
    [Sunbury,
    June 25, 1829.]
    FRY against JONES and another.
    IN ERROR.
    'On a demise of a grist mill, the lessee to render one-third of the .toll, the lessop may distrain for the rent.
    Error to the Court of Common Pleas of Northumberland county. . "
    Replevin by John G. Fry against John Jones and Jim,os Straw, constable of Augusta township. The defendants avowed for rent in arrear, to which the plaintiff replied, no rent in arrear, and afterwards added the plea o.f non demisit. ' ,
    
    On.the trial it appeared, that John Jones had demised to John G. Fry a grist mill, and á house, and lot of ground, for the term of one year, reserving as rent ‘‘ one-third of the toll which the mill grinds,” for which Jones, the landlord, had, by a warrant directed to Straw, the constable, required him to’distrain; averring in the warrant, that one hundred and sixty and a half bushels of different kinds of grain, ■amounting in value to seventy-six dollars and fifty-eight eénts, remained due and unpaid.
    The court charged the jury in favour of the defendants, for.whom a verdict was given,' A bill of exceptions to the charge having been taken, a writ of error was issued, which was argued by Donnell, for the plaintiff in error, who contended,
    1. That the pleadings put not only the amount of rent, but the tenancy itself, in issue. The strongest defence was on the plea of non demisit. The plaintiff was not a tenant, but a servant, or agent, working on the shares, ■
    2. The plaintiff could not tender the grain in satisfaction of the rent, after the distress. Warren v. Forney, 13 Serg. & Rawle, 52. The landlord’s warrant was too general, being for different kinds of grain, without distinguishing how much of each.
    3. Bui; the main objection is, that on such a demise as this, there cannot be a distress. The third of the toll of a mill cannot be ascertained until an account is rendered by the miller. Distress cán only be for a certain rent. Co. Litt. 142. Ib. 96. Addison, 347. Cro. Eliz. 143. 1 Salk. 162. The act of assembly of the 21st of March, 1772, Purd. Dig. 710, seems to require the rent to be certain. In the tenth section, the lánguage is, that ‘‘it shall and may be lawful for all defendants in replevin, to avow and make coghizancé generally, that the plaintiff in replevin, or other tenant of'the lands and tenements whereon such distress was made, enjoyed the same under •a grant, or demise,' at such pertain rent or service,” &c.
    
      Greenough, contra.
    
    — The practice in this state has been in accordance with' that here pursued, upwards of a century.' • Militant service was uncertain, but to shear all the sheep on a certain manor* was good, because it could be rendered certain. 2 Bac.Ab. 342. The case of Smith v. Colson, 10 Johnson, 92, is decisive of the general principle. . ,
   The opinion of the court was delivered by

Rogers, J.

It is said the rent, is uncertain, and, therefore, Jones had no right to distrain.- In Co. Lift. 96, a, the principle which governs this case is- clearly stated.

It is a maxim of law, that no distress can be taken for any services that are not put into certainty, nor cart be reduced to any certainty; for, id est cerium, quod cerium reddi potest; for, oportet qúod certa res deducatur in judicium; for, upon-the avowry, damages cannot be' recovered for that which neither hath c.ertáinty, nor can be reduced to any certainty. And yet, in some cases, the author says, there may be a certainty in an uncertainty; as, a man may hold of his lord to shear all the sheep depasturing within the lord’s manor; and this is certain e'nough, albeit the land has sometimes a greater number, and sometimes a lesser number there-; and. yet, this uncertainty being referred to the manor, which is certain, the lord may distrain for this uncertainty. Et sic de'similibus. The uncertainty for Which distress may not be had, is put- by Littleton in the text, such as tenancy in Frankalmoigne;. And, if they which hold their tenancy in Frankalmoigne will not-, or fail to do such divine service, (as is said,) the lord may not distrain them for not doing this, &c., because it is not put in certainty what servicés they ought to do. In commenting on this text, Lord Coke explains what is meant by the uncertainty for which the lord cannot distrain. The services to be performed by a tenant in Frankalmoigne, are neither certain, nor can they by any means be reduced to a certainty. They who hold in Frankalmoigne, are bound of right before God -to .make orisons, prayers, masses, &c., and other divine services, not only for the souls of the grantor, or feoffor, but for the souls of their heirs which are dead, and for the prosperity and good life and good health of their heirs which are alive,. Co. Litt. 95, a, sect. 135. In tenure in Frankalmoigne, no mention is made of any manner of service; for none can hold in Frankalmoigne if there be expressed 'any manner of certain service that he ought to do, &c. We hold the principle to be, that a distress is inseparably incident to every service, that may be reduced to a certainty. If that should be the rule, we are at a loss to conceive in what the inconvenience or difficulty consists. If the tenant keeps an account of the toll, which it is his duty to do, the rent may be reduced to the utmost certainty. Nor can we perceive the danger which may arise to the tenant; for his rights are abundantly protected. By an offer to comply with his contract, with which he is best acquainted, he can defeat the landlord. And for an excessive distress, the law, as in other cases, has provided him an ample remedy. The avowry is well enough-, nor can the jury have any difficulty in estimating the damages. It is the interest of landlords and tenants, that the rights of the former should be protected; With right of distress unimpaired, a poor man can obtain a shelter and the means of livelihood for his family, which he would otherwise be unable to procure without security, which it would frequently be out of his power to obtain. Experience, which is the best test, satisfies us, that an interference with the remedies provided by the common law, causes mischief rather than good.

Judgment affirmed.  