
    [Sunbury,
    July 3, 1829.]
    BARNHART against PAINTER and another.
    IN ERROR.
    A plaintiff, in. possession of the defendant’s property, under a Liberari Facias, which has been set aside, and restitution awarded, though not actually made, cannot give an authority to another person, to collect from his tenant the balance of the rent due upon the lease.
    If the person under such alleged authority, distrain upon the tenant, and; upon replevin brought, avow for rent in arrear, • under the lease, he cannot justify the distress,' by proving a parol lease, by himself to the tenant.
    Nor can he justify the distress, by asserting the character of administrator of the defendant in the Liberari Facias.
    
    The proviso in the arbitration act, relative to appeals by executors and administrators, does not apply to cases in which they are sued for their own acts, even if they be done for the benefit of the estate; but to those alone in which .they sue, or are sued, iji their representative capacity.
    Error to the Court of Common Pleas of Northumberland county.
    
      George Barnhart brought an action of replevin, against John Painter, and John C. Caul, and on the trial, the case appeared to he as follows: On the 23d of July, 1819, Alexander Graham obtained a judgment against Lott Corson, on which a Fieri Facias was issued, returnable to January Term, 1820, which was levied on a tavern, and lot of ground, which were found sufficient to pay the debt and costs in seven years. A Liberari Facias was issued to November Term, 1824, and Alexander Graham was put into possession. . In January, 1825, he leased the premises to George Barnhart, for one year, from the 1st of April, 1825, at the yearly rent of fifty dollars, payable quarterly.
    On the 30th of April, 1825, the Liberari Facias was set aside by the court, and restitution awarded, but not actually made. Graham had received twenty-five dollars, two quarters’ rent'; and afterwards, by an endorsement on the léase, authorized John Painter to collect, and receive the balance. Painter distrained upon Barnhart’s property, for two quarters’ rent. . It appeared,.that 
      Mary Barnhart, by her next friend, George Barnhart, had brought a suit against Lott Corson, to January Term, 1824, and had obtained judgment against him; and,- on the 12th of January, 1826,■ George Barnhart was put into possession, on a Liberari Facias issued on that judgment. Lott Corson had died on the 2d of October, 1824. Mary Barnhart’s execution was never set aside. •
    The replevin was brought to August Term, 1826. On the 2d of June, 1.826, the defendants entered a rule of reference; and the arbitrators, on the 29th of July, returned an "award in favour of the plaintiff for seven dollars damages, with costs. - On the 17th of August, a paper was filed, signed by the defendants’ attorney, stating, that the distress and rent were for the use of John Painter, administrator of Lott Corson, and that Painter would appeal, Without paying costs, and, on the same day he made-affidavit, and appealed. On the 22d.day of August a rule was granted, to show cause why the appeal should not be dismissed, which was afterwards made absolute; but, on the 17th- of April, 1827, the rule" was rescinded; and, on the same day, Painter avowed, and Caul made cognizance for rent in arrear on Graham’s lease, assigned, as they averred, by Graham to Painter,,and claimed rent from- the 1st of October, 1825, to the 1st of October, 1826. .On the avowry was endorsed as follows: — John Painter suggests, that the rent is, and was claimed for the use of the creditors of Lott Corson, deceased, of whom he is administrator de bonis non, &c. The plaintiff.repliecl, no rent in arrear, non demisit, &c.
    On the 1st of ^December, 1827, a verdict was found for the defendants, with twenty-five cents damages, and the amount of the rent was found to be twenty-five dollars, arid judgment was rendered accordingly. '
    The charge of the court having been excepted to by the plaintiff’s counsel, a writ of error was taken out," on the, return of which, the following errors were specially assigned: — • "
    
