money to be paid into court pending the suit on the will. (Dietrich vs. Dietrich, 154 Pa., 92.) 16. A tenant's claim ag'ainst land- Set off against lord may be set off against the rent and rent. where the claim is due, a tender of the balance will be held suflicient, in an ac- tion for rent. (JSTickols vs. Jones, 166 Pa., 599.) 17. Where a number of tenants used Right of tenants a common hallway, each had a right to to hallway. free and unimpeded passage by the open front door, from 6.30 a. m. to 8.30 p. m., and one of the tenants could insist upon locking the front door only between 8.30 p. m. and 6.30 a. m. (Rice, J., in Kleeman vs. Kemmerer et ux., L. L. Rev., vol. 3, 99.) 18. A tenant who has leased a build- Damages, Muniei- ing after the passage of an ordinance wid- pal improvement, ening a street on which the building abuts, is entitled to damages. (Justice & Co. vs. Phila., 169 Pa., 503.) 120 RIGHTS OF TENANT. Measure of damages. 19. Measure of damages from sueli cause, see Shaw & Co. vs. PMla., 169 Pa., 506, Away going crops. Sheriff's sale. 20. Where there is a sheriff's sale of demised premises in crop, the tenant who has paid all his rent before the sale, is en- titled to the crops put in by him, against the purchaser of the realty. (McKeeby ts. "Webster, 170 Pa., 624.) 21. For failure to repair wharf and the lessee and sub-lessee's rights under a city, see Towt vs. McCaully Bros., 173 Pa., 314. Wharf lease. Repair. 22. The general rule that a tenant must deliver the property unimpaired, reasonable wear and tear excepted, does not bind him as against fire, flood or tem- pest, or the public enemy. He need not restore buildings destroyed by accident without his fault. (Earle vs. Arbogast, 180 Pa., 409.) Tenant not liable for accident without his fault. Burden of proof. Appeal too late. 1 D. E., 720.) 23. Where the accident was an ex- plosion the burden of proving negligence of the tenant was on the landlord. Ibid. 24. Appeal more than a year after judgment by a justice on a lease with waiver, is too late. (Henny vs. Ralph, Bight of lessee as riparian owner. 25. Where a water company is, by lease, in the position of a riparian owner, it will not be enjoined from taking water from a stream, on complaint of a railroad company, which claims the water for its engines. (Railroad Co. vs. Water Co., 182 Pa., 418.) EIGHTS OF TENA>'T. 121 26. In a contest of a base ball club Ball club. — Damages lessee, for damages for street improve- to leasehold. ment trenching on tbeir grounds, where the evidence showed increase of profits to the club, after the improvement, it should not recover. (Phila. Ball Club vs. Phila., 182 Pa., 362.) 27. Where the landlord takes pos- Right to goods session before the end of the term and" when evicted. prevents the removal of tenant's goods, the action of trover [trespass now] vsdll lie. (Watts & Son vs. Lehman, 33 P. L. J., 78.) 28. Where a building forming no Insurance by land- part of the inheritance has been insured lord for tenant. by the landlord for the tenant, it inures wholly to the tenant and the landlord's creditors have no claim on the insurance. (Hatfield's Est., 12 C. C, 251.) 29. Where a house is rented to dif- Use of sidewalk ferent tenants, each has an equal right to by tenant. passage, and one has no more right than another to the use of the sidewalk, as for advertising purposes, for none has any lordship over the soil. (Cunningham vs. Entrekin, 15 C. C, 183.) 30. Defendant is entitled to a more Definite claim. definite statement of claim for rent than mere use and occupation. (Diehl vs. Bockius, 1 D. E., 479.) 31. Character of a recognizance in PhUa. practice. ^^ ^P?^'^^' ^^ ^ ^^'^^ ^°^ ^^^* ^ ^^'■^^- delphia, declared. (Hackett vs. Camell, 106 Pa., 291.) 122 LEASE. LEASE. WITH Confession of Judgment and Amicable Ejectment Clauses. Made the day of 189. . ., between , lessor, of the first part, and , lessee, of the second part; Witnesseth, that said lessor, for and in consideration of the rents and covenants hereinafter mentioned and reserved (and on the part of the said lessee to be paid, kept and performed), hath de- mised, leased and let, and by these presents doth demise, lease and let unto the said lessee [describe premises] for the term of beginning to be used as a and for no other purpose, at the rate of Dollai-s per payable which said rent so reserved the said lessee agrees to pay regularly as it may fall due, or within five days thereafter. Any removal or attempt at removal of any goods or chattels from said premises by the lessee while any portion of the rent for the full term shall be impaid, shall be deemed a fraudulent and jclandestine removal, made for the purpose of evading the rent reserved, and the whole rent for the entire tenn shall fall due and be collectible at once, and all goods and chattels so re- moved may be followed for the space of thirty days and seized for the collection of the same by Landlord's Warrant; the said lessee hereby waiving the benefit of all laws or usages exempting any property from liability for rent, and the lessor not waiving any remedies given by existing laws. The lessee hereby author- izes any attorney of any Court of Eecord, as often as default be made in the payment of said rental, to appear for . , and confess judgment or judgments against for the amount LEASE. 1 23 of rent then due and unpaid, with attorney's commission of per cent., costs of suit, without stay of execution, inquisition and exemption, all of which rights are here-- by waived. That will pay for any gas used upon the premises, and all water rents assessed thereon. The premises are not to be underlet, or this lease transferred, without the lessor's consent, under penalty of instant forfeiture and right of reentry for such breach of this lease ; and on expira- tion of this lease, the property is to be surrendered in as good order as it now is, reasonable wear and tear, and accident by fire alone excepted, without further notice from said lessor. And on failure of the lessee to pay the installments of rent as due, or to keep all the covenants of this lease, or to remove from the premises at the determination of the same, then the lessee hereby authorize and empower any attorney of any Court of Record of Pennsylvania, to appear in said Court and confess a judgment in an amicable action of ejectment for the premises above described, and authorize the immediate issuing thereon of a Writ of Habere Facias Possessionem, with clause of Pi. Pa. for rent due and costs, without asking leave of Court ; to be released upon the payment of the rent due, costs of suit and five per cent, attorney's commission or fees, within days from the confession of said judgment. . It is Hereby Further Agreed, that if the above named lessee should lawfully continue on the above described premises after the termination of the above lease, then this agreement is to con- tinue in full force for another and so on from to until legal notice is given for removal, each renewal being siibject to the conditions of this lease. [Special covenant.] In Witness Whereof, the parties to this agreement have hereimto set their hands and seals, the day and year first above written. 