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    DeCoursey versus The Guarantee Trust and Safe Deposit Company.
    1. Promises were leased, the landlord gave the tenant notice to quit and afterwards conveyed part of the premises; the grantee at the end. of the term proceeded under Act of March 21st 1772 to recover possession of the part, the lessor not joining nor taking any steps to recover possession of the remainder : Held, that the case was within the act.
    2. The object of the Act of 1772 is to furnish a summary proceeding in which the rights of the parties shall be protected and the delays incident to an ejectment avoided.
    3. Under the act, a landlord cannot proceed for the possession of part of the demise and hold the tenant for the residue.
    4. Where there is an apportionment of the rent, the tenant is liable to separate actions and distresses.
    5. A tenant in common may distrain for his share of the rent.
    6. A rent-charge may be divided by deed or will, so as to make the tenant liable for several distresses without attornment.
    7. After proceedings before the justices and freeholders had been commenced the tenant, under the 13th sect, of Act of 1772, alleged that by the lease he had the privilege of continuing the term for three years, that he had given the lessor notice iDefore the conveyance that he would avail himself of the privilege, and that therefore the title to the premises was disputed and claimed by himself by a title accruing since the commencement of the lease. Held, that this allegation did not bring the case within the 13th section, not showing that the title to the land was disputed by a right accruing since the commencement of the lease.
    8. The allegation showed a dispute as to when the term expired, which is one of the questions that the Act of 1772 requires the jury of freeholders to determine.
    9. The Act of March 24th 1865, providing that where proceedings in Philadelphia under the several acts allowing landlords to recover full possession in which a certiorari is allowed, the certiorari shall be a supersedeas, does not apply to proceedings under the Act of 1772.
    10. In proceedings under the Act of 1772 the common-law writ of certiorari may issue, but it is not a supersedeas..
    11. Acts of March 21st 1772, March 25th 1825, April 3d 1830, December 14th 18G3, and March 24th 1865 (Landlord and Tenant), considered and compared.
    February 25th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: No. 131, to July Term 1874. •>
    The proceedings in this case were under the Landlord and Tenant Act of March 21st 1772, sect. 12, 1 Smith’s Laws 373, 2 Br. Purd. 879, pi. 17. They were commenced July 22d 1873, by the “ Guarantee Trust and Safe and Deposit Company,” against Samuel G. DeCoursey, to recover possession of eleven feet of ground on the east side of Carpenter’s court.
    The company on that day presented their complaint to David Beitler and William. P. Hibbard, Esquires, two aldermen of the city of Philadelphia, setting forth: That the Carpenters’ Company of Philadelphia being possessed of a two-story brick building, situate on the east side of Carpenter’s court, and next on the north-east of Carpenter’s Hall, &c., in Philadelphia, on the 5th of May 1871, demised the same to Samuel G. DeCoursey, for the term of two years from the 1st of July 1871, at the rent of $250; that DeCoursey entered in pursuance of the lease and the term was ended ; that on the 31st of March 1873 the lessors required DeCoursey to leave the premises on the 1st of July, and he had refused to comply with the request; that the Carpenters’ Company, by deed dated May 21st 1873, conveyed unto the Guarantee Trust and Safe Deposit Company in fee the northernmost eleven feet in front on the said Carpenter’s court of the building demised to DeCoursey, and extending eastward the whole depth thereof, bounded northward and eastward by other ground of the Guarantee . Company, southward by the remaining part of said building, and westward by Carpenter’s court. The complainants requested the aldermen to proceed as is provided by the Act of March 21st 1772, to recover possession of the said eleven feet front on Carpenter’s court of said demised premises, conveyed as aforesaid. A precept -was issued to the sheriff to summon twelve freeholders, and the-defendant, at, &c., on the 25th of July 1873.
    The aldermen sat on the 25th and 30th days of .July. On the latter day the tenant filed with the aldermen an affidavit and his recognisance, and asked that according to the requirements of the act, the aldermen should forbear to give judgment in the matter of the complaint.
    The affidavit referred to the lease which was attached to it and which provided as set out in the complaint, and that there should “ be the privilege to the said lessee of continuing the said lease for the term of three years additional from and after the expiration of the aforesaid term at the rent aforesaid * * *; and at the expiration of the Said term yield up and surrender the possession of the said premises, with the appertenances, unto the said Carpenters’ Company or their assigns, in the same good order and condition as the same now are, reasonable wear and tear thereof, and accidents happening by fire or other casualties, excepted. * * * It is hereby further agreed, that if the above-named Samuel G. DeCoursey should continue on the above-described premises ,after the termination of the above contract, then this contract is to continue in full force for another year, and so on from year to year, until legal notice is given for a removal.”
    The affidavit also averred: that DeCoursey, “ availing himself of the privilege given in said lease of continuing the same for the term of three years additional from and after the expiration of the term of two years, thereby created, viz., from and after July 1st 1873, at the same rent, he did, on the 20th day of February last, address to his lessors, the Carpenters’ Company, and cause to be delivered to them, a letter, as follows, viz.:—
    “ ‘ Philadelphia, February 20th 1873.
    * * * * * * *
    “1 Gentlemen : Having concluded to avail myself of the privilege of extending the term of my lease of your office, in accordance with its provisions, I consider it to be courteous and proper to inform you of my intention; although, if my memory serves me, such notice is not actually required.’
    * $ <* * * * $
    “ That relying on said lease and his exercise of said privilege as aforesaid, for a continued term of three years from the said 1st of July 1873, he continued to-occupy said premises, and was in such occupation when this proceeding was begun.
    “This deponent avers, therefore,-that the-title in and to said premises is disputed and claimed by himself in virtue of a right or title accruing or happening since the commencement of said lease, by deed, to wit, the said lease; that is to say, under or by virtue of the power given therein, to continue the same for three- years, which power was exercised after the commencement of said lease, to wit, on the 20th day of February last.
    “ And this deponent further says, that said Guarantee Trust and Safe Deposit Company claim to be and are the owners of a small portion only of the premises demised by said lease, to wit, of the northernmost eleven feet on Carpenter’s court, of the full depth of the lot eastward, as distinctly appears, not only by the complaint in this case, but by the deed offered in evidence by said Guarantee Trust and Safe Deposit Company; that the said

      Carpenters’ Company continues to be the owner of the reversion in the residue of the demised premises; that said Carpenters’ Company has not only taken no proceedings and made, no complaint whatever against this deponent to recover possession of any part of said premises, but has expressly refused to permit said Guarantee Trust and Safe Deposit Company even to use the name of said Carpenters’ Company to recover said possession.
    “ And this deponent is advised and believes, and on such advice and belief avers, that it is not within the meaning or intent of the Act of Assembly referred to and relied on in the proceedings in this case, that a grantee of a reversion of a small portion only of premises leased or demised should have the complaint therein allowed against the tenant of the entire premises, and be allowed to ask for a judgment that the entire premises, or any part thereof, shall be delivered to him, even when the owner of the residue of said demised premises does not, as in this case, expressly refuse to take part in proceedings under said act.
    “And this deponent further says, that he verily believes that he is entitled to the said premises, and he now here offers and presents a recognisance,” * * * and asks the aldermen, &c., to forbear further proceedings.
    The record of the proceedings of the aldermen and freeholders, dated July 30th 1873, set out the possession of the Carpenters’ Company, the lease of the building to DeOoursey, for the term of two years from the 1st of July 1871, at a rent of $250; that DeOoursey entered into possession by virtue of the lease, held during the term and was still possessed of the same; that the term for which the premises had been leased was fully ended and that the Carpenters’ Company “ being desirous, on the said determination of the said term, to have again and repossess the said premises, for that purpose did, on the thirty-first day of March, A. d. 1873, demand of and require the said Samuel G. DeOoursey to remove from and leave the same at the expiration of the said term;” that on the 31st of May 1873, the Carpenters’ Company conveyed to the Guarantee Company in fee the northernmost eleven feet of the leased building, extending, &c., and bounded, &c.; that DeOoursey refused to comply with the requisition to leave the premises, and that the Guarantee Company had on the 2d of July 1873 prayed the aldermen for a due remedy under the Act of Assembly; that a precept was issued to the sheriff to “ summon twelve substantial freeholders” to appear before the aldermen, at, &c., on the 25th of July 1873, and to summon DeOoursey to appear at the same time and place to show cause “ why restitution of the possession of the said eleven' feet of the said demised premises should not be made forthwith to the aforesaid, The Guarantee Trust and Safe Deposit Company;” that the sheriff returned that he had summoned twelve freeholders (naming them), and also DeCoursey, &e.; that the freeholders appeared and were sworn, and that DeCoursey also appeared.
    The record further set out, that on behalf of complainants, a number of witnesses were called and examined; that the lease, deed to Guarantee Company and other documents were produced and admitted in evidence, some of them under objection by De Coursey, and that the inquest adjourned'to meet at the same place on the 30th of the same month; that on that day the affidavit (heretofore stated) was presented, and the motion to forbear giving judgment was overruled; that further evidence, oral and documentary, was given both by plaintiff and defendant; part of the documentary evidence was a copy of the notice to quit; the admission was objected to because the original should have been produced.
    The record did not give the testimony of the witnesses nor the contents of the documentary evidence; nor did it show, except as appeared by the lease, as accompanying the defendant’s affidavit, the clauses relating to its continuance beyond the two years.
    The finding was :— x
    “We, the said aldermen, and the aforesaid freeholders, after hearing and examining the proofs and allegations offered by the said parties, do find that the said The Carpenters’ Company, &c., was, on the 5th day of May, A. D. 1871, quietly and peaceably possessed of a certain two-story brick building, containing offices, situate, &c., and being so thereof possessed, on the same day and year aforesaid did demise the said premises to Samuel G. DeCoursey for the term of two years from the 1st day of July, A. D. 1871, at the annual rent of $250; that the said Samuel G. DeCoursey, by virtue of said demise, entered in possession of the said demised premises, held the same during said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended, and that the said The Carpenters’ Company, desiring, &c., on the determination of the said term, to have again and repossess the said premises, for .that purpose did, on the thirty-first day of March, A. D. 1873, demand of and require the said Samuel G. DeCoursey to remove from and leave the same at the expiration of his said term.
    “ Afterwards the said Carpenters’ Company, &c., by deed-poll dated the 31st day of May, A. D. 1873, &c., granted and conveyed unto the Guarantee Trust and Safe Deposit Company, in fee, the northernmost eleven feet in front on the said Carpenters’ court of the aforesaid two-story brick building demised to the said Samuel G. DeCoursey as aforesaid, extending, &c.- That the said Samuel G. DeCoursey has hitherto refused, and still does refuse, to comply with said demand and requisition, to remove from and leave the said eleven feet of the said premises. And the said freeholders assess the sum of ten dollars for the damages, &c.

