Theriat v. Hart — 2 Hill & Den. 380

Majority

p. 380

In the matter of Theriat vs. Hart, sheriff, &c.

Headnote

Where goods of a tenant are taken in execution, the landlord can only claim of the officer rent due at the time of the levy, and not such as falls due afterward.

A mere change of phraseology in the revision of a statute will not alter the law as previously declared, unless it clearly appear that such was the intention of the legislature. See note (b).

In May, 1841, the goods of one Bergen were levied upon by virtue of a ji. fa. issued upon a judgment in this court. On the 25th of November following, the goods were sold by the sheriff, who had previously been served by Theriat with an affidavit and notice, in pursuance of 1 R. S. 737, § 12, 2d ed., claiming that he was landlord of the premises on which the goods in question were when levied upon, and that a certain sum became due to him as rent on the 1st of November then instant. The sheriff refused to appropriate any of the proceeds of the sale to the payment of the rent claimed, and a motion to enforce such payment was now made in behalf of the landlord.

C. De Witt, for the motion.

8. Stevens, contra.

By the Court,

Under the statute of 8th Anne, ch. 14, § 1, from which 1 R. L. of 1813, p. 437

p. 381

§ 12, was taken, it was held, that the landlord could only claim rent due at the time of the levy. (Hoskins v. Knight, 1 M. & S. 245 ; Comyn on Land. & Ten. 394; Trappan v. Morie, 18 Johns. R. 1; Beekman v. Lansing, 3 Wend. 450 ; Van Rensselaer v. Quackenboss, 17 id. 38.) Though the language of the revised statutes (1 R. S. 737, § 12, 2d ed.) varies somewhat from the old law,^[1] there is no reason for believing that the legislature intended to change the settled rule on this subject^[2] —a rule which was reasonable and just as respects both the landlord and judgment creditor—nor do I think a fair interpretation of the statute will lead to such a result. I am of opinion, that according to the legal import of the statute now in force, the rent claimed must be due at the time of the levy. The motion should therefore be denied with costs.

Motion denied.

(a) (a) а) By the act of 1813, the landlord’s claim was expressly restricted to rent due “ at the time of the taking” of the goods under the execution. (See 1 R. L. of 1813, p. 437, § 12. The revised statutes declare that “ if an execution be levied,” &c., the landlord to whom any rent “ may be due, may, at any time before a sale of such goods by virtue of such execution, give notice,” &c. (See 1 R. S. 737, § 12, 2d ed.)

(b) (b) That a mere change of phraseology in the revision of a statute will not work an alteration in the law as previously declared, unless it clearly appear that such was the intention .of the legislature, see Taylor v. Delancy, (2 Cai. Cas. Er. 143, 151 ;) Yates case, (4 John. R. 317, 359;) and Matter of Brown, (21 Wendell, 316, 319.)