124 LEASE. FARM LEASE. Sealed and Delivered in the Presence of ■ (Seal) (Seal) (Seal) do hereby agree to become responsible to or .assigns, for the faithful performance of the above named contract on the part of In Witness Whereof, have hereunto set hand and seal the day of one thousand eight hundred and ninety- Sealed and Delivered in the Presence of . (Seal) . (Seal) .(Seal) FARM LEASE. WITH AN Ejectment Clause. Made the day of in the year of our Lord one thousand eight hundred and ninety- . .- Between of the of the first part, and of the second part, Witnesseth, that the said party of the first FARM LEASE. 125 part, for and in consideration of the rents and covenants herein- after mentioned and reserved (and on the part of said party of the second part to be paid, kept and performed,) hath demised, leased and let, and by these presents doth demise, lease and let unto the party of the second part, all that [describe fully] To Have and to Hold said premises, with the appurtenances, unto said party of the second part, to be used and occupied as a farm from the day of 189 . . . , until the day of 189 ... , and fully to be completed and ended at the expiration of said period, under the following conditions, to- wit: The said party of the second part shall seasonably till and crop, in alternate crops of grain and grass, said farm, and in a husbandmanlike manner cultivate, tend, harvest and thresh the same. [Here insert any special agreement as to crops.] And when the crops are so made and threshed, there shall be a division made of the same and, as the tenants' price hereof, then the said party of the second part shall receive (here state the proportion 1-2 or 1-3, as the case may be) until which division all the crops of whatever kind shall be wholly the prop- erty of the said party of the first part and the said party of the second part shall have no right to use or remove, sell or encumber the same, (except seed and pasture). The taxes shall be paid by (here insert by whom and what proportions). The party of the second part shall keep up the fences re- quired to restrain his own stock or others, the party of the first part furnishing the materials if deemed necessary by him. Party of the first part to make no repairs or improvements during said term, except at own option. PARTY OF THE SECOND PAET COVENANTS AND AGREES : To use and occupy said premises as above stipulated, and for no other object or purpose; to not assign this lease, or under lease 126 FAKM LEASE. or let said premises, or permit the use of the same or any part thereoif to any other person or persons, without the written con- sent of the party of the first part; and not to injure or deface said premises in any manner, but to keep and preserve the same in good order, and at the expiration of the term of this lease, or the sooner determination of the same, peaceably and quietly to sur- render and yield up the premises in as good order and condition as the same was, at the time of taking possession, — reason- able use and wfear and unavoidable casualties excepted. To keep in good order and repair all buildings, bams, gran- aries, sheds, outhouses, fences, gates, bars, drains, bridges and roadways, without recourse to party of the first part; tO' take no straw or manure off the premises, and allow none to be taken off; and not to cut or remove any growing timber, or authorize or permit any to be cut or removed, except by written permission of party of first part. The right to label such premises for sale or rent, as also the right of party of the first part to enter upon any portion of the same at all times (accompanied by other parties if so desired by party of the first part), to examine into their condition, or to en- force compliance with this lease, is expressly conceded by party of the second part. And on failure of the party of the second part to keep all the covenants of this lease, or remove from the premises at the determination of the same, then the said party of the second part hereby authorizes and empowers any attorney of any court of record of Pennsylvania to appear in said court and confess a judgment in an amicable action of ejectment for the premises above described, and authorizes the immediate issuing of a writ of Habere Facias Possessionem, with clause of Fi. Pa. for rent due and costs, without asking leave of court, to be released upon the payment of the rent due, costs of suit and five per cent, at- torney's commission or fees, within days from the confession of said judgment If no notice of termination be given three months before the expiration of the term, by either, in writing, then this lease shall FARM LEASE. 127 be deemed in full force and effect for another year, according to its terms, and so on from year to year. In Witness Whereof, 4;he parties to this agreement have hereunto set their hands and seals the day and year first above written. Sealed and Delivered in the Presence of (Seal) , (Seal) (Seal) do hereby agree to become responsible to or assigns, for the faithful performance of the above named con- tract on the part of In Witness Whereof, have hereunto set hand and seal the day of one thousand eight hundred aojd ninety- Sealed and Delivered in the Presence of .(Seal) .