
    Smith vs. Fyler.
    Rent is deemed certain, within the law authorizing landlords to distrain, if capable of being rendered certain.
    Where a lease reserved an annual rent of three dollars per acre for all the improved land on the demised premises, the tenant agreeing to build a certain quantity of stone fence, a part at so much per rod, and the residue for such price as might thereafter be agreed upon by the parties, the whole to be applied towards payment of the rent; held, that these provisions did not make the rent so uncertain as to prevent the landlord from distraining.
    A distress warrant was accompanied by an affidavit, stating that the tenant was justly indebted, &c. in the sum of, &c. being the balance of one year’s rent of a certain farm ; said year’s rent ending in the month of January, 1840: Held, that the affidavit was sufficient.
    Replevin, tried at the Onondaga circuit in April, 1841, before Moseley, C. Judge. The defence was, that the goods were distrained for rent. On the trial it appeared that a written contract was entered into between the parties in March, 1839, by which the defendant agreed to let the plaintiff have the use of a certain farm for three years, provided the latter wished to occupy it so long. The plaintiff was to pay three dollars per acre for all the improved land on the farm—he was, in each year, to build a certain quantity of stone fence at a prescribed height, for a part of which he was to have one dollar per rod— the price for building the residue was thereafter to be agreed upon by the parties, and the whole was to apply in part payment of the rent—the balance of the rent to be paid in cash, in the month of January, in each year, the -first year’s rent in January, 1840. The defendant’s counsel offered in evidence an affidavit and distress warrant under which the property in question was seized. The affidavit was in these words : “ County of Onondaga, ss. Asa Fyler, &c. being duly sworn says, that Joseph Smith is justly indebted to him in the sum of $130,50, lawful money, &c. being the balance of one year’s rent of said Fyler’s farm, situate, &c.; said year’s rent ending in the month of January, A. D. 1840.” Signed and sworn to before Grove Lawrence, first judge, See; The plaintiff’s counsel objected to the reading of the warrant in evidence, on the ground, among others, 1. That the rent was payable in services, and was unliquidated; 2. That the amount of rent reserved did not appear on the face of the contract or lease; and 3. That the affidavit accompanying the warrant did not specify the time during which the rent accrued. The circuit judge overruled the objections, and the plaintiff’s counsel excepted. The affidavit and warrant were then read in evidence. Other evidence was given in the course of the trial which need not be stated. The jury rendered a verdict for the defendant, and the plaintiff now moved for a new trial on a bill of exceptions.
    
      B. D. Noxon, for the plaintiff.
    
      J. R. Lawrence, for the defendant.
   By the Court,

Cowen, J.

The first question is, whéther the rent was certain. I collect from the lease that it was to be three dollars per acre for the improved land, with the privilege of making payment by building stone wall at a price fixed in the lease or to be agreed upon.

The rent was certain enough. Nor was it rendered uncertain by the provision as to the mode of payment. The number of acres for which the three dollars were payable, were ascertainable by proof; and so with the value of the wall to be deducted as payment. Id certum est quad cerium reddi potest; and this rule is not changed by the revised statutes. (1 R. S. 738, 2d ed. § 18.) The case of Valentine v. Jackson, (9 Wendell, 302,) is not incompatible with it; and Smith v. Colson, (10 John. R. 91,) settles the question, and even more than settles it, in favor of the defendant.

The affidavit is sufficient. By 2 R. S. 412, 2d ed. I 8, it must specify the amount due, and the time for which it accrued. Here it is, in short, that the sum of one hundred and thirty dollars and fifty cents is due, being the balance' of one year’s rent of the demised premises, said year’s rent ending in the month of January, A. D. 1840. This gives the amount and the time for which it accrued. The latter was during the year ending in the month next preceding the first of February, 1840; and as plainly expressed as if in so many words. (Jenkins v. Pell, 17 Wend. 417; 20 id. 450, S. C. on Error.)

The motion for a new trial must be denied.

Bronson, J. dissented; being of opinion that the affidavit was insufficient.

New trial denied.  