Wickey v. Eyster

The opinion of the court was delivered, May 20th 1868, by Agnew, J.

The settled interpretation of the 83d section of the Act of 16th June 1836, following that of the 4th section of the Act of 21st March 1772, has been that the rent for the current quarter or year, at the time of the levy of the tenant’s goods in execution upon the demised premises, although not then due, will be apportioned up to the time of the levy. If the goods are such as would be liable to distress, in case the rent were due, the landlord can claim this proportion of his rent out of the proceeds of the sale upon the execution: West v. Sink, 2 Yeates 274 ; Binns v. Hudson, 5 Binn. 505 ; Morgan v. Moody, 6 W. & S. 333 ; Anderson’s Appeal, 3 Barr 218; Case v. Davis, 3 Harris 80; Collins’s Appeal, 11 Casey 83. The words “ liable to the distress of the landlord” do not mean that the rent must be due and ripe for distress, but have reference to the liability of the goods themselves, as a subject of distress: Morgan v. Moody, supra; Bromley v. Hopewell, 2 Harris 402; Moss’s Appeal, 11 Casey 166. The doctrine of apportionment, as applied to the 83d section of the Act of 1836, has been denied in other cases as unfounded in principle: Prentiss v. Kingsley, 10 Barr 120; Purdy’s Appeal, 11 Harris 97; Bank v. Wise, 3 Watts 394 . But the doctrine of stare decisis requires adherence to it in the case before the court.

Judgment affirmed.