Wistar v. Ollis

Mr. Justice Mercur delivered the opinion of the court, This was a proceeding before two aldermen to dispossess a tenant under the Act of 21st March 1772. On certiorari from the Common Pleas, the proceedings were reversed; to that judgment this writ of error was taken. The complaint, warrant, sheriff’s return thereon, and inquisition, were in-due form of law. The record of the aldermen avers that the sheriff appeared before them on the day the inquisition was held, and returned that by virtue of the warrant to him directed, he had summoned twelve substantial freeholders, to wit (giving their names), and had also summoned the defendants. The record further shows, that on the hearing before the inquest, the defendants appeared by counsel, and introduced witnesses in their behalf. No objection was there taken to the manner in which the jurors had been selected or summoned. After a full trial on the merits, the inquest found against the defendants. The certiorari issued by the court below was not to the inquest, but to the court of whose record the inquest formed a part. The record of the aldermen was regular on its face. There was no averment of fraud, nor that the jurors were not substantial freeholders. They were not charged with improper conduct in the discharge of their duties. They, as well as the aldermen, possessed all the qualifications necessary to give them jurisdiction. The effort was to contradict the record on parol proof of an irregularity in the manner of summoning three jurors, in place of that number of those first summoned, who failed to attend. To establish fraud or want of jurisdiction, the court might have heard facts by affidavits, but not to show an irregularity which contradicted the records. When heard by the court below they do not come regularly before this court and should be disregarded: Boggs v. Black, 1 Binn. 336; Blashford v. Duncan, 2 S. & R. 480; Cunningham v. Gardner, 4 W. & S. 120; McMillan v. Graham, 4 Barr 140; Union Canal Company v. Keiser, 7 Harris 134; Bedford v. Kelly, 11 P. F. Smith 491; Buchanan v. Baxter, 17 Id. 348. It is not designed to deny the correctness of the ruling in [295] McMasters v. Carothers, 1 Barr 324, and in Ayers v. Novinger, 8 Id. 412, in which it was held that the selection of a jury of inquest was so far a judicial act imposed on the sheriff, that it could not be delegated to another; but they are distinguishable from the present case. The former was a case of partition in the Orphans’ Court, in which an inquest had been awarded. The case is badly reported, but it appears the jurors were summoned by a constable from a list furnished by one whose authority is not shown-. In setting aside the inquisition, this court said there was a gross inequality in the partition, and the case. presented “ a bundle of irregularities.” In the latter case the record showed that the sheriff had deputed one juror to execute the writ, and the depositions showed that this special deputation was made at the request of the landlord’s attorney. This was therefore a clear case of fraud on the part of the landlord. ■There is, however, another reason why the defendants should not be permitted to now allege an irregularity in the' summoning of a part of the jurors. Having been personally served, and attended on the hearing; having gone to trial on the merits, they shall be held to have waived all errors and irregularities in the selection and summoning of the jurors. It is true the Acts of Assembly, which hold that pleading the general issue or a trial on the merits in any court, civil or criminal, is a waiver of all irregularities in drawing and summoning the jurors, do not in express terms apply to an inquest under the Landlord and Tenant Act, yet the whole reason and spirit of them applies with full force: Burton v. Ehrlich, 3 Harris 236; Fife et al. v. Commonwealth, 5 Casey 429; Jewell v. Commonwealth, 10 Harris 94. It follows, therefore, the learned judge erred in reversing the judgment of the aldermen. Judgment of the court below reversed, and the judgment of the aldermen is affirmed at the costs of the defendant below and here.