      “ 1. The Court erred in reinstating the appeal from the report of arbitrators, after-the same had been stricken off.
    2. The CouRT-erred in telling the jury, that the only question .-which remains is, ‘ whether John Painter, as administrator of Lott Corson, could recover this rent for the payment of the debts of Corson. If the jury believed there was not personal estate sufficient for the payment "of Corson’s, debts, lands and tenements,.as well as goods and chattels, are considered assets for the payment of debts. In that case, the administrator would have a right to collect the rents due the deceased, and appropriate th.em to the payment of the debts. The general principle is, that administrators cannot meddle with ■ the proceeds of real estate, but the case is altered when there is not sufficient real and personal estate for the payment of the debts. How it was in this case, the jury, can determine from.the evidence.’ ”
    
      Greenough, for the plaintiff in error,
    insisted, that the appeal;. which was at first"properly struck off; ought not to have been reinstated. But, without resting upon the error of thus replacing if, as it was argued in the court below, that the first decision had been given without hearing the opposite party, he contended, that the appeal should never have been, admitted. The distress was made by Painter in the character of assignee of the lessor, and the rule of arbitration is taken out by him in that capacity. When the proceedings return to the court, he drops the character of assignee, and assumes that of administrator; contending, that as such, he may appeal, without paying-costs. The allowance of the appeal was erroneous. "
    The charge of the court was erroneous in the instances pointed out in the assignment of errors. Whether an-.estate is indebted or not, the administrator is not entitled to receive the rents accruing after the death'of the intestate. This principle is too clear to require the support of authorities. • •
    
      Bellas, contra,
    
    answered, thatit.appeared from the evidence, that after the death of Corson, Barnhart, when called on by Painter, agreed to pay to him the rent, and this must be considered.as a new demise'. The general principle will not apply if a new lease is thus created; and the administrator, when he-'receives the rent upon it, will be bound to account to the creditors, and, therefore, may justify the distress by virtue of it. If the pleadings were disregarded on the trial, and evidence given of a. parol lease, wé ought not now to go back to the pleadings, and try the causeon them. If objections had been made on the trial, we would have amended the pleadings.
    But Greenough, as to the agreement, asserted to have been made by Barnhart, referred to the evidence to show, that Barnhart was, at that-time, ignorant that the Liberari Facias had been set aside, and as soon- as he was acquainted with the true state of the facts, he refused to pay either Graham or Painter.
    
   Smith, J.,

(after stating the principal facts, the pleadings, and the charge of the court below,) delivered the opinion of the court as follows: — The instruction given to the jury was erroneous. On the issue-of no rent in arrear, the question to be tried was, whether Alexander Graham had a right to demand rent? To me it appears very evident, he had no such right. His claim was founded solely upon his writ of Liberari Facias to November Term, .1824. If this execution had not beenissued, Alexander Graham would not have had possession; and When, therefore; it was set aside, and'restitution awarded, he not- only lost all claim to the rent, subsequently accruing, but could have been compelled to restore to Lott Carson, if he had been living, or to his heirs, if.he were dead, the rent he had received. . His right was then, founded on the execution, and, therefore, when that was gone, his-claim to rent was gone also. This, too, seems to have been taken for granted, by the judge who tried the cause, for, in his charge, he says, “Under that lease John Painter was not' entitled to receive, rent.” But this was the very question then trying, for it was under this.lease, that Painter set up his claim to the rent; it is set out by him in his avowry at large, and it is on .this lease, the plaintiff replied, there was no rent in arrear. I am then decidedly of opinion, no rent was, due to Alexander Graham, when he authorized John Painter, by the endorsement on the lease, “ to receive and collect the balance of the said lease;” and, therefore, Painter could have no right to demand any under the said lease.

It is, however, alleged by the defendants’ counsel, that although no rent was due under this lease to Alexander Graham, yet, there was a parol lease from John Painter to George Barnhart, and that by virtue of this, he had a right to distrain.- There is something plausible in' this. But it-is unfortunate .for the defendants, that John Painter should set out in Lis avowry, and in his warrant, a lease so entirely different from the one under which he claimed rent. -If such a lease, really existed, of which, I confess, I am at a loss to discover the evidence,' it cannot help -the defendants. The issue was taken upon Graham’s lease; -which was a written lease, not a parol one. But if the defendants had eyen proved, that another lease between other parties did exist, and that the rent was due upon that other lease, and not on the lease mentioned in the avowry, the plaintiff’s case would have been made out, and the defendants acknowledged to be trespassers. They can be justified only by the lease set out by themselves, or not at all.

