Wilkins v. Taliafero

McCay, Judge. The question made in this case is whether the rent claimed by the affidavit is sufficiently certain to authorize a distress warrant. As to the four and.a half bales of cotton, each bale weighing five hundred pounds, and first-class in quality, which is alleged to be worth $528 75, it is admitted that this comes within the rule laid down in Seabrook’s case, 39 Georgia, 14, and which is well established by the authorities. But it is said that the promise to “ fix the kitchen ” which had been damaged by fire, and which it is alleged, in the affidavit, was worth $200 00, is so uncertain as to make the warrant void. We do not see any very material distinction between the cotton and “fixing the kitchen.” As to both, proof is necessary to get at a certainty. The value of the cotton must be proven, as well as the value of “fixing the kitchen.” Cotton, it is [211] true, has a market value, and its value is somewhat easier proven. But the authorities, even at common law, do not confine the rule to cases where the value of the thing promised to be done by way of rent has a market value. A promise to do so many days’ ploughing, to shear the sheep in the landlord’s pasture, have been both held sufficiently certain: 2 Blackstone’s Com., 41; 1 Coke on Lit., 96, a. In Baggs vs. Manby, 8 Exchequer Reports, 649, the rent was “ cleaning the parish churchin Dawson vs. Cross, 1 C. B., it was “ ringing the church bell.”' Why cannot the expense of fixing the kitchen be as definitely fixed by proof as the value of the “cleaning” or “ringing” in the cases referred to, or as the worth of the shearing or pasture of the sheep. We think therefore, that even “the fixing the kitchen” may be made certain, and is therefore rent. As a matter of course, this must be agreed to be done as “ rent,” and not be a mere shifting from the landlord to the tenant of the duty to repair. The thing must be agreed to be done as rent — that is, it must be for the use of the land. It need not be money, or that any other thing shall be delivered. It may be of something to be done — -just this case, and if the value is susceptible of proof, distress lies — it is rent. Judgment affirmed.