12 Pa. Super. 214 | Pa. Super. Ct. | 1900
Opinion by
The Act of April 3, 1830, P. L. 187, provides a summary mode of terminating a tenancy when the lessee refuses to pay the rent and there are not sufficient goods upon the premises to answer a distress. After the magistrate has given judgment that the premises be delivered up to the lessor the lessee may either (1) pay the costs and the rent ascertained to be due and in arrear and thus supersede the writ of possession, if not fully executed, or (2) he may give absolute security for all rent that has accrued, or may accrue, up to the time of final judgment, and appeal to the common pleas ; “ which appeal shall be then tried in the same manner that other suits are tried.” The statute gives an appeal in this proceeding, “ not for the trial of a collateral fact started by the defendant, as under the Act of March 21, 1772, 1 Sm. L. 370, or the Act of June 16, 1836, P. L. 755, sec. 83, but for trial of the facts which have been passed on by the justices Clark v. Everly, 8 W. & S. 226. When the case comes into the common pleas the burden of proof rests on the plaintiff, and he must be prepared to prove all the facts essential to the remedy invoked, namely, the demise; the reservation of rent; the tenant’s failure to pay the same; the insufficiency of the goods on the premises, not exempt from levy and sale, to answer a distress; the service of proper notice to quit, and the tenant’s failure to pay the rent in arrears, or to remove from the premises before the inception of the proceedings. Proof of the tenancy, the rent reserved, the amount in arrears and the tenant’s failure to pay the same after demand, without more, would not be sufficient to entitle the plaintiff to recover in this proceeding. A careful examination of the plaintiff’s statement will show that this is all that is alleged; and if the case had gone to trial and he had proved no move, it is manifest, that he could not have had judgment in his favor. It would seem to follow logically that he was not entitled to judgment in the issue joined upon the demurrer to his statement. To avoid this conclusion it may be said that a formal declaration or statement was not necessary. This depends upon the rules of the court in which the appeal was pending, and as we have not been informed concerning them we might properly decline to assume that the
The judgment is reversed at the costs of the plaintiff, and the record is remitted to the court below with a procedendo.