
    THE CHARTER OAK LIFE INSURANCE COMPANY v. HENRY H. TALLMADGE AND LEWIS C. TALLMADGE.
    At Law. —
    No. 17,013.
    This court will quash a writ oí certiorari issued to remove proceedings before a magistrate under the landlord and tenant act, where it appeal's that the justice is not exceeding- his jurisdiction. Nor will it be sufficient to sustain such writ that the tenant alleges that lie has made improvements upon the demised premises, by reason of which there has been no default in payment of rent.
    STATEMENT 0E THE CASE.
    Proceedings under the landlord and tenant act were instituted by the plaintiff against the defendants before Charles Walter, Esq., a justice of the peace, to recover possession of certain real estate in the city of Washington occupied by the defendants as tenants of the plaintiff. Before trial the defendants removed the proceedings to this court by certiorari upon a petition, of which the following is the substance:
    That the plaintiff has caused a summons to be issued by said justice to recover from the petitioners the possession of certain premises leased by the plaintiff to them on the 1st day of September, 1875, for the term of ten years, by lease signed, sealed, and acknowledged according to law; that the plaintiff claims that said lease had been forfeited by non-payment of rent and taxes, while they claim to have expended a large sum of money in necessary improvements, and such as were essential to enable them to profitably use the same as a public hall, for which it was leased, and for which they are entitled to credit, and therefore there has been no default and forfeiture; that the amount which they claim should be allowed is not less than $5,500, and they are advised that the questions and amounts involved in the case are such as a justice of the peace has no jurisdiction to try and determine; wherefore they pray this writ.
    By the return of the magistrate the original complaint and summons are sent to this court, from which it appears that on the 30th of December, 1876, a complaint was made before him by the Charter Oak Life Insurance'Company, by Asahel H. Dillon, Jr., its second vice-president, that the premises in question, describing them, were unlawfully detained from said company by the defendants, to whom it had leased them, and whose estate therein had been determined “ by default in the payment of rent, and also by default in the payment of the taxes as in said lease provided,” and a summons was asked,, as is usual. This complaint was sworn to by said Dillon; a summons was issued, returnable on the 11th of January, 1877, and was duly served January 3. Upon the return to said writ of certiorari a motion was made by the plaintiff’ at special term to quash the writ, and in case the motion could not be at once heard, that the defendants be required to give security for intervening rents and damages. The chief justice, bolding .the special term, upon the defendants giving such security, certified the motion to quash to be heard in general term in the first instance.
    
      S. S. Henkle, for petitioners.
    
      S. R. Rond aud W. F. Mattingly, for the insurance company.
    If the defendants claim to have paid or tendered the rent and taxes, that is a question for the magistrate to try. But they do not claim this. They claim a set-off’ .on account of alleged expenditures for repairs or improvements. For such expenditures the tenant has no legal claim against his landlord, unless by special agreement, and none is pretended to exist in this ease. (Taylor’s Land, aud Ten., 5th ed., secs. 327, 328; 1 Wash, on Beal Prop., 1st ed., p. 348; Moffat v. Smith, 4 Comst., 126; Waterman on Set-offs, 1st ed., sec. 520; Howard v. Doolittle, 3 Duer, 463.)
    There can be no set-off' in proceedings for possession. The action, to allow a plea of set-off, must be on a demand which could itself be pleaded as a set off. (2 Blackstone, p. 305, note ; Waterman on Set-off’s, secs. 127, 147.)
    The return of the magistrate shows that the plaintiff had complied with all the requirements' of the law necessary to give him jui'isdiction.
    There was a complaint on oath charging unlawful detainer of the premises by the defendants, to whom the “ complainant leased the same, and whose estate therein has been determined by default in the payment of rent, and also by default in the payment of the taxes as in said lease provided,” and a summons was issued thereon in due form. The truth or falsity Of this complaint is the very question for the magistrate to try. Section 686 of the statute provides: “If it appears by default or upon trial that the complainant is entitled to the possession of the premises, he shall have judgment and execution for the possession and costs; if the complainant becomes nonsuited and fails to prove his right to possession, the defendant shall have judgment and execution for his costs.”-
   Cartter, Ch. J.,

delivered the opinion of the court orally:

We do not think that the proceedings in this case can be removed from the magistrate into this court for the cause alleged by the petitioner. The writ of certiorari will issue when the justice of the peace is proceeding without jurisdiction. But that is not the case here. He is enforcing a remedy conferred hy the statute to recover possession of premises upon which the tenant is in arrear for rent, and upon which he has neglected to pay taxes,.contrary to his agreement. This is a matter which the magistrate is expressly authorized to try by the act of Congress. The petitioners say that they have made extensive improvements upon the property, and that therefore they are not in default. They estimate the valuation of such improvements at the sum of $5,500, a larger amount than is due for rent, and urge that the questions and amounts involved in the case are such as a justice of the peace has no jurisdiction to try. This action is under the statute “to regulate proceedings between landlord and tenant,” and does not depend upon the value of the property or the amount or character of the rent due and unpaid. It is a summary remedy given to the landlord whenever the lease has been determined by the proper notice to quit, and the proceeding must then be conducted to a judgment before the magistrate. Any other construction of the statute would be to render its provisions useless; and if the case could be removed into this court at the option of the tenant before the trial, the party might be unable to rescue his property before the increasing burdens would consume it.

The court see no reason for sustaining the writ of certiorari in such case, and an order must be passed to quash it.  