
    Blashford against Duncan.
    In* Error.
    ON the 7th June, 1815, two justices of the peace of Allegheny county, issued their precept, reciting that Margaret Duncan, of Pitt township, in said county, on the 1st-April, 1807, was possessed of a messuage and tract of land, containing two acres in said township; and, on the-same day, demised the premises to James Blashford, to be and remain-a tenant at will, under the said Margaret, without any yearly rent or annual consideration. That the said Blashford entered, and was, and still is, possessed thereof-. That the said Margaret, on the 2d day.of- January, 1815, required the said Blashford to leave the premises, and he refused so to do. .The sheriff was, therefore, commanded to summon twelve substantial freeholders to appear before the said justices, on ;Tuesday, the 13th June, and to summon th.e defendant. On the 13th June, an inquisition was taken, finding that Margaret Duncan, on the 1st April, 1807, was possessed of a. messuage, &c-<: and, on the same day and- year, demised the premises to a certain J arnés Blashford, to be a tenant'at will, without any annual , rent or .yearly consideration,- who entered, and was, and still is possessed thereof. That the said Margaret did, on the 2d day of January last preceding, require the said James to remove, and he refused to comply therewith. The inquisition assessed the sum of ■six cents for the damages of the said Margaret, occasioned' by the detention of the premisess It was, therefore, considered and adjudged, by the said justices, that the said Margaret should receive, and have, of the said James, as well the said sum of six cents, for her damages aforesaid, as reasonable costs by her, in and about her suit expended. This inquisition was signed by the jury and the justices.
    
      The landlord and tenant act applies only to leases on ■which a certain rent is reserved.
    Quei-y,Whether justices of the peace, acting under the landlord and tenant’act, may make a record of their proceedings without annexing the inquisition.
    But, if they do return the inquisition, they cannot contradict it in their record.
    If it do not appear in the proceedings as certified by the record of the justices that the term was ended, it is an essential defect.
    
      The record of the justices recited the complaint as in the precept, viz.: That Margaret Duncan did demise to Blashford the premises, to be and remain a tenant at will, under the said Margaret Duncan, without any yearly rent: that he had refused to leave the premises, &c. It also recited the precept to the sheriff, and his return, that he had summoned the said freeholders and the defendant: that the justices and freeholders proceeded to hear the proofs and allegations of the parties, and find that the said Margaret Duncan, on the 1st April, 1807, was possessed of the premises, and demised the samé to the said James, to be and remain a tenant at will, without any yearly rent, and that three years before the said premises were last demanded by the said Margaret Duncan, the said James agreed to pay the said Margaret Duncan one dollar per year for the said premises, or corn to that amount or value ; and that, above three months before the complaint, the said Margaret Duncan, demanded the premises, and the defendant refused the delivering them up: that the said freeholders do, therefore, assess the sum of six cents damages, &c. Therefore it was considered and adjudged by them, the said justices, that the said Margaret Duncan should receive and have, of the said James¿ the said sum of six cents, for the damages aforesaid, and her reasonable costs, &e. A warrant of restitution was issued thereupon.
    The proceedings were removed to the Court of Common' Pleas of Allegheny county, by certiorari: where they were confirmed. They were removed to this Court by writ of er-' ror, and the following errors were assigned.
    1. The warrant or precept by the justices, of the 7th June¿ 1815, requires the defendant and freeholders to appear on the 13 th of the same month, and not within four days, as expressly required by law.
    
      2. It is stated in the precept, and found by the freeholders and justices in their inquisition, that Blashford was a tenant at will, without any rent reserved.
    
    3. The lease commenced on the 1st April, 1807, and the plaintiff was entitled to a notice to quit, at least three months before the 1st April, preceding the inquisition.
    
      4. There is no judgment of restitution.
    5. The warrant of restitution recites the notice to quit, and refusal of the tenant to comply therewith, and that these facts were found by the freeholders and justices; but does not recite any judgment.
    
      Wilkins, for the plaintiff in error.
    1. This first exception is abandoned: it having been decided by this Court heretofore. Besides, the defect was cured by the appearance of the tenant.
    2. No rent was reserved, and therefore the case is not within the act of assembly. It is a new and special remedy, and the case must be brought within the act strictly. Shaffer v. Sutton.
      
    
    
      3. The lease commenced on the 1st April, 1807 : therefore the tenant was entitled to notice, at least three months before the 1st April. Boggs v. Black.
      
       Brown v. Vanhorn, decided by President Wilson.
    
      4 and S. There is no judgment of restitution. There can be no precept for restitution without a judgment. The act of assembly requires a judgment: and so do the general principles of law. Act of Assembly, 31st March, 1772. Bache’s Manual, 44. App.
    
