Cunningham v. Gardner , 4 Watts & Serg. 120 ( 1842 )

The opinion of the Court was delivered by

Huston, J.

— Some part of my labour is required to lay out of the way matters not material here. The landlord applied for a warrant against the tenant, which was issued, and a precept to the sheriff, and a jury was summoned and appeared, and were sworn, and could not agree and were discharged. These proceedings were brought up; we have nothing to do with them. It was indeed suggested that by this all remedy of the landlord was gone; ‘but this was not urged. Every Act of Assembly must have a reasonable construction, and such as will not render it inoperative and useless. It may and does happen that the whole twelve on a jury cannot draw the same conclusion from testimony. This happens in court; the old doctrine of compelling consent by hunger has disappeared, and the more rational mode of dismissing them and bringing the matter before another jury is the settled and approved practice. No reason can be given why this should not be the course in such a proceeding as the present. It has often been done; even before a single justice it has happened that no two out of three arbitrators can agree; and this has never been considered a defeat of the plaintiff’s claim. Other arbitrators may be appointed. The party was right, however, in issuing a new summons to the tenant, and a new precept to the sheriff.

The two first exceptions filed are not to the purpose. The tenant was summoned and appeared, and made objections to proceeding, which I shall noticebut it was not material on what testimony the precept issued, any more than what affidavit was made to hold to bail is in a trial before a jury in court. The inquest and justices, so far as the latter are concerned, are to decide on evidence given before them, and on nothing but what is proved before them. I do not know that it is necessary to decide the point in this case, but for myself I would say, showing the lease, if there is one, or swearing to a parol demise by the landlord, if the lease was by parol, would be due proof, as the plaintiff’s oath of debt will hold a defendant to bail. I would say it might justify two justices in proceeding under the Act applicable to these cases. The justices are not to try the case or decide on the evidence; that is for the jury.

The third exception is.not relevant. At and before the last inquest there was no allegation that Mr Neel had any right or claim to the premises, for the very sufficient reason that he was before the justices and inquest on the first hearing, and refused to enter into recognizance to have the cause removed to the Court of Common Pleas.

The fourth exception has been answered already; and the dictum in Maris v. Parry, (3 Rawle 419), is misapplied. It was there said after an inquest in a case like this had declared they could not agree and were discharged, the same inquest could not, after weeks or months; be collected and proceed; but it was not said another precept could not collect another twelve men, or that they could not act when duly summoned and sworn.

The fifth exception is answered already. The cases 1 Binn. 336, and 2 Serg. & Rawle show fully that in this court the inquisition, and the.facts found in it, alone are considered; or if the inquisition is not sent, but the justices send a record of their proceedings, containing among other matters the inquisition, the inquiry here is did the inquest find the facts as proved before them so as to justify what they did, and to support the judgment and proceedings of the justices on that finding. It would be out of all analogy to all other legal proceedings to go back after the full trial, according to the law applicable to the case, to the preliminary steps in the cause. If defendant had no notice, if the proceeding was ex parte, this might be the case,

The only matter which requires notice, and that is only required to put it at rest, is the attempt of the tenant to withdraw the case from the jurisdiction of the justices and inquest on his own appeal, and entering into recognizance. If this were allowed, there would be found many a tenant who would swear, and could give security too, and the object of the law would lie defeated; the tenant would hold until the cause might be reached in the course of the court some years after. The answer is, the law only gives this appeal to a third person claiming by descent or purchase or devise from the lessor, since the date of the lease. No other person can interfere; no adverse claimant, except as above, can be heard. I will not say that a tenant who has purchased from his lessor, or to whom the title has descended or been devised, can be turned out under this law; but only in such case can a tenant withdraw the cause.

But there is a case in which a written agreement, partaking of the nature of a lease for years, and also a conditional sale was before the court, and it was held that case was not proper to be decided before two justices and an inquest.’ Certainly a case may depend on writing and facts which will involve much nice discrimination as to conditions precedent, and subsequent, and forfeiture, &c. &c. But this case presents a simple question of fact. Did Mr Kirkpatrick agree to give a lease for years or for life to the tenant ? This is the question as stated by the landlord, and by the tenant, and by the counsel before us. It would not be easy to show that twelve freeholders, summoned for the purpose from the county, would not be as competent to decide this fact as twelve jurors, drawn from the wheel as jurors. The law is made for such uses. It is no more difficult than to decide whether a parol lease was for one year or two years; it is a simple matter of fact, and no legal knowledge required to the decision of it.

Several exceptions are stated to the formal parts of the inquisition. It is said to be taken this day of May; but the record which recites it supplies this clerical omission. The inquisition finds all the facts necessary to decide the case, and the jury and the person who drew up the written inquisition would have acted unwisely if it had been attempted to make it in form better than the law or the object of the law required it to be. We do not know on what ground the Common Pleas reversed the inquisition and judgment of the justices, but we see no error in them.

Judgment of the Court of Common Pleas reversed, and the proceedings before the justices affirmed.