      “ Therefore, it is considered and adjudged by us, the said aider-men, that the said The Guarantee Trust and Safe Deposit Company shall and do recover and have of the said Samuel G. DeCoursey as well the said sum of ten dollars for his damages aforesaid, as $126 for their reasonable costs,” &c.
    On the same day a writ of possession was issued, which the sheriff executed and returned, “possession given.” On the 6th of August 1873, DeCoursey took a certiorari to the aldermen from the Court of Common Pleas; the record was returned and filed in the Common Pleas, September 10th 1873; the following exceptions •were filed:—
    1. The record shows a case in which a grantee of a small portion of demised premises, proceeds under the Act of March 2lst 1872 against the tenant of the whole a,s his landlord, in respect to said portion, to recover possession of such portion, the original lessor, who is still the owner of the residue, and landlord in respect of the same declining to join in said proceedings, and not being made a party thereto; whereas said Act of Assembly was not intended and cannot be construed to be applicable to such a case, or to permit the tenant to be harassed by divers proceedings by divers owners in respect of divers parts of the demised premises, into which it may have been divided by'conveyances subsequent to the lease.
    2. The complaint and inquest set forth a notice by the Carpenters’ Company to the defendant to quit the entire premises on the 1st day of July 1873; but no notice by the Guarantee Company to quit its portion of said premises is set forth or alleged, and the latter company claiming under a deed subsequent to said notice, cannot avail itself in respect to a portion of the premises of the former company’s notice to quit the whole. So that, in fact, the record does not show any allegation or proof of such a notice to quit as is required by the said Act of March 21st 1772.
    3. The record shows that the aldermen admitted a copy of the notice from The Carpenters’, Company to the defendant, dated March 31st 1873, though no call on defendant to produce the original was made or pretended, and no proof of a search for or loss of said original was made.
    4. The aldermen insisted on proceeding with the matter of the said complaint of the said plaintiff, notwithstanding the making and presenting of the affidavit of the defendant, annexed to the record in this case, and the recognisance tendered therewith; whereas, on the coming in of the same, they should have forborne any further proceedings.
    5. Because the justices, in preparing and certifying their record of the proceedings before them, wilfully, and with the intent to favor the plaintiff, unlawfully omitted to state therein that the lease given in evidence showed that it was renewable at the option of the tenant, this exceptant; that he had given due written notice of his intention to renew the same before the expiration of the term and before the sale to the plaintiffs by the original lessors, and that such sale was expressly made, subject to the exceptant’s rights and the premises so conveyed to the plaintiffs by the terms of their deed, all which facts the exceptant is ready to prove. And he avers, as matter of law, that if they had been stated on the record it would have shown that the said justices had no jurisdiction over the case.
    6. That there is a clause in the lease referred to in the complaint, the inquest, and the record, as follows, viz. : “With the privilege of the said lessee of continuing the said lease for the term of three years additional from and after the expiration of the aforesaid term, viz., July the 1st 1873, at the same rent as aforesaid,” which clause immediately follows the clause, “For the term of two years from the 1st day of July, a. d. 1871, at the rent of two hundred and fifty dollars per year, to be paid in quarterly portions ;” that the latter clause, or its substance, is set forth in the sworn complaint in the inquisition and in the record of the aider-men, as if it were the only clause affecting the length of the term, but the former clause is wholly omitted; that such omission in the sworn complaints of the plaintiffs was wilful, deliberate, and intended for the improper and unlawful purpose of keeping said clause from the record and preventing this defendant at the hearing from relying upon the same, or going behind the judgment to obtain the benefit thereof, and thus unjustly, by color of law, depriving him of possession, without the possibility of presenting to. the court the facts under which his rights arise; and that the aldermen and freeholders unlawfully assisting said plaintiffs in obtaining possession, and acting with gross partiality to them, and with the design of unjustly favoring them and injuring said defendant, in violation of law and their duty, omitted said clause from the inquest and the record and from every part of the proceedings, for the same purpose.
    On the 13th of September the .defendant obtained a rule for a writ of restitution.
    On the 8th of October the defendant filed additional exceptions, viz.:—
    7. Because the aldermen permitted the presence of one of the counsel of the plaintiff with the jury after the deliberation of the latter, but before the inquisition was signed by them, without notice to and in the absence of the counsel for the defendant.
    8. Because the aldermen received from the counsel of the plaintiff, and used after the deliberation of the jury had ended, an inquisition prepared in advance by the plaintiff’s counsel, which omitted from the finding of the jury the fact that the lease, as proved, contained the provision for the continuance of the same, mentioned in the former exceptions.
    9. Because the jury signed the inquisition thus prepared without reading it or hearing it read.
    10. Because members of the jury received illegal fees in the presence of others, who had not then signed, thereby inducing the latter to sign by the expectation of a payment greater than would be allowed-by law.
    11. Because the aldermen permitted the presence of strangers with the jury after counsel had retired and before the inquisition was signed.
    On the 9th of November 1873, the rule for a writ of restitution wras discharged.
    On the 7th of March 1874, “Rule granted to take depositions to show if the aldermen and jurors signed the inquisition in the case with knowledge of its contents.”
    On the 25th of June 1874, the exceptions were dismissed and the proceedings affirmed.
    The defendant took a writ of error and assigned the following errors:—
    1. The court below erred in dismissing the exceptions to the proceedings of the aldermen and freeholders and in affirming their judgment.
    2. The aldermen erred in awarding and issuing a writ of possession for the premises in controversy on the day on which their judgment was entered, and the court below erred in refusing a writ of restitution of said premises.
    3-13. In dismissing the eleven exceptions respectively.