    
      Baldwin contra,
    contended that these records should not be scrutinised too nicely.
    Exception 2. In one part of this record, it appears that a rent of one dollar was reserved. But this is a hard objection. If no rent is reserved, it is so much the better for the tenant. The inquisition need not be sent up. The justices may make their record without it.
    3. The act of assembly does not require notice three months’ before the expiration of the lease ; but three months before complaint to the justices.
    
      
      4 and 5. There is a judgment for damages. But there is no occasion for judgment of restitution. The act of assembly does not require it.
    
      Reply. This is a summary proceeding, against the course of the common law. Therefore, every thing required by the act, must appear on the record. No presumption can be made in favour of the proceedings. We abandon the 4th and 5th exceptions; as the act of assembly does not expressly require judgment of restitution. But the 2d and 3d exceptions we insist on, and consider substantial and important.
    2. The inquisition, finding that no rent was received, is contradicted by the record made out by the justices, which finds a lease for the three last years, reserving one dollar rent. The inquisition is signed by the justices. One must prevail, and the other be rejected. We say, the inquisition must prevail. The plainest evidence of alease, is payment o'f rent: and, therefore, the act of assembly required the payment of a certain rent. In three different parts of the act, payment of rent is mentioned. Whether the justices were bound to return the inquisition, is immaterial, 'because they have returned it.
    3. We rely on Judge Wilson’s decision, in Brown v. Fan-horn. In the country, leases begin on the 1st April. The scope of this act is, to give the landlord power to turn his tenant off four days after the time has expired: and requires him to give notice three months before the expiration of the lease. To give three months notice a day before the lease expired, would throw great hardship on the tenant, and turn him off at a time when no other lease could be obtained, as almost all persons commence their leases on the 1st April.
    
    
      
       2 Binn. 228.
    
    
      
       1 Binn. 334.
    
   Tilgiiman C. J.

This is a proceeding by a landlord against his tenant to obtain possession under the act of 21st March, 1772. The proceedings were removed to the Court of Common Pleas of Allegheny county by certiorari: where they were confirmed, and they are now in this Court by a writ of error. It appears by the inquisition, that Margaret Duncan demised a messuage and tract of land to James Blashford, to hold at her -will without payment of any rent; and it is objected, that the case is not within the act of assembly, which is confined to cases where a certain rent is reserved. It is enacted by the 12th section of the act, that “ any person having leased or demised any lands or tene- “ ments to any person or persons, for a term of one or more years, or at will, paying certain rents,” may, in certain cases specified in the act, apply to any two justices, “ and upon due proof before the said justices, that the lessor had been “ quietly and peaceably possessed of the lands or tenements “ so demanded to be delivered up, that he had demised the “ same, under certain rents, to the then tenants in possession, “.and that the term for which the. same was demised is fully “ended,” the said justices may issue their warrant to the sheriff, commanding him to summon twelve substantial freeholders to appear before the said justices in four days, &c. &c. The act then goes on to provide, that the landlord may be restored to his possession, and recover such damages as shall be assessed by the said freeholders, in case it shall appear to the said justices and freeholders, “ that the lessor had “been possessed of the lands or tenements in question, that “ he had demised the same for a term of years, or at will, to “the person in possession, or some other under whom he “ claims, or came into possession at a certain yearly or other rent; that the term is fully ended, and that demand had “ been made of the lessee or other person in possession as aforesaid to leave the premises three months, before the ap- “ plication to the justices.” Thus it appears, that upon every occasion where the act mentions the kind of demise upon which relief is to be given, (and it is mentioned in. three instances,) it is described as a demise upon which a certain rent is reserved. If it be asked, what material difference there is between a demise on which rent is reserved, and one on which no rent is reserved ; it may first be observed, that where the law has made a difference it is not for the Court to say there is none : nor is it for us to extend this summary proceeding whiph deprives a man of his possession in a few days to cases not clearly within the scope of the law. Then as to the difference between cases where a rent i.s reserved and those where none is reserved, it may be answered, that there certainly is a difference. The very idea of a lease seems to contain some kind of render or service from the tenant, and where nothing of the kind is stipulated the connection of the parties, as landlord and tenant, does not appear to be completely recognised. But where the tenant agrees to. pay rent, it is a full acknowledment not only of his landlord’s title, but of the lessee’s holding under him as tenant. Whether this was the view which the legislature took of the subject, or whether they thought it not worth while to give an extraordinary remedy in cases where the landlord had not thought it worth while to reserve any rent, I will .not undertake to say. But whatever might have been the motive, they have confined the remedy to cases where rent is reserved: and even if they made an involuntary omission, the Court has no right, in a case of this kind, to supply it.

