6 Whart. 452 | Pa. | 1841
delivered the opinion of the court.
The first error is an exception to the opinion of the court, rejecting the receipt proved to have been given and signed by Samuel Collins for rent, thereby acknowledged to have been paid to him up to the first of January, 1835. Had the receipt been given by R. Willing, the lessor of Collins, or had evidence been given, showing that Collins was authorised by Willing to receive the rent for him, the receipt would have been admissible evidence. But without this it does not appear to have been admissible in this action as against Willing or Wallace his bailiff, even to prove the fact that the amount of the money mentioned in it was paid by the plaintiff to Collins ;
Then in regard to the three remaining errors, they may be reduced into two questions; first, is it lawful for the landlord, after having distrained the goods of his immediate lessee for the amount of rent due to him, to distrain again the goods of a sub-lessee on account of the same rent, without showing any cause for the second distress? And secondly, if the second distress be taken,, especially after the time allowed bylaw for replevying the first, and it appears that a sale of the first was made under the act of assem
As to the first question, Mr. Comyn in his treatise on the law of Landlord and Tenant, 414, (6 Law Lib. 233,) lays it down, that by the common law, if there were sufficient property upon the premises, and the landlord neglected to take sufficient distress, he could not again resort to the tenant’s property to make up any deficiency in the first distress. For this position, he cites. Anon. [Moo. 7;) Anon. {Cro. Eliz. 13;) Wallis v. Savill, (Lutw. 1536,) which go fully to sustain it. And much less, I apprehend, would he have been permitted to resort to the property of a sub-tenant for a second distress, especially where the sub-tenant had paid up for the same time, all the rent coming from him to his immediate lessor. That the common law in England was so, is also corroborated and confirmed by the statute of 17 Car. 2, c. 7, s. 4, which enacts, that where the value of the cattle distrained shall not be found to be of the full value of the arrears distrained for, the party to whom such arrears are due, his executors or administra tors, may distrain again for the said arrears. ' It is clear, therefore, from this provision in favour of the landlord, that if he had not been restrained by the common law from making a second distress in such case, there would have been no occasion for making any statutory provision of the kind. -This statute, however, has never been in force in this state by adoption or otherwise; and hence we have only the rule of the common law in this respect, for our guide. It is true, however, that Lord Mansfield, in Hutchins v. Chambers, (1 Burr. 589,) seems to lay great stress upon the circumstance in the case of Wallis v. Savill, that the rent due was an entire sum, and’ that the first distress was made only for a part of it, and the second for the residue; upon which h'e observes, that a man who has an entire duty, shall not split the entire sum; and distrain for part of it at one time, and for other part of it at another time; and so toties quoties, for several times ; for that is great oppression. But it would rather appear from the report of Wallis v. Savill, as also from the report given of the other two cases, that the reason which determined the court in holding the second distress to be illegal was, because it was the folly of the landlord not to take a sufficient distress in the first instance, if property sufficient for that purpose was to be found on the premises; so that he should not come a second time to disturb the tenant in his possession. And indeed from the cases, 'as reported in Moore and Croke, it would seem that each of the two distresses was made for the same entire sum of rent, so that splitting of it into parts could not have been made the ground of the judgment of the court. But admitting the reason assigned by Lord Mansfield, and the conclusion that he came to on the subject to be correct, still it was incumbent upon the landlord, or his bailiff, on the trial of this cause, to have shown some good reason for making the second distress, other
We come now to the second question. In examining this question, however, it may be proper to consider first whether the nature of a distress taken for rent has not been changed in some degree by our act of assembly of the 21st of March, 1772; which, among other things, enacts, that where the tenant or owner of goods dis-trained for rent, shall not, within five days next after such distress taken, and notice thereof, replevy the same, then the person dis-
The act of assembly, however, in question, is not a private act, nor yet an act authorising a certain individual or individuals to do any particular act, or to adopt and pursue a special remedy for his or their benefit; but on the contrary, is a public act made alike for the benefit of all the citizens of the commonwealth standing in the relationship of landlord and tenant, where rent has become payable and remains unpaid. The right to recover rent by distress, and the course of proceeding authorised in order to effect a recovery, is unquestionably a matter of public concern. It is a remedy given to all who have claims for rent due them, that they may be enabled to recover the same; and'in order to effect this, the act of assembly has declared and directed the course of proceeding just as the statute of 8 & 9 Will. 3, c. 11, s. 8, has done in all cases of plaintiffs suing for penalties upon bonds conditioned for the performance of collateral acts. The direction in the latter has been held, as shown above, to be compulsory on plaintiffs in such cases: and why shall not the direction in the former, which is quite of as general concern, be regarded as compulsory upon landlords in all cases of distresses taken by them for rent. Though the act was passed for the benefit of the landlord entirely, yet it may be said to have been made for the benefit of the tenant in some respects as well as for that of the landlord: because if it were not to be held compulsory on the landlord to make sale of the distress, it would be putting it in his power and discretion to deprive the tenant of all advantages which he might possibly derive from a sale being made as soon as the direction contained in the act would admit of it. For instance, if the landlord is not bound to proceed and make a sale of the goods dis-trained, which, say, are perishable, but at liberty to retain them as ' a pledge, beyond that time, until they shall be redeemed by the tenant’s paying the rent, and they happen to perish or are destroyed without any default on his part, after the time when he might have sold them and had his rent thereby paid, then he may take another distress or sue the tenant for the rent. Doct. fyStud. page 13. Dial. 1, ch. 5, page 193, 194. Dial. 2, ch. 27. Vaspor v. Edwards, (12 Mod. 663.) Dyer, 280, b. The advantage which would have resulted to the tenant in such a case is obvious, if a sale had been made: and it is not a satisfactory answer to say that the tenant might have redeemed, because he might not have been able; or at least not so without making a sacrifice equal to his ruin. To allow the landlord, therefore, a discretionary power under the act to sell the distress, would in some instances enable him-to make an oppressive use of
Judgment reversed; and a venire de novo awarded.