New-York daily tribune., 1845-12-12
Right of Distress under 1Innor Leases.

jsath of Abel Cha;ied OF ChittenGen county vermont
@ be SD OF October last, the hospital OF that island
Right of Distress nudcr llnnor Leases.
BIooMINGpURGH, n. Y. Dec. ;, iSi5
To :he Editor Of The 7ribHae:
SIR; In your criticism, in The Tribune OF Nov
9ob on the Governors Letter 10 the Sheriff OF Dea-
ware County, you inqaire-Why did not the Gov
ernor discuss the legality OF distress warrants
Why did no, the Court which tried, and the Coun-
sci who defended, Van S;eenburgh and U oConner
consider the question whether or not these men
we're resisting On unjus;ihable trespass!
The fact that our highest otiicers-the Executive
and .Iudiciarv-who in all cases OF life and death
we have every reason TO suppose would desire 10
lean on the side OF mercy, that the Counsei VINO
vere pledged bv the highest vow 10 defend the
n-isoners bv every honorable weapon. IS the best
commentary we can have on the doubt suggested
bv Yourself and your writer and we refer TO them
nc authority when we say, that the question which
has been so ably argued in your paper. with zeal
and application worthy better cause Is moi an open
ouestion-s no longer rerGtG qnGStio.
You farther assert that, il the positions oi George
Clinton Jr and others on the same side are fa!a-
cious that should be made to appear why is II
not done Since then, you have gwen the chai-
Ienre we accent il; YOU have thrown down the
ganntet and we will take it up. IT, then, you will
allow US small portion of your paper and with
vour usual beraty suffer both sides TO come before
the people in the same sheet, will leave 1t with
Yourself and impartial people TO say now stands
the case.
We do not argue the propriety, rcasonabeness
and eouity of the law Bat we shall endeavor TO
ascertan what is the law this is the only question
TO be settled and this will enable US TO carry the war
into Africa II the position you assume be true llich
the convictions you express are not only honest Dut
correct-hat the acts OF the 1t!heht party IN thls
State are lawful and the murder of Steele lustihaole
homicide If The remedy by distress did not exist at
law then the officers of justice who entered under
that process were trespassers 40 i2itio ana uleir
acts were not done by rlrtue OF but rather by coior
of their Office and therefore could not be delenued;
for If there was no right OF distress then the proper
" of the tenant not liable TO be dlstralned and
he was warranted in using force adequate TO the pro-
tection of his property, and certainly those VINO
were engaged in the lawful protection OF their pro-
perty should not be arraigned as crnlhal oeoc our
tribunals OF Justice.
But the conclusions to which these deductions
lead we think are sanctioned either by the com
mon or statute law and we feel confident that Tor
this assertion. produce unimpeachable an-
ority Let therefore 10 the Law aud testimony
for if we speak not according these, there is no
light in US" Time would not permit to treat at
large all the points raised by the writer in your col
umns. If necessary, can show that at common
law tenants 10 lease in fee not considered as
absolute owners OF the same doctrine has been per
petuated in the decisions OF the Supreme Court OF
this State.
|, has been admitted that where there is q rever-
sonary interest the grsut0r or his heirs there cX
ISIS The right OF distress As necessary incident
Now is there not in perpetual leases reversion Ia
the grantor and his assigns And does not The re-
aron OF landlord and tenant exist in such tenure
See & John Rep. 43 decided i'll lSlO-aso, D Cowen,
i4S decided in S26where certain lands were granted
in fee simple, reserving an annual rent and containing
the usual clause OF distraint aud reenry lhe Court
held that the estate granted was upon condition. ana
might be defeated II the condition was not performed
Ia Cowen SOL the relation OF landlord and tenant was
acknow ged IN lease in fee, and the doctrine held
that the heir or devisee ofthe lessor. entitled to dis
train for rent In Wen 523 the Court any the plaintiff
rep reseniipg the lessor and the defendant the cssee
each enjoy the rights and subject to the Liabilities OF
the persons represented. To make the chain complete
and continuous will refer to one case since the pas
sage of the Revised Statutes Wen. 2O, in which the
Court held page 2l5here be no doubt the lease Is
perpual one Il by the heirs and assigns Of to
the heirs and assigns of the other for such time the
one snail pay rent and fulfill other srpuatlons As
long the pays rent and complies with other stipu
atons he is entitled all the rights and privileges
under it lthereore necessarily toows that the lease
continues until the plaintiff may elect 10 claim forfeit
in the default c the lessee to pay Do not all these
show that the relation OF landlord ard tenant exists
In perpetual lease and that rerersioGary interest IS
left in the grantor and his heirsi H. then it be true
that there is revcrsior, then distress follows
ural consequence in the common law. This your writer
cannot deny, for he has already admitted Il.
There be no doubt that for rent service the land
lord may distre!n Of common right Cornell Vs. Lamb
Cow CO., and in Wharton 1884, il was held that "A rent
eseryed and his heirs in the grant OF lands in
fee is seriee and therefore the right of distress
follows IN incident. But this we consider mmatcria
are willing adni. that the amount reservedls
rent charge.
We farther assume, which