(Seal) . (Seal) 128 NOTICE TO QUIT UNDER ACT MARCH 21, 1772. NOTICE TO QUIT UNDER ACT MARCH 21, 1772. To You are hereby notified and required to take heed, that I desire to regain possession of the premises which are now occu- pied by you and which were by me demised to you for the term of year, .which said premises are situate as follows: [Here describe location.] Your said term having expired on the day of A. D. 189. . ., and you are hereby re- quired to vacate and remove from the same. Yours respectfully, Dated 189. . . RETURN OF SERVICE. This day of 189. . ., I served the foregoing notice upon the said by reading the same to him, or giving him a true and attested copy thereof, or by leaving a copy upon the premises with an adult member of his family and informing of the con- tents thereof. THREE MONTHS' NOTICE TO QUIT. To You are hereby notified to quit, remove from and deliver to me, possession of the premises situate [here describe same and where located] , which you now hold as tenant imder me, prompt- ly at the end of your term, to wit, on the day of A. D. 189 . . ., as I desire to have and repossess the same. Yours respectfully. Dated 189. . . [Same form of return of service as above.] NOTICE TO QUIT FOR NON-PAYMENT OP EENT. 129 NOTICE TO QUIT FOR NON-PAYMENT OP RENT. To You are hereby uotitied that you are required to quit and deliver to me the premises, to wit: [Here describe the same), now held by you, under lease, from me, and that you i^move therefrom within* days, from the date hereof, or pay the rent in arrear by you, which amounts to the sum of dollars and cents, which was due on the day of 189. . ., and which you have neglected and refused, and still neglect and refuse to pay, and the same is here- by demanded from you ; inasmuch as there are no goods on the premises liable to distress, or adequate to pay the rent, except such as are exempt under the laws of the commonwealth. In the event that you do not oca or before the expiration of this notice, pay said rent, your tenancy will then be at an ead, and I shall then take all necessary and legal steps to regain possession, forth- with. Yours respectfully, Dated 189.. . * The days allowed are 15 from April 1st to Sept. 1st, and 30 from Sept. 1st to April 1st. LANDLORD'S WARRANT. State of Pennsylvania, ) County of ^ To , Esq. : Constable of Whereas, One , is to me indebted in the sum of dollars and cents, for rent of [here specify the premises, house, or building, or what- ever it may be, together with the land or appurtenances leased], which said rent was due me from the said , on the day of , A. D. 189. . . 9 ISO NOTICE OF DISTRESS AND DEMAND. This is therefore to authorize and require you to distrain the goods and chattels of said , which you shall find lying and being on the said premises, or wherever the same may be found, if removed from said premises, with intent to prevent distraint, at any time within thirty days from such fraud- ulent or clandestine removal, and the same to retain in your possession until they can be lawfully appraised; and, after due notice, to sell the said goods and chattels, so distrained, by you, according to law, for the best price that can be gotten for the same, for and towards satisfaction for the rent for which they are distrained, and of the charges of such distress, appraisement and sale, returning the overplus, if any, to the said tenant. And for your so doiag, this shall be your sufficient warrant. Witness my hand and seal this day of A. D. 189... [L.S.J NOTICE OF DISTRESS AND DEMAND, To ,of Take notice, that by the authority and on behalf of your landlord, ,1 have this day distrained the sev- eral goods and chattels specified in the schedule hereunto an- nexed in the house [barn or block, room or apartment, describing it briefly] , at the township of . . >. in the county of and State of Pennsylvania, for the sum of dollars and cents, arrearage of rent due to him, the said And if you do not pay the said rent so due and in arrear, or replevy the aforesaid goods and chattels, according to law, within five days hereafter, exclusive of this day, I shall, after the expiration of said time, cause the said goods and chattels to be appraised and sold according to law, in such case provided. Griven under my hand, the day of A. D., 189... Constable of Township. FORM OF SCHEDULE. FORM OF APPRAISEMENT. 131 FORM OF SCHEDULE. A true inventory of tHe several goods and chattels distrained by me, , constable of the township of in the connty of , the day of 189 .. , at. . . . A. M. (or P. M.),* in the house (or other building where distrained) of [naming tenant], of township, by the authority and on behalf of landlord, o£ township, for dollars and cents, arrears of rent due to him the said In House. In Barn. A true copy of the above schedule and the notice afore, was this day delivered to the said tenant, by me (or left at mansion house of said , with , in my presence. Constable. Dated 189... * The notice should show that the distress was made in hours of daylight. FORM OF APPRAISEMENT. We and being freeholders of the township (or city) of , County of and State of Pennsylvania, by constable of summoned and disinterested, and being first duly sworn, ac- cording to law, a true and fair appraisement did make of the several goods and chattels distrained by said constable as aforesaid, on the day of A. D. 189 . . ., in the house and bam [or other place] of of the township of county of tenant, by the authority of . , landlord, for dollars 132 OATH OF APPRAISERS. NOTICE OF SALE. and cents, arrears of rent due him the said . and this is our appraisement thereof: In the house .valued at In the barn .valued at Total, $ ♦Witness our hands this day of A. D. 189 . Appraisers. OATH OF APPRAISERS. You and you do [swear or afiirmj that you will well and truly, and impartially, accord- ing to the best of your understanding, appraise the goods and chattels of distrained for rent by constable. So help you God. [This oath can be administered by the constable or sheriff, and should be certified by the officer in his return. Copies of all these proceedings should be furnished to the tenant at the time, and a copy preserved by the officer, whereon the time of the proceedings should be endorsed by him, in each case.] NOTICE OF SALE. Will be sold at public vendue, on the day of 189 ... , commencing at the hour of in the township of , the following goods and chattels distrained for rent, as the property of of the township of and county aforesaid, that is to say: RETURN. 