It is further urged on the part of the defendants, that John Painter being the administrator of Lott Corson, deceased, was clearly entitled to -the rent, and as administrator could distrain. This ground, I deem equally .untenable.- John Painter.does not claim by virtue of a lease from Lott. Corson, nor upon his own lease. . It must be recollected, that when Graham’s execution was set aside, and thereupon restitution awarded, if Corson had been living, he could have claimed -restitution, and he being dead, his heirs, not his administrator, have the same right. ' It is unnecessary, in this case, to determine, whether an administrator can enter upon real estate, and take- the profits; it is certain, he cannot bring an ejectment for the real estate of the. intestate, nor enter upon and disturb the heir, without an order of sale from the Orphans’ Court. See also Drinkwater v. Drinkwater, Administrator of Prince, 4 Mass. Rep. 356, where this matter is fully elucidated. Once for all, Painter had not entered .upon the property and given a lease; nor does he justify, under a lease from Lott Corson, or himself. And I, therefore, think, the,charge of the court was erroneous, in leaving it to the jury to find for the defendants, on a supposed right in John Painter, as administrator of Lott Corson, deceased, to distrain.for the rent in question.

Another error is assigned on this record. It is this, that “ the court erred in reinstating the appeal from the report of arbitrators, after the same had been stricken off;”-in other words, that the whole proceedings, since the award' of arbitrators,- are illegal. I have already stated, that this was an action of replevin, in which the plaintiff complained of the illegal acts of the defendants. He does not claim any thing from Lott Corson, or his estate; but, demands damages from John Painter and John C. Caul, for unjustly taking and detaining his property. Clearly, trover or trespass would lie. It is evident, the personal acts of the defendants, constitute-th®

. grounds of this action; and in case of recovery, damages are recovered for the detention. The proviso in the arbitration act, allowing executors or administrators to appeal, as theretofore, cannot, and in my opinion, does not apply to cases in which executors or administrators are sued for their own acts; but'merely applies where they sue, or are sued in their representative Capacity. To construe it otherwise, would be a perversion of the act, or the provision in it. In this action, there was an award of arbitrators for the plaintiff, on the 29th of July, 1826, against the defendants. The defendant, Caul, does not appeal. John Painter alleges, that he is administrator of Lott Corson, deceased, and, therefore, he can appeal without payment of costs, in an action, in which the estate Of Lott Cor-son is not sued, and in which damages, are demanded of him for his own personal wrong or misfeasance. To illustrate this, let me suppose Painter had entered a man’s stable, and taken his horse, and an action of trespass or replevin, brought against him; — ,can he, by alleging, that he committed the trespass with a view to benefit some estate, of which he was administrator, claim privileges, which are not allowed to those who commit a trespass for their own benefit? Suppose an action of trespass had been brought against Caul alone, could he claim an exemption from costs, because the administrator of Corson had employed him, and intended:to defend him? It cannot be. The appeal then, by Painter, without payment of costs-, was illegal. The plaintiff objected immediately, and if the court’ had rejected his motion, he could have taken advantage of it in this court. It is, therefore, clear on this ground, that the reinstating the appeal, (not indeed at the next term, but at the third term, after it had been stricken off,) and all subsequent proceedings were illegal, and must be reversed. It is not necessary to raise the question,, whether the court here have a right to reinstate an appeal, after it is struck off; or, whether it must be reinstated by the court of error. The plaintiff’s ground is, that the appeal was illegal, and was rightly struck off, and the error, was, in the court below reinstating it. Besides, the defendant did not avow as administrator of Lott Cor-son, but as assignee of Alexander Graham. He could, therefore, not appeal, as Lott Corson’s administrator, nor without payment of costs. The judgment is, therefore, to be reversed.

Judgment reversed.  