The opinion of the court was delivered,
by Sharswood, J.Neither the first section of the Act of March 20th 1810 (5 Sm. L. 161) which excepts from the jurisdiction conferred upon justices of the peace of all causes of action arising from contract not above one hundred dollars “ cases of real contract, where the title to lands or tenements may come in question,” nor the thirteenth section of the Act of March 21st 1772 (1 Sm. L. 374) have any bearing whatever upon the question of proceedings under the Act of December 14th 1863 (Pamph. L. 1864, Appendix p. 1125). Under the Act of 1772 it is only when the tenant shall allege that the title is claimed by some person in virtue of a right accrued since the commencement of the lease by descent, deed, or from or under the last will of the lessor, that the process before the two justices is arrested and the contention removed to court: Cunningham v. Gardner, 4 W. & S. 120. There is no such *182provision in the Act of 1863 : Heritage v. Wilfong, decided by this court, March 2d 1868 (8 P. F. Smith 139). The only remedy provided for the tenant is that of appeal generally. Such appeal is not, indeed, a supersedeas of execution, but it is enacted that if on the appeal “ the jury shall find in favor of the tenant they shall also assess the damages which he shall h.ave sustained by reason of his removal from the premises.”
This case was in the Court of Common Pleas, by appeal, under the Act of 1863, where by the requirement of the law it was to be tried in the same manner as an action of ejectment. The foundation of the jurisdiction, indeed, was the existence of a tenancy. It was necessary for the plaintiff to show that the defendant was her tenant, to whom she had leased or demised the premises; otherwise no exhibition of title or right of possession in her, however incontrovertible, would have authorized a verdict in her favor. It was competent, however, for the tenant, before the justice or in court on the appeal, to set up any defence of which a tenant can avail himself in an ejectment by his lessor. He might have shown that the title of the plaintiff had come to an enfl by expiration, by her own act, or been divested by act of law: Newell v. Gibbs, 1 W. & S. 496. Of course he might have proved that he had been induced to accept the lease by fraud or misrepresentation — for that would have been to show that there was no tenancy, which alone, as we have seen, would have been fatal to the plaintiff’s recovery in this proceeding, without going on to controvert the plaintiff’s title, or show a better one in himself or outstanding in another, as in an ordinary ejectment: Boyer v. Smith, 5 Watts 64; Brown v. Dysinger, 1 Rawle 408; Hockenbury v. Snyder, 2 W. & S. 249; Baskin v. Sechrist, 6 Barr 154. But the defendant below attempted or pretended nothing of the sort to bring his case within any recognised exception to the general and well established principle that a tenant shall not be allowed to controvert his landlord’s title. On the contrary, he undertook to show that, before the period of the alleged lease, Mrs. Hammond, the lessor, had given her assent to his purchase of the interest of her son William, and had thereby estopped herself from turning him out of possession; in other words, recognised a title in him not subordinate, but adverse to hers. Even, however, supposing William had under his father’s will, or had acquired subsequently, such an interest during his mother’s life, if afterwards ICoontz took a lease from her it is very plain that he cannot set up William’s title in this proceeding, whether he held it by purchase or not. He must surrender possession to her from whom he received it, and prosecute his independent title, if he has one, by a new ejectment.
By the verdict for the plaintiff, the. jury found that there was a tenancy. Under the charge of the court they could not have so *183found upon any other ground. That, in point of fact, settled the jurisdiction of the justice to originate the proceeding, which disposes of the fifth assignment of error, even if there had been a bill of exceptions to the decision of the court below on the reserved point. The first assignment is contrary to the sixth of the rules adopted September 6th, 1862 (6 Harris 578). We perceive no error material to the plaintiff in the second, third and fourth assignments, and as to the sixth, we cannot regard the protest filed by the counsel of the defendant below as any part of the record. The facts stated in that protest might have been brought upon the record by a bill of exceptions, on the refusal of” the court to discharge the jury. But it is right to say that, as long as the jury had not separated and left the court room, and their discharge had not been recorded, it was lawful for the court to receive the verdict.
Judgment affirmed.