133 [Set out the articles.] Due attendance will be given and the terms of sale made known by Constable. RETURN. [The constable, for his own protection as well as that of the landlord for whom he acts as bailiff, should make a return on his proceedings, attachrag it to the warrant, and keeping a copy for himself, which embraces these points: Date warrant came into his hands; day and hour of service and distraint; list of goods and where impounded; notice to tenant, how given; names of appraisers, who must be disinterested freeholders, when and where sworn; fact and time of service of copy of appraisement on tenant, date and manner of giving notice of sale and where posted. If the tenant replevies goods, when writ was served, and where goods were taken by the sheriff.] INDEX. Page. Par. Abandonment, Of rig-lit, oil lease 62 . .47 Question for jury 72 . . i Defense on 11,5 . . 29 Accident, When tenant not liable 120 . . 22 Acceptance, Of surety by landlord 68 . . 8 Of tenant,s assignee 69 . . 1 Account, Tenants in common 38 . . 6 Assessments, -Tenant's liability 30 . . 19 Action, For -waste 16 . . 2 Of replevin 98 Appearance, In replevin 102 Allegheny Co., Bond in replevin 102 Admission, Of demise 104 Appeal, In proceedings for possession 78 . . 10 Of landlord in defalcation 76 . . 3 Amendment, In replevin 97 . . 43 In replevin 103 Of sheriff's return 99 Alderman's Jurisdiction 77 . . 7 Agency, In lease 34 . . 3 Agent, Signature by 28 ' . . 5 Agency, Revocation of 38 . . 9 Adverse Possession, Coal lands 51 . .10 Assignment of lease by parol 34 .. 5 Of tenant . ^ 16 . . 1 By co-tenant 39 . . 11 Of bond 100 Acts op Assembly, Tenant's assignment 16 Waste of life estate \. 16 . . 2 ' Ground rent 17 — 19 Exemption from distress 21 Timber and bark 21 — 23 Trespass on fields, etc 23 — 24 Asset of Pai-tnership, Eenewal right 37 . . 1 Acknq-wledgment of bark contracts 22 . . 1 Affidavit of Defence, Insufficient 32 . . 29 Of defence, insufficient 43 . . 8 Appraisers, Oath of 132 136 INDEX. Page. Assignoe's Liability, Oil lease 58 Assignee's liability, Oil lease 58 Liability, oil lease 59 Rights in wages claims Ill Assignment, By lajidlord 68 By tenant 69 Acceptance by landlord 69 Tenant's rights G9 Prohibited 69 Lessee's liability 69 Rent to time of re-renting 70 Of corporate rig'hts 70 Eight of sub-tenant 70 Tenants' crop rights 70 Of replevin bond 100 — 1 Acceptance of rent by landlord 102 Avowry, In replevin 103 Kot a plea 105 And cognizance 105 Away Going Cvops 120 Appeal by tenant. Too late 120 Averment of acceptance of surrender 71 Abatement in avowry 105 Adjournment of sale by bailiff 9.5 Amicable Ejectment, Administratrix right 73 Tenants' right precluded 73 Appeal waived 73 Wi'it of possession 74 Same rule as in forfeiture 74 When sub-tenant is not bound... 74 Sub-tenants' right to hearing... 74 Five days — and Sunday 74 Effect of warrant 7.") Covenant runs with land 75 Demand necessary 75 Bark contracts 21 Berries, Trespass act 23 BrRNT timber in lease 31 Breach of covenant by landlord 40 Building clause interpreted 41 Interioreted 42 Compensation 42 At- to liarn 42 Tui]ii'0\omeuts 43 INDEX. 137 Page. Par, Ball Club, Damages to leasehold 121 . .26 Bae, When justice's adjudication is 118 . .12 Bailment, In lease with purchase clause 46 . . 1 Recovery of goods 46 . . 2 Recovery in trespass 46 . . 3 Recovery by replevin 46 . . 4 DistingTiished from lease 47 . . 8 BuEDEN OF Peoof, Coal unmerchantable 51 . . 5 Acceptance of surrender 71 . . 1 Acceptance of surrender 71 . . 4 On bailiif 85 ..6 In plea of property ( 104 In accident, on landlord 120 . .23 Bail, In proceeding's for possession 78 . . 9 Bond, Against removal 113 . . 19 In replevin 100 Of indemnity 101 Of claim property 101 Of defendant 102 Suit on and liability 109 Baillpf, Burden of proof on him 85 Impounding of goods distrained 95 Ceops, Trespass on 23 . . 1 Conveyance, Relation before 25 . . 5 Confidential relation 26 . . 8 Consent of lessee to re-entry 26 . . 11 CoNTEACT, Implied 28 . . 6 Money of 87 .. 3 Chopping of farms 47 . . 1 — 12 COENSTALKS, CustOm 48 . . 3 Ceoppee, When not, but tenant 48 . . 4 Crop in case of assignment 70 . . 8 Clay ajid Ochre lease 52 . . 14 Clause, Rent to become due for term 34 . . 41 To deliver 29 . .12 To build 41 .. 1 Covenants, Mutual 29 . . 13 Quiet possession 31 . . 24 Broken by previous renting 31 . .25 Gas and water payment 32 . . 31 For repairs 40 . . S Clandestine removal 34 . . 41 Chattels, Real 37 . . 2 In cpnnection with realty 45 . . 1 Real in oil lease 54 .. 5 . 6 .35 138 INDEX. Page. Par. Co-PABTHEES, Eight of renewal 37 . . 1 Interest sold 37 .. 2 Act of one for all 37 . . 3 Claim property bond in replevin 101 Complaint, In proceedings for possession # 76 . . 1 Common Law Remedy , 108 Common, Tenants in 37 . . 4 Tenants in account 38 . . 6 Tenants in cannot recover, etc 38 .. 8 Tenants in all held 38 . .10 Tenants in oil lands 59 ..31 Condition precedent, Eepairs 40 . . 4 CouKT, Power on replevin bond 100 Costs, In asS'ig-tinient by tenant 16 . . 1 Of appeal in defalcation 76 .. 4 In replevin 97 . . 45 In replevin 106 — 8 On non pros and abatement 109 Coal mining leases 50 . . 1 Term of leasehold 50 . . 2 When a sale 50 . . 3 When a. sale in place 51 .. 8 Parol conveyance 51 . . 4 Distinguished from oil 51 . . 4 Rent 51 .. 5 Burden of proof 51 ..5 Burden of proof 52 ..13 Size of coal 51 ..6 Size of coal 52 . . 11 Royalty 51 . . 9 Adverse possession 51 . . 10 Sheriff's interpleader 52 ..12 Removal of improvements 52 . . 15 Sale discharges 52 . . 16 Injunction against lessor 53 . . 17 Refuse belongs to lessor 53 . .IS Landlord relegated 53 . . 19 Landlord liable for road 53 . . 20 Sub-tenant's liability 53 ..21 Covenant running with the land 54 .. 4 Running with the land 75 . . 10 Cognizance 105 — 6 Corporate rights, assignment of 70 .. 6 Compensation for oil drilling 55 . . 6 Construction of law, renewal 66 ..9 Of law proceedings for possession 78 . .12 INDEX. J39 Cehtiobaei, Proceedings in SI Custody of the law 91 Constable, Action for false return 70 May sell leasehold interest 80 As agent and as officer 03 Not compelled to serve warrant of distress. 94 Commission, in excessive distress 108 Defalcation, Jurisdiction of magistrate 75 When taxes cannot be defalked 75 Landlord's right to appeal 76 Costs of appeal 76 Of damages 97 , Proceedings to ascertain 98 Set-off 104 Deceit, In renting premises 118 Defence, Sufficient. 117 Against rent 115 Defendant, Claim of property. 