Bates v. Nellis — 5 Hill & Den. 651

Majority

p. 651

Bates vs. Nellis.

Headnote

Where a tenant, at the time of receiving his lease, executed a bond and warrant of attorney as collateral security for the rent, on which judgment was afterwards entered up; held, not an extinguishment of the landlord’s remedy by distress.

Since the revised statutes, however, if the landlord recover judgment upon the agreement or covenant to pay rent, the remedy by distress is gone. Per Nelson, Ch. J.

Demurrer to rejoinder. The declaration was for trespass de bonis fyc. Plea, justifying the taking of the goods by way of distress for rent due the defendant upon a lease from him to one Yale, alleging that the goods were on the demised premises at the time of the distress. Replication, that the lease to Yale was in writing, and that the defendant, after the execution thereof, recovered judgment in the supreme court against Yale, by confession, for all the rent reserved in the lease. Rejoinder, that the judgment was not recovered for the rent mentioned in the replication, but upon a bond and warrant of attorney executed by said Yale as collateral security for said rent, bearing even date with the said lease &c. Demurrer and joinder.

T. Barlow, for the plaintiff.

C. P. Kirkland, for the defendant.

The only material question in this case is, whether the judgment entered up on the bond and warrant of attorney given at the same time with the lease, extinguished the power of distress within the meaning of 2 R. S. 500, § 2. The section is as follows: “ No distress shall be made for any rent for which a judgment shall have been recovered in a personal action.” It was held in Chipman v. Martin, (13 Johns. R. 240,) that a judgment recovered on the covenant to pay the rent did not operate to extinguish the remedy by distress. The above provision in the revised statutes was intended to confine the landlord in such case to his remedy upon the judgment, with a view to prevent the multiplication of costs; and that object should doubtless be fully carried out.

In the present case, however, the judgment is not only founded on a distinct and different instrument from the lease, but was intended as a mere collateral security. To give to this judgment the effect of extinguishing the remedies upon the lease would be a violation of the agreement and understanding of the parties. No doubt the lessee may waive the operation of the statute, and to my mind it is quite clear that he has done so in the present instance. Besides, it is a general rule that the taking of collateral security even of a higher nature, whether from the principal or a stranger, does not affect the remedies on the original contract; and a judgment is no exception to this rule. (Day v. Leal, 14 Johns. Rep. 404 .)

I do not see how we can say that the judgment which Yale confessed operated as an extinguishment of the remedy by distress, unless we assume the province of regulating the amount of security between the landlord and tenant, whatever may have been their own private agreement in the matter.

Judgment for the defendant.