P. L. 22.

23. It shall not be lawful to commence or to prosecute any proceedings to obtain 6 March 1872 § 1. possession of any lands or tenements, under the provisions of the act of the general assembly, entitled "An act relative to landlords and tenants," approved December Evidence of ten14th, 1863, unless such proceeding shall be founded upon a written lease or ancy. contract in writing, or on a parol agreement in and by which the relation of landlord and tenant is established between the parties, and a certain rent is therein reserved. (a)

(c) Proceedings on a lost lease.

a lost lease, &c.

24. Whereas, in the city of Philadelphia, great inconvenience and trouble have 28 Feb. 1865 § 1. frequently arisen from the loss of evidence of the commencement and termination P. L. 253. of leases, and periods of letting of property from year to year, the landlords in Proceedings to resuch cases being unable to give the requisite notice to quit or to proceed in cover possession, obtaining possession, and being deprived of the possession of the demised premises in Philadelphia, on at the pleasure of the tenants; therefore, Be it enacted, that in all cases in the city of Philadelphia, where there is a lease or verbal letting of property for a term of years, or from year to year, and the landlord, whether the owner at the time of such lease or letting, or by purchase subsequent thereto, has lost the lease or evidence of the beginning and conclusion of the term, or cannot produce proof of the same, it shall be lawful, at any time after the first year, or after the term of years, as the case may be, for the landlord (b) desiring to recover possession of the demised property, to give notice, in writing, to the tenant, that he has lost such lease or is unable to make such proof, and requiring the tenant, within thirty days from the time of service of such notice, to furnish him, in writing, with the date at which his term of tenancy commenced, and such notice, if supported by affidavit, shall be evidence of what it sets forth.(c) If the tenant shall furnish, in writing, the date as required, such writing shall be evidence of the facts contained in it; but if the tenant shall fail or refuse, within thirty days, to comply with the said requirement, the landlord may, at the expiration of that period, give to the tenant three months' notice to quit the premises occupied by him, and shall proceed thereafter in the same manner as is now provided in cases of the usual notice to quit at the end of the term: Provided, That if the tenant shall make affidavit, within the thirty days aforesaid, that he is unable to comply with the requirement of the landlord, stating the causes of such inability, the landlord shall give six months' notice to the tenant to remove from the demised premises, upon which he shall proceed as provided in the cases of the three months' notice as aforesaid.

(2.) For non-payment of rent.

P. L. 187.

of rent.

Lessor to give

25. In case any lessee for a term of years, or at will, or otherwise, of a messuage, 8 April 1830 § 1. lands or tenements, upon the demise whereof any rents are or shall be reserved, where the lessee shall neglect or refuse to pay rent reserved as often as the same Proceedings to may grow due according to the terms of the contract, (d) and where there are no obtain possession goods on the premises adequate to pay the said rent so in arrear, except such for non-payment articles as are exempt from levy and sale by the laws of the commonwealth, it shall and may be lawful for the lessor(e) to give the lessee notice to quit the premises, within fifteen days from the date of the notice,(g) if such notice is given notice. on or after the first day of April, and before the first of September, and within thirty days from the date thereof, if given on or after the first of September, and before the first day of April.(h) And if the lessee shall not, within the period aforesaid, (i) remove from and deliver up the said premises to the said lessor, or pay and satisfy the rent so due and in arrear, it shall be lawful for the lessor(k) to make complaint,(7) on oath or affirmation, to any two(m) aldermen or justices of made to two justhe peace, as the case may require; who, on its appearing to them that the lessor tices.

(a) See Graver v. Fehr, 89 P. S. 460. Weber v. Porr, 1 Leg. Rec. R. 131.

(b) This act extends to the assignee of the original lessor. Dubasse v. Martin, 24 L. I. 92. But it only applies to a tenancy created by lease, which fixes a term and rent; and this must be shown by the record. McMullin v. McCreary, 54 P. S. 230.

(c) The law does not require a notice to be supported by affidavit. McMullin v. McCreary, 54 P. S. 232. Gifford v. McDonald, 24 L. I. 92.

(d) If the title to the lands be in dispute, the justices cannot proceed under this act. Clark v. Everly, 8 W. & S. 226. Stewart v. Hasson, 4 Leg. Gaz. 85. Mohan v. Butler, 112 P. S. 590. But the defendant's affidavit that the title to the land will come in question will not oust the jurisdiction; it must be shown in evidence. Essler v. Johnson, 25 P. S. 250. Nor will that of a third person claiming the reversion. Daly v. Barrett, 4 Phila. 350. Stewart v. Hasson, 4 Leg. Gaz. 85. This act does not authorize proceedings against a tenant for life, nor against a ground-tenant in fee. It is restricted to a demise for years or at will. Leinbach v. Kaufman, 43 L. I. 4.