102 Right to give bond 103 Definite claim 121 DiVESTITUKE of title 116 Decedent's Estate, Rent passeth to heir 113 DiscLAiMBB of lease by tenant 115 Dangekous sidewaJk, Liability for 115 Declaration, In replevin 103 Delivery, In replevin 102 Detention, damages for 107 Default, Judgment by 103 Door, Outer, not to be broken in distress 89 Outer, may be broken in replevin 102 Discontinuances, On terms 106 Diverse verdict 108 Double costs 108 Demurrer, Costs in 106 Damages, Municipal 119 Municipal, nieasure of 120 To leasehold 121 To fences, etc 24 For detention in replevin 107 Tenant at will, no interest 32 For breach of covenant 79 When none — for eviction 66 Measure — illegal distress 97 Special in replevin 101 Decree in ground rent 19 Par. 1- .17 9 9 .87 . 1 . 1 . 3 . 4 .41 .49 . . 9—11 .30 .30 . 3 .16— 7 .28 .. 3 .18 .19 .26 . 1 .32 . 1 . 4 .44 140 INDEX. Page. Deed for bark and timber 21 Demand necessary before forfeiture 75 Devise of oil lands, shares, etc 57- Depinition of landlord 24 "Lease" 33 "Owner" 114 "Occupy" 27 "Option" 56 "Retained" 61 "Forcible detainer" 66 DivEBTiTUKE Of rig-hts by sale 49 Delitebt of possession peaceably 29 Domain, Eminent, not leasable 30 Dangerous roof — no defence 47 Distress, For rent 88 Not a pledge .' 88 Must be regular 88 Warrant by parol not "legal process" 89 Outer door cannot be broken 89 Must follow law not lease 89 Dies with tenant 89 Will not lie till rent is due 89 May be exercised by trustee 90 May be exercised before forfeiture 90 What is liable to 90 Goods loaned to tenant 90 Goods of stranger 90 Goods leased 90 Goods of tenant sold but undelivered 91 What not distrainable 91 Executors cannot exercise 91 Penalty not distrainable 91 Goods of lunatic exempt 91 Goods in custodia legis 91 Sub-tenant, when 92 Ends with the estate 92 Form of notice of 130 Agreement against 92 Exemption of organ 92 Sewing machine 1 93 Minor children's goods 93 Waiver of exemption 92 Waiver of exemption 93 Computation of "five days" 93 Constable as agent, etc 93 Constable need not accept warrant 94 Par. . 2 .11 .16 . 1 .38 .25 . 2 .15 .37 . 5 .11 .12 .17 . 7 . 1 . 2 . 2 . 3 . 4 . 5 . 6 . 7 . 8 . 9—13 .10 .11 .12 .13 . 14—25 .14 .15 .16 .17 .18 .19 .20 .21 .23 .25 .22 .24 .26 .27 .28 INDEX. 141 Pagp. DiSTKEss, Actual seizure 94 Tenants' rig'lit to replevy 94 Sale, acljournment 95 Sale, notice of 6 clays 95 Sale, form of notice 133 Trespasser ab initio 96 When notice waived 96 Tender during sale 96 Payment and defalcation 97 Eent in arrear 97 Record of judgment 97 Measure of damages 97 Costs 97 When tenant removed goods 98 Covenant against removal 98 Larceny by tenant 98 Defalcation 98 Eeplevin 98 Evidence, Custom in leasing 84 Misrepresentations 84 Parol of rental value 85 Of parol lease 85 Record of judgment 85 Presumption as to constable 85 Declarations 85 Declarations 86 Of value of lease 85 Of payment 113 Parol to contradict 33 Parol to vary 33 Parol to explain 33 Of rental value 36 Oral promise to repair r 41 Of prior lease admissible 31 Of leases — oil lands 56 Of construction, inadmissible 57 Of interests in lease 57 Of renewal of lease 66 Of overpayments 97 Ejection of tenant who disclaims lease 115 Execution, Replevin 107 Landlord's claim 79 ExECtTTOB, Cannot distrain. 91 Effect of avowry 103 Election of plea 107 Par. ..29 ..30 ..35 ..36 ..38 ..39 ..40 ,.41 . .43 ..43 ..44 ,.45 ,.46 ,.47 ,.48 ,.49 . 1 . 2 . 3 . i . 6 . 7 . 8 . 1 . 9 .20 .33 .34 .35 . 3 . 6 .36 .11 .17 .18 . 8 .42 .28 .14 142 INDEX. Page. Par. Entey by proxy 114 . . 22 Equity will not lie against landlord, when 119 . .14 Will not lie against landlord, when 115 . .27 Entry by landlord 26 . . 11 Effect of lease partly signed 27 . . 3 Of lease partly signed 28 . . 4 Eminent domain, Not leasable 30 . .17 Ebrob, Waiver of 31 . .23 Ejectment, Amicable 73 . . 1 — 11 Extension of term 34 . . 4 Effect of partition on lessee 39 . . 11 Exekcise of option 39 . . 2 Equitable interest of lessee 39 . . 3 Election of remedy 47 . . 7 Of tenant 62 . .46 Easement of oil lessee 54 . . 2 Exemption, Sewing machines and type-writers 21 . . 1 Kot allowed on judgment for damages 78 . .11 From distress, general waiver 92 ..22 Waiver in original lease 93 . .24 Of organ 92 . .21 Sewing machine 93 . . 23 None on replevin bond 109 Estoppel, By adverse claim 46 . . 2 As to oil lease 59 . . 30 Eviction by title paramount 62 . . 45 Evidence of title 66 . . 1 Averment of 66 . . 2 Wi thout damages 66 . . 4 Right to goods 121 . .27 Paem lease. Severance 47 . . 1 Division of crop 48 . . 2 Damage to croj)s 118 . . lb Hay and corn-stalks 48 . . 3 Crops after assig-nment 70 . . 8 When a tenant 48 . . 4 Away going crops 120 . . 20 Exempt crops 48 . . 5 JIanure 49 . . 6 Straw and hay 49 . . 7 — 8 Repair of fences 50 . . 12 Fruits, Nuts, berries, etc., trespass 23 , . . 1 Fbanchises not leasable withoiit authority 30 . . 16 Fobfeitube — how wrought 32 . . 31 waiver of 114 . . 21 INDEX. 143 Page. Pact for juky — Clandestine removal 34 Lease for a year 35 Covenant for repair 40 Oil leases 63 Authority of agent to accept 71 Abandonment 73 FOECIBLE entry and detainer 65 Entrjr and detainer 66 Fences, Repair by tenant 50 Damage to 24 Fire — Tenant liable for value, when 47 Where tenant is not released, by 41 Where tenant is discharged 43 FixTrRES, Purchase by tenant 43 Removal during term . . ., 44 Intention of tenant 44 T\Tien not removable ^ 44 With privilege of bujdng 45 Range removable 45 Independent machinerj'. 45 Insufficient defence 45 Liable to distress 94 FORFEiTfEE of oil lease 60 Fraud — In lessee 66 Frauds, statute of 35 Form of action, replevin 98 Praecipe 99 Sheriff's return 99 Lease 1 122 Farm lease 124 Notice to quit 128 Three months' notice 128 Return of service 12S Notice — non-payment 129 Landlord's warrant 129 Notice of distress 130 Schedule and appraisement 131 Oath of appraisers, etc 132 FiBE ESCAPE LAW — Owner defined 114 Safety of escapes 114 Failure of landlord to give possession 116 Ground rent. Extinguishment of 17 Sale, etc 19 Option in 87 Discharged by sheriff's sale 87 Legal tender in 87 Par. .42 . E . 4 .50 . 3 . 1 . 5 .12 . 1 6 1 7 1 1- 3 4 5 .29 .33% . 4 . 1 ..25 ..26 .. 2 .. 2 1 1 2 .. 3 144 INDEX. Page. Par. Ground bent, descent 87 . . 4 Terre tenant 88 . . 5 Partition 88 . . 6 Judgment cures defects 88 .. 7 Landlord — injunction 88 . . 8 Gardens, etc.. Trespass on 23 . . 1 Grantee, Rent passes to 25 . . 2 Gas bill a« rent 29 . . 11 and water rent, forfeiture 32 . . 31 lease — see oil and g-as 53 . . 1 Gold contract — paid in currency 25 . . 3 General issue in replevin 104 Counts in replevin 103 Guests at hotel — landlord as insurer 116 . . 33 Hay, In farm lease 48 .. 3 Limit of stock 49 . . 8 Cut by tenant after sheriff's sale 80 . . 