43 Pa. Super. 593 | Pa. Super. Ct. | 1910
Opinion by
This was an action of replevin for goods distrained under a landlord’s warrant. The plaintiff’s statement contained the following material averment, after averring his title to the goods: “Whereupon the said landlord issued a landlord’s warrant against the said plaintiff and
Appellants’ counsel refer to certain provisions of the lease relative to the right of the landlord to re-enter and dispossess the tenant; but none of these provisions expressly reserves the right of entry to distrain by breaking-down the outer door or by picking the lock, and we are of opinion that they cannot be extended, by implication, to justify a mode of entry to distrain which otherwise would be unlawful. Moreover, the affidavit of defense does not distinctly set up these provisions as justification for the entry, but expressly or by implication admits that the entry was made for the purpose of distraining for rent in arrear.
It is alleged in the second assignment that the court erred in admitting in evidence the undenied averments of the statement of claim. In support of this assignment it is argued that the landlord, David Kirk, having died before the trial, the admission of the evidence was tantamount to the admission of the testimony of the plaintiff himself, contrary to the law which prevents him from testifying as to matters occurring before the death of the
All the assignments of error are overruled and the judgment is affirmed.