
    [Pittsburg,
    September 19, 1826.]
    KERR and another against SHARP.
    “IN ERROR.
    It) on a distress for rent, the goods distrained upon are sold without having been appraised and advertised, agreeably to the act of the 21st oí March, 1772, the dis-trainer is a trespasser ah initio, and an action of trespass quare clausum fregit may be maintained against him.
    In trespass quare clausum fregit, the omission to declare that the defendant unlawfully broke the plaintiff's close, &c, is cured by verdict.
    In considering the charge of the court below, a detached part of it is not to bo taken, without reference to other parts, and to the facts proved in the cause; and if, from the whole charge, it appear that the court instructed the jury rightly in point of law, the judgment will not be reversed, even if the court below was mistaken in its opinion as to the facts.
    
      Nicholas Sharp, the defendant in error,
    brought this action of trespass quare clausum fregerunt, in the Court of Common Pleas of Westmoreland county, against the plaintiffs in error, David Kerr and .Alexander Foster, and, in his first count, declared that the defendants below broke and entered'his close; “ And then and there did seize, take, and distrain the wheat and rye of the said Nicholas, there growing,” &c., “ and then and there impounded the said wheat and rye,” &c.
    The second count of the declaration charged the defendants below with cutting down, seizing, and carrying away the wheat and rye, and breaking the close of the plaintiff below.
    On the trial, the plaintiff below gave in evidence a lease of a tract of land, made to him by David Kerr, on the 25th of October, 1814, for seven years from the 1st of Jlpril 1815, for sixty dollars per annum. He also proved, that Kerr and himself entered an amicable action before a justice of the peace, in which Kerr claimed two years’ rent. The matter was referred to arbitrators, who, on the 4th of May, 1822, reported a balance of twelve dollars due to Kerr. It was proved, by the justice, that the parties came to his house to enter the action, and said it was for the rent of two years, which remained unsettled. After the judgment was entered, the justice asked Kerr, if he would give Sharp some time? He said, “he would think about it,” or “see about it; that he had a landlord’s warrant, which he could use or take the judgment.” The justice had written the landlord’s warrant referred to, which was directed to Foster, one of the defendants below, who was a constable. Foster afterwards proceeded on the warrant, distrained upon the wheat and rye of the plaintiff below, and sold it. The grain was appraised on the day of sale, at the request of Foster, and, on the same day, an advertisement was put upon the door of the house; and it was proved that Foster had said, that the grain had not been appraised or advertised before that time.
    The President of the Court of Common Pleas, after stating the nature of the action and the pleadings, gave to the jury the following
    Charge. The entry, the taking and distraining of certain quantities of wheat and rye, and the fact of afterwards selling six acres of the rye, which were, at the subsequent harvest, reaped and carried away by the purchaser, at the sale, have been fully established. The defendants have endeavoured to justify these proceedings, under an alleged warrant by the one to the other for twelve dollars of rent due by the plaintiff. It is pretty clear, that this rent was then due. Although the defendant, Kerr, had recovered a judgment for it, his remedy by distress was not thereby divested, unless you can conclude, from his not having objected to the justices taking special bail, that he virtually relinquished that remedy. You ought to be cautious informing this conclusion, as it appears that when asked by the justice whether he was agreed, the answer was, that he would think of it, which rebuts the presumption of acquiescence.
    The warrant has not been produced, and, it is alleged, has been lost, and cannot, although search has been made, be found. Several persons have been examined on this point, and there could be little if any difficulty respecting it, if ^Alexander Foster, one qf the defendants, had come forward and testified to the- fact of the. loss of the warrant, and to his having used proper diligence to find it, as the other defendant has done. • A doubt hence arises, whether the alleged warrant may not be in Foster’s hands, and if he-had attended the referees, before whom this paper was laid, I would consider the testimony which has been given by Mr. Johñ-ston and others as not to be depended on. If you are satisfied of the existence of the warrant, its loss, and that due diligence has been used to procure it without success, the great question for your consideration will be, whether the defendants were justifiable in proceeding to sell the rye and wheat, without having pursued the provisions of the law, required in cases of this kind. It requires a warrant from the landholder, — a distress by the proper officer, — a notice of this to the tenant, — an appraisement by two reputable freeholders, on oath, and after this, six days’ notice of the sale. There is no testimony whatever of the. defendant’s having complied with any of these wholesome provisions. The.subsequent sale, therefore, of the rye was a tortious act, and vitiates the whole proceedings. It constitutes the defendants trespassers from the beginning, and, although an action on the case might have been supported, it is not the only remedy. The plaintiff is therefore entitled to recover. This being an action at common law, the damages will be according to the injury suffered by the plaintiff. These may be not only compensatory, but you maj1, go further, and, if you be persuaded the defendants acted not only illegally, but oppressively, you ought to give more.”
    - To this charge, the defendants’ counsel excepted.
    
      Alexander, for the plaintiffs in error.,
    contended, 1. That the opinion of the court below, that an action of trespass would lie upon the facts proved in this case, was erroneous. Admitting that no appraisement’was made or notice given, agreeably to the act of the 21st of March, 1772, Purd. Dig. 708, the proper form of action was case, and not trespass vi et armis. The omission to do a thing does not make a trespasser ah initio; there must be some positive act done. 3 Bl. Com. 15. 1 Vent. 36, 37. 1 Boll. Jib. 673. Bradley on Dist. 266. Woodfall’s Landlord and Tenant, 320, 322, 516. The statute 11 G. 2, c. 19, c.ures irregularities in distresses for rent; and some parts of this statute have by practice been extended to Pennsylvania. Woglam v. Cowperth-waite, 2 Dali. 68.
    1-. The first count of the declaration sets forth no cause of action. It only avers, that the defendant below distrained, &e.,and not that he unlawfully distrained; and the judgment being general, it is erroneous.
    