      S. Wharton and E. S. Miller, for plaintiff in error.
    — The proceeding under the Act of 1772 was not intended to apply to a part only of demised premises. To allow of this would enable a landlord, by assignment, to overwhelm the tenant with the multiplied costs of very expensive proceedings. In the several proceedings different judgments might be reached. As the contract of lease is a whole, so the possession under it is a unit. On this ground, an entry of the landlord, on part of the demised premises, is an eviction as respects the whole: Vaughan v. Blanchard, 1 Yeates 176. The Act of 1772 was never designed to try questions which belong to' an ejectment. The preamble to the 12th sect, of the act is as follows: “ Whereas, it frequently happens in this province that lessees or tenants for years or at will, often hold over the tenements to them demised after the determination of such leases, and although such lessees and tenants have been required to deliver up the tenements to the landlord, who had occasion to dwell in his own house or give, &c., the same to another, and have obliged the lessors at great expense to bring ejectments against their tenant by the delays incident to law proceedings have kept the owner of the house at law and out of possession for several years.” Only plain and simple cases, involving nothing hut the very points set out in the act, can be passed upon by the tribunal which it constitutes: Blashford v. Duncan, 2 S. & R. 486; Steel v. Thompson, 3 Penna. R. 34; Cunningham v. Gardner, 4 W. & S. 126 ; Hohly v. German Ref. Soc., 2 Barr 293 ; Newell v. Gibbs, 1 W. & S. 499. The affidavit filed deprived the aldermen and freeholders of jurisdiction, and they should have arrested the proceedings. The thirteenth section of the Act of 1772 provides that if the tenant shall allege that the title to the lands in question is disputed by some other person, whom he shall name, by virtue of a right or title accrued or happening since the commencement of the lease, by descent, deed, or will, the proceeding shall be arrested. “Accruing or happening” does not mean “created,” but only arising in legal effect since the execution of the lease: Steel v. Thompson ; Newell v. Gibbs; Cunningham v. Gardner, supra; Debozear v. Butler, 2 Grant 421. The court below erred in refusing restitution of possession to the defendant. At common law, a certiorari to an inferior court was a supersedeas. 2 Comyn’s Dig., Certiorari E. It'was only by reason of the special character of the Act of 1772, which intended to give landlords a speedy remedy (Grubb v. Fox, 6 Binn. 461), that the usual effect of a certiorari was denied. The Act of March 24th 1865, sect. 1, Pamph. L. 750, 2 Br. Purd. 886, pl. 32, entitled “An Act directing that in proceedings in the city of Philadelphia by landlords to recover possession of demised property the certiorari issued shall he a supersedeas,” enacts “that in every proceeding or suit brought in the city of Philadelphia under any of the several acts of this Commonwealth to recover the possession of property. leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas and the execution upon the judgment in the said suit or proceeding shall be suspended.” * * * “Provided, that the said certiorari shall be issued within ten days, &c., and provided that the party applying for the same shall give security” for costs and rent. It is difficult to see how plainer language .could be used to cover all landlord and tenant proceedings in this city, and place them on the common-law footing, and give a certiorari in all cases of proceedings, under the Landlord and Tenant Acts.

      O. S. Paneoast (with whom was Q. Gilpin), for plaintiff in error.
    — If the assigns be assigns of separate parts their actions of ejectment must be separate, and so their proceedings under this act. There cannot be a joinder of the owners of several and distinct tracts in one proceeding. Each must recover possession of his own : White v. Arthurs, 12 Harris 96; Watson v. Bioren, 1 S. & R. 229; Co. Litt. 241 b.; Ards v. Watkins, Cro. Eliz. 637; Rivis v. Watson, 5 M. & W. 266; Harrison v. Barnaby, 5 Term R. 246; Gilbert on Rents 172.
    The question was, had the term expired July 1st 1878 ? One that the tribunal was expressly created to 'pass; .complainants claim that the evidence produced showed that the tenant had waived, and estopped himself from asserting any right of extension he might have had. Upon the evidence the finding was for the Trust Company. The certiorari does not bring up the evidence. Even if the court below heard affidavits, they would not be heard in this court: Buchanan v. Baxter, 17 P. F. Smith 348; McMullin v. McCreary, 4 Id. 230.
    Under the 13th sect, of the act in order to remove the proceedings to the Common Pleas, on the ground of disputed title, the right or title must accrue since the commencement of the lease: Haffner v. Hoeckley, 3 Brewst. 253; Debozear v. Butler, 2 Grant 421.
    The Act of 1865 does not apply to the Act of 1772. Under the Act of March 21st 1772, the landlord’s right is established by the inquisition of twelve men before two justices. The Act of 1868, Pamph. L. 1125, 2 Br. Purd. 882, pl. 20, which provides a certiorari may issue, that is only to the decision of a single justice without a jury. The other act, which contains no provision as to the issuing of a certiorari, is that of March 25th 1825: 8 Sm. Laws 411, 2 Br. Purd. 886, pl. 31. This gives a remedy where the tenant has removed from the premises, leaves no goods, and refuses to give security for the rent. Here the desertion of the premises is a good reason why a certiorari should not be a supersedeas. The Acts of April 3d 1830, Pamph. L. 187, and April 1849, Pamph. L. 526, 2 Br. Purd. 864, 855, pl. 25, 29, afford a means to obtain the possession for non-payment of rent, in which the certiorari is allowed, there is again only the decision of a single justice.
    The Acts of 1772 and 1863 furnish two separate and cumulative remedies for the landlord, and the provisions of the one are not applicable to the other; Duff v. Fitzwater, 4 P. F. Smith 226; Haines v. Levin, 1 Id. 414.
    March 13th 1876.
   Mr. Justice Paxson

delivered the opinion of the court,

The record in this case presents but three questions that need be discussed. The first is, whether the assignee of a portion of the demised premises is entitled to proceed under the Act of 1772, to recover the possession of such portion. It appears that the Carpenters’ Company of the city of Philadelphia, by lease dated May 5th 1871, demised to Samuel G. DeOoursey, the plaintiff in ■error, a property on the east side of Carpenters’ court, for the term of two years from the 1st day of July 1871, reserving rent; that the said DeCoursey entered into possession of the demised premises ; that on the 31st of March 1873, the said Carpenters’ Company gave him notice to remove at the expiration of his said term; that subsequently, by deed dated the 31st of May 1873, the said company granted and conveyed to the Guarantee Trust and Safe Deposit Company, defendants in error, a lot of ground which included eleven feet of the demised premises. Thereupon the last-named company proceeded to recover the possession of the said eleven feet, under the Act of 1772, upon the notice previously given by the Carpenters’ Company. The latter did not join in the proceeding, nor did they take any steps to recover the possession of the residue of the said demised premises.

Our own cases do not furnish a distinct ruling upon the very point, yet its solution is not difficult. The mischief which the Act of 1772 was intended to remedy is clearly expressed in the preamble to said act: “And whereas, it frequently happens within this province that lessees or tenants for years, or at will, often hold over the tenements to them demised after the determination of such leases, and although such tenants have been required to deliver up the tenements to the landlord or lessor, who had occasion to dwell in his own house, or give, grant or demise the same to another, yet they have most unjustly refused so to do, and have obliged the lessor or landlords, at great expense, to bring ejectments against their tenants, and by the delays incident to law proceedings have kept the owner of the house at law, and out of possession for several years. For preventing; therefore, such unjust practices, be it enacted,” &c.

Prior to the passage of this act a landlord had no remedy against his tenant holding over after the expiration of his term, but the action of ejectment, a tedious and expensive proceeding. The object of the Act of 1772 was to furnish a summary proceeding in such cases, in which the legal .rights of the parties should be carefully protected and yet avoid the intolerable delays incident to a suit of ejectment. This case comes clearly within the mischief which the act sought to remedy. We have a demise, a notice to quit, a sale by the landlord, and a refusal by the tenant to surrender the possession to the landlord’s vendee at the end of the term. Does the fact that the proceedings were for a part of the demised premises only, oust the jurisdiction of the aldermen ? It may be conceded that the landlord cannot proceed under this act to recover the possession of a part of the demised premises and hold the defendant as tenant for the residue. No such attempt was made in this case. The notice to quit was for the entire premises. At the énd of the term the landlord had a right to proceed for the recovery of the whole. How is the tenant injured, because the proceedings are .only 'for the recovery of a part ? The purchaser of the eleven feet would have been entitled to his writ of ejectment to recover it. This case is within the mischief of the act, as well as its Very words : “ It shall be lawful for such a lessor or lessors, his or their heirs and assigns, to complain,” &c. The assigns may be assigns' of separate parts. If originally held in common, the parties may come to hold separate parts by partition. The owner of a part becomes the landlord quoad that part. By a grant of the reversion, the rent, which is an incident, passes with it. When there is an apportionment of the rent the tenant is subjected to separate actions and distresses: Co. Lit. 241. A tenant in common may distrain for his share of the rent, and it was held in Rivis v. Watson, 5 Mees. & W. 266, that a rent-charge may be divided by will or deed, so as to make the tenant liable, without attornment, for several distresses. “ If I make a lease of three acres, reserving three shillings rent, as I may also of the whole reversion, so may I dispose of any part of it. Since it is a thing in its nature severable, and the rent, as incident to the reversion, may be divided too, because that being made in retribution for the land, ought, from the nature of it, to be paid to those who are to have the land on the expiration of the lease.” Lord Chief Baron Gilbert on Rents 172. If the reversion may be divided and the rent apportioned, and each part of the apportioned rent recovered by distress or an action of debt, it is not easy to see the force of the argument urged on behalf of the plaintiff in error that it would be subjecting him to an undue burden to hold that he may be proceeded against under the Act of 1772 for a portion only of the demised premises. It is clear that an ejectment may be brought against him. But the very object of the act was to avoid the expense and delay incident to this form of proceeding. We are clearly of opinion that this case comes within the spirit, if not the very letter, of the Act of 1772, and the aldermen had jurisdiction.