Complaint to be

(e) The sheriff's vendee of the landlord's title is within the act. McKeon v. King, 9 P. S. 213. Clark v. Everly, 8 W. & S. 227.

(g) Such notice must be accompanied with a demand for the amount of rent claimed. Clark v. Everly, 8 W. & S. 228. It must be served on the party residing on the premises. Ibid. 228-29.

(4) The justices cannot acquire jurisdiction, under a clause in the lease, substituting five days' notice for that required by the statute. MeCloud v. Jaggers, 3 Phila. 304. Hopkins v. McClelland, 8 Phila. 302. Beach v. Nixon, 9 N. Y. 36. See Hutchinson v. Potter, 11 P. S. 472. Gault v. Neal, 6 Phila. 61.

(i) Process cannot issue, until the expiration of the notice to quit. Goodwin v. Shoemaker, 2 Luz. L. Obs. 196.

(k) See Hopkins v. McClelland, 8 Phila. 302.

(1) The complaint must be in writing on oath, and it should set forth the term and the notice to quit. Mogg v. Stone, 4 Del. Co. 170.

(m) Jurisdiction is given to a single justice by the act of 1861; infra 28.

P. L. 187.

Precept to issue.

3 April 1830 § 1. has demised the premises for a term of years, or otherwise, whereof any rent or rents have been reserved, that the said rent is in arrear and unpaid, that there is not sufficient goods and chattels on the premises(n) to pay and satisfy the said rent, except such as are by law exempted from levy and sale, and that the lessee has, after being notified in manner aforesaid, refused to remove and re-deliver up possession of the premises, shall, then and in that case, issue their precept,(0) reciting substantially the complaint and allegation, of the lessor, directed to any constable of the proper city or county, commanding him to summon the said lessee to appear before the said aldermen or justices, at a day and time to be therein fixed, not less than three nor more than eight days thereafter, to answer the said complaint. And the said aldermen or justices shall, on the day appointed, or on some other day, then to be appointed by said justices or aldermen, proceed to hear After hearing, jus- the case; and if it shall appear that the said complaint so made as aforesaid, by

tices to enter

judgment.

And issue writ of possession.

To be superseded,

due

the lessor, is in all particulars just and true,(p) then the said aldermen or justices shall enter judgment against such lessee, that the premises shall be delivered up to the lessor,(4) and at the request of the lessor, issue a writ of possession, directed to the said constable, commanding him forthwith to deliver actual possession of the premises to the lessor, and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution;(r) but if on the hearing aforesaid it shall appear that the said complaint is vexatious and unfounded, the said aldermen or justices shall dismiss the same, with costs to be paid by the lessor :(s)

26. Provided always, That at any time before the said writ of possession is actuon payment of rent ally executed, the lessee may supersede and render the said writ of none effect, by paying to the said constable, for the use of the lessor, the rent actually due and in arrear, and the costs; which rent so in arrear shall be ascertained(t) and determined by the said aldermen or justices, on due and legal proof, and indorsed by them on the said writ of possession, together with the costs of the proceeding. Of all of which doings the said constable shall make return to the said aldermen or justices, within ten days after receiving of the said writ, and the said constables shall be answerable in default of executing the said writ according to its lawful requisitions, or in returning the same, in the same manner as to the amount of rent ascertained and determined and costs, as constables are now by law answerable on other writs of execution:

Return.

Appeal.

Recognizance.

Certiorari.

22 March 1861 § 1. P. L. 181.

27. And provided further, That no writ of possession shall be issued by the said aldermen or justices for five days after the rendition of judgment; and if within the said five days, the tenant shall give good, sufficient and absolute security, by recognizance, for all costs that may have and may accrue, in case the judgment shall be affirmed,(u) and also for all rent that has accrued, or may accrue, up to the time of final judgment, then the tenant shall be entitled to an appeal to the next court of common pleas; which appeal shall be then tried in the same manner that other suits are tried: And provided further, That nothing herein contained shall prevent the issuing of a certiorari, with the usual form and effect.(v)

28. So much of said act as requires the lessor to make complaint before any two aldermen or justices of the peace, as the case may require, is hereby repealed; One justice to have and it shall be lawful for any such lessor, or his authorized agent, to appear jurisdiction. before any alderman or justice of the peace of the county, as the case may require, and make such complaint, on oath or affirmation, which said complaint shall be sufficient for the said alderman or justice to issue his precept, and to hear and

(n) This must be proved affirmatively, on the hearing; and if there were two or more premises included in the lease, it must be proved there was not sufficient in either of them. Clark v. Everly, 8 W. & S. 228. Evidence must be adduced, showing an examination of every part of the premises. Connor v. Bradley, 1 How. 217-18. And see Van Rensselaer v. Collins, 11 Johns. 1.

