
    [Pittsburg,
    September, 1823.)
    WILLIAMS against SMITH, and another.
    in error.
    Ón the issue of no rent in arrear, the tenure of the plaintiff cannot be inquired into' nor is the charge of the dourt in that respect material.
    In avowry for rent, ifthere is a general verdict for the defendant for a sum certain but no finding of the value of the goods distrained, the judgment is a judgment at common law, de retorno habendo.
    
    Replevin in the Court of Common Pleas of Allegheny county, in which George Williams the plaintiff in error, was plaintiff below and John Smith, and Alexander M‘CUnlock, defendants, removed to this court by writ of error. The sheriff returned the goods replevied and delivered to the plaintiff, and a declaration having been filed, Smith made cognizance and M‘Clintock avowed for rent in arrear, for a house and premises situate in the city of Pittsburg. They also pleaded non ceperunt. The plaintiff replied no rent in arrear. The jury found a “verdict for the defendants for 383 dollars, 30 cents, with costs of suit,” and the court entered judgment thereon, and that the defendants have return of the goods irreplevisable.
    On the trial, the taking being proved by the plaintiff, the defendants gave in evidence certain articles of agreement under seal, made the 13th March, 1819, between the plaintiff George Williams and Alexander M‘Clintock, by which MiGlintock rented to Williams, for the term of three years a certain house and property thereon described,” which property the “ said Alexander MiGlintock, rented from Samuel Black: the said Alexander is to give possession of the premises on the first day of April next, until three years expires. For and in consideration of the above the said George agrees to pay unto Samuel Black, the sum of 575 dollars annually, to be paid quarterly, in good current paper or specie, together with all the taxes on said property, during the term of threeyears beginning the first of April next. Said George agrees to comply with the said Alexander’s article with Samuel Black, as far as it agrees with this article, and no farther, and also to make what repairs are mentioned in said article concerning the kitchen and fencing in the lots. For the true performance of the above, we bind ourselves, our heirs and assigns, in the penal sum of 6000 dollars. In testimony, &c.”
    The defendants further gave in evidence, the warrant to distrain issued by M(Clintock, and proved rent in arrear, and also that the parties, M‘Clintock and Williams, had met together to settle the balance of i’ent in arrear. Williams produced his receipts from MiGlintock for rent, and they ascertained the sum due. It was further shown that Williams had cited M‘Clint ode before a justice of the peace, under the provisions of the act of 20ih March, 1810, to settle a defalcation which he claimed, and obtained a set off of a few cents. M‘Clintock was in possession at the time of making the lease, and delivered the possession up to Williams, who enjoyed it.
    The plaintiff contended, that the lease reserved the rent to Samuel Black; that MiGlintock was himself a tenant to Black, and assigned his interest to Williams, and that under the lease MiGlintock had no right to distrain, although Black had. The plaintiff also requested the court to instruct the jury, that in case they found in favour of the defendants, they should find the value of the property which they might consider properly distrained.
    The court charged the jury, that if they were satisfied of the exeCUtion of the lease, that Clintock had had and transferred the possession of the demised premises to William,s, who enjoyed them according to the lease, that the latter recognized M‘CUnlock as his landlord, paid him rent, cited him to appear as his landlord and defalk, M‘Clintock, certainly was his landlord, and had a right to distrain, and the covenant to pay the rent enured to the use of MiClintock. Further, it was to be observed that it did not appear what was the extent of M( Clintock’s interest, nor that he had assigned the whole of his term. Nor was there so far as appeared to the court, any evidence, that Black knew any thing of this lease, or that he had ever claimed or recognized any manner of right or interest under it, or that he even authorized Mi Clintock to make it for his benefit. If such were the facts Black could have no right under this lease to distrain for this rent.
    The court further charged the jury that if the found for the avow-ant they should find the amount of rent in arrear and might if they pleased find interest and to give interest from the day of the distress, would seem to be proper.
    To this charge the plaintiff excepted.
    The following errors were uow assigned,
    1. That the court charged that M‘Clintock was entitled to dis-train under the lease, and that Black was not so entitled.
    
      2. That the jury were' not entitled to find the value of the property lawfully distrained.
    3. That the jury were directed or authorized to consider the lease under which defendant avowed, as altered or done away by the presumptions arising from the other evidence.
    4. That the judgment is not supported by the verdict.
    
      Hopkins, for the plaintiff in error.
    1. The lease of the 13th March, 1819, was an assignment by M‘Clintock of the residue of his term, and not an underlease: he was not, therefore, entitled to distrain, Bradb. on Dist. 24, 25. The proper remedy is by an action on the contract. Ib. 32. To support a right to distrain, there must be a reversionary interest. There must he seisin of the rent, which cannot be, where, as in this case, the rent is made payable by the demise, to another person. M'Clintock was himself a lessee, and therefore, it lies upon him to make out that he had a reversionary interest. Rob. Dig. 171. Prescot v. De Forrest, 16 Johns, 157.
    
