Appeal of Collins, Rockafellow & Co.

The opinion of the court was delivered by Read, J. Drake, the tenant, was clearly a competent witness, his interest being equal either way; and he proved the lease, and that the first half year was payable in advance; and, of course, the goods on the premises leased became immediately liable to distress, if the rent was not paid according to the terms of the contract. When, therefore, these goods were levied upon, and sold under an execution by the sheriff, the landlord was entitled to his six months’ rent, which was then due and payable in advance, out of the proceeds: Buckley v. Taylor, 2 Term Rep. 602; Harrison v. Barry, 7 Price 698; Anderson’s Appeal, 3 Barr 218; Beyer v. Fenstermacher, 2 Whart. 95. No claim for the benefit of the exemption law was made by the tenant, the defendant in the execution, and the waiver of exemption, in favour of the plaintiffs in the judgment, could not affect the superior rights of the landlord: Bowyer’s Appeal, 9 Harris 210; 8 Casey 160. We see no error in the decree of the court below. Decree affirmed.