This brings us to the second question. It is contended that the affidavit filed by the plaintiff in error deprived the aldermen and freeholders of jurisdiction, and that they should have proceeded no further in the cause. The thirteenth section of the Act of 1772 provides that if the tenant shall allege that the title to the lands and tenements in question is disputed and claimed by some other person or persons, whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease, so as aforesaid made to him, by descent, deed, or from or under the last _will of the lessor, the proceedings shall be arrested.

The affidavit filed hy the plaintiff in error does not bring the case within the provisions of the above section. It does not show. what the proviso in the act expressly requires, that there was a dispute as to the title to the lands; that the title was disputed and claimed by some other person or persons named, in virtue of a right or title accrued, or which had happened since the commencement of the lease, by descent, deed or under the last will of the lessor. What it does show is a. dispute as to when the term expired. This is one of the questions which the Act of 1772, by its express terms, requires the jury of freeholders to determine. The cases cited by the plaintiff in error upon this point do not sustain him. In Blashford v. Duncan, 2 S. & R. 480, no rent was reserved in the lease, which is necessary to give jurisdiction under the Act of 1772. Steel v. Thompson, 3 Penna. R. 34, wras clearly not within the act; so far from being the mere case of a demise at a certain rent, it presented unusual complications. Says Gibson, C. J., “Here the relation of the parties was contingent, if not doubtful, from the beginning, and when application was made to the justices it was not easy, as it appeared at the trial, to determine its nature or extent.” Again, “ The contract had more the aspect of one for the disposal of an interest in land on specified terms than of a lease by the actual proprietor to his tenant at a stipulated rent.” In Newell v. Gibbs, 1 W. & S. 496, the tenant offered to show that the title of Gibbs, the landlord, had expired by lapse of time, and that since the commencement of the lease the title had vested in a certain William Griffis by virtue of a purchase at a sheriff’s sale of the interest of Ezekiel Griffis, who was the lessor of Gibbs, the landlord. Cunningham v. Gardner, 4 W. & S. 110, is against the plaintiff. The affidavit of the tenant alleged that he had a right' to the lands, under the léase during his natural life, in consideration of which he was to erect buildings and improve the premises, and that he had done so. Said Huston, J.: “ This case presents a simple question of fact. Did Mr. Kirkpatrick agree to give a lease for life or for years 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 cases. It is no more difficult than to decide whether a parol lease was for one year or for two years. It is a simple question of fact, and no legal knowledge required to the decision of it.” We may well apply the above language to the present case. The contention-was, whether under the stipulations of the lease, the term of the plaintiff in error was fully ended. This was a mere question of fact, simple in its nature, and entirely within the province of the jury to decide. It involved no question of title within the meaning of the Act of 1772.

The third question is whether the court below erred in not awarding restitution to the plaintiff in error. The record shows that the aldermen gave judgment for the pldintiffs (defendants in error) for possession of the eleven feet, with damages and costs; that they then proceeded upon the same day to issue a writ of possession, which the sheriff executed and returned, “possession given.” A certiorari was taken to the proceedings, and a petition was presented to the court below for a writ of restitution, on the ground that, Under the Act of 1865, a writ of possession could not properly issue within ten days of the judgment. The Court below decided that the Act of 1865 does not apply to proceedings under the Act of 1772. Whether it does so apply is the precise point involved.

The Act of 24th March 1865, Pamph. L. 150, provides that “ in every proceeding or suit brought in the city of Philadelphia, under any of the several acts of this Commonwealth, by landlords to recover possession of property leased for a term of years, or from year to year, in which a certiorari is now allowed, the said certiorari shall be a supersedeas,” &c.

It is necessary to a proper understanding of this act to consider briefly the law as it stood at the time of its passage. The Act of 1772 makes no mention of a certiorari. Such writ is not allowed by its terms. Yet it has been repeatedly held that the common law writ of certiorari might issue under said act, but it does not operate as a supersedeas : Grubb v. Fox, 6 Binn. 460. The reason for this is that proceedings under the Act of 1772 are sui generis, the Act of Assembly intending to give landlords a speedy remedy. While the common law right to a certiorari to remove proceedings under this act has never been denied, this court decided at a very early day that such writ did not operate as a supersedeas for the reason above given.

Next in order came the Act of 25th March 1825, Pamph. L. 114, providing for the case of tenants who shall remove from the demised premises without leaving sufficient property on the premises to secure at least three months’ rent, and who shall refuse to deliver up possession, &c. This act contains no provision for a certiorari.

The Act of April 3d 1830, Pamph. L. 187, provides a mode in which a landlord may proceed to obtain possession of the demised premises for non-payment of rent. In said act it is provided “ that nothing herein contained shall prevent the issuing of a certiorari with the usual force and effect.” To say that this proviso does not allow the certiorari in the sense of expressly giving it, is a refinement of criticism. While the phraseology is peculiar, giving it somewhat the form of a negative pregnant, it evidently provides for and allows a writ of certiorari with its usual force and effect.

The Act of December 14th 1863, Pamph. L. 1125, allows an appeal, and also a certiorari to “remove the proceedings of the justices, as in other cases.”

Thus stood the legislation when the Act of 1865 was passed. It is contended that the effect of the latter act is to make the certiorari a supersedeas in every proceeding or suit brought in the city of Philadelphia by a landlord to recover the possession of property leased for a term of years. If this be the proper construction of the Act of 1865, then the Act of 1772 is rendered comparatively useless, and the serious mischiefs against which for over one hundred years it has protected us, have returned to vex the present generation, as they must seriously have disturbed the framers of said act; for its avowed object was to give some proceeding, suigeneris, and unknown to the common law, by means whereof a landlord who had occasion to use or occupy his own house, or to sell or demise the same, might recover possession thereof at the termination of the lease without the delay and expense of an ejectment. If a certiorari is interposed to stay proceedings under this act, its value as a remedial statute is seriously impaired, if not wholly gone.

If the legislature intended by the Act of 1865 to make a certiorari a supersedeas in all landlord and tenant eases, it was very easy to have said so in few and plain words. They have not done so. ' On the contrary, the intent is clear to restrain the operation of the act to certain cases only. Else why the words, “ in which a certiorari is now allowed.” Evidently the legislature had no reference to the common law writ of certiorari when they used this language. Such writ is of right, and may issue of course, but it does not, as has already been said, suspend proceedings in a landlord and tenant case. It was undoubtedly the writ of certiorari allowed by statute that was in the contemplation of the legislature when the Act of 1865 was passed. Such a writ was allowed in both the Acts of 1830 and 1863. Yet in neither of those acts is it said in express terms that the certiorari shall be a supersedeas.

There are reasons why the law should be explicit upon this point. Both of the last-named acts are a wide departure from the course of procedure under the Act of 1772. It will be remembered that in the latter case the cause is heard before two aldermen and a jury of twelve freeholders, to be selected by the sheriff. In no form of summary proceedings known to the law is so much care exercised to guard the rights of the parties, and secure a fair trial as .under the Act of 1772. The provision for a freehold qualification for the jurors was intended, at least, to secure a jury of more than the average grade. If such juries are not composed generally of as good material as they ought to be, it is no fault of the law, but of its officers charged with its execution. In such proceedings the tenant has a fair trial before a jury of his peers, and it is no hardship to him to allow the judgment of such a tribunal upon so simple a question as whether his term is fully ended, to be enforced, notwithstanding a writ of certiorari. So, as to the Act of 1825. It gives the remedy where the tenant has removed from the premises, leaving no goods thereon, refuses to give security for the rent, and yet declines to surrender the possession. A certiorari is clearly not needed in such cases. But in the Acts of 1830 and 1863 the proceedings are entirely without a jury; under that of 1830 before two aldermen, under that of 1863 before a single alderman.

It is not singular, therefore, that, inasmuch as both ’these acts are in derogation of the common-law right of trial by jury, the legislature deemed it essential to place the question at rest whether the writ of certiorari which had been theretofore allowed by said acts should operate as a supersedeas. This we regard as the proper construction of the Act of 1865. To extend it to the Act of 1772, ■*in which a statutory certiorari had never been allowed, would be, in our judgment, to carry the Act of 1865 beyond its manifest intent as well as its express terms. An ingenious argument was made on behalf of both the plaintiff and defendant in error upon the grammatical construction of said last-named act. We are unable to see that the view we have taken of it does any violence to its proper reading. When the legislature intend so radical a change in existing legislation as to make a certiorari a supersedeas to proceedings under the Act of 1772 they will probably say so in express terms, and not leave it to rest upon implication, or the yet more uncertain rule as to which of two antecedents shall govern a verb.

