Scruggs v. Gibson

McCay, J. 1. The affidavit that the defendant is “justly indebted,^ amounts to an affidavit that the debt is due. It is the form prescribed by law to make such an affidavit in cases of attachment, and it was sufficient to hold defendant to bail as for a debt due: Rev. Code, secs. 3200, 3341. 2. We see no reason why one administrator may not make the affidavit. One tenant-in-common might distrain in the name of all at common law: Archbold L. & T., 110; and one administrator may verify a bill or bring a suit in the name of both. Besides, the oath may be by an agent, and surely one administrator is the agent of the other at least, for such a purpose as this. 3. Nor is it necessary to describe the land out of which the rent issues. The statute does not so require. This is a summary process, and the very intention of it is to waive forms and particularities, looking only to the issue, to-wit: that there is money due for rent. Perhaps if the rent were not due, there might be some such description necessary, because it only lies in such a case where the tenant has removed, or is removing his property off the premises: Revised Code, sec. 2259. 4. The whole of the difficulty as to the admissibility of the statement, as to what the witness, William Gibson, told his brother and the subsequent admission of the brother grows out of a total misconception. We see no objection to Judge Gibson stating, as evidence of the correctness of his memory, that he told his brother so and so just after the [517] thing transpired. It is no evidence of what did transpire. That depends on the oath of the witness. This is but his reason for thinking his memory correct, and is nothing more than the frequent statement of witnesses that they are sure they remember correctly, because so and so. 5. If the defendants see fit to take issue as to the faithfulness of the witness’ memory, and ask him if he has not, on a former trial, given a different version, not of the fact in dispute, but of what he told his brother, and on his saying no, undertake to show that he has given such different version. We see no objection to showing what he in fact did tell his brother. It goes to show that he did not state the matter on the former trial as was contended. Nothing is more common than for one to say., I know I did not say so and so, because it was not true, and I could not have said if. None of this evidence, on either side, was evidence on the matter in dispute between the parties. It was only legal at all, because there arose a collateral dispute as to the correctr ness of Judge Gibson’s memory. The whole of it was pertinent and competent to settle that issue, otherwise it was worthless and immaterial. 6. The principal point upon which this case turns is the charge of the Court that a distress-warrant will lie in Georgia on an implied contract for rent. Undoubtedly it was the rule at common law that a distress-warrant will not lie unless the rent be for something certain, or for that which may be made certain: Archbold Land. & Ten., 106. But there may be an implied contract for a sum certain. As if A let B have $10 00 in money, the law implies a contract to pay back $10 00. So if a' tenant, at a fixed rent, hold over, the law implies that he will pay the same rent the second year: Archbold Land. & Tenant, 65. Or if he go in as a tenant and nothing be said about the amount of the rent, if he pay one year, the law implies a contract to pay the same rent for other years : Knight vs. Bennett, 3 Bing., 361. Or if he go in on a lease fixing rent, which lease is for any reason void, the law implies that he will pay the amount mentioned in the lease: Clayton vs. Blackley, 8 T. Reports, 3. And [518] in these latter cases it was held that the remedy by distress existed. Here there was an express agreement that Scruggs should have the land; he was no trespasser, not even a tenant-at-will, or by sufferance, but a tenant for the year. That is admitted 'by both parties. It was in proof that the custom was to pay one-third of the corn and one-fourth of the cotton. It is admitted that if that had been the express agreement distress would lie, because it may be made certain what the rent is; and this is supported by the authorities. It is clear from the cases above referred to that it is no objection to the rent that it is under an implied contract, provided it be implied for a sum certain, or for a thing that may be made certain. We think, therefore, as in this case, the custom was proven that the law implies the tenant should pay according to the custom, to-wit: one-third and one-fourth, and as this may be made certain, that it is sufficient, even at common law, for a distress. But we do not put our judgment in this case upon the sole ground that under the facts as they appeared before the jury, the plaintiff below had a right to distrain at common law. We hold that the common law rules regulating distresses for rent are not of force in this State. By the \ Act of 1810, it was expressly enacted that distress-warrants were abolished, and rents, should