8 Hotel — Liquor license clause 64 . . 1 Landlord as insurer of guest's property 116 . .33 House — Misrepresentation by landlord 118 . . 9 Heies — Rent passes to — what date 113 . . 16 Hall- WAT — Rig-ht of tenants 119 . . 17 Holding over by tenant 32 . .30 Renewal 64 . . 1 Renewal on same terms 65 . . 4 < Terms of lease 67 . . 10 Term of years 65 . . 3 HoKSE, Where lease amounts to sale 47 . . 5 Issue — In waste IS ..1 In replevin 104 Illegal distress — Measure of damag'es 97 . . 44 Intruder upon premises 70 . . 10 Infant's rights cannot be waived 38 . . 5 Ratification , 35 . . 1 Goods exempt 93 , . .25 Insurance of tenant's rent 26 . .11 of giiest's property 116 . . 33 Rebuilding clause 42 . . i Tenant's agreement to insure 47 . . 6 By landlord for tenant 121 . . 28 Indemnity — Sheriff's in replevin 101 Interpleader by tenant, under privity 117 .. 6 INSUEEICIEKT affidavit 32 . . 29 Inquiry, Writ of 104 INDEX. 146 Page, Indeterminate term 30 Intebpeetation of "occupy" 27 Lease 38 BuildJBg clause 41 iMutual covenants 29 "Retained" 61 "One month's notice" 83 Inchoate and vested rights 56 Inconsistent claim of landlord 113 Injunction as to hay and straw 49 As to mining lease 62 INTEBEST in damages — tenant at will 32 Inadmissible testimony — parol 33 testimony — oral promise 41 Inquiet into distress 107 Impbovements 41 As set off 43 Appraised value 43 IMPOUNDINS goods by bailiff 95 Judgment in Waste 17 , In ground rent 18 Record of 97 Warrant to confess 101 By default 103 Ii-regular 108 For defendant 109, For defendant 107 JUEISDICTION, Orphans' Court 19 Of Justice in defalcation 75 Of justice in proceedings for possession. 76 Of alderman in proceedings for possess'n 77 JUEIDIOIAL days in distress 93 Days in ejectment , 74 JUBY, Fact for 34 Fact for 35 Fact for 40 Fact for 63 Fact for, authority of agent 71 Fact for,abandonment of oil lease 73 Fact for, in replevin 108 Fact for, rent in arrear 107 Plaintiff's statement 109 Joint tenancy, in oil lands 57 Remedy for damages 116 Justification, Plea of 105 Justice's adjudication, When a bar 118 10 Par. .21 . 2 . 9 . 1 .13 .37 .12 .10 .13 . 9 .44 .32 .33 .. 1 . 9 .10 .35 . 1 . 3 .43 . 1 . 1 . 3 . 7 .26 . 8 .43 . 2 . 4 .50 . 3 . 1 ..20 ..34 ..12 146 INDJSX. Page. Par. Landloed, Equitable right 79 . . 1 Claim for rent free from levy 79 . . 2 Can claim rent to date of levy 80 .. 3 Can claim rent for realty 80 . . 4 Action for injury to building 110 . . 1 Need not distrain stranger's goods 110 .. 3 Preference on assigned fund 110 . . 4 Preference on corporate property Ill . . 6 Preference on tenants' assignment Ill .. 8 Second to claims for wages Ill . . 7 Not liable to contribution 113 . . 15 Heirs become when 113 . . 16 Barred out by tenant 113 . . 19 Boarding with tenant 113 . . 20 Waiver of forfeiture by 114 . .21 Entry by proxy 114 . .22 Not criminally liable for tenant 114 . .23 Liable for nuisance 114 ..24 Not liable for fire escapes 114 . .25 — 6 Not liable in equity 115 . .27 Not liable in equity 119 . .14 Abandoned premises 115 . .29 Untenantable premises 115 . . 30 Liability for sidewalks 115 . . 32 Liability for goods of guests 116 . . 33 , Failure to give possession 116 . . 2 Divestiture of title 116 . . 3 Misrepresentations by 118 . . 9 — 11 Liable for tenant's goods in eviction 121 . .27 Defined 24 .. 1 When municipality is not 26 . . 7 Title cannot be challenged 26 . . 10 Title cannot be challeng-ed 56 . . 14 Entry by with consent 26 . . 11 Agent of 28 . . 5 Right to one year's rent , 32 . . 2S Bight to one year's rent 110 . . 2 Eight to one year's rent 110 . . 5 Eight to one year's rent Ill . . 9 Inconsistent claim for rent 112 ..IM Not bound for repairs, when 40 . . 2 Breach of covenant by 40 . . 5 Pavement repairs 41 . . g Preference for taxes 30 . . 20 Share of cropw 47 .. i Division of crops 48 . . 2 INDEX. ' 147 Page. Par. Landlord, relegated to other fund 53 . . 19 Liable for repair of road 53 ..20 Entitled to mining ref nse 53 ..18 Xo control of license 64 . . 2 Must give notice to hold over 65 . . 2 Right to appeal from justice 76 . . 3 Leasehold, An insurable interest 35 . . 3 Mortgage of 35 . . 3 Mortgage of 60 . . 32 When a chattel real 37 . . 3 Of wharf — repairs 130 . . 31 Lease 37 Agent's signature 38 . . 5 Signed by lessor alone 37 .. 3 Signed by lessee alone 38 . . 4 Eatifled by principal 38 . . 5 Written and printed terms 27 . . 1 Meaning of "Occupy" 37 . . 3 Meaning of "lease" 33 . . 38 Meaning' of "one year with privileges, etc." 28 . . 9 For temporarj' purposes 38 . . 8 Contract implied in 38 . . 6 Disclaimer of by tenant 115 . . 28 By occupancy 28 . . 7 Of floor — right to sign 29 . . 10 Clause to deliver 29 . .12 Clause gas as rent 39 . . 11 Clause gas and water 33 . .31 Clause with servitude 29 . . 15 Verbal reduction of rent 39 . . 14 Railroad franchises 30 . . 16 Railroad public purposes 30 ..18 Taxes and assessments 30 ..19 Taxes, landlord's preference 30 ..20 Term uncertain 30 . . 31 Covenant for burnt timber 31 . . 23 Covenant waiving error 31 . . 23 Covenant for quiet possession 31 . .24 Covenant broken by previous renting 31 . .25 Covenant for a jear with privileges, etc 34 . .40 Covenant rent for term to become due 34 . .41 Covenant in restraint of trade 35 . . 2 Covenant term of years 36 .. 1 Covenant for repairs 40 — 1 Covenant building and improvements 41 Prior parol admissible 31 . .26 148 INDEX. Pagd Lease, tenant from year to year 33 Tenant at will 33 Tenant for lives 33 Tenant under poor laws 33 Tenant by the month 34 Tenant for term of years 36 Tenant in common 37 — Tenant cannot complain 40 Landlord's rent for one year 33 "Preference in assignment" 16 New, after holding over 33 Evidence to contradict 33 Evidence to vary 33 Evidence to explain 33 Evidence receipt by co-tenant 39 Eent uncertain 34 Kent gas bills 29 Eent taxes and assessments 30 Eent gas and water 33 Eepairs covenant for 40 Notice — one month. 35 Parol — statute of frauds 35 Parol — extension 36 Parol — assignment 36 Parol — surety 36 Chattel real 37 Partnership and tenancy 37 With option to buy 39 Mechanic's Liens 40 Mechanic's Liens 39 Lessee of one holds for all 38 Liable on his sol© signature 28 For a corporate purpose 38 Of sewing machines and typewriters 21 As riparian owner 120 Land condemned by E. E. co 118 Servitude with 29 License for liquors — consideration 64 Transfer without landlord's consent 64 Annulment does not stop rent U4 Failure to procure, no defence 64 Legal tender — money of contract 87 Must be full and include costs 96 Lunatic — goods of, not liable to distress 91 Labcen Y — when tenant's removal is 98 Par. .27 ..32 ..36 . .?,! 