Kessler v. M'Conachy

The opinion of the court was delivered by Rogers, J. We agree with the Court of Common Pleas, S( That the property of a stranger, found on the premises, is liable to distress by the landlord.” And this on the authority of O’Donnel v. Seybert, 13 Serg. & Rawle, 57. Weidel v. Roseberry, 13 Serg. & Rawle, 180, grounded on the principles of the common law; and, as we think, the proper construction of the act of the 1st of March, 1772, entitled an act for the sale of goods distrained for rent, &c. Where the goods of a stranger are taken for rent, the tenant will be liable over, and the measure of damages will be, the loss sustained by the sacrifice of property, and in this ease, the costs of the replevin; and this is a sufficient answer to the second bill of exceptions, whether the tenant is a competent witness in the action brought by the stranger. He would not be equally interested, as argued at the bar, but his interest would be greater in favour of the plaintiff in replevin. 13 Serg. & Rawle, 57. The plaintiff in error has taken seven exceptions, all of which, it will be unnecessary particularly to consider. We shall content ourselves with citing a single authority, and observing, that the fifth and seventh exceptions have not been sustained. Weidel v. Roseberry, 13 Serg. & Rawle, 178. The points principally relied on, are those embraced in the third, fifth, and sixth, exceptions. — 441 — The defendant in replevin offered in evidence what he called his book of original entries, accompanied by his; own oath,- and the oath of David Milliken, Esq. 'The defendant, MlConachy, being sworn, says, “This is my book of original entries. My journeyman made the entries, some of them on a slate. He gave it in, may be, made, the same evening; Don’t think any as long as two weeks, I suppose less than two w'eeks. Some of them made the same evening, 'or next day.' Some of them in the week; some done by myself.” , ' David Milliken, Esq. says, “ I don’t recollect the book. This account was before-me.on the question of rent I think he, (M‘Cona~ ehy,) then said, that' some he entered off the slate, dnd some might have stood near a couple of weeks.” "Several objections occur to this evidence. The entries were first made by the journeyman on a slate, and if they had been copied by him in a reasonable time, and proved- by his oath, there would have been no objection to the testimony; or, if M‘Conachy had made the entries,’ and had afterwards copied them in the book, it might have been deemed sufficient. And this would have been extending the principle as far as good policy requires. It was, however, copied by M‘Conachy, not immediately, nor on the same evening, but some of the items may not have been entered for nearly, two weeks after the work is alleged to have been done. Vance v. Fairis, 1 Yeates, 321. The defendant relies on his own oath, without producing the journeyman, or accounting for his absence, by which he deprives the plaintiff of the benefit of a cross-examination, and the possibility of showing from his testimony, that the work had not in fact-been done. The defendant, as it would appear, derived his knowledge from the entries on the slate, from which he extracted the charges In the book. The admission of the oath of a party, to prove a book of original entries, is from necessity; and. where the necessity •does not exist, to avoid abuse, it'should be received with caution. The entries should have béen made, and transferred on or about the time the work was, done; and it was incumbent upon the plaintiff to distinguish the items that were so made. To admit in evidence, entries after a week of more, would necessarily cause mistakes, and might be the means of great fraud. Books, of original entries are, at best, but dangerous evidence, and we think, call for more . clear proof than has here beén given. It is said, there was error in instructing the jury, that the eviction of the tenant by the landlord, suspended the last month’s rent, and no more. In this we perceive no error. The property was leased for a year, the rent payable monthly, and the eviction took place the day before the lease expired. The general principle is, that if .a lessor enter upon the lessee for life, or years, into'part, and thereof disseise, or put out the lessee, the rent is suspended in the whole, and shall not be apportioned for any part. Co. Litt. 148, b. An interruption in the enjoyment of the premises demised, will — 442 — suspend the rent. 4 Dall. 125. 4 Cranch, 299. Com. Dig. title Rent, C. 4. Com. Dig. title Suspension, D. 1 Yeates, 176. Gilb. on Rent, 179. Gilb. L. E. 270, 283. 4 Binn. 369. , Where the lessee takes a lease of part of the land, or enters wrongfully into part, there are a variety of opinions, whether the entire rent shall not be suspended during the continuance of such lease, or tortious entry; and in the last case, it seems to be the better opinion, and the settled law at this day, that the tenant is discharged, from the payment of the whole- rent, till he be restored to the whole possession, that no man might be encouraged to injure or disturb his tenant in possession, whom, by the feudal law, he ought to protect and defend. 