(0) The summons cannot issue before the expiration of the full period of notice. Goodwin v. Shoemaker, 5 Kulp 321.

(p) If the petition set out the facts necessary to give jurisdiction, and the inquest recite that the justices found these facts to be true, it is sufficient. McKeon v. King, 9 P. S. 213. Maxwell v. Perkins, 93 Ibid. 255. But the record must show the jurisdiction affirmatively. McDermott v. McIlwain, 75 P. S. 341. Trimbath v. Patterson, 76 Ibid. 277. It is a sufficient defence, on appeal, that the landlord has aliened the premises since the commencement of the proceedings. O'Neill v. Cahill, 2 Brewst. 357. And see Smith v. Crosland, 106 P. S. 413.

(q) The judgment must be for the possession: not in the alternative, for an amount of rent, or possession. Evans v. Radford, 2 Phila. 370.

(r) If the tenant remove during the pendency of the

proceedings, without notice to his landlord, he continues liable for the rent until their termination. Goldsmith v. Smith, 4 Phila. 31.

(s) A finding that there is no rent in arrear, is conclusive of the question, in a replevin for goods subsequently distrained to satisfy the same claim. White v. Coatsworth, 6 N. Y. 140. A judgment for defendant is a bar to any other proceeding before another justice to recover for non-payment of rent for the same term. Marsteller v. Marsteller, 132 P. S. 517.

(t) They cannot enter judgment for the rent in arrear. Hazen v. Culbertson, 10 W. 395. Or issue execution for it. Rubicum v. Williams, 1 Ash. 230. It is error, to calculate the rent in arrear up to a day subsequent to the giving of a notice to quit. Stoever v. Miller, 4 Phila. 149. See Saving Fund v. Marks, 3 Ibid. 278. Duncan v. Brady, 1 W. N. C. 314.

(u) See Hazen v. Culbertson, 10 W. 393. Hardy v. Watts, 22 P. S. 33.

(v) If the proceedings be affirmed on certiorari, a writ of possession may issue from the common pleas. Essler v. Johnson, 25 P. S. 350. The certiorari does not operate as a supersedeas. Duddy v. Hill, 3 Leg. & Ins. R. 59. Gamble v. Fox, 6 Binn. 460. But see infra 32.

1169

determine the case, as fully and effectually as the two aldermen or justices were 22 March 1861 § 1. required to do.

P. L. 181.

P. L. 526.

29. The 1st section of the act, entitled "An act concerning bail and attach- 9 April 1849 § 6. ments," passed the 20th day of March 1845, (w) shall not be construed to apply to the judgments of aldermen or justices, under the first section of the act, Bail on appeal. entitled "An act relating to landlord and tenant," passed the 3d day of April 1830.

4 May 1864 § 1. P. L. 766.

30. Whenever any person or persons shall be the tenant or lessee of any house or tenement belonging to another, in the counties of Mercer or Lawrence,(x) and occupies the same under an agreement, verbal or written, to perform labor or Proceedings to observices for the owner or owners of said house or tenement, in addition to the rent tain possession, in reserved for the use of said house or tenement, whilst he or they shall so occupy where rent is rethe same, and shall, during such occupancy, refuse or neglect to perform such served in services, labor or render such service, it shall and may be lawful for such owner or owners, &c. certain counties, his, her or their agent or attorney, to dispossess such tenant or tenants in the manner now provided by the first section of the act of April 3d, Anno Domini 1830, and the supplements thereto, after giving seven days' notice (y) to said tenant or tenants to surrender the possession of the house or tenement in his, her

or their possession; and on due proof to the said justice of the neglect of said Power of justices. tenant or tenants, to perform such labor, or render such service, according to the agreement, the said justice shall have power to declare the lease by which any such house or tenement is held, (to) be absolutely null and void.

(3.) In case of a fraudulent removal.