      2. The judge instructed the jury, that there must be a warrant given by the landlord, and a distress by the proper officer; and that there was.no testimony whatever of the. defendants’ having complied with any one of these wholesome provisions. Thi3 was a mistaken opinion. The landlord may distrain himself, or do it through an agent. A warrant was not necessary; and, if it was, ■evidence was given of the existence of a warrant. Bradley on Dist. 216. 3 Pin. Jib. Bailiff, B. pi. 3, 4, 5. p. 537. 4 Pin. Jib. 1, pi. 5, 6.
    
      Coulter, for the defendant in error, said,-l. That the principal question was, whether or not the statute of lift 2, c. 19, extended to Pennsylvania; and he contended, that it did not. Our act of assembly, he observed, was passed soon after that statute, and.had an eye to it. One of the provisions of that statute respected the curing of irregularities in conducting a distress, so as to prevent the dis-trainer from being a trespasser ab initio. 3 Bl. Com. 14. H. Bl. 37. But these provisions'were not contained.in the fourteenth and fifteenth sections, which alone, according to the report of the judges, had been extended here.
    2. The omission to state that the distress was illegal, is cured by verdict. It must be presumed to have been illegal.
    3. Taking the whole charge together, it may be supported. It appears, upon the whole, that the plaintiff was entitled to recover.
   The opinion of the court was delivered by

Rogers, J.

Three errors have been assigned on this record:—

1. That case, and not trespass, was the proper action on the facts proved.

2. That there was no cause of action stated in the first count of the plaintiff’s declaration. And,

3. In instructing the jury, that there must be a warrant by the landholder, and a distress by the proper officer; and in telling them there was no testimony whatever of the defendant’s having complied with any one of these wholesome provisions.

The material facts áre, that Nicholas Sharp, the defendant in error, was indebted to Daniel Kerr, for rent, in .the sum of twelve dollars: That, on the non-payment of the rent, Sharp gave a warrant of distress to Alexander Foster, v;ho distrained grain on the premises, without having the grain either advertised or appraised. It is provided, in-the act of the 21st of March, 1772, that unless goods distrained be replevied, within five days, they shall be appraised by two freeholders, on oath or affirmation, and that, after the appraisement, six days’ notice shall be given; and that, in such case, he may lawfully ¿ell the goods and chattels, for the best price that may be gotten for the same. The law seems to be imperative, that before a sale can be lawfully made, these wholesome provisions of the act must be complied with.

Any irregularity in taking a distress, makes the landlord, at common law, a trespasser ah initio. Com. Law of Landlord and Tenant, 491. 3 Bl. Com. 16, and the authorities there cited. Whenever the law gives one man the right to enter on the premises of another, as in case of a distress, or entry into an inn, then any' act, which in itself is a trespass, makes the party a trespasser ah initio. It is otherwise, when he enters by permission of the party himself. .The act of assembly says, that the landlord cannot lawfully sell, unless these requisites of the act- be complied with. Selling the grain, without having it appraised, or any notice being given of the sale, was a trespass of an aggravated kind, for which an action will lie. .The law makes the entry of the landlord, and his bailiff, unláwful from the beginning, for which the action of trespass quart clausum fregit is the proper remedy. For the purpose of removing the inconvenience to landlords, in England, the act of parliament of the 11 Geo. 2, c. 19, was passed. If the nineteenth section of that act be.extended to Pennsylvania, there is a,n end of the question. It would appear, from the report of the judges, that two sections only, the fourteenth and fifteenth, have been extended. The extension of the nineteenth section must have been directly and immediately under consideration; and, in such a case, I consider this court .bound by the report. Indeed, I do not conceive how they could have reported otherwise, as it is apparent that the legislature, in passing the act of the 21st of March, 1772, had before them the act of parliament of the 11th Geo. 2., and would appear to have excluded the nineteenth section, from a consideration of the different circumstances of the two countries. It is contrary to the policy of Pennsylvania, to favour landlords at the expense of the tenants.

- It is with great reluctance,, that after a trial of the merits I can listen to a mere technical objection. The plaintiff, in the first count in the declaration, charges the defendants, that they broke and entered his close, and then and there did seize, take, and dis-train the wheat and rye of the said Nicholas, there growing, &c. The gravarnen of the action, is the. breaking and entering the close of the plaintiff; and although it is not denied, that they unlawfully did seize, take, and distrain the wheat and rye, yet, after verdict, we must suppose, that the illegality of the seizure, was proved to the satisfaction of the court and jury. '

The declaration is informally drawn, and the objection here made would have been sustained on special demurrer. Had the defendants so proceeded, the omission would have been perceived, for it-was merely the omission of the word unlawfully, and then the plaintiff would have had leave to amend. No injustice would have been done. By assigning it for error, w’e are called upon to put the plaintiff out of court; for, should we sustain the objection, we have no power to award a venire.

I have carefully reviewed the charge of the Court of Common Pleas, in relation to the third error assigned. It would be treating the Courts of Common Pleas and their suitors with great unfairness, if we should take a detached sentence^ without reference to other parts of the charge, and the testimony in the cause. I understand the court merely to say, that the distress, in this case, must be made by the authority of the landlord; and that, as Foster acted as bailiff, he should have a warrant from him, either written or parol.

In conclusion, I have barely to observe, that even if the court were mistaken in their opinion on the facts, it cannot avail the plaintiffs in error, as has been repeatedly held by this court.

Judgment affirmed.  