The questions raised by the remaining assignments need not b'e discussed. Most of them refer to matters dehors the record.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Abrahams versus Cooper.
    1. In an action for malicious prosecution and false imprisonment, the narr. averred the plaintiff’s arrest, imprisonment and general damages from disgrace, anxiety and pain, and expenses, &o. Held that he might prove that he had no bed nor covering whilst in the city station-house, and suffered from the cold and want of food.
    2. Malice was the gist of the action and the natural and probable consequence of the arrest was the imprisonment.
    3. Although the officers of the city also may have been in fault, the defendant was not relieved for his participation in the wrong.
    February — 1876.
    Before Ag-new, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 240.
    This was an action on the case brought December 30th 1871, by Joseph Cooper, against J. K. Abrahams.
    The action was for malicious prosecution and false imprisonment “maliciously, &c., and without probable cause.” The declaration set out with great particularity, the charge of larceny, before, the aider-man, the issuing of the warrant, the arrest of plaintiff, his imprison.ment at the “Central Station,” his binding over to the Court of Quarter Sessions, his trial and acquittal, and concluded: — •
    ■ “ By means of which said several premises he, the said plaintiff, hath been and is greatly injured in his said credit and reputation, and brought into public scandal, infamy and disgrace, &c.; * * * and also the said plaintiff bath, by means of the premises, suffered great anxiety and pain of body and mind, and hath been forced and obliged to lay out and expend, and hath laid out and expended divers, large sums of money, in the whole amounting to a large sum of money, to wit, the sum of five hundred dollars, in, for and about the procuring his discharge from the said imprisonment and defending of himself in the premises, and the manifestations of his innocence in that behalf, and hath been greatly hindered and prevented, by reason of’the premises, from following and transacting his lawful and necessary affairs and business for a long space of time, to wit, for the space of one year ; and also by reason and by means of the said premises, the said plaintiff hath been and is otherwise greatly injured in his credit and circumstances.
    The cause was tried before Briggs, J., October 3d 1873.
    The evidence of the plaintiff was, that on the 12th of October 1871, he, with his brother,'went into-the defendant’s store in Philadelphia, to purchase some clothing; that after talking some time with defendant about clothing, W'hich he was urging plaintiff to buy, plaintiff positively refused to buy; the defendant then said he would have him arrested for stealing a vest; that defendant called a police officer, who arrested plaintiff and took him before an alderman, who committed him in default of bail; he was taken to the station-house about noon of the same day ; the next morning he was released on bail.
    In his examination on his own behalf the plaintiff was asked:
    “ What had you to sleep on in the station-house ?” The question was objected to by the defendant, on the ground that if plaintiff suffered while in the station-house, the city, and not the defendant, was responsible for the injury. The question was admitted and a bill of exceptions sealed.
    The plaintiff testified that he had no bed but a board, no covering but his own coat; that it was cold, the wind blowing through the grates; that he was taken to Moyamensing prison about eleven o’clock the next day; that he had nothing to eat from the time he had left home until he got to the prison; that he was discharged about one o’clock on bail for his appearance at court. He was tried and found “Not guilty,” November 17th 1871.
    There wras other evidence corroborating plaintiff’s testimony and detailing the circumstances of the case.
    The defendant gave evidence for the purpose of showing probable cause and and want of malice.
    The court charged:—
    “ Before the plaintiff can recover, the evidence should satisfy you that there was no probable cause for making the arrest, and that the defendant was actuated by malice in doing so.
    “ Probable cause may be defined to be the existence dr apparent existence of such facts and circumstances at the time of the arrest, as to induce a man of ordinary caution and prudence to believe that the plaintiff was guilty of the larceny of the vest. You may infer malice, if the evidence warrants it, from the want of probable cause.

      “ Then, if you find that the defendant was actuated by malice in arresting the plaintiff, and did it without probable cause, you will proceed to assess the damages. In doing this, you may consider the deprivation of the plaintiff’s liberty by being thrown into prison; his physical suffering while there, occasioned by the arrest, [and you have heard what he has said about being compelled to lie upon a bench for a bed, and having nothing to eat till the next day at eleven o’clock in Moyamensing prison ;] and the risk he was subjected to of being convicted and punished for the larceny charged against him. These are elements of damages for your consideration, in case the evidence satisfies you the plaintiff is entitled to recover.”
    The verdict was for the plaintiff for $1000. The defendant took a writ of error: he assigned for error the admission of the evidence objected to and the portion of the charge in brackets.

      W. L. Hirst., for plaintiff in error. —
    The special damage should result not from the intervening agency of others unless the intervening agents be set in motion by the primary wrongdoer, but it is requisite that it should be the legal, direct and necessary result of the injury : Addison’s Law of Torts 817. The special damages must be proved as laid : Gerhard v. Bates, 2 E. & B. 490 ; Vicars v. Wilcocks, 8 East 2; Ashley v. Harrison, 1 Esp. 49; Clark v. Wendell, 18 Wend. 229; 1 Chitty’s Pl. 388; Butler v. Kent, 19 Johns. R. 228; Rochester & S. R. Co. v. Curtiss, 20 Barb. (N. Y.) 282; Hoey v. Felton, 5 Law Times, N. S. 354, 11 C. B. (N. S. 142.
    Evidence cannot be given of special damage, unless set out in the declaration: 2 Chitty’s Pl. 246, note k; Peake N. P. C. 46, 62, 252 note g, 253.
    P. T. Hansford (with whom was J. H. Shakespeare and J. H. Heverin), for defendant in error.
    — A verdict will aid the want of an averment in the declaration : Thompson v. Musser, 1 Dallas 461; Miles v. Oldfield, 4 Yeates 423; Weinberger v. Shelly, 6 W. & S. 336.
    Had the objection to the evidence on the trial been placed upon the ground of the absence of any averment in the declaration, the evidence might have been waived by the plaintiff, or the objection obviated: Rowe v. Power, 2 New R. 36; Kensington v. Inglis, 8 East 273; Baring v. Shippen, 2 Binney 168; Shenk v. Mingle, 13 S. & R. 29; Dorman v. Turnpike Co., 3 Watts 126; Drexel v. Man, 6 W. & S. 343, 386; Milliken v. Barr, 7 Barr 24; Bingham v. Guthrie, 7 Harris 419; Steckel v. Steckel, 4 Casey 233; Franklin Fire Co. v. Updegraff, 7 Wright 358; Hilling v. Wilson, 1 Grant 121. One of the grounds of recovery in actions for malicious prosecution is, for the suffering and damage to the person by imprisonment: Savill v. Roberts, 12 Mod. 208; Jones v. Givin, Gilbert’s Cas. Law and Eq., p. 201; Munns v. Dupont, 3 Wash. C. C. R. 31; Laing v. Colder, 8 Barr 483. In an action for false imprisonment, evidence that the plaintiff was stinted in his food, when confined, can be received if specially pleaded: Lowdrick v. Goodrich, Peake’s N. P. 46 ; Petit v. Addington, Id. 61; Hart v. Evans, 8 Barr 21; Spigelmoyer v. Walter, 3 W. & S. 540. A plaintiff may allege in his declaration and prove to aggravate the damages circumstances for which singly he could not recover: Dix v. Brookes, 1 Strange 61; Russell v. Cornf, 1 Salkeld 119 ; Merest v. Harvey, 5 Taunt. 442 ; Boyce v. Bayliff, 1 Camp. 58 ; Hartley v. Herring, 8 Term R. 130; Ingram v. Lawson, 5 Bing. N. C. 33.
    February 7th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— Malice was the gist of this action, and the natural and probable consequence of this arrest was the imprisonment of the plaintiff. The suffering of the plaintiff from cold, the want of a bed to lie upon, and deprivation of food for many hours, sprang directly from the imprisonment to which the malice of the defendant exposed the plaintiff Because others may have also been in fault, it does not take away the participation of the defendant in the wrong done to the plaintiff

Judgment affirmed.


author: Mr. Justice Gordon Mr. Justice Woodward. Mr. Justice Sharswood.

