
    [Lancaster,
    June 6, 1825.]
    WARREN against FORNEY.
    IN ERROR.
    
      Query, Whether the right of distress is incident to a lease on shares ?
    If the landlord, to whom a share of the produce is reserved and due, substitute for it the promissory note of the tenant for a certain sum of money, he has no right to distrain for such money.
    Error to the Court of Common Pleas of Lancaster, in an action of replevin, brought by Emanuel Forney, the defendant in error and plaintiff below, against Archibald D. Warren, the plaintiff in error and defendant in the Court of Common Pleas. The defendant acknowledged the taking of the plaintiff^ goods, and made cognizance as bailiff of Joel Lighter and Samuel Dale, by whose command he distrained for rent in arrear. The facts of the case •were as follows: — Lightner and Dale made a lease of certain lands in Lancaster county to Peter Forney fpr one year, which was afterwards continued for two years more. The rent received was i{one half part of all the grain of every kind, and of all hemp, flax, potatoes, apples, fruit, and other produce of whatsoever kind there shall be planted, raised, sown, or produced, on, or out of the demised premises, within and during the term aforesaid,” (with certain exceptions not necessary to mention.) The lease commenced on the 1st of April, 1817. On the 10th of December, 1819, two years and a part of the third year having expired, and Forney not having paid to Lightner and Dale their full half of the produce of the land, the parties came to a settlement, in which the value of the produce due to Lightner and Dale was fixed in money. The balance of the account amounted to three hundred and twenty dollars and seventy-one cents, for which Peter Forney, with the consent of his landlords, gave his promissoiy note to Barbara Gundaker, the mother of Henry W. Gundaker and Henrietta B. Gundaker, minors, in whose right Lightner and Dale held the demised premises, as their guardians. The note not having been paid, the landlords distrained for the money, and whether they had a right so to distrain, was the question.
    
      Wright, for the plaintiff in error,
    contended that the defendant had a right to distrain, and cited Co. Litt. sect. 136, 213. Smith v. Cohen, 10 Johns, 91.
    
      Buchanan, contra,
    argued that there was no right to distrain under this lease, and cited Bradb. on Dist. 26. Lit. sect. 58, 136, 137. Co. Litt. 142, a. Act of March 21, 1772, sect. 10. 1 Sm. Laws, 372. Com. Dig. tit. Rent, B. 7. That it was contrary to our statutory provisions, Bradb. 274. Stat. 51, Hen. 3. Act of March 21, 1772. 1 Sm. Laws, 370. sect. 3, 4, 10. Co. Litt. 142, a. Cro. Eliz. 143. 3 Johns. 221. 2 Johns. 421. 8 Johns. 151. Addison’s Rep. 347. Com. Dig. 209, Rent, B. 4.
    
      
      Porter, in reply,
    referred to Litt. sect. 58, 136, 213. 5 Binn. 228. 10 Johns. 91.
   The opinion of the court was delivered by

Tilghman, C. J.

Nothing can be more clear, than that the distress for money was unlawful. The rent was not reserved in money, but in various articles of grain, &c., the produce of the land. If the right of distress existed at all on a lease of this kind, it must have been made for the arrears of the rent reserved, and nothing else. The tenant has a right, after the distress is made, to tender the amount and costs, and stop the sale. Where the rent is a certain quantity of grain, the landlord may distrain for so many bushels in arrear, and name the value, in order that if the goods should not be replevied, or the arrears tendered, the officer may know what amount in money is to be raised by the sale, and in such case the tenant may tender the arrears in grain. But, in the present case, the parties agreed that the rent should not he paid. In fact, the landlords have sold their share of the rent to the tenant for a certain sum of money. This was a transaction collateral to the rent, and put an end to all claim for rent strictly speaking. It put an end, therefore, to all power to distrain for rent. — A point of considerable importance was raised in this case, viz. whether, to a rent of this kind, the power of distress be incident. It is unnecessary to decide this, and therefore no opinion will be given on it. The weight of business with which this court is pressed, renders it indispensable to husband their time, and avoid the decision of difficult points not necessary to be determined. The gentlemen of the bar, therefore, will be pleased to understand distinctly, that no inference is to be drawn, on one side or the other, from the silence of the court on the general question, whether, to a lease of land in shares, as it is commonly called, the power of distress be incident.

I am of opinion, that in the present case, there was no right to distrain, and therefore the judgment should be affirmed.

Judgment affirmed.  