1 1 . . 4—11 .. 3 .. 8 1 30 33 ..34 .35 ..11 39 ..11 .19 ..31 1— 9 1 1— 6 .. 4 .. 5 6 2 1—11 1—4 .. 1 .. 4 .10 . 4 . S . 1 .25 .13 ..15 1 2 3 4 3 ..40 ..16 .48 INDEX. 149 Page. Par. Municipality — not a landlord 26 . . 7 Mutual covenants 39 . . 13 Monthly lease 34 . . 1 MOBTGAGE of leasehold 35 . . 3 Of leasehold 60 . .32 Minors' rights cannot be waived 38 .. 5 Ratification when of age. 35 . . 1 Goods exempt 93 ..25 Mechanics' lien on tenant's option 39 .. 4 Lien for repairs 40 . . 1 Lien notice 81 .. 1 Makkied woman. Not liable as surety 68 . . 7 Judgment note for rent 84 . . 3 Joint claim with husband 84 . . 3 Suit by her against hina 84 .. 4 Measure of damages 79 . . 1 Damages 97 . . 1 Damages against R. R. co 117 . . 8 Damages against city 120 . . 19 Municipal improvements^ — damages . . . : 119 . . 18 Mortgagee — aright of tenant as against 116 . . 1 MiBEEPEESENTATiOJsr by landlord 118 . . 9 New lease 32 . . 30 Notice 35 . . 1 Of forfeiture 61 . .41 Right of holdover 65 . . 2 Full time in proceedings for possession 76 . . 2 Service of — how made 77 . . 5 Mechanics' lien on leasehold 81 .. 1 Withdrawal by landlord 81 .. 1 By tenant 82 . . 2 Waiver of — to quit 82 . . 4 Will not be inferred 82 . . 5 To quit when not necessary 82 . . 6 Of forfeiture 82 . . 7 Claim for rent, to sheriff 83 . . 8 As to lease of theatre 83 .. 9 Failure to give by landlord 83 . .10 Sufficiency — for jury 83 . .11 "One month" interpreted 83 . .13 Sufacient of constable's sale 95 . .36 Waived by replevin 96 . . 39 Of special damages — replevin 101 Sufficient of claim for wages Ill . . 7 On sheriff of claim 112 . .12 150 INDEX. I Page. Par. Notice, Forms of ' 138-133 No BENT in arrear 106 Nuisance — Liability of landlord 114 . .34 NoN demisit 106 Nuts, Trespass defined, etc . '. 34 . . 1 Obphans' Court, jurisdiction in ground rent 19 . . 1 "Occupy" interpreted 37 . . 3 Occupation creates tenancy 28 . . 7 One yeaj-'s rent — Preference 16 .. 1 Year's rent — Preference 32 . . 38 "Owner" under fire escape law 114 . .35 Option to buy 39 .. 1 "Option" defined 56 ..15 Option to renew 66 . . 7 Oegan — Exemption of 93 . . 21 Oil and Gas — Lease more than license 53 . . 1 Easement to surface 54 . . 2 Exclusive rig'ht to all the g'as 54 . . 3 Covenant running with land 54 . . 4 A chattel real 54 . . 5 Right to compensation 55 .. 6 Restriction to sites 55 . . 7 Right of life tenants 55 .. 8 Oblig^ation to drill 55 .. 9 Inchoate and vested rights 56 . . 10 Evidence of leases 56 ..11 A day a year 56 . . 12 Tenants in common, etc 56 . . 13 Title of landlord 56 . . 14 Option defined 56 . . 15 Devise — and shares 57 . . 16 Evidence of construction 57 . . 17 Shares in lea^e 57 . .18 Liability for rent 57 . . 19 Joint tenancy 57 . . 20 Reimbursement 57 ..21 Stipulation clear 58 . . 23 Reseri'ation waived .' 58 . . 23 Liability of assizors 58 . .24 Liability of assignee 58 . .35 Liability of assignee 59 . . 29 Statute of limitations 58 . . 26 Trespass by lessor 58 . .27 Lessee's measure of damages 59 ..28 Estoppel 59 ..29 INDEX. J -51 Page. Par. Oil and Gas, tenancy in commou 59 . .31 ilortgages of leasehold 60 . . 33 Forfeiture and rent 60 . . 33 Forfeiture waiver 60 . . 34 Forfeiture strict construction 60 . .35 Forfeiture da.mage clause 60 . .36 Forfeiture only 61 . . 38 Forfeiture 61 . .39 Lessor's rig-ht 61 . . 40 Forfeiture notice ,61 . . 41 Forfeiture option from lessor 62 , . .42 Evicted tenant's composition 62 ..43 Injunction 62 . . 44 Eviction 63 . . 45 Election 6f tenant 63 . .46 Abandonment of right 62 . . 47 Rescission by parol 63 . . 48 Weather excuseth not 63 . . 49 Questions for jury 63 . . 50 Paktneeship Property 37 . . 2 Act of one for all 37 . . 3 Asset of privilege to renew 37 . . 1 Lease on shares not 49 . . 10 By tenants in common 56 . . 13 Paetition effect on lessee of oil lands 39 ..11 Oil lands in common 59 ..31 Ptjbohaseb at sheriff's sale — rights and duties 80 . . 5 — 6 Proxy — entry by 114 . . 22 Pkopeety — plea of 104 Paymext — in kind — gold or currency 25 . . 3 In distress 97 . . 41 Into court 106 Into court 119 . . 15 Evidence of 113 ..20 Presumption of 117 . . 7 Peactice and pleading in replevin 98 Peinted and written terms — relative import 27 . . 1 Possession — To deliver 29 . . 13 Quiet, not a covenant against others 31 . .24 Proceedings for by landlord 76 . . 1 — 16 Peaecipe in replevin 99 Peepeeence of landlord for taxes 30 . . 20 On assigned fund 110 . . 4 On corporate property Ill . . 6 On one ye^r only Ill .. 9 152 INDEX. Page. Par. Pbbsumption of reg-ularity 85 . . 7 Of payment of rent 117 . . 7 Privilege of renewal 34 . .40 Of renewal partnership as.set 37 . . 1 Philadelphia — bond in replevin 103 EecogTiizance on appeal 121 . .31 Pavement ont of repair — tenant's liability 41 . . 8 Pabol — Rescission 63 . .48 Conveyance 51 . . 4 Lease 31 . .26 Lease 35 . . 1 Evidence 33 . . 33 Evidence 85 . . 3 Assignment '. 36 . . 5 — 6 Lease 85 . . 4 Possession, proceedings for 76 . . 1- — 15 Complaint — jurisdiction 76 . . 1 Notice — full time — in record 76 . . 2 Question of title 76 . . 3 Question of title validity 77 . . 4 Service of notice 77 . . 5 Summarj' remedy 77 . . 6 Jurisdiction of alderman 77 . . 7 Description of premises 78 . . 8 Bail 78 .. 9 Appeal 78 ..10 Exemption I 78 . . 11 Liberal construction 78 . . 12 Sufficient summons 78 . .12 Special law, Schuylkill Co 79 . .13 Act as to Philadelphia 79 . . 14 Writ of restitution 79 . . 15 Failure of landlord to give 116 . . 2 Pebsonalty — left on premises 115 . .27 Plea of hors de son fee 113 . . 18 Eenewal of term by holding over 64 . . 1 On same terms 03 . . 4 For term of years 65 . . 3 Covenant with option 66 . . 7 Eemaining is best evidence 66 . . 8 Strict cpnstruction 66 . . 9 After notice of surrender 72 . . 7 Kemoyal of goods by tenant 98 . .46 Covenant against 98 . . 47 "When larceny 9S . . 48 INDEX. 