text:
    Mount Moriah Cemetery Association versus Commonwealth of Pennsylvania ex rel. W. H. Boileau and Margaret Jones.
    1. An incorporated, cemetery company was authorized to make by-laws, &c., to sell lots in, fee simple or otherwise for sepulture alone, under such rules as the managers might ordain for the burial of the dead, &c. The bylaws provided that there should be no burial without a written permit from the secretary, and that all transfers of lots must be registered in the office of the association. Boileau bought a lot, and his deed was registered ; he conveyed it to Jones, a colored woman ; this deed was not registered. She applied for a permit to bury her husband; the secretary declined, because the lot was registered as Boileau’s. Boileau asked for a permit to her to bury her husband in the lot; the managers then directed the secretary to refuse an approval of the transfer to Jones. The secretary refused to issue a permit for the burial: Held, that Boileau had the right to bury the husband ; that the refusal to issue the permit was arbitrary and unreasonable, and mandamus lay to compel the company to issue the permit.
    2. When Boileau purchased, there being no restriction on his right of burial, the company could not afterwards abridge his rights.
    3. W. 0. & Philadelphia Railroad Co. v. Miles, 5 P. P. Smith 209, remarked on.
    February 28th 1876.
    Before Sharswood, Mercur, Gordon Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia, No. 3: No. 108, to January Term 1873.
    This was a mandamus by the Commonwealth of Pennsylvania, on the relation of William EL Boileau and Margaret Jones, against the Mount Moriah Cemetery Association. The defendants were incorporated by Act of Assembly of March 27th 1855 (Pamph. L. of 1857, p. 729).
    The act incorporated a number of persons by name, and authorized them to increase the number of corporators from the lot-holders, so that the association should never be less than twenty nor more than one hundred, with power to ordain by-laws, rules and regulations ; to purchase land and lay it out in plats and burial lots; to erect vaults and buildings, and do all other things necessary to fit “ the ground for a cemetery, and to sell and dispose of such lots, in fee simple or otherwise, for the purpose of sepulture to individuals, societies or congregations, without distinction or regard as to sect, under such conditions, rules and regulations as the said corporators or managers may establish for the government of lot-holders, visitors to the cemetery and burial of the dead.”
    “ Every lot in said cemetery shall be held by the proprietor for the purpose of sepulture alone, transferable with the consent of the managers thereof, and shall not be liable to attachment or execution ; and said burial lots, when sold by the company, shall hereafter be for ever exempted from taxation.”
    The following are by-laws of the company : — ■
    “ 6. All graves, post-holes and excavations for vaults and foundations shall be dug by workmen in the employment of the association, for which the most reasonable charges will be made. No interment shall take place without a written permit from the secretary.
    “ 7. No right or privilege of burial shall be derived by any compulsory sale or transfer to'any purchaser.
    8. No transfer or sale of lots made by auction will be allowed to take place in the cemetery. All transfers of lots must be registered in the office of the association.

      % * % % *
    “ 10. The remains of no person who died of small-pox or other contagious disease, shall be permitted to be deposited in the receiving vault. No permit shall be granted to a stranger for the use of the vault, unless the sum of five dollars as the first instalment on account of a lot, and also the cost of a grave, be first paid by the person so applying.”
    The petition set out,
    1. The act of incorporation.
    2. On the 16th of April 1875, the company conveyed to Boileau a lot, No. 48, containing 240 square feet, one-half of section 58, to be used for burial purposes. It was paid for, and the deed duly registered. Appended to the deed to Boileau is a “note,” that all transfers of lots, to be valid, must be approved by the secretary and registered, &c.
    3. On the same day, Boileau entered into a parol agreement to convey a portion of the said lot to Mrs. Margaret Jones, a colored woman and wife of the late Henry Jones, deceased, which said Margaret Jones joined in this petition, the consideration therefor being the sum of $100, which amount at said date was paid Boileau. At or about said date the lot in question was inspected by the petitioners in the presence of the superintendent and secretary, who drew out the plan of the lot, marked the grave, and interposed no objection whatever to the contemplated transfer of the lot to Margaret Jones.
    4. On April 17th 1875, upon the order of Boileau, vrith the full knowledge and tacit consent of the said corporation, through its authorized ofiicers, the body of one Elizabeth Clark, a colored woman and sister of Margaret Jones, was interred in the said lot, after due public notice given by advertisement in newspapers published in said city, which expressly stated that the remains of the deceased woman would be conveyed to Mount Moriah Cemetery from Bethel Church, which place of worship was well known by the community to be attended solely by colored people.
    5. On May 10th 1875, Boileau, by deed in proper form and legally acknowledged, conveyed to Margaret Jones the entire lot herein above referred to, to be used by her for burial purposes, the consideration therefor being $180, which said sum was paid in full by Margaret Jones. The deed in question was forthwith delivered to Margaret Jones, without the formality of approval by the secretary and registration.
    6. Boileau omitted to obtain such approval and registration of the said deed before delivery thereof to Margaret Jones, simply because to his knowledge the rule enjoining such approval and registration was in most cases virtually a dead letter and never strictly enforced. This knowledge was based on the fact that your petitioner had disposed to purchasers of more than $50,000 in value of the burial lots of the said corporation, and not one-half of the deeds to the lots so sold were ever approved and registered, although in many instances interments of bodies took place in the lots referred to in such conveyances with the knowledge and full consent of the corporation aforesaid.

      7. The transfer of the said lot to Margaret Jones was made with the full knowledge of H. P. Connell, who was the secretary and superintendent, intrusted with its general management. The previous interment of a colored woman in the lot, and that Margaret Jones was a colored woman, and the prospective uses of the»said lot for the interment of the colored members of the family of Margaret Jones, were known to him, and not only was no objection interposed to the conveyance, either by Connell or by the corporation, but at or about the time of the said sale and conveyance to Margaret Jones, Connell expressed to Boileau a regret that the company itself had not made the said transfer to Margaret Jones direct, and a desire that the improving the lot for the use of Margaret Jones should be intrusted to him and another official.
    8. After the date of the latter conveyance, Margaret Jones and her late husband, Henry Jones, commenced to adorn and improve the said burial lot, and contracted with Mr. Daniel Connell for the erection of an iron railing which should enclose the lot, attached to marble posts, each conspicuously marked “ Henry Jones,” which work was completed in the summer, and the.sum of $160 paid therefor, Connell’s name having been suggested to your petitioner by the officer in charge of the cemetery.
    9. Neither of the petitioners were ever notified until September 27th 1875, of any opposition to the approval and registration of the deed to Margaret Jones, nor of any objection to the occupancy of the lot by the members of the family on account of their color.
    10. On September 25th 1875, she sent a messenger to the officers in charge of the cemetery, acquainting them with the death of her husband, and of her desire and intention to inter him in the lot on September 27th 1875; that the officer in charge of the grounds promised compliance with the request, and that a grave should be dug in the lot in proper time, and received the case which was intended to enclose the coffin of the decedent.
    11. Full arrangements were thereupon made for the funeral, advertisements were inserted in the public press, and a large concourse of friends assembled at his house on September 27th 1875, to participate in the religious exercises and to attend the corpse to the grave.
    12. About fifteen minutes prior to the time advertised for the funeral, &c., a note, of which the following is a copy, was left at the dwelling of Margaret Jones:—
    “ Madam: — I am in receipt of a note from you, requesting a grave to be dug in lot No. 48 in Mount Moriah Cemetery. I am unable to comply with your request, because the lot in question is registered as belonging to William H. Boileau, and the rules of the company require me to act only under the orders of the registered owner. Very respectfully,-
    H. P. Connell, Superintendent.”

      13. The note was immediately sent to Boileau, who forthwith endorsed thereon:—
    “Philadelphia, Sept. 27th 1875.
    “ Dear Sir: — Please to let the bearer bury in the lot.
    W. H. Boileau.”
    ■The note so endorsed was at once conveyed to the cemetery, and with the two deeds was handed to the officer in charge, who acknowledged the validity of the order, but asserted that objection having been made by some of the lot-holders to the interment of colored people in the cemetery, he was instructed by the managers not to allow the bodies of colored people to be brought within the grounds. He further refused to allow the body of the deceased to be temporarily placed in the receiving vault until the petitioner could make other arrangements for its interment.
    14. Unaware of this prohibition, upon the conclusion of the religious exercises at the house, the funeral procession traversed its route to the cemetery, when its passage was checked by parties purporting to be sent by the superintendent for the purpose of notifying them of the prohibition.
    15. The petitioner therefore was compelled to convey the remains of her husband to the receiving vault of Lebanon Cemetery, where it still remains unburied.
    16. On September 29th 1875, demand was made upon James Smyth, the president of the corporation, and upon the said H. P. Connell, secretary thereof, forthwith to approve and register the deed to your petitioner of the lot in question from the said Boileau; or should that demand be refused, then to acknowledge and execute the order of Boileau for interment, and give permission to bury her late husband in the lot. To this demand the president has made no reply ; but the secretary and superintendent has answered with a peremptory refusal on the part of the corporation to approve or register the deed to your petitioner, or to honor the order for interment.
    17. The prayer was for a mandamus to the Mount Moriah Cemetery Association to accept and carry into execution the order of Boileau, and at once permit the body of Henry Jones to be interred in lot No. 48, &c., or show cause, &c.
    An alternative mandamus was issued, returnable October 16th 1875.
    The defendants answered that the relators were not entitled to a mandamus', because,
    1. They were improperly joined, their interests being several, and the injuries to them, if any, require different remedies.
    2. The executor or administrator, &c., of Henry Jones, whose duty it was to pay the expenses of the burial, &c., was not made a party.

