Hazen v. Culbertson

The opinion of the court was delivered by Sergeant, J. The object of the act of April 3, 1830, is, to enable landlords to recover possession of the premises demised, in cases where the rent is not paid, and there is no sufficient distress on the premises. The only judgment which it directs to be rendered by the justices is, a judgment that the premises shall be delivered up to the lessor, and the writ of possession is for that purpose, and to levy the costs. No judgment is rendered by the justices for the rent in arrear; nor does it authorize it to be levied; although the amount is endorsed on the writ of possession, it is merely to enable the tenant, by paying it with the costs, to supersede the writ of possession. In the case before us, the justices adjudged, that the premises should be given up to Culbertson by Chapman: but they also found the rent due to be 56 dollars 68 cents, which it was not regular for them to do under the act, though perhaps the rest might be considered good and this part void. Chapman then appealed, and gave recognizance with the defendant as bail, conditioned in the words of the act, that if the judgment be affirmed, they would pay all costs which had or might accrue, and also all rent which had or might accrue up to final judgment. On the trial of this in January 1836, the jury being sworn, were discharged by consent, and Chapman confessed judgment for 44 dollars 73 cents, the amount of arrears of rent due December 1, 1834, and not embracing the rent accruing after that, and becoming due after [396] December 8, 1834; the confession to have the same effect as if a verdict had been rendered for the sum confessed. The court rendered judgment for 100 dollars 40 cents, and costs in the suit. It cannot be said, under this appeal, that the judgment was affirmed. No judgment was given upon it such as the law contemplates, for the possession of the premises. On the contrary, that was waived by consent of the landlord; the tenant was suffered to remain in possession, and a judgment taken as if on a verdict for the amount of the rent and costs only. This was not an affirmance of the judgment contemplated by the act, nor the really effective one rendered by the justices, viz. for the possession of the property, but on the contrary, a substitution for it of a recovery of a sum of money due for rents. We think the judgment confessed is not that contemplated by the act of assembly, but only a part of it; and however the landlord may have thought it his interest to take the money and leave the possession undisturbed, it cannot be said that the judgment before the justices is affirmed, but on the contrary, another thing taken in lieu of it, not in violation of the recognizance, and for which the bail is not responsible. Judgment reversed.