Cross v. Tome

Bartol, J., delivered the opinion of this court. The decision of this appeal depends upon the construction of the Act of 1834, ch. 192, regulating the mode of levying distress for rent. The rent reserved was in money, the amount thereof to be ascertained by computation of the quantity and kinds of stone quarried. This, in our opinion, was a certain money rent, within the meaning of the Act.

That is certain which may be made certain. Under the statute of New York, which, in this respect, is similar to our own, in a case “where the rent reserved was three dollars per acre for all the improved land on the 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 the payment of rent,” it was held that, the rent was sufficiently certain within the statute. Smith vs. Fyler, 2 Hill, 648 . This being a case within the Act of 1834, the only question before us is, whether the account and affidavit, offered in evi ²⁵⁶ dence, are a sufficient compliance with its provisions?

Three objections are made to the account by the appellee: 1. That the time when the rent became due is not stated, 2. That the account does not state the whole amount of rent, and set out the credits. 3. That the period, during which the rent accrued, is not stated in the account.

The first objection is based upon a misconstruction of the account. In our opinion, it is necessary to state when the rent became due, but, according to our interpretation of the account, that is sufficiently stated. It is in these words: “Baltimore, February 2nd, 1855. Mr. James Whitelock, To Andrew B. Cross, Dr. To balance of quarry rent due Dec. 31st, 1855, on the quarry at Rock Run, Cecil county, which formerly belonged to estate of W. L. Cross, ... $,‘591.00” Notwithstanding the ingenious criticism of the appellee’s counsel, we think the fair interpretation of this is, that the quarry rent became due the 31st of December 1855, and the balance therein stated is charged as remaining unpaid at the date of the account.

The second objection is not sustained by any thing in the Act of Assembly. The 3rd section requires that there shall be prefixed to the warrant, “an account stating in dollars and cents the amount of rent claimed to be due and in arrear, * % m * * together with an affidavit or affirmation thereon in substance as required by the first section of the Act.” It is not necessary to state in the account the terms of renting, nor to set down the items showing the whole amount originally payable under the contract, and the credits thereon; it is sufficient “to slate, in dollars and cents, the amount of rent claimed to be due and in