Herr v. Johnson

Stallcup, C.

Were the proceedings to distrain for rent warranted by law? This question is presented and argued here. It is conceded that we have never had any legislative enactment providing any such right or pro *395 ceedings; but it is insisted that such right exists here by virtue of the adoption of the common law of England by our legislative enactment (Gen. St. ch. 17), whereby it was declared that ‘ ‘ the common law of England, so far as the same is applicable, and of a general nature, and all acts and statutes of the British parliament made - in aid of, or to supply the defects of, the common law prior to the fourth year of the reign of James I.,” stating certain exceptions, “ and which are of a nature general, and not local to that kingdom, shall be the rule of decision, and considered as of full force until repealed by legislative authority.” This was enacted by the first legislature of the territory of Colorado, and was approved October 11, 1861. It is sufficient to say that not until after the fourth year of the reign of James I. was the law of England such as to authorize the landlord to distrain for rent, except for rent service (a holding by fealty or homage, as well as a certain rent) and rent charge (a holding under a lease containing a clause reserving the right to distrain); that not until in the reign of George II. was the distinction between the several kinds of rent abolished, so far as to give remedy by distress for all. 2 Bl. Comm. 42, 43; 3 Kent, Comm. 460, 461. It is apparent that the common law of England, as adopted hereby the said legislative enactment, did not authorize the landlord’s warrant of distress in cases like the one under consideration, viz., a holding under a lease without a clause expressly reserving the right to distrain for rent. The conclusions reached in the case of Penny v. Little, 3 Scam. 301 , rest upon the peculiar source and character of the laws of Illinois, as will be seen from the opinion in that case at pages 304 and 305. This question has received much attention in the cases of Dutcher v. Culver, 24 Minn. 584 , and Coburn v. Harvey, 18 Wis. 148 , but I do not regard the conclusions adopted there applicable here. The right of the landlord to distrain for rent, in the absence of express agreement therefor, has never ex *396 isted in this state. The common law of England had never obtained in this portion of the North American continent previous to its acquisition by our general government. This portion of our country was never 'under British dominion. The acquisition thereof was by treaty and purchase long after the Bevolution, and from powers not having the common law, but the civil law; so that the firstfoot-hold or actual existence of the common law of England here was necessarily by legislative enactments, and necessarily limited according to the expression of such enactments. Acklen v. Franklin, 7 La. Ann. 418 ; Johnson v. McIntosh, 8 Wheat. 571 ; Malpica v. McKown, 1 La. 248 ; Arayo v. Currel, id. 528; Canal Appraisers v. People, 17 Wend. 588 -590; Norris v. Harris, 15 Cal. 252, 253 ; Reaume v. Chambers, 22 Mo. 53 . Our legislature having adopted the common law of England as it existed prior to the fourth year of the reign of James I., our courts cannot substitute a different date. The judgment should be affirmed.

Per Curiam.

For the reasons assigned in the foregoing opinion of Commissioner Stallcup the judgment of the court below is affirmed.

Affirmed.