McMullin v. McCreary

• Decision Date: 21 February 1867
• Citation: 54 Pa. 230
• Court: Pennsylvania Supreme Court
• Parties: McMullin <I>versus</I> McCreary.

54 Pa. 230

McMullin versus McCreary.

Supreme Court of Pennsylvania.

February 4, 1867.

February 21, 1867.

February 4th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and READ, JJ. AGNEW, J., at Nisi Prius

Error to the Court of Common Pleas of Philadelphia.

G. Fenner, for plaintiff in error, cited Act of February 28th 1865, Purd. 1399, Pamph. L. 253; December 14th 1863, Purd. 1341, Pamph. L. of 1864, 1125; 21st of March 1772, Purd. 613, pl. 18, 1 Sm. Laws 373; Blashford v. Duncan, 3 S. & R. 487; Albright v. Rapp, 2 Casey 99; Koons v. Headly, 22 Leg. Int. 148; Shaeffer v. Sutton, 5 Binn. 228; Fahnestock v. Faustenaur, 5 S. & R. 174; Freytag v. Anderson, 1 Ash. 100; Logan v. Herron, 8 S. & R. 459; McGee v. Fissler, 1 Barr 126; Steele v. Thompson, 3 Penna. R. 38; Scott v. Fuller, Id. 55.

Gummey, for defendant in error.

The opinion of the court was delivered, February 21st 1867, by WOODWARD, C. J.

The Act of Assembly of 28th February 1865, Purd. 1399, relative to lost leases between landlords and tenants in Philadelphia, is very much out of the course of the common law, and ought to be strictly construed. At least the summary jurisdiction it provides should be limited to the precise case contemplated by the act, and the inquisition of the alderman should exhibit, and of course proof should be laid before him of, every fact which the act makes necessary to the jurisdiction.

The act recites the inconvenience and trouble that have arisen in the city of Philadelphia from the loss of the evidence of leases, and then goes on to provide for a special case in which these several things must concur: 1st. A lease or verbal letting of property for a term of years or from year to year. 2d. A landlord, either the original lessor, or a purchaser of his reversion, subsequent to the lease, who has lost the lease or is unable to produce proof of the beginning and conclusion of the term. 3d. The first year, if from year to year, or the term, if for years, must be ended.

When these things concur, it shall be lawful for the landlord to give the tenant notice in writing that he has lost the lease or is unable to prove its beginning and ending, and requiring the tenant to furnish him in writing, within thirty days, the date at which the term commenced. The notice is not required to be supported by affidavit, but if it be so supported, it becomes evidence of the facts set forth in it. If the tenant furnish the required date, his written response is evidence, but if he fail or refuse for thirty days to comply with the requirement, the landlord may then give him three months' notice to quit and surrender the possession of the premises, and may thereafter proceed to dispossess him in the same manner as is provided by the Act of 14th December 1863.

The failure of the tenant for thirty days to respond to the landlord's demand is made evidence that the tenant is liable to be proceeded against in the same manner that tenants are proceeded against under the Act of...