Oakley vs. Schoonmaker, 15 Wend. 226

. By the Cowt, Savage, Ch. J. By the statute, 2 R. S. 512, § 28, tenants for years, among others, may be removed by certain officers, among whom are judges of county courts, in certain cases: 1. Where the tenant holds over after the expiration of his term; 2.

Where he holds over without permission of the landlord, after default in payment of rent, pursuant to the agreement under which the premises are held, and satisfaction for such rent cannot be obtained by distress of any goods, and a demand of such rent shall have been made, or three days notice in writing shall have been given requiring the payment of such rent, or the possession of the premises. .

The counsel for the tenant contends that the affidavit is insufficient to give jurisdiction to the judge, because it does not state that any rent was due, nor that satisfaction for such rent could be obtained by distress of any goods. He further insists that the rent in this case was sufficiently certain to authorize a distress, and that the remedy given by the statute was intended to apply in such cases only where goods enough cannot be found to satisfy the rent by way-of distress.

The counsel for the landlord contends that satisfaction -for the rent could not be obtained by distress of any goods, because the amount of rent was not fixed; it was uncertain how much grain would be raised, and the amount due the landlord was of course uncertain. He refers to 1 R. S. 747, § 18, where it is enacted that “ When any certain services or certain rent reserved out of any lands or tenements shall not be paid or rendered when due, the person entitled thereto, may distrain for the same,” to show that there could be no distress in this case.

It is true, that by statute as well as at the common law, a distress may be made as well for services as for rent; but there is quite a difference in the proceedings upon the distress in the two cases. In the one case the distress is taken as a pledge, in nature of a nomine pcence, to -be held until’ the services shall be rendered; in the other it is the means of satisfaction of the debt, and is in the nature of an execution. 1 Burr. 587. The counsel for the tenant therefore gains toothing) when he cites Co.

Litt. 96, a., to show that a distress may be made for a default of the tenant, in shearing the landlord’s sheep, where the holding was upon the performance of that service. The distress referred to in the statute giving this

summary remedy is a remedy for the satisfaction of the rent, by distress and sale of goods. And on the other hand it seems to me that when the counsel for the landlord demonstrates, as he has done very clearly, that no distress could be made in this case, that he has also shown that his client’s case is not embraced within the statute. Our statute giving the landlord a

summary remedy in certain cases is but of recent date. Previous to the statute of 1820, the "landlord, in such cases, was obliged to resort to his ■action. We have long had a statute authorizing a landlord to proceed and obtain possession of demised premises, when the tenant failed in paying his rent. The remedy Was and still is by ejectment; but the landlord must show, either by proof on the trial, or by affidavit, if judgment goes by default, that there was no sufficient distress on the premises countervailing the arrears of rent. 1 R. L. 440, §23. 2 R. S. 505, §30. The statute under which these proceedings were commenced was intended to give a similar remedy, in a

summary way; that is, if the landlord could not obtain his rent by reason of defect of goods upon which he might distrain to obtain satisfaction of his rent. But the remedy by ejectment does not exist, unless the landlord has reserved the right of re-entry for want of a sufficient distress ; nor has he a remedy under the recent statute, unless he has a right to distrain his tenant’s goods to obtain satisfaction of his rent. The legislature, I apprehend, did not intend to create a tribunal to determine whether the tenant had been guilty of a forfeiture. By the 44th

section it is provided that the warrant shall not issue to remove the tenant, if he shall, before the issuing thereof, pay the rent due, and all costs and charges, or give security to pay the same in ten days. Hence it appears that although the rent was not paid when due, and proceedings have been instituted against the tenant, and he has been adjudged to be in default, still he shall not forfeit his estate, it he pays the rent, or secures it. To enable the landlord to avaq himself of this provision of the statute, it is very manifest &at a sum certain should be specified as being due.

In this case it is not shown what sum is claimed ; nor does it appear that any rent was due, if rent is the appropriate term for the share of the produce belonging to the landlord. By the agreement, a proportion of the produce was to belong to the landlord ; but it does not appear that any produce was raised. The landlord demanded his share, but he omits to state that any grain was raised on the demised premises.

If, however, he had done so, I do not think he could have brought his case within the statute ; the share to be received by him, although the compensation he receives for the use of his land, is rather in lieu of rent than rent itself. It is not certain, nor can it be made certain, within the rule permitting a distress.

Where a certain sum of money is mentioned, the amount is easily ascertained; so where a certain quantity of grain, as 20 bushels of wheat, or other quantity, I suppose the certainty would be sufficient; but how shall the landlord ascertain to a certainty the quantity and value of one third of all the grain, so as to proceed by process in the nature of an execution. The landlord cannot avail himself of the tenant’s violation of his agreement, as to cutting wood, if that were

an act which would work a forfeiture. That is not the expiration of the time referred to in the 1st subdivision of the 28th section. The statute means expiration by lapse of time. It is competent, perhaps it would be wise, for the legislature to provide a remedy for a case like this; but the present statute does not embrace it. The proceedings of the judge must be reversed, and restitution awarded, with costs. Judgment accordingly.