101 Pa. 219 | Pa. | 1882
delivered the opinion of the court, November 20th 1882.
It appears that after deducting the tenant’s bill for carpenter work, the balance of rent in arrear was about $160, for which amount the landlord issued his warrant and distrained. The tenant thereupon commenced proceedings before a justice of the peace under the 20th section of the Act of 1810, Purd. 849, pl. 33, to compel the landlord to defalcate or set off, against the rent distrained for, the claim of the former for unliquidated damages. The suit thus commenced was so proceeded in, first before the justice, afterwards before arbitrators, and finally in court, that a special verdict was rendered, finding for the landlord, “ defendant the sum of eighty dollars, that being the amount, balance of rent due after deducting defalcation.”
The sum that was equitably due from the tenant to his landlord at that time was, of course, settled by the special verdict, but did it determine the amount for which the latter had a right to distrain when he issued his warrant? He contended that it did not; and, for the purpose of obtaining the opinion of the court on that question, he submitted several propositions, the refusal of which has been assigned for error. In the first point the learned judge was requested to say, that,-“under the evidence and admissions in this case, the claim made by Spencer for rent, for which distress was levied, was not larger than the amount actually due, unless the amount claimed by way of set-
We think therefore that the learned judge erred in not affirming the propositions of the defendant below, and in not holding that the claim for unliquidated damages, which was settled in the defalcation proceeding, had nothing to do with the question whether the landlord distrained for more rent than he then had a right to collect in that form of proceeding.
It is contended however that the court found there was only “ Eighty dollars rent due and owing,” when the distress was made; and, that this, as a finding of fact, is conclusive. We do
From what has already been said it follows that the seventh and eighth assignments of error should also be sustained.
Judgment reversed.