
    [Lancaster,
    June 6, 1825.]
    DILLER against ROBERTS.
    IN ERROR.
    
      Query, Whether the landlord can distrain for rent reserved, payable in advance, immediately on its becoming due by the terms of the lease.
    Generally speaking, where a tenant holds over after the first year, the law implies an agreement by him to pay the same rent, and at the same time, which he agreed to the first year.
    But, if the lease for the first year contain many collateral matters, on each side to be performed, that can only be performed in the first year, it does not follow that the law implies an extension of it to the second year. .
    The return of the sheriff cannot be contradicted by either party, in the action in which it is made.
    • This was a replevin, in the Court of Common Pleas, of Lancas* ter county, brought -by Isaac Roberts, the defendant in error, and plaintiff below, against Jidam Hiller, the plaintiff in error. The defendant made cognizance, as bailiff of George Ream, of the taking of the goods as a distress for rent. The plaintiff replied non demisit, riens in arrear, and that the alleged landlord had no title to the premises.
    The defendant distrained for a year’s rent, amounting to forty-seven pounds, alleged to be due to Ream, on the 1st of Jlpril, 1817; and gave in evidence a lease from Ream to Roberts, dated the 23d of March, 1816, by which, in consideration of the sum of forty-seven pounds, to be paid on the 1st of Upril, 1816, Ream “ let or rented” to Roberts a certain tavern, and lot of ground for one year, from the 1st of Jlpril, 1816. There were various other covenants in the agreement: Roberts was to finish a room in the house, then unfinished, for which purpose he was to advance money, which Seam was to repay al the end of the year. Seam was to have a right to keep his horse in the'stable, tiil the 1st of August. Soberts was to keep a public house, and obtain and pay for the license for it. Seam was to have the roof of the stable repaired by the 1st of June, and put a fencelound the lot and garden, by the 5th of April. Seam was to give two wagon loads of his dung, then or||jihc premises, to be rep)¡aáíi by at the end of the year, aljft was to take away the rjHpxif hJfrsjfi! jmg by the 1st of May„ Each bound himself to the other yi; the surh;of ninety-four pounds, for the true performance of the whole. . Soberts entered on the 1st of April, 1816, paid forty-seven pounds in advance, and held the premises until the 1st of April, 1817.. No new agreement was made, but Soberts continued in possession; and, on the 30th of April, 1817, the defendant, Diller, distrained on the goods of Roberts, by order of Ream, for the sum of forty-seven pounds, which he claimed as a year’s rent in advance, due the 1st of April, 1S17. The court below charged, that the landlord had no right to distrain, and the defendant below excepted.
    The sheriff returned to the writ of replevin in this case, that the goods were not delivered to the plaintiff, but that bail had been entered by the defendant.
    The following exceptions were taken by the defendant, during the trial, to the opinion of the court, on points of evidence;
    líí Bill of Exceptions. The defendant offered to prove, that Isaac Roberts, the plaintiff, deposited the amount of the rent due George Ream, in the hands of John Diehl, when the plaintiff left the country, and that John Diehl, with whom it was deposited, was willing and desirous to pay it; to which the plaintiff objected, and the court overruled it.
    
      2d Bill. The defendant further offered to prove, by the declarations of Diehl, that John Diehl, the agent and bail of the plaintiff, paid thirty dollars to George Kintzel, the transferee of George Ream, in part of this rent. This also was rejected.
    
      3d Bill. And the defendant further offered to prove, that the sheriff had searched for the bond which the plaintiff alleged was given by the defendant, and which the return on the writ by inadvertence and mistake alleged was taken, and it was not to be found, and that no such bond ever existed. This also the court overruled.
    
      Hopkins, for the plaintiff in error.
    I shall say nothing of the three bills of exceptions, but leave them to the court. It is sufficient that there was error in the charge of the court. We say the second year’s rent was payable the 1st of April, the first day of the year, and we did not distrain till the 30th of April. The judge charged, that the landlord could not distrain till the end of the term. Whenever the rent is due, it may be distrained for, whether that he in the beginning, middle, or end of the year. A tenant continuing a second year, without any thing said on either side, is on the same rent as the first year.
    
      Buchanan, contra.
    1. As to the first bill of exceptions, it is sufficient to say, that Diehl is no party to this suit, neither was he the agent of Roberts; therefore, his offers or declarations were no evidence against Roberts.
    
    
      2. The attempt here was to prove certain things by the declarations of Diehl, though Diehl himself was afterwards examined as a witness.
    
      3. The sheriff had returned, “ property not delivered, and bail entered by the defendant.” The defendant offered parol evidence, to show that this return was not true. This return, however, in this suit, and between these parties, is conclusive, and cannot be contradicted. The sheriff cannot contradict his own return, in an action afterwards brought against him. 7 Mass. Rep. 388.
    The main point of this case, is on the charge of the court, that the defendant had no right to distrain. There were no words in the lease reserving a rent. The lessee was to pay forty-seven pounds on the first day of the term, and each party bound himself in a penalty to perform all the covenants. I consider the payment of the forty-seven pounds as a condition precedent to the entry, and not a rent. There is no covenant to pay the rent of forty-seven pounds. Even if it were rent, yet, if it were payable the first day of the term, there could be no distress for it. 1 Johns. 384. Rent payable in advance is a personal covenant, on which action lies, but not distress. Rent is defined to be a certain profit, issuing yearly, out of lands or tenements corporeal. But, it may be made payable every second, third, or fourth year. The 10th section of the act of the 21st of March, 1772, directs the form of avowry, that the tenant enjoyed the land during the time for which the rent became due.
    
