Bromley v. Hopewell

The opinion of the court was delivered by Bell, J. — As early as 1727, it was decided that, under the proper construction of 8 Anne c. 14, the immediate landlord of a defendant in an execution was alone entitled to claim a year’s rent from the sheriff, before the removal of the goods. (Bennett’s case.) This rule, then settled, has ever since been adhered to in England, and is now the law of that country, as is shown by the modern case of Thorsgood v. Richardson, 7 Bing. 420. In this particular, our act of 1772 is a transcript of the British statute, and the act of 1836 differs from it only in the additional proviso that the goods and chattels taken in execution must be such as are “ liable to the distress of the landlord.” It is said, the language of this proviso is indicative of a legislative intent to confer the right to a year’s rent upon any of the lessors who might have distrained the goods of the tenant, and is, thus, introductive of a principle different from that which obtains under the statute of Anne. But, for the reason given by the auditor, we agree with him that the object of this provision is to exempt from liability to satisfy rent such goods as are commonly exempted from distress, but which would, without the provision, be subject to the payment of rent when sold under an execution; and not to create [403] a right, before then unknown to the law. We are to take it for granted the lawmakers were aware of the doctrine established by prior adjudications. If so, it is impossible to believe they contemplated a change so radical and important, without employing language better fitted to express it. The argument which favors an intended alteration proceeds upon the ground that the right to demand rent from the sheriff is, necessarily, a concomitant of the power of distress. But the decisions show that the one is not always dependent on the other. Though the right to demand does not, perhaps, exist independently of the power to distrain, the latter is not, of itself alone, sufficiently potent to give birth to the former. It would seem there must also be an agreement, express or implied, as the foundation of the landlord’s privilege to come in under an execution. And there is reason in this, of which the case before us furnishes an illustration. Hopewell rented but part of the whole premises from Dougherty and Souder, and yet the Messrs. Wright claim to receive the whole amount of rent reserved to them for the whole proyerty^ by their demise to Dougherty and Souder. Again, the Wrights agreed to pay to G-ratz $1500 ■per annum, while they leased to Dougherty and Souder for $1200. If the middle men are entitled to come in on the fund in the hands of the sheriff, so is the original lessor, and thus the tenant’s goods would be liable to pay not only what his immediate landlord agreed to pay, but larger sums contracted for by preceding tenants. These considerations show the propriety of adhering to the contract of the parties as the foundation of the right, and this will confine it to the immediate landlord. That is the basis upon which it is authoritatively held the British legislature proceeded, and no sufficient reason has been suggested to induce the belief that our legislature intended differently. It is not enough to say the preceding lessors might have distrained on the same goods for the whole amount of the rent due to them respectively, and, therefore, there is no harshness in making those goods subject, in the hands of the sheriff, for the same amounts. The answer is, that although, to a certain extent, the statutory claim of the landlord was intended as a compensation for balking his remedy by distress, there is nothing in the statute to show it was intended to be commensurate with the multiplications of the remedy which might be created by successive demises. Without, however, further elaboration of the argument, it may be sufficient to repeat that the, right was restrained to the immediate landlord by the interpretation at Westminster, and there is nothing to show an intent to introduce a different rule in this country. The view we have taken renders it unnecessary to consider the question whether the agreement between the Wrights and Dougherty and Souder was an assignment of the whole -term, or a sublease. In either case, they have no claim on the fund. Decree confirmed.