      3. The relators had a specific remedy at law other than was prayed for.
    4. Because, by Boileau’s own deed it appeared that all tranfers of lots, in order to be valid, must be approved by the secretary and properly registered ; and the petition admitted that there was no approval or registration of the deed to Mrs. Jones.
    5. The consent of the managers is by the act of incorporation necessary to the transfer of a lot; and a mandamus will not issue to compel an act not merely ministerial, or control the discretion conferred by the act of incorporation.
    6. A mandamus cannot issue to settle a disputed title to a cemetery lot.
    They further answered, * * *
    3. íhey denied the allegations of the concluding clauses of the third paragraph of the petition.
    4. They averred that the burial of Elizabeth Clark, mentioned in the fourth paragraph, was without the knowledge by the officers of the defendants that she was a colored woman.
    5. The execution and delivery of the deed from Boileau to Mrs. Jones was admitted, but it was averred that it was never approved or registered.
    6. 7. They denied the allegations in the sixth and seventh paragraphs of the petition.
    9. They denied the allegations of the ninth paragraph of the petition, and averred that they had receiv’ed the following request, signed by a large number of lot-holders, viz. :—
    “We, the undersigned owners of lots in Mount Moriah Cemetery, having learned that a person of color has purchased from Mr. William H. Boileau a lot in said cemetery for the purpose of interment, and demands a requisite transfer of the same from the association, do hereby protest against the same, and request that your approval of such transfer be withheld. We are led to make this request by a knowledge of the prejudice which will be aroused against the cemetery if the precedent of this transfer were established and the consequent depreciation of value of property in this cemetery that would certainly result from such a prejudice.”
    In pursuance of the request, the managers resolved,
    “ That we accede to the request of the petitioners, and that the officers be directed to refuse to make such transfer.”
    Notice of these proceedings was at once given to Boileau, and afterwards he applied for the approval and registration of the deed to Mrs. Jones, and the approval was refused. No notice was given to Mrs. Jones, because she. was not recognised as having any interest in the lot.
    10. The notice of the death of Henry Jones and Mrs. Jones’s desire to bury him in the lot mentioned in the tenth paragraph of the petition, came to the cemetery on Saturday, September 25th 1875, between eight and nine o’clock at night, directed to the secretary, the messenger bringing with him a case. The secretary was absent, and the note and case were received by the foreman of the grounds, who was without authority in the matter. The respondents denied that the foreman promised that a grave should be dug. The answer of the secretary referred to in paragraph twelve of the petition was sent on the following Monday.
    “ 16. * * * We refused to permit a transfer of a lot to a colored person because, as we are advised and believe, our charter gave us full discretion in the matter, and we were informed and believed, and now believe, that so great is the opposition on the part of a large majority of our many thousand lot-holders to the interment of colored persons in the cemetery among their deceased friends and relatives, that, if we were to permit it, it would probably lead to acts of,violence and breaches of the peace, large numbers of the dead already interred therein would be removed, as has been expressly threatened in many instances, the association would be financially ruined and compelled to leave the thousands of existing graves to the result of abandonment and neglect, and those who have already paid us their money and obtained rights which it is our duty to protect, would thus be greatly wronged and injured.” * * * * * *
    “For these considerations we refused to permit the-burial of said Henry Jones on the order of said Boileau, which order was an indirect and evasive mode of reaching a result which he had not been able to reach directly, but one which a provision in our sixth by-law and regulation, that ‘ no interment shall take place without a written permit from the secretary,’ enables us to defeat.”
    The Commonwealth demurred to the return, and set out the following causes of demurrer :—
    1, 2. The return did not make known any cause sufficient in law why a peremptory mandamus should not be issued; nor any right in the respondent to refuse to allow and permit the body of Henry Jones to be buried in the lot.
    3. It was admitted by said return that William H. Boileau was the owner in fee of the lot of ground in the writ mentioned, for purposes of burial, under a deed from this respondent, to him duly registered, and that his order in writing for the burial of said Henry Jones in said lot was known to the respondent; but the respondent has not shown by said return any right of said respondent to refuse to permit Margaret Jones to bury the body of her late husband, Henry Jones, in accordance with said order.
    4. The fact that said Henry Jones was a colored person did not in law justify the respondent in refusing to permit the burial of the body in said lot of ground.
    5. The withholding of a special permit for the burial of said body as stated in said return was illegal, and furnished no justification to the respondent.
    6. It was admitted in the return that Willliam H. Boileau executed and delivered a deed to Margaret Jones on May 10th 1875, for the lot of ground mentioned in the writ; and the averment that the deed was not approved by the managers, or registered in the office of the association, was not sufficient in law to defeat the right of Margaret Jones to bury the body of her late husband in the lot by virtue of the said conveyance to her.
    7. The respondent had not shown any legal right to refuse to approve and register said deed to Margaret Jones.
    The Court of Common Pleas, No. 3, Ludlow, P. J., delivered the following opinion :—
    * * * “ The relators have, or one of them, by the act of
    the defendants, a fee simple in the lot. Undoubtedly the ground thus held can only be used for the purpose of sepulture, and this right, if it exists in either of the relators, is absolute. A body is brought to the grave for burial: how can a remedy be provided except by mandamus, if then and there the corporation refuse to permit the body to be deposited ? This cause is not like the mere disturbance or obstruction of an easement for which damages may be recovered, as in the case of a pew-owner, who has generally a limited usufructuary right only, and who may recover damages for its destruction or loss ; nor is it analogous to the class of cases in which equity would decree the specific performance of a contract, because a remedy must be speedily applied. The very function of the writ of mandamus is to set in motion and compel action, and any existing legal remedy l’elied upon as a bar to interference by mandamus, must not only be un adequate remedy in the general sense of the term, but it must be specific, and appropriate to the particular circumstances of the case: High, Ex. Legal Remedies, pp. 12-19. Being of the opinion that no legal remedy can be applied in cases of this kind except by the exercise of extraordinary power, I proceed to consider the other propositions of law involved in this case.
    “ The charter of this corporation is the law of its being, and that charter must be strictly construed. * * *
    “ Unquestionably, in my judgment, any transfer without the approval of the managers was in direct violation of the organic law of the corporation, and vested no title in Mrs. Jones — the corporation being the paramount owners of the soil, conveyed to Boileau ‘subject to the articles of incorporation under the rules and regulations’ of the company. As the undisputed owners they undoubtedly could incorporate any covenant in their conveyance not prohibited by public policy, and the article of the charter which prohibits a transfer to any person without the approval of the managers, is a -covenant binding upon the grantee in the deed.

      “ Even if I am mistaken in my view of the law upon this point, the question of title in Mrs. Jones is at least doubtful, and if the case ended here, I should, without hesitation, refuse this writ. There is, however, another relator, and his rights are now to be considered in the final disposition of the cause.