But it has .been contended by the counsel for the landlord, that in one part of the record it appears, that rent -was reserved. Looking through the whole of this record it certainly exhibits a singular aspect. In the inquisition, under the hands and seals of the freeholders and justices which is returned as part of the record, it is expressly found, that the demise is without rent. And yet afterwards in something which seems to have been intended for a record drawn up by the justices, and certified by them alone, it is averred, that it was found by the justices and freeholders that for the last three years a rent of one dollar a year tvas reserved. Certain it is, that the inquisition and the record, certified by the justices, are at variance. What is to be done then ? Supposing that the justices might, as has been contended, have made .a record of the proceedings without annexing the inquisition to it, yet they have not done so. They have sent the inquisition, and having placed it on the record they cannot contradict it. But even supposing, that no regard was to be paid to the inquisition, we must then take the proceedings as they are certified by the justices in the record which they have drawn up : and in that record there is an essential defect ; for it does not appear, that the term was ended. So that in no point of view can the proceedings be supported.

I am, therefore, of opinion, that the judgment of the Court of Common Pleas confirming the proceedings before the justices and freeholders, should be reversed, and that these proceedings should be quashed.

Yeates Jv, was sick and absent.

Gibson J.

The whole scope of the landlord and tenant act seems to evince, that the legislature contemplated a re-possession of the demised premises immediately at the end of the term. The inconvenience to the tenant from being dispossessed in the middle of a succeeding year, when the assent of the landlord to a continuance of the lease may have been presumed from his silence, would be oppressive, especially as by the custom of the country lands are let only at a particular season. The reasons of Judge Wilson in Brown v. Vanhorne, appear to my mind satisfactory. In giving a construction to a statute general convenience ought never to be lost sight of. But as the inquest, who were the legal judges of the facts,have expressly found, that the plaintiff was a tenant at will, and not from year to year, notice might be well given, to him at any time. I lay out of view all the facts introduced into the record by the justices which are not warranted by the inquisition of the freeholders. These, if taken as a part .of the case, would constitute a tenancy from year to year, but without being expressly found by the freeholders they can have no legal effect.

The next exception, that it is expressly found no rent "was reserved, is better founded. In giving this summary proceeding "the object of the legislature was to relieve the landlord from the vexation and delay of an ejectment, to which, only, he could, before the act was passed, have had recourse, even in the plainest case, and where the tenant could not hope to make a successful defence. The intention, however, was to confine the application of the remedy to plain cases only; and accordingly we find the legislature have described, with prefcision, the few and simple ingredients that compose the cáse they have committed to the jurisdiction of the justices and freeholders. The reservation of rent being the most satisfactory evidence of tenure, of which any case is susceptible where the agreement is by parol, was, no doubt introduced to prevent the remedy from being extended to cases where the existence of a lease may be barely pretended, for, the purpose of giving colour of jurisdiction. The frequency of attempts to abuse the provisions of this act, by perverting it to purposes of oppression, and to bring it to bear on cases never intended to fall within its operation, shews the propriety of leaving nothing to construction, as to what is necessary to constitute a case falling within it. I am, therefore, disposed, in every instance, to hold this tribunal strictly to the letter of its authority. Then, whatever may have been the motive, it is certain the legislature have made the reservation of renta fact necessary to authorise the justices to take cognisance of the complaint, and they being a court of special jurisdiction, in derogation of the common lav/, must be restrained in the exercise of their authority to cases that clearly and explicitly come under it, without the aid of any construction or intendment whatever. But it is contended that, as the justices have set forth in their record that a certain rent was reserved, the fact sufficiently appears; and that, as it was not necessary to send up the inquisition, the case stands exclusively on the record. I admit, if the justices had sent up only the record, which they are, by the act, directed to make, it would have been good in the first instance, at least, to enable the Court to proceed on the return, and, if diminution were not suggested, the Court would not travel out of it, to discover whether it were falsely made up. But, where there is a suggestion of diminution, the Court, for the purpose of looking at the whole proceedings, will award a certiorari to bring them up. Here, having been sent up, in the first instance, they are judicially before us; and We can, therefore, inquire whether the justices have introduced into their record facts for which they had no warrant. It being the province of the freeholders to ascertain all necessary facts, and, it being “ lawful, in every such case, for “ the said two justices to make a record of such finding,” it is error if the facts are recorded untruly: at least no defect can be supplied by the introduction of any thing not found in the inquisition. The judgment would be then rendered on facts different from those found by the persons who are the legal judges in that particular. -Here the defect is in the inquisition, and it is clear it cannot be cured by any act of the justices, who, without the concurrence of the freeholders have no right to assume any fact necessary to sustain the landlord’s case. The judgment must be reversed.

Judgment of the Common Pleas reversed and proceedings quashed.  