31. If any lessee for a term of years(z) in the city and county aforesaid, shall 26 March 1825 § 2. remove(a) from such demised premises, without leaving sufficient property thereon

8 Sm. 411.

moves from the

to secure the payment of at least three months' rent, or shall refuse to give secu- Proceedings to rity for the payment thereof, in five days after demand of the same, (b) and shall obtain possession, refuse to deliver up possession of such premises, it shall and may be lawful for where tenant rethe landlord or lessor to apply to any two aldermen or justices of the peace within demised premises, the city or county of Philadelphia, and make an affidavit or affirmation of the in Philadelphia. fact, (c) and thereupon the said aldermen or justices of the peace shall forthwith issue their precepts, to any constable of the proper city or county, commanding him to summon such lessee, before such aldermen or justices, on a day certain not exceeding eight nor less than five days, to answer such complaint. And the said aldermen or justices shall, on the day appointed, proceed to hear the case, and if it shall appear that the lessee has removed from the premises, without leaving sufficient goods and chattels, or giving security for the payment of the rent as aforesaid, and has refused to deliver up possession of the demised premises, they shall enter judgment against such lessee, that said premises shall be delivered up to the lessor or landlord forthwith, and shall, at the request of the said lessor or landlord, issue a writ of possession, directed to said constable, commanding him forthwith to deliver possession of the premises to the landlord or lessor, and also to levy the costs on the defendant, in the same manner that executions issued by justices of the peace are directed by law.

(4.) Effect of certiorari.

P. L. 750.

32. In every proceeding or suit brought, in the city of Philadelphia, under any 24 March 1865 § 1. of the several acts of this commonwealth, by landlords to recover possession of property leased for a term of years, or from year to year, (d) in which a certiorari Certiorari to be a is now allowed, (e) the said certiorari shall be a supersedeas; and the execution upon supersedeas, in the judgment in the said suit or proceeding shall be suspended until the final deter- Philadelphia. mination of the certiorari by the court out of which the same issues :(g) and the said court, if the said determination shall be made adversely to the party at whose instance the writ of certiorari has issued, shall proceed to issue a writ of possession directed to the sheriff of the county of Philadelphia, directing him to deliver

(w) See tit. "Justices of the Peace."

(r) Repealed as to Lawrence county, by act 15 April 1869. P. L. 972.

(y) The act 17 April 1869, P. L. 1126, requires thirty days' notice to be given, under this act.

(z) The record must show that the tenant was a lessee for a term of years. Geisenberger v. Cerf, 1 Phila. 17. And all the requirements of the act. Erity v. Wiltbank, 8 Phila. 300.

(a) There must be an actual removal, to justify proceedings under this act. Freytag v. Anderson, 1 R. 73; s. c. 1 Ash. 98. Black v. Alberson, Ibid.

127.

(b) The notice must be given by the landlord or his agent. Powell v. Campbell, 2 Phila. 42. security, after the expiration of the five days, is too A tender of late. Ward v. Wandell, 10 P. S. 98. the right to tender security for the rent; and the A sub-tenant has 74

original lessee cannot waive this right, to his preju-
dice. Grider v. McIntyre, 6 Phila. 112.

(c) The affidavit must set forth the demise. Mund
v. Vanfleet, 2 Phila. 41.

(d) This act does not apply to proceedings by a
purchaser at sheriff's sale, under the act of 1836.
Jackson v. Gleason, 6 Phila. 307.

Connelly v. Arundel, 6 Phila. 38.
(e) No writ of possession can be issued, until the
expiration of the ten days allowed for a certiorari.

prescribed, the certiorari will be quashed. Hutchin-
(g) Unless the recognizance be given in the form
son v. Vanscriver, 6 Phila. 39. The bail is liable for
the rent, until the final determination of the case, or
subrogation against bail in error, where the cause has
the plaintiff obtains possession; and he is entitled to
been taken to the supreme court, and the judgment
there affirmed. Clapp v. Senneff, 7 Phila. 214.

Oath.

P. L. 750.

24 March 1865 § 1. actual possession of the premises to the lessor; and also to levy the costs on the defendant in the same manner that costs are now by law levied and collected on other writs of execution: Provided, That the said certiorari shall be issued within ten days from the date of the judgment rendered in said proceeding, and upon oath of the party applying for the same, to be administered by the prothonotary of the court of common pleas, that it is not for the purpose of delay, but that the pro ceedings proposed to be removed are, to the best of his knowledge and belief, unjust and illegal, and will oblige him to pay more money than is justly due; a copy of which affidavit shall be filed in the prothonotary's office: And provided further, That the party applying for the same shall give security for the payment of all costs that have accrued or may accrue, and of the rent which has already or may become due up to the time of the final determination of said certiorari, in the event of the same being determined against him.(h)

Security.

(h) A certiorari is not a supersedeas to a warrant of possession, issued under the act of 21 March 1772, notwithstanding that act. De Coursey v. Guarantee Trust Co., 81 P. S. 217; s. c. 10 Phila. 88.

LAND-OFFICE.

See COUNTY SURVEYORS.

33. Act confined to purchase of 1768. Pre-emption tricts. Lands to be surveyed in one tract. Form right not to exceed 400 acres.