153 Page. Eemoval before end of term 173 Bond against 113 Rent in arrear — ascertainment 97 Not accrued — cannot be claimed 110 For one year 110 Receipt for presumption 117 Eeceipt satisfaction 117 Replication — in replevin 106 Eestittttion, Writ of 79 Record of judgment — reforming' it 97 Return of sheriff in replevin 99 Replevin — Right of tenant in distress 94 Not confined to 5 days 94 Proper remedy of stranger 95 When not available, trespass 95 Practice and pleading in 98 Form of action 98 Summons and return 99 Bond, sheriff's duty 100 Bond with warrant 101 Sureties' liability 101 Right of sheriff to enter 102 Befendant's bond 102 Judgment by default 103 Avowry 103 Avowr;^■ 105 General and partial answer 103 Non pros 103 Writ of return 103 Writ of inquiry 104 Pleas — general issue 104 Pleas — in bar 104 Pleas — ^justification 105 Avowry and cognizance 105 Abatement 105 Payment into court 106 Discontinuance on terms 106 Replication 106 Non demisit 106 No rent in arrear 106 Traverse 106 Election in double pleas 107 Costs 106-7-8 Damages 107 Return of property 107 Trial 108 Par. . 3 .19 .43 . 5 . 2 . 7 . 4 .15 .43 .33 .30 .33 .34 154 INDEX. Replevin, tender 108 Diverse verdict 108 General verdict 108 Irregular "judg-ment" 108 Double and treble costs. 108 Suit on bond 109 Sheriff bound 109 Xo exemption 109 Eailwat Co. — Condemnation of land 118 Must tender bond to tenant 117 Remedy- — For failure to pay wages Ill Joint for damages 116 Eights of landlord 110 Of tenaoat 116 Receipt — presumption of payment 117 Eecission — when tenant allowed 118 Rip ASIAN owner 120 Sheriff's sales 79 Landlord's rights 79 Rent to levy only 80 As to realty 80 Purchaser's duty 80 Purchaser's duty 80 Intentions of tenant 80 Tenant's liability 80 Discharges ground rent 87 Landlord must give notice 83 Effect of notice ,112 Away going crops 120 Sheriff — Duty to take bond in replevin 100 Failure to take bond in replevin 100 Responsibility for sureties 100 Rule as to C. P. bond 101 Indemnity 101 May break outer door 102 Bound by judgment 109 Assignment of bond 100 Sale — Of goods on distress 95 Six days notice 95 Tender during — must be full 96 Sufeicient defense against rent 117 Spanish milled dollars — standard of value S7 Suit on replevin bond 109 Statement in suit on replevin bond 109 Sidewalks — Use of by tenant 121 Landlord liable for dangerous 115 Par. ..13 . 7 .34 . 7 .10 .25 . 1— 8 . 1— 2 . 3 . 4 . 5 . 6 . 7 . 8 . 2 . 8 .12 .20 .35 .36 .40 . 5 . 3 .29 .32 INDEX. 155 Page. Par. Statute of frauds 35 . . 1 Surety in lease — liability 67 . .' 1 Bound for taxes 67 . . 2 Not released bj' landlord's act 67 . . 3 Not released by landlord's act 67 . . 4 Estate liable 68 . . 5 Liable on partly executed lease 68 . . 6 Not entitled to lease 68 . . 9 Acceptance by landlord 68 . . 8 Married women not liable 68 . . 7 SUBETIES on replevin bond 100 — 1 Service of notice — sufBcient 77 . . 5 SuBKENDEE^ — Must be accepted 71 . . 5 Must be averred 71 .. 3 Acceptance may be by agent ' 71 . . 3 Burden of proof on tenant 71 . . 4 Bequest for keys^ — effect 72 . . 5 May be by parol 72 . . 5 Agent's failure to accept 72 . . 6 Renewal after notice 72 . . 7 Sub-tenant, When not bound by confession 74 . . 6 Right to be heard 74 . . 7 Bights and liabilities 69 . . 1 — 10 When goods exempt from distress 92 ..18 Sunday — Not counted in am. ejectment 74 . . 8 Not counted in distress 93 . . 26 Set-off — As to rent due 104 Summons in proceedings for possession 78 . . 12 In replevin 99 SuMMABY remedy — jurisdictional facts 77 ..6 Tenant — ^At will 66 . . 6 At will, no interest in damages 32 . .32 Of stone quarry 26 . . 6 Cannot attorn to stranger 26 . . 9 Cannot challenge landlord's title 26 . . 10 Cannot challenge landlord's title 112 . . 14 By occupation 28 . . 7 From year to year 33 . .27 In common i 37 . . 1 — 11 With option to buy 39 . . 1 — 4 Cannot set up his complaints 40 . . 3 Bight to fixtures - 43 . . 1—8 Of personalty 46 . . 1 — 8 Of farm 47 .. 1—12 Of coal lease 50 . . 1—21 156 INDEX. Page. Par. Tenant, of oil and g-as 53 . . 1 — 50 Of licensed premises 64 . . 1 — 4 Holding' over 64 . . 1 — 10 Assignment by 16 . . 1 Assignment of lease by 69 . . 1 — 10 Surrender by 71 . . 1 — 7 Benefit of 72 . . 1 Eemoval and abandonment 73 . . 1 — 3 Rights concluded by amicable ejectment 73 . . 2 Eight of appeal out ofE 73 .. 3 Eight to replevy goods distrained 93 . .26 Eight to replevy not confined to 5 days 94 . .30 Eight to replevy restricted to 94 . . 31 Eight to replevy his remedy 94 . . 32 Tender by during sale 96 . . 40 Tenant's crime — landlord not liable 114 . .23 Liable for fire escapes 114 . . 26 Not liable for landlord's nuisance 114 . .24 Disclaimer of lease by 115 ..28 Defence against rent 115 ..30 Defence against rent 117 . . 5 Not liable for collapse 115 . . 31 Liable for sidewalk 115 . .32 Holds term against mortgagee 116 . . 1 Satisfaction of yearly rent 117 . . 4 Eight to interpleader 117 . . 6 Eeceipt for rent 117 . . 7 Eight to bond for damages 117 . . 8 Set up misrepresentations 118 . . 9 Eescind for m.isrepresentations 118 ..10 Eecover damages for deceit 118 . . 11 Damage to growing crops 118 . . 13 Pay rent into court 119 . .15 Setoff H9 ..16 Tender 119 ..16 Eight to hall-way 119 . .17 Municipal improvements 119 . . 18 Away going crops 120 . .20 EepEiir in wharf lease 120 . .21 Not liable for unavoidable accident 120 . .22 Eight as riparian owner 120 . .25 Eight to goods when evicted 121 . .27 Eight to insurance by landlord 121 . .28 Eight use of sidewalk 121 . .29 Eight definite claim for rent .121 . .30 INDEX. 157 Page. Title, In proceedings for possession 76 Validity need not be fully established 77 In proceeding's before justice 81 Tka VERSE — in cognizance 106 Trial — facts for jury 108 TETJSTEE-^may distrain for rent 90 Tender — on trial 108 During sale 96 Sufficient 119 Trespass, Will lie where replevin not available 95 When it will lie 96 Ab initio 96 Untenantable premises 115 Use of premises former — no defence 112 Of sidewalk — tenant's right 121 And occupation — claim indefinite 121 Verdict — for plaintiff 107 For defendant 108 Diverse 108 General 108 Value of lease 85 Valuation of distress in replevin 100 Value of goods 109 Waiver of forfeiture by landlord 75 Tenant in removal 81 Of exemption 93 Of notice — by replevin 96 When acceptance of rent is not. . . . : 112 Of right of forfeiture 114 Warrant of confession in ejectment 73 Of confession effect of 75 Of distress — execution 93 To confess in sheriff's bond 101 Landlord's, form 129 Landlord's, form of return 133 Wages, Claim for has preference where Ill Will — pending contest, rent payable into court 119 Writ of possession — stranger cannot stay 74 Inquiry 104 Return 103 Return 108 Wharf lease — repairs 120 Par. . 3 . 4 . 3 .40 .16 .34 .37 .38 .39 .10 .29 .30 .11 . 2 .22—24 .39 .11 .21 . 1—11 . 9 .26 . 7 .15 . 4 ..31