Fennell v. Guffey

Per Curiam, The first specification alleges that the court below erred in finding in favor of plaintiff and ordering judgment to be entered in his favor on the question reserved. The question reserved was as follows: [40] “The land being in Westmoreland county, and neither the lessee, Beardsley, nor his assignee, Guffey, ever having entered into possession or done anything on the premises under the lease, can the action be sustained in Allegheny county?” The action, while in form assumpsit, was in substance an action of covenant upon the lease. The common pleas of Allegheny county has general jurisdiction in actions of covenant. When the court has jurisdiction of the subject-matter, and is only restricted from entertaining the individual case by some circumstances peculiar to itself, the objection to jurisdiction may be waived: Putney v. Collins, 3 Grant, 72. It was said by Mr. Justice Strong-, in delivering the opinion of the court in that case: “ In this case the defendant’s objection was that the cause of action was local; that the tort complained of had been committed in Armstrong county, and not in Clarion, and that the action could only be maintained in Armstrong. This was only an objection to the power of the court to try the particular case, and not to its power to try cases of the same general character.” If we concede the defendant’s position, it was too late to take advantage of it after plea pleaded. It was at most a personal exemption, and the point should have been raised before the trial. By failing to do so he has waived his privilege. The defendant further contended that the clause in the lease on which the plaintiff declares is a collateral covenant which does not run with the land. This contention is sufficiently answered by a reference to Fennell v. Guffey, 139 Pa. 341; Springer v. The Natural Gas Company, 145 Pa. 430. The law is well settled that the assignee of a lease is liable for the payment of all rents or royalties which accrued while he held the assignment of the lease. There is nothing in the remaining assignments which requires discussion. Judgment affirmed.