Hunter v. Le Conte

Curia, per Savage, Ch. J. 1. As to the demurrer. The defendants, no doubt, have a right to shew that the plaintiff’s plea is defective in substance. The objection taken by the judge was, that the tender should have been [730] on the land. Another exception is now taken, to wit: that the plaintiff did not say he was always ready after the tender, and bring the money into court. There are authorities which say, that when rent is payable on a particular day, it must be demanded on the land ; and also that a tender on the land is good, and prevents a forfeiture. (Co, Lit. 201, b. 211, a.) But Hargrave, in a note on this subject, states that a tender “ to the lessor himself, either upon, or out of the land, is good.” In The Six Carpenters' case, (8 Co. 292,) it is said, “ tender upon the land, before the distress, makes the distress tortious; tender after the distress, and before the impounding, makes the detainer, and not the taking, wrongful; tender after impounding, makes neither the one nor the other wrongful; for then it comes too late.” The same doctrine is found in other books. In Woodfall, 315, it is said a distress must not be made after tender of payment. These authorities say, that tender on the land is good, even when the landlord comes to distrain ; but it does not follow, that it is not also good off the land. I cannot see how the place of a tender, after a default by the tenant, can be material. If the rent is tendered in any place, to the landlord, he can ask nothing more ; and a distress becomes not only unnecessary, but vexatious. In Slingerland v. Morse, (8 John. 476, 7,) the court say, “the general rule is, that if no place be appointed for the payment, or performance, a tender to the person is good; and this too, in cases in which a personal tender was not required, as of rent issuing out of land.” Cropp v. Hambleton, ( Cro. E. 48,) is a direct authority, that tender off the land is good. The next objection to the plea is, that there should have been an averment of tout temps prist. This objection is well answered by the plaintiff’s counsel. The question is, not as to the debt which is tendered ; but as to the regularity of the distress. Suppose the money were brought into court; what effect could that have on the cause ? The question here is, whether the defendants were not trespassers ? The precedents referred to in Chitty, (2 Chit. [731] Pl. 633 and 498,) shew that, in replevin, no such averment is necessary, though in covenant it is. And the reason I apprehend to be, that a tender takes away the right to distrain, till a subsequent demand and refusal. But a tender does not take away a right to prosecute on the covenant. It only prevents the recovery of interest and costs. In French v. Watson, (2 Wils. 74,) no tender was pleaded ; but only a readiness to pay, which the court say is not issuable. In Horn v. Lewin, (1 Salk. 583 ; 1 Ld. Raym. 639, S. C.) it was determined that a proferí of the money was not necessary in replevin ; and in that case, the money was brought into court and accepted ; but all was held superfluous, because the question was, whether the distress was rightful. In my judgment, therefore, the plea is good. I can see no fault in the replication in point of form. It protests the tender, which, as to this cause, admits it; because it is not denied. But other matter is set up, which it is supposed avoids the tender, to wit, that costs had been incurred which should have been paid. From the cases cited, it seems that a tender of the rent before an actual distress, renders the distress unlawful, but the case of costs incurred is not attended to. It is highly reasonable that costs should be paid, when they have been properly and fairly incurred. The rent Was due on the lsi of February. The affidavit was filed on the 14⅛, the tender on the 16iA, the distress w,as on the 20th. Before the tender, a warrant had been made to a bailiff. Our statute directs the retaining of the charges in case of sale. (1 R. L. 435.) A fair construction of the act, I think, must entitle the party distraining to his lawful costs at any time, after they have been incurred. It seems to me, therefore, that the replication is good, both in form and substance. If I am right in my conclusion, the judgment of the court below, upon the demurrer, must be affirmed. 2. The only remaining question, is that arising on the bill of exceptions. By the act already referred to, no land [732] lord shall distrain the goods of his tenant in the city of New-York, unless he, or his agent, shall “ make an affidavit before a justice of the peace, or other magistrate in the said city and county, authorized by law to administer oaths,” &e. It does not appear by the affidavit, that H. Abell was a magistrate authorized to administer oaths ; nor was the fact proved or offered to be proved, or disproved, in the court below. It is fairly inferable, that the fact of his being a justice was conceded. But it was contended that his official character should appear affirmatively. We think that the fact of Mr. Abell’s taking an affidavit, and of the clerk’s receiving and filing it, were, prima facie, sufficient; and threw op the other side the burthen of proving the want of authority. The judgment must, therefore, be affirmed. Judgment affirmed.