be collectable as other debts. Previously to that time the old common law right of the landlord to seize the property of the tenant, with the restriction placed upon it by various English statutes in force at the time of our adopting Act, was in full force in this State, but by that Act (1810) the whole thing was repealed, and the landlord was left to the use of such remedies as were provided for other creditors. In 1811, Prince’s Digest, 687, an Act was passed “For the collection of rents.” That Act has been transferred, word for word, into the Code, sections 4010, 4012, and has been the law of this State from its passage until now. It is true, it calls the process, which it authorizes the magistrate to issue, a distress-warrant, but an inspection of the Act will show that it has but the slightest shade of a resemblance to the proceeding [519] known in England by that name, which was completely swept from our law by the Act of 1810. The common law distress had the following characteristics: 1st. The landlord himself, of his own motion seized the tenant’s property, or he appointed abaliffor agent of his own to do it. 2d. The distress could only be made on the land rented, and whilst the tenant remained in possession. 3d. It must-at common law be made during the term, or in six months after its expiration. Archbold, 112. 4th. No property could be seized, except such as was on the premises, and if the tenant should remove any property, it could not be seized. Archbold, 113. 5th. Any property could be seized if found on the premises, whether it belonged to the tenant or not, except in certain special cases, for the benefit of trade.' Arehbold, 114. 6th. The relation of landlord and tenant must in fact exist, by either express or implied contract. Archbold, 106. 7th. The rent, reserved or implied, must be certain, or be capable of being made certain. Archbold, 106. A want of either of the above requirements was fatal to a distress at common law, and each of the circumstances mentioned was incident to the right. Archbold, 106-116. By our statute of 1811, but one of these l’equisites is necessary; the relation of landlord and tenant must exist. It must be for rent. By the Act of 1811, the distress must be made by a constable or sheriff, on a warrant issued by a magistrate, on the oath of the person claiming the rent. The section of the Code is as follows : “ Any person who may have rent due, when the sum does not exceed fifty dollars, may, himself, his agent or attorney, make application to a Justice of the Peace, within tbe district where the tenant may reside, or where his property may be found, and obtain from such Justice a distress-warrant for the sum claimed to be due, on the oath of the principal, his agent, or attorney, in writing, for said rent, which may be levied by a constable duly authorized, on any property belonging to the tenant, whether found on the premises or elsewhere. Revised Code, section 4010. The language of the Code is, any person having rent due. [520] The landlord cannot distrain. He can only by his oath procure a distress-warrant from a magistrate, to be executed by an officer. The levy may be made on any property of the defendant, wherever found. It need not be on the land, nor can the levy be on any property belonging to other persons; nor is it necessary that the tenant be in possession. It need not be during the term. Nothing is required by this Act but that it shall be for rent and be due. The statute does not'say it shall be due by an express contract, but simply due. It does not say it shall be for a sum certain, but simply that it shall be due for rent. It is in fact nothing but a mode of commencing a suit for a debt due for rent. The only requisite is that it shall be for rent due, and even that, by section 2259 of the Code, is not essential, since there may, under certain circumstances, be a distress-warrant issued when the rent is not due. It appears absurd, when every other peculiarity of a common law distress is done away, to insist that the distress can only issue when the rent is for a sum certain, expressly agreed upon. The statute does not so require. It simply says rent due, no matter whether by express or implied contract, no' matter whether it is a fixed sum, or due on a quantum valebat. Indeed, the section of the Code immediately preceding distinctly recognizes the idea, that retó may be due on a quantum valebat. Since, in proceedings against a tenant holding over, it authorizes a judgment against a tenant-ai-will, when no amount has been agreed upon, for double the amount the property is proven to be worth as rent. We hold, therefore, that under our law, nothing is required, except that there shall be rent due. The relation of landlord and tenant must have existed during the period for which the debt is claimed. In this case, that is admitted. Scruggs was not a trespasser. He held the land under Gibson. If under that holding there is rent due, this proceeding is well founded. And we affirm the judgment of-the Court. Brown, C. J., concurred, but wrote out no opinion.