      “ It is admitted that Boileau is an owner in fee, ‘ subject to the conditions of the act of incorporation under the rules and regulations adopted by the managers of the cemetery, of the lot specified in the pleadings. Upon the 27th day of September 1875, he endorsed upon a letter written by the superintendent to Mrs. Jones, the following:
    * * * ifc # %

    (Judge Ludlow here quoted Boileau's endorsement and the secretary’s reply.)
    “ The sixth by-law declares, among other things, ! that no interment shall take place without a written permit from the secretary.’
    “ Undoubtedly the by-law is a reasonable and legal one, and ought, in a proper case, to be enforced, but under it, can the owner in fee1 simple be refused the exercise of any right which is incident to an absolute ownership ?
    “ The answer of this question depends upon the nature of the right claimed, the time wdien, and manner in which it is proposed to exercise it, under the very terms of the charter and by-laws of the corporation. It is not contended here that any objection can be made to the manner in which it was proposed to bury Henry Jones, nor to the time when it was intended to inter his body.
    “ The only question then remaining is, what was the nature of the right by virtue of which the relator, Boileau, claimed to act ? Untrammelled by charter or by-law, it is clear that Boileau might bury whomsoever he saw fit in his own lot.
    “ Under the charter, by section 4, the ordinary rights of an owner were only so far restrained as to limit the use of the lot to the ‘ sepulture of individuals, societies or congregations, without distinction or regard as to sect.’ There is here clearly no distinction in terms as to nationality or color, and the word ‘ sect’ necessarily includes any number of individuals who compose the members of a congregation or society, united in some settled tenets, or who follow the teachings of a certain leader. It would seem therefore that, while individuals may be buried by the owner in fee simple of a lot, in said lot, without distinction of nationality or color, no objection can be made because any individual is a member of a society or congregation, commonly called a ‘ sect.’
    “ But it may be contended that, by virtue of some section of the charter and by-laws, ‘ some condition, rule or regulation’ may limit the exercise of a right which belongs to every owner in fee of the soil. In his letter to Mrs. Jones, the secretary of the company refused to give her the usual permit, because Boileau was the owner of the lot, and thereupon Boileau, under the regulation con-' cerning ‘permits,’ demanded a permit, when he endorsed upon the letter the words, ‘ please let the bearer bury in the lot.’
    “ What additional condition, rule or regulation was to be complied with ? We have already seen that individuals, without distinction of ‘ sect,’ may be buried by an owner in fee of a lot, in the cemetery, and we have searched most carefully thoughout the charter and by-laws to find a single additional condition, rule or regulation upon the subject.
    “ While the usual rules exist for the adornment of the grounds, depth of graves, payment of charges, &c., the only by law which limits the right to bury an individual, is the 10th, which declares that no person who dies of small-pox, or other contagious disease, shall be permitted to be deposited in the receiving vault, and that no permit shall be granted to a stranger to use the vault without the payment of a certain fee. It is to observed that the action of the managers on 80th June 1875, related only to the transfer of lots; for upon that day, at the request of certain petitioners, it was resolved ‘ that the officers be directed to refuse to make such transfers.’
    “We have already expressed an opinion as to the power of the company to control the transfer of lots ; but that question does not arise where the undisputed owner of the ground sees fit to exercise his right as owner, where that right is not limited by charter, by-law, condition, rule or regulation, and is in fact absolute.
    “ I see nothing in the other points made in this case and not covered by the foregoing opinion; because, if the relators are improperly joined, an amendment will at any time be allowed. The executors ought not to be made parties; and a disputed question of title does not arise, for Mrs. Jones claims either in her own right or under Boileau, and therefore makes no adverse demand.
    “ On the w'hole case I am, therefore, of the opinion,
    “ 1st. That Margaret Jones has no legal title to the lot in question, and that the refusal to sanction the transfer of the lot by Boileau to her was within the corporate power of the managers of the cemetery.
    “ 2d. That the relator, William H. Boileau, as the owner in fee of the ground, had the legal right, as an incident to his ownership, to bury the body of Henry Jones in the lot so owned by him, and that the refusal to issue a permit for that purpose was, under the charter and by-laws of the corporation, an arbitrary and unreasonable, and therefore an unlawful interference with the legal rights of the owner of the soil.”
    Judgment was accordingly entered for the Commonwealth on the demurrer.
    The defendants took a writ of error, and assigned for error the entering of judgment for the Commonwealth on the demurrer.

      H. Q. Titus and JE. S. Miller, for plaintiffs in error.
    — Mandamus will not lie to compel the performance of duties requiring the exercise of discretion: High’s Extraordinary Legal Rem. 25. This was a reasonable exercise of discretion : W. C. & Phila. Railroad Co. v. Miles, 5 P. F. Smith 209. Boileau’s right was but an easement (Kincaid’s Appeal, 16 P. F. Smith 411), for the disturbance of which the remedy is an action on the case : Washburn on Easements 515; Commonwealth v. Rosseter, 2 Binn. 362. A mandamus will be granted only in extraordinary cases to prevent a failure of justice: Commonwealth v. Henry, 13 Wright 538; James v. Commissioners, 1 Harris 75 ; Commonwealth v. Canal Commissioners, 2 Penna. R. 518 ; Heffner v. Commonwealth, 4 Casey 112; King v. Bristow, 6 Term. 168; Reading v. Commonwealth, 1 Jones 196; Drexel v. Man, 6 W. & S. 386; Resp. v. Clarkson, 1 Yeates 46; Shipley v. Bank, 10 Johns. 484; Boyce v. Russel, 2 Cowen 444 ; Ex parte Robins, 7 Dowl. (P. C.) 568 ; King v. The Free Fishers, 7 East 353; King v. Helsham, 2 B. & Ad. 622.

      W. H. Browne and W. 8. Price, for defendants in error.—
    Mandamus is the proper remedy in this case. - The remedy must place the party in the same situation in which he was before the act complained of: Etheridge v. Hall, 7 Porter (Ala.) 47 ; High on Mandamus 19, 20 ; Commonwealth v. Councils of Pittsburg, 10 Casey 509. If the other remedy be not equally convenient and efficacious, mandamus will lie: Tapping on Mandamus 70; Fremont v. Crippen, 10 Cal. 211; Griffen v. Steele, 1 Edmunds (N. Y.) 505. It goes much further than merely to compel the performance of a ministerial duty : Commonwealth v. Allegheny County Comm’rs, 8 Casey 223 ; Tapping on Mandamus 64 ; Arberry v. Beavers, 4 Texas 464 ; Kentucky v. Denison, 24 Howard 66; Grant’s Ultra Vires 45; High on Mandamus 204, 207. It will compel the rector, &c., of a parish to do every act requisite for the burial in a churchyard of the corpse of a parishioner : Tapping on Mandamus 109. No vote or act can enlarge the chartered authority of a corporation : Salem v. Ropes, 6 Pick. 23 : Discretionary powers must not be arbitrarily exerted : Tapping on Mandamus 67, 69 ; Green’s Ultra Vires 28, 577.
    March 3d 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

Beyond the merely technical objection urged against the decree of the court below, and which we regard as properly disposed of in the opinion of his honor Judge Ludlow, there is nothing whatever of merit in the defendants’ case.

When Boileau purchased the lot in question there was no restriction on his right of sepulture, and the managers of this company had no power afterwards to abridge such right by any unreasonable limitation thereon.

The right of interment was refused solely on the ground that the body was that of a colored man. The reason which induced this refusal, as well as the resolution of June 30th 1875, may be found in a petition presented by certain of the lot-owners to the president and board of managers of the cemetery company, which we give in extenso:—

“ We, the undersigned owners of lots in Mount Moriah Cemetery, having learned that a person of color has purchased from Mr. William H. Boileau a lot in said cemetery, for the purpose of interment, and demands a requisite transfer of the same from the association, do hereby protest against the same, and request that your approval of such transfer be withheld. We are led to make this request by a knowledge of the prejudice which will be aroused against the cemetery if the precedent of the transfer were established, and the consequent depreciation of value of property in this cemetery that would certainly result from such prejudice.”

From this-it would appear that the officers of the defendant company were moved by a fear of loss which might result to the treasury of the corporation. But as Boileau has some rights in the premises, which are not forfeitable to the pecuniary interests of the stockholders, we are bound to turn a deaf ear to this reason, which appears so sound and obvious to these petitioners. It is said, however, that this was but a reasonable exercise of the discretion of the managers, in view of the general prejudice existing against the colored race.

In a sound code of ethics this prejudice never had a respectable standing, for it was but the child of an abnormal servile system that was entitled to no man’s respect outside of the country and laws which maintained it. But at this time, when this prejduice is under the ban of recent constitutional and legal provisionsex, pressly designed for its suppression and extinction, it is scarcely to be expected that we can be induced to endorse its respectability- or to encourage it to linger longer around the halls of justice.

Were we to sustain the case of the defendant, we should be carried far beyond the limits of The Railroad v. Miles, 5 P. F. Smith 209. That case did no more than sustain the power of common carriers to make and enforce such rules and regulations as they might deem just and reasonable with reference to the conveyance of passengers in their own vehicles; whilst we, in the suit in hand, are required, in view of this alleged prejudice, to forfeit the absolute vested rights of a citizen which he holds and claims to exercise under and by virtue of the deed, duly and solemnly executed, of this very defendant corporation.

Now, as The Railroad v. Miles, though seemingly just and reasonable, was not in consonance with the will of the people as manifested by the legislative Act of March 22d 1867, it is not apparent — should we reverse the judgment of the court below— that we would have even the support of such a broken reed as popular prejudice. Judgment affirmed.

Mr. Justice Woodward.

— I concur in this judgment, on the ground that the regulation established by the company on the 30th of June 1875, could not affect rights vested by the deed previously executed to Mr. Boileau.

Mr. Justice Sharswood.

— I dissent from this judgment and opinion.