Cross v. Tome

Bartol, J.,

delivered the opinion of this court.

The decision of this appeal depends upon the construction of the Act of 1834, ch. 192, regulating the mode of levying distress for rent.

The rent reserved was in money, the amount thereof to be ascertained by computation of the quantity and kinds of stone quarried. This, in our opinion, was a certain money rent, within the meaning of the Act. That is certain which may be made certain. Under the statute of New York, which, in this respect, is similar to our own, in a case “where the rent reserved was three dollars per acre for all the improved land on the premises, the tenant agreeing to build a certain quantity of stone fence, a part at so much per rod, and the residue for such price as might thereafter be agreed upon by the parties, the whole to be applied towards the payment of rent,” it was held that, the rent was sufficiently certain within the statute. Smith vs. Fyler, 2 Hill, 648 .

This being a case within the Act of 1834, the only question before us is, whether the account and affidavit, offered in evi *256 dence, are a sufficient compliance with its provisions? Three objections are made to the account by the appellee:

1. That the time when the rent became due is not stated,

2. That the account does not state the whole amount of rent, and set out the credits.

3. That the period, during which the rent accrued, is not stated in the account.

The first objection is based upon a misconstruction of the account. In our opinion, it is necessary to state when the rent became due, but, according to our interpretation of the account, that is sufficiently stated. It is in these words:

“Baltimore, February 2nd, 1855.

Mr. James Whitelock, To Andrew B. Cross, Dr.

To balance of quarry rent due Dec. 31st, 1855, on the quarry at Rock Run, Cecil county, which formerly belonged to estate of W. L. Cross, ... $,‘591.00”

Notwithstanding the ingenious criticism of the appellee’s counsel, we think the fair interpretation of this is, that the quarry rent became due the 31st of December 1855, and the balance therein stated is charged as remaining unpaid at the date of the account.

The second objection is not sustained by any thing in the Act of Assembly. The 3rd section requires that there shall be prefixed to the warrant, “an account stating in dollars and cents the amount of rent claimed to be due and in arrear, * % m * * together with an affidavit or affirmation thereon in substance as required by the first section of the Act.”

It is not necessary to state in the account the terms of renting, nor to set down the items showing the whole amount originally payable under the contract, and the credits thereon; it is sufficient “to slate, in dollars and cents, the amount of rent claimed to be due and in arrear,” verified by affidavit.

That has been done in the present case. The form of the affidavit prescribed in the first section need not be literally pursued; if it is substantially followed that is sufficient; the words, “except the credits, if any, which have been given,” are designed to apply to a case where credits have been stated in the *257 account, which may be done, but they do not make it necessary to state debits and credits.

In Smith vs. Tyler, 2 Hill, the affidavit stated a sum due as balance of one year’s rent, ending in the month of January A. D., 1840, which the court held to be sufficient.

3. In support of the third objection several cases from New York have been cited, but a reference to them will show they are inapplicable, the provisions of the Act of 1834 being unlike the statute of New York in this particular. By the revised statutes of that State, it is expressly required, that the affidavit specify the amount of rent due, and the time for which it accrued. The decision in Marquissee vs. Ormston, 15 Wend., 368 , went upon those words. The court say: “Whatever reasons may have influenced the Legislature, the direction is clear and explicit, that the affidavit shall specify the amount of rent due and the time for which it accrued

In construing the Act of 1834, we do not think the principle ought to be adopted, which is applicable to the construction of statutes conferring special remedies, in contravention of the common law. The right of the landlord to distrain for rent in arrear, in a case like this, is ohe which he enjoyed by the common law. The Act of 1834 was intended to restrain and regulate that right for the benefit and protection of the tenant, and while its requirements must be complied with, they are to receive a sensible construction, looking to the object and design of the Legislature. These were to protect the tenant from onerous and oppressive proceedings by the landlord, and to prevent the levying of excessive distress, by requiring the sum claimed, as actually due and in arrear, to be clearly stated, and verified by oath. The amount actually due is always open to examination on proof, in the action of replevin. Our Act nowhere requires the time, during which the rent has accrued, to be stated in the account or affidavit; in this respect it is unlike the statute of New York. The time when the rent becomes due, it is necessary to state for the security of the tenant against being called on a second time for the same debt, as well as to show that it is such arrear of rent as may be lawfully collected by distress.

*258 (Decided July 15th, 1859.)

In our opinion, the account and affidavit in this case are sufficient, and ought to have been admitted in evidence.

Judgment reversed and procedendo ordered.