      Hopkins, in reply.
    All that is necessary for a distress is, that the rent should be due. Enjoyment of the land is not necessary. Suppose the lessee should refuse to enter, and the lessor should find some of his cattle on the land. Our act of assembly requires only that the rent should be due.
    On the third bill of exceptions, it is to be remarked, that the sheriff returned a fact not true, which ought not to affect a third person.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action of replevin, brought by Isaac Roberts, the plaintiff below, against Jldam Diller, the plaintiff in error. The defendant acknowledged the seizure of the plaintiff’s goods, and made cognizance, as the bailiff of George Ream, by whose orders he distrained for a year’s rent, due to the said Ream, from the plaintiff. The main point in the cause was, whether the landlord had a right to distrain. The evidence was to the following effect: — A written agreement, bearing date the 23d of March, 1818, was made, between Ream and Roberts, by which, in consideration of the sum of forty-seven pounds, to be paid on the 1st of April, 1816, Ream let or rented (these are the-expressions,) to Roberts, a certain tavern, and lot of ground, for one year, from the 1st of April, 1816. There were several covenants for things to be done by each party, some of which I shall mention hereafter, and for the true performance of the whole, each bound himself to the other, in the sum of ninety-four pounds. Roberts entered on the 1st of April, 1816, paid the sum of forty-seven pounds in advance, and enjoyed the premises, until the 1st of April, 1817. No new agreement was made between the parties, but Roberts remained on the premises, and, on the 3uth of April, 1817, the defendant, by order of Ream, distrained on the plaintiff’s goods, for the sum of forty-seven pounds, which he claimed as a year’s rent in advance, due the 1st of April, 1817. The president of the Court of Common Pleas, charged the jury, that the landlord had no right to distrain, and to this opinion the counsel for the defendant excepted. In the argument before us, the counsel have discussed the broad question, whether, when rent is reserved, payable in advance, the landlord has a right to distrain immediately on the rent’s being due, according to the terms of the lease. On this question no opinion will be given, because, it did not arise on the evidence in this case. There was no evidence of any agreement for the second year’s rent; but it was contended, on the part of the defendant, that on the plaintiff’s holding over after the end of the first year, the law implied an agreement, that he should pay the same rent, and at the same time, which he had agreed to pay-it the first year. Such undoubtedly is the general rule; but the written agreement for the first year, in this case, was of so singular a nature, that I do not think there could be any implication of law, that it should extend to the second year. The reason for my opinion, that the law did not imply an extension of the written agreement to the second year, is, that it contained several collateral matters, to be done by each party, which could be performed in the first year only. For instance, Roberts was to finish a certain room in the house, then in an unfinished state, for which purpose he was to advance money, which was to be repaid by Ream, at the end of the year. — Ream was to have a right to keep his horse in the stable, until the 1st of August. — Roberts was to keep a public house, and obtain and pay for the license for the same. — Ream was to have the roof of the stable repaired by the 1st of June, and put a fence round the lot and garden, by the 5th of April. — Ream was to give two wagon loads of his dung, which was then on the premises, to be replaced by Roberts, at the end of the year, and was to take away the rest of his dung by the 1st of May. All these things indicated a bargain for one year only. In fact, it very much resembled what is called a bargain and sale for a year, though at the same time it was, in strictness, a lease. But, as some of the things which were to he done the first year, could not be done the second year, I do not see on what ground the law would imply a contract, that the same money should be paid the second year, and on the first day of the year. Then, if the law did not imply a contract to pay the exact sum'of forty-seven pounds, there could be no distress, even though the jury might think forty-seven pounds a reasonable compensation for one year’s enjoyment of the premises. To entitle the landlord to a distress, there must be a reservation of a certain rent, of which there was no evidence in this case, but the written agreement, before mentioned. I am of opinion, therefore, that the judge was correct, in charging the jury, that in this case the landlord had not a right to distrain. But, besides the exception to the judge’s charge, there were three bills of exceptions to the evidence. Of the two first nothing need be said, as they were abandoned. The third was to the following effect. The sheriff made return on the writ of replevin, “property not delivered, and hail entered by the defendant.” The defendant offered to prove, “that the sheriff has searched for the bond, which the plaintiff alleges was given by the defendant, and which the return on the. writ, by inadvertence and mistake, alleges was taken, and it is not to be found, and that no such bond existed.” This evidence was objected to by the plaintiff, and rejected by the court. The defendant’s offer was, in one word, to prove the return of the sheriff to be false. But this the law will not permit. In the present action, the return of the sheriff cannot be contradicted, although it may be, in an action brought against him for a false return. The mistake alleged by the defendant is a very singular one; but, if there really was such a mistake, the sheriff should have applied to the Court of Common Pleas, for leave to amend, or rather to alter his return. No doubt, that court, on proof of the fact, would gave given leave to do so. If the return was false, and the defendant has been injured by it, he has his remedy by action against the sheriff. But I consider the law settled, that the return cannot be contradicted by either party, in the action in which it was made. There was no error, therefore, in the rejection of the evidence. I am of opinion, on the whole, that the judgment should be affirmed.

Judgment affirmed. 
      See Buckley v. Taylor, 2 D. & E. 600, where it is held, that, where by the custom of the country the tenant is to pay one half a year’s rent in advance, on the day he enters, the landlord may distrain on that day.
     