      2. The second point is decided in Albright V. Pickle, 4 Yeates, 264. This ease is even stronger, for here were two pleas, one of which was non cepenmt. The verdict is, therefore, bad. Easton v. Worthington, 5 Serg. & Rawle, 131.
    3. The judgment is erroneous. The jury found there was no taking, and there can be no return where there is no
    
      Ross, contra.
    1. The replication of no rent in arrear admits the tenancy. Hill v. Miller, 5 Serg. & Rawle, 357. The plea to put this in issue should have been non demisit. 2 Wils. 209. Even, however, if this point were open, there is nothing to show an assignment: there.may still have been a reversionary interest in M‘Clintock, after the three years. The rent was reserved payable to the paramount landlord, merely in order to protect the' plaintiff: who might otherwise be subjected to a distress after paying the rent to his immediate landlord.
    2. There is nothing in the second error assigned. The property is not to be valued at the prayer of the plaintiff. This right is given to the avowant by that part of the act of assembly which relates to avowries.
    3. On this point he cited Brubaker v. Bruar, 2 Yeates, 488, and Easton v. Worthington, 5 Serg. & Rawle, 130
   The opinion of the court was delivered by

Duncan, J.

The defendant, M‘Clintock, avowed, and Smith, as his bailiff, made cognizance for rent in arrear, for a house and lot in Pittsburgh. The plaintiff replied no rent in arrear. The defendants pleaded non ceperunt. On the trial, the plaintiff contended, that inasmuch as by the defendants own showing, M'Clintock was himself but the tenant of Black, and the rent reserved to Black, and it not appearing whether the demise to the plaintiff was not of the whole term, and therefore, no reversionary interest appearing in MeClintock, he could not distrain; and called on the court so to instruct the jury.

It would have been worthy of great consideration, whether the court ought not so to have instructed, the jury, had the matter and nature of the tenancy been put in issue; but on the answer to the defendant’s avowry for rent in arrear, that there was no rent in arrear, this admits the existence of the tenancy, and puts the defence on matter subsequent. If the tenure of the plaintiff was questioned, this should have been pleaded. Issue being taken on the rent in arrear, this admits every other allegation in the avo wry. In Puller’s Nisi Prius, 50, it is said, that if the plaintiff plead riens in arrear in bar to an avowry, he cannot, upon such issue, give in evidence non tenure, and Chief Justice Maiishaia, in Alexander v. Harris, 4 Cranch, 303, in commenting on this, observes, (C consequently, the defendant cannot be required to show the tenure; for if it were necessary to show the tenure, the tenant would be at liberty to produce opposing testimony,” and concludes by stating, that the plea of no' rent in arrear, admits the demise, and the avow-ant is not bound to prove it. This question has received the determination of this court in Hill v. Miller and another, 5 Serg. & Rawle, 355, that pleading no rent in arrear, puts only that fact in issue, and that every special point must be traversed; that no rent in arrear, is not such a general issue as enables the plaintiff to give in evidence any other fact, but confines him to the simple allegation of no rent in arrear. The plaintiff in error could receive no injury from the opinion of the court, as the matter on which the opinion was requested was not in issue, nor a subject then to be tried, and decided on; it was admitted by the pleadings.

The other objection arises from the verdict and judgment, on the issue of non eeperuni, there being a general verdict for the defendant, the verdict is entered for defendants on that issue. But the court cannot say, that finding the sum in arrear for rent, is finding the value of the goods distrained, for that would be converting the court into a jury. The judgment is not a judgment under the act of 21st March, 1772, but may be considered, and so I consider this judgment, as a judgment at common law, simply a judgment de retorno habendo irreplevisable, and not for the rent in arrear. To warrant such judgment, the act requires not only that the amount of the rent in arrear, but the value of the goods distrained should be found by the jury.

The attempt to distinguish this case from Albright v. Pickle, 4 Yeates, 264, is quite abortive. That there was in that case no plea of non ceperunt, makes no difference; for that, as I have already stated, is disposed of by the general verdict for the defendants. The plaintiff here did call for the inquiry into the value of the goods distrained, but the act authorizes the defendant and not the plaintiff: for the defendant may, notwithstanding the act, proceed as at the common law. But if he chooses so to proceed, he must be satisfied with a common law judgment. If the defendant omits to have this done, no other jury can afterwards make it; no writ of inquiry can go. The defendant cannot enter up his judgment according to the act, and proceed by fi. fa. or ca. sa: He must resort to his common law judgment, and sue oat his writ pro retorno habendo. Carth. 362. 1 Lev. 255. 2 Sellon’s Pr. 185. If the jury proceed under the act, they must not only inquire of the amount of rent, but the value of the goods. They must find both, for the act must be strictly complied with. Considering this as a judgment de retorno habendo, at common law, there is no error in it. Much has been said with respect to the landlord’s right to recover from the pledges in the replevin bond, the whole amount of rent in arrear, without relation to the value of the goods dis-trained. That question is not before the court, nor will they give any opinion on it. When it arises it will be time then to decide it They will not anticipate the result of any experiment the landlord may think proper to make.

Judgment affirmed.  