C. H. Jones & Bro., Appellants, vs. Samuel W. Fox, Assignee, Appellee, 23 Fla. 454

The Chief-Justice delivered the opinion of the court; This is a case in which a distress warrant was issued by appellants to collect money due to them on express contract for rent of a warehouse. The warrant was levied on goods in the house, and appellee interposed a claim to the goods under the statute. At the trial of the claim the plaintiffs in the warrant, appellants, were put first to proof of their right to subject the goods distrained to their debt.

They assign this for error, saying correctly that in such a ease the claimant, under the rule in this State, must first be put to proof of his ownership of the property. As the course of proceeding was a mere irregularity of practice, not objected to at the time, we think appellants should be held to have waived their right in the matter, and that it is not here available to them for error.

The next question raised by the assignment of errors, is whether the act of March 11,1879, chap. 3131, applies to claims for rent of store, or whether it is to be confined to claims for rent of lands used for agricultural purposes. How the question arose it is unnecessary to recite. The Judge below decided that the statute does not authorize the proceeding by distress warrant for the collection of rent of a store, and this is the second error on which appellants base their appeal.

The parts of the act on which a decision of the question must rest are these : Sec. 1. “All claims for rent shall be a lien on agricultural products raised on the land rented, and shall be superior to all other liens and claims, though ■of older date, and also a superior lien on all other property •of the lessee or his sub-lessee or assigns, usually kept on the premises, over any lien acquired subsequent to such property having been brought on the premises leased. “ Sec. 2. If any person to whom any rent may be due, his agent or attorney, executor or administrator, shall make affidavit,” &c., the remainder of the

section merely providing mode of procedure,"as do the other sections of the act. There is nothing in the title of the act to indicate that it was intended to apply to the renting of agricultural land •only. While the first

section does provide for a lien on agricultural products, it also provides for a lien on all other property. For what: “All claims for rent,” not such ■claims as arise from the renting of agricultural lands, but •“ all claims.” This

interpretation of the language of the first

section is confirmed by the language of the second, “ if any person to whom any rent may be due,” is as broad .and general as the words “ all claims for rentand the two taken together impress us as expressing the intention of the Legislature to give a remedy to all persons who rent out real property, whether agricultural lands, stores or other houses, or any other kind whatever. This seems to have been the view of this court in the decision of Blanchard & Burrus vs.

Raines, 20 Fla., 467, where it was held that this “ statute adopts the common law right of distress for rent, but requires the landlord to-make oath to the amount due,” indicating that’ the difference lays in the mode of procedure, and not in any restriction of the statute to a particular class of landlords. But the counsel for appellee contend that this statute is-unconstitutional, in that it withholds the right of trial by jury. That question is determined otherwise in the case of Blanchard & Burrus vs. Raines,- supra, and we will not disturb that ruling.

The case in 2 Fla., 102, to which the counsel refers as in conflict with that ruling, is not so in fact. It is true of that case that the court held that a statute, which gave a

summary remedy for the recovery of debts without trial by jury, was in derogation of common right, and unconstitutional. But the statute was-one which authorized parties having claims against any steamboat, &c., running on the Apalachicola river, to make affidavit thereof before the Circuit Judge, whereupon the-Judge was to cause judgment to be entered for the amount-sworn to be due, and the clerk was to issue. execution thereon. The ground of the decision was that the statute was one in derogation of the common law for the collection of debts.

But the statute involved in this case is not one in derogation of the common law, but “ adopts ” that law. With this distinction in mind, it will be seen there is not the conflict counsel suggests ; and we adhere to the decision holding it to be constitutional. The judgment of the Circuit Court is reversed, and the cause remanded for proceedings in accordance with this opinion.