Giles v. Ebsworth

Tuck, J., delivered the opinion of lilis court. The first exception in this record relates to the authority from Sirs. Ebsworth to Mortimer, under which the distress was laid, it being contended, on the part of the appellant, that it did not authorize the collection of rents due at its date. The paper does not, in terms, coniine Mortimer to the collection of such rents as might arise under leases lo be made thereafter by him, but confers power to receive rents generally, and to use means to that end as fully as Mrs. Ebsworth herself might employ.

We agree with the court below, that it was sufficient for the purpose for which it was offered in evidence, that is to say: to prove Mortimer’s authority to act, in this case, as her agent. The second exception was taken to the admissibility of a deed from Mrs. Ebsworth to Mortimer, dated in 1839, for the property demised, offered by the appellant “for the purpose of showing, that at the time of making the distress the avow-ant had not the legal title to the premises, and therefore could ³⁴⁴ not distrain.” A tenant cannot dispute the landlord’s title, though he may show that it has expired. This deed was not offered for this latter purpose, on the concession that the title was in the appellee at the time of the lease.' Its effect, according to the appellant’s construction, would have been to deny her title at that time, as well as on the day of the distress; and was properly rejected. We express no opinion on the construction of the deed, but dispose of this exception on the hypothesis, that it passed the title to Mortimer.

The plaintiff below offered eight prayers, all of which were refused, except the first. The second, third and eighth, relate to the note of Tucker, taken by the appellant’s agent, for one quarter’s rent. It is clear, .that taking security does not forfeit the remedy by distress. Act of 1842, ch. 208.

The promissory note of the tenant ought not to have any greater effect than that of another person, or any other security passed by him to the landlord. What difference can it make to the tenant, that his note is discounted, provided it be in the hands of the landlord to be surrendered at the proper time? It appears to have been taken for the tenant’s accommodation, and could only operate as a suspension of the other remedy until it became due. When, a party taires a negotiable instrument* we are not to infer a collateral agreement, that the holder is not to use it.

The law makes no such presumption. Why change the form of the transaction at all, if the party was not to have such benefit from it, in its new form, as he might derive from other paper of the same kind? It was the tenant’s duty to have paid this note himself. As he did not, and it was taken up by the agent of the appellee, the remedy by distress was properly resorted to.

There was no agreement that it should operate as satisfaction, nor any evidence legally sufficient to warrant that inference. It was in possession of the avowant, at the trial, and tendered to the appellant, and that is all that the law requires. The refusal of these three prayers is therefore affirmed. The fourth prayer was properly rejected, because there was no evidence tending to show, that all the rent had been remit ³⁴⁵ ted by Mortimer to the