Giles v. Ebsworth

Tuck, J., delivered the opinion of lilis court. The first exception in this record relates to the authority from Sirs. Ebsworth to Mortimer, under which the distress was laid, it being contended, on the part of the appellant, that it did not authorize the collection of rents due at its date. The paper does not, in terms, coniine Mortimer to the collection of such rents as might arise under leases lo be made thereafter by him, but confers power to receive rents generally, and to use means to that end as fully as Mrs. Ebsworth herself might employ. We agree with the court below, that it was sufficient for the purpose for which it was offered in evidence, that is to say: to prove Mortimer’s authority to act, in this case, as her agent. The second exception was taken to the admissibility of a deed from Mrs. Ebsworth to Mortimer, dated in 1839, for the property demised, offered by the appellant “for the purpose of showing, that at the time of making the distress the avow-ant had not the legal title to the premises, and therefore could [344] not distrain.” A tenant cannot dispute the landlord’s title, though he may show that it has expired. This deed was not offered for this latter purpose, on the concession that the title was in the appellee at the time of the lease.' Its effect, according to the appellant’s construction, would have been to deny her title at that time, as well as on the day of the distress; and was properly rejected. We express no opinion on the construction of the deed, but dispose of this exception on the hypothesis, that it passed the title to Mortimer. The plaintiff below offered eight prayers, all of which were refused, except the first. The second, third and eighth, relate to the note of Tucker, taken by the appellant’s agent, for one quarter’s rent. It is clear, .that taking security does not forfeit the remedy by distress. Act of 1842, ch. 208. The promissory note of the tenant ought not to have any greater effect than that of another person, or any other security passed by him to the landlord. What difference can it make to the tenant, that his note is discounted, provided it be in the hands of the landlord to be surrendered at the proper time? It appears to have been taken for the tenant’s accommodation, and could only operate as a suspension of the other remedy until it became due. When, a party taires a negotiable instrument* we are not to infer a collateral agreement, that the holder is not to use it. The law makes no such presumption. Why change the form of the transaction at all, if the party was not to have such benefit from it, in its new form, as he might derive from other paper of the same kind? It was the tenant’s duty to have paid this note himself. As he did not, and it was taken up by the agent of the appellee, the remedy by distress was properly resorted to. There was no agreement that it should operate as satisfaction, nor any evidence legally sufficient to warrant that inference. It was in possession of the avowant, at the trial, and tendered to the appellant, and that is all that the law requires. The refusal of these three prayers is therefore affirmed. The fourth prayer was properly rejected, because there was no evidence tending to show, that all the rent had been remit [345] ted by Mortimer to the avowant. The only evidence on the point, related to part of the quarter’s rent for which the note was given. The fifth prayer has been treated by the appellant’s counsel, as if it related to the warrant to distrain, and the proceedings in pursuance thereof. We think it might as reasonably apply to the authority under which Mortimer acted as agent, and, for its uncertainty, was well refused. The sixth prayer presents the question, whether, when a warrant to distrain is directed to a sheriff, he may execute it by one of his sworn deputies? It has been the practice to employ sheriffs and constables for this purpose. The act of 1825, ch. 21, authorises the latter officer to act, and allows him the fees paid to sheriffs for similar services, which would seem to recognize the sheriff’s authority in such cases. But, asidefrom this view of the question, the landlord may direct his warrant to a bailiff, and if he cannot find any person to act in that capacity, is his remedy to fail? Before the act of 1834, ch. 192, he might have executed his own distress, but now a warrant is required, which we understand to be a denial of the landlord’s right to act for himself. The remedy being given in terms, by the act, and no person being specified who is obliged to act for the landlord, there may be a necessity for directing the warrant to an officer of the law, and if such officer has deputies known to the law, their acts done in his name must be taken as his acts. Besides, the act of 1834, recognises sheriffs, constables and bailiffs, as competent to levy these warrants. The seventh prayer submits to the jury, to find that the appellant became tenant of the premises, in consequence of the misrepresentations or wilful silence of Mortimer, as agent, when there ia no such evidence in the cause. And it also assumes, as law, that so long as any goods of Tucker were on the premises, the property of Giles could not be distrained. The landlord’s remedy is not confined to the goods of his tenant; he may take any on the premises, not exempted by law; and there is nothing to show a right of exemption in this case. [346] For these reasons we think the court ruled correctly, iu rejecting the above prayers of the appellant. The avowant also offered a prayer, which we are of opinion ought not to have been granted. It was decided in Joynes vs. Wartman, 5 Md. Rep., 195, that the distress proceedings authorized by the act of 1834, are void, unless the provisions of the act are complied with. The warrant and proceedings are facts to be found by the jury, and they must appear to be correct. Iu this prayer the jury was not required to find whether there was any warrant, or other proceedings under the distress, but every thing is assumed to have been done which the law required. We cannot overlook .defects of this kind. Such has been the law of this court for many years, and numerous cases have been determined on similar grounds. For this reason the judgment must be reversed, and the cause remanded under a procedendo. . In thus-disposing of the case, it becomes immaterial whether the record be amended or not, for, upon the new trial, it will be competent to the parties to supply the missing account and affidavit, on proving the loss of them. Judgment reversed and pi'ocedendo awarded..