9 Wend. 302 | N.Y. Sup. Ct. | 1832
By the Court,
The principal questions presented are, 1. Whether the plaintiff was bound to declare as administrator of Lufbury to entitle him to maintain the action ; and 2. Whether the defendant could distrain, no fixed amount of rent having been agreed upon by the parties. It is well settled that an executor may maintain an action for an injury done to the goods of his testator, before probate or seizure, as the law adjudges the property of the goods in him, immediately on the death of the testator. He derives his title under the will. The property of the goods being vested in him, the right to the possession necessarily follows, and therefore the suit may be maintained in his individual right without declaring as executor. 2 Selw. 573, 4, n. 6. 1 T. R. 480. Toller, 46. 11 Vin. 132, pl. 22, 26. 4 Cowen, 90, 1. Cro. Jac. 113. This is an inevitable deduction from the fact of the existence of the right of property and possession consequent upon the executorship. It is the individual possession, actual or constructive, of the executor that is violated by the injury to the property, and the redress may be in the • same capacity. The administrator derives his authority to take the possession and control of the goods of the intestate from the letter of administration. Before this is granted, he has no right to intermeddle with the estate; but when granted, it relates back to the period of the death of the intestate. By means of this relation, which by operation of law vests the property and consequently the possession of the goods in the administrator, he may maintain an action for an injury to them after the death of the intestate, and before letters, the same as an executor, with only this difference : the latter may commence the suit immediately upon the injury being done, and before probate; the former cannot until letters of administration are granted. The ' right of the one accrues immediately upon the death of
The next question is, whether the defendant had the right to distrain, the amount of the rent not having been fixed or certain. It is said the services or rent for which the landlord or lessor may distrain, must be certain, or such as may be reduced to certainty, for otherwise he cannot in his avowry recover damages for the non-performance or non-payment, as the jury cannot determine what damage he has sustained. Co. Litt. 96. Bacon, 342, tit. Distress. 10 Johns. R. 91. 20 Com. Law R. 195. Bacon, tit. Rent. But if a tenant holds of his lord to shear all his sheep feeding in a certain manor, this is sufficiently certain, as it is easy to compute the number, and the expense to which he is subjected in employing others to do the service. At common law, distresses for rent in arrear could not be sold, but were detained as pledges to enforce the payment if in money, or performance if in services, Bacon, 349, tit. Distress; 1 Selw. N. P. 503; Bacon, tit. Rent; and these pledges were held until payment or performance, unless the tenant replevied, which shews sufficiently the reason why the rent should be certain, and the nature and degree of certainty requisite; for otherwise the tenant would be unable to tender payment or performance. If the rent is payable in money, he should be enabled to ascertain the sum to be paid ; if in services, the extent to be rendered. This he might do if he held for the service of a certain number of day’s work, ploughing, &c. or by any other service certain, or which could be rendered certain, as shearing all the sheep on his lord’s manor. This view affords a much moie satisfactory reason for the certainty required in the rent than the one gen
New trial denied.