4 Bac. 369, title Rent, letter M. Thus it Will be perceived, that where the lessor énters on a part, the éntire rent for the whole premises is suspended; and the reason given is, that the rent cannot be apportioned. In this case, the entry was on the whole, but the rent had been apportioned by the parties, so that the question remains, how far the doctrine of suspension extends; whether it embraces the rént for-the year, or the last month, which was not then due. ■ The suspension of- the rent is intended as a punishment, and operates in the nature of a forfeiture, so that we do not feel inclined to extend it further than the adjudged cases. On a careful search, I do not find any case in which the precise point has occurred;,we, therefore, feel ourselves at liberty to give the rule such a construction as may. be most reasonable. We are of the opinion, that the court were right in confining the suspension of the-rent to the month not due. As the rent was payable monthly, the landlord-might distrain at the end of each month. To extend the principle further, might, in some cases, operate as a most grievous penalty; as where there was a lease for five years, the rent payable annually, but remaining unpaid, and an eviction, perhaps, through mistake, the last day on which the lease expired. The landlord’s warrant was dated the 30th of March, 1824, and the distress was made the 31st of March, on. which the constable levied a stove and pipe, which is the plaintiff’s cause of action. On the 1st of April, 1824, the tenant, in pursuance of the twentieth section of the act of the 20th of March, 1810, .entered a proceeding to compel the landlord to defalcate, or set off an account; which he-alleged he had against the landlord. Qn hearing, the justice decided,' that there was •no rent due to McConachy, and that he was-indebted to Bombaugh, the tenant, four dollars and forty-eight cents. The plaintiff in replevin having replied, to the avowry, no rent in arrear,- offered the record in evidence. ■ In general, no one can be bound by a verdict or judgment, unless he be a party to the suit, or be in privity with thfe party, or possess the power of making himself a party. For.it is said, and with the utmost justice, that he should not be bound by the result of an inquiry to which he was altogether a stranger. And this is said to. be universally acknowledged, and is certainly supported by a host of — 443 — authorities, which I do not, intend to controvert. I also concede, that it is a general, but by no means a universal rule, that a verdiet shall not be used as evidence against a man, where the opposite verdict would not have been evidence for him; or, in other, words, the benefit to be derived from the verdict must be mutual. . And the reason given for the rule is, because, if he be an utter stranger to the fact, it is perfectly res now»,, between him and the defendant; and, if it be no prejudice to the plaintiff, had the fate of the verdict been as it would, he cannot be entitled to seek a benefit, for it would be unequal, since the cause is a new matter between the parties, that the jury should be swayed by any prejudice; (Gilb. L. E. 1 Starh. 195, in note;) and because the former verdict may have been obtained upon the evidence of the party, who seeks to take advantage of it. That these are general rules, there can be no doubt, and if this case comes within them, the evidence was properly rejected. In assigning the reasons, which induce the court to differ in' opinion from the Common Pleas, it will be necessary to attend to the relative situation of the parties. The plaintiff’s goods were taken to satisfy the rent alleged to be due, because being on the premises at the time of the distress, the law presumes, (which presumption, from motives of policy cannot be rebutted,} that they are the goods of the tenant. The plaintiff concedes this, and pleads, no rent in. arrear; and alleges, that the matter has been tried by a court of competent jurisdiction, of which, he offers record evidence; which is opposed, because it is res enter alios acta, and ■on the ground of a want of mutuality. It is contended, that it ought to be admitted as the evidence of a fact, and an adjudication in rem. We do not consider the -plaintiff in replevin a stranger to the controversy between the landlord and tenant; on the contrary, the issue between them was one in which he was materially interested; for if there was no rent in arrear, there was no pretence on which his goods were liable to seizure. If Kessler had been offered as a witness before the justice, would any person say he would have been a competent witness? And, upon what other principle would he be rejected, than because he was interested in defeating the landlord, and by this means, relieving his goods from distress. You. cannot sepaparate their interests; for, unfortunately for- Kessler,.they are embarked in the same bottom. We will now proceed to show some cases, where; merely be-' cause they are engaged in the same transaction, although not parties to the judgment, these general principles have been thought most to apply. Thus a suit on a joint and several bond, against each of the obligors, á verdict and. judgment for one, which are offered in evidence, or pleaded in favour of the other; upon what principle is this a defence; but because, although hot parties to the suit, they are so far interested in the same transaction, as that a verdict and judgment for one, is conclusive'for all. But, reverse'the case, and suppose the verdict and judgment for the obligee, if evidence — 444 — at all, which is questionable, it certainly would not be conclusive. And here it might be' argued, there would be a want of mutuality. In an action, by A. against B., to recover damages, for the value of a slave sold by B. to A., and who had been recovered' by a paramount title, by C. from A., the record of the action between C. and A., is evidence of the fact of eviction, and, of the damages; but, as is said, -not of C’s. title. Saunders v. Hamilton, 2 Hayw. 226, 282. Blasdale v. Babcock, 1 Johns. Rep. 517. Tyler v. Ulmer, 12 Mass. Rep. 166. So, also, if suit be brought against the sheriff, for an escape, and a-verdict for the defendant, in an . action on the recognisance, the verdict would be evidence for the sureties. . - ' It was hot contended, that the record was conclusive'; but,prima facie evidence 6f the fact, of no rent in,arrear. And, in this view, the case of Carmack v. The Commonwealth 5 Binn. 184, is an authority, which has,an essential bearing on the question. It is there decided, that a judgment, in an action' against the sheriff alone, of which his sureties had no notice, is prima facie, although not conclusive evidence, as to-the amount of damages in a subsequent suit, upon- the recognisance, against the- sheriff and fiis sureties. And surely, if it was evidence against them, it would be evidence for them, in the event of a different finding, and this would, I conceive, be this very cáse. The record of' a recovery in ejectment, against a covenantee, is not conclusive evidence against the covenantor, if he had no, notice of the ejectment. Leather v. Poultney, 4 Binn. 356. It was not disputed, but that it was prima facie evidence.' , . It is said, the judgment was properly rejected, ás being.res inter alios acta. This I do not understand as.confined to judgments, and if it should be construed to extend to’ every transaction between the landlord and tenant, (and it is difficult to draw the distinction,) it would leave- the stranger without remedy. It will hardly be contended) but that the declarations, or admissions of the landlord to his tenant, would be evidence; and if a settlement had taken place between them, the stranger might avail himself of it, and yet it would be liable to the objection of being res inter alios acta. A settlement may be given in evidence, but according to the argument of the defendant in error, a -judgment confessed upon that settlement cannot. If a landlord recovers judgment, issues execution, and levies the rent by due course of law, it would be singular if the legal satisfaction would not be evidence in a suit between him, and a stranger, on whom he had distrained for the' same rent. What-are the consequences of the- doctrine? If .the tenant had brought the replevin, which 'he might, the record would have been concluclusive on the plea, of no rent in arrear. But by, excluding the record, you énable the' landlord to recover the rent, although it has already been decided by a court of competent jurisdiction that none was due, in a suit in which he had full opportunity of being heard, — 445 — and where there has been an express adjudication, upon the very matter in controversy. One of two - consequences must necessarily follow; either the plaintiff is without remedy, or he must bring suit in which he may recover not -only the amount of the rent, but his damages and costs.. The landlord, effects that indirectly, which he has failed to do in a suit between - himself and his tenant. This 'would give an opportunity for collusion between the tenant and the landlord to defraud the stranger, or- for collusion between the stranger and the landlord to defraud the tenant. The truth is, they are such privies in interest, as to- bring them strictly within the exception to the general rule. The testimony..is not liable to the objection, which always struck me as the most forcible, that the judgment may have been obtained upon the evidence of the party who seeks to fake advantage of it; for Kessler would have been incompetent on the ground of interest. It does not come, within the rule res inter alios acta, as that applies to a stranger, which he is not, inasmuch as he has a direct and immediate interest in the suit; nor will the objection of a want of mutuality avail the defendant in error, as although good as a general rule, it is by no means without exception. Evidence may frequently be giveq against a party, which cannot be heard in- his favour.' All that has been heretofore contended is, that the record was prima facie evidence. There is, however, a class of cases, which it resembles more in principle than the general rule, to which it has been likened. It is an adjudication' in rem,. upon the precise point in dispute, between the real parties.,the landlord and-tenant, which binds, not only them, bat all who. stand in the relation of privies in blood, or estate, or privies in law. It is not essential, that either the parties, or the form of action, should be. precisely the same; if they are substantially so, it is all that is required. They are substantially the same for all legal consequences to the tenant; for it cannot-be doubted, that in' case the plaintiff in "replevin be bound to pay the rent, the tenant would be answerable over; and this is the principle we have, decided in this-case, and . with, as I understand, the assent of the whole court. If the landlord had dis-trained the goods of the tenant, he would have been estopped by the judgment; but, as he has thought proper to proceed against the goods of a slranger, it is contended, it is not'even prima facie evidence. The record is admissible on another principle. A judgment, as-> certaining a precise fact, character, Or privilege, is always evidence, whenever that fact, -character, or privilege, comes in question be* tween other parties. 2 Str. 1109. 5 Burr. 2601. 1 Burr. 146. 9 Mod. 66. 1 Stark. on Ev. 188. 7 Cranch, 318. The admissibility of the judgment, to prove the fact itself, and with a view -to its legal consequences, is on the ground, that every such judgment may be considered as operating in rem. 1 Stark. 188. The fact in issue was, that there was no rent in arrear, asserted by one, and denied by the — 446 — other; and it is no answer to say, that it goes the whole length of supporting the plaintiff’s action. It will be observed, that the plaintiff'in replevin does not insist upon the judgment as an estoppel, (which he might, it being substantially a trial between the tenant and landlord,) but merely offers the record as prima, facie evidence of the fact, of no rent in arrear. And what better, or more unexceptionable proof could there be of that fact; to what objection is it exposed ? The landlord had a full and fair tidal before a court of competent jurisdiction. He acquiesces, in the decision of the justice, and is estopped to deny the truth of the finding; and yet he contends, it is not even evidence in a suit where the precise point is in issue, between him and a person whose goods’were only liable because they were oh the . demised premises at the time of the distress. If this should be the law, in cases where it had been adjudged there was no rent due, the landlord will merely have to watch when the goods of a stranger are upon the premises, on which he may dis-train, and by this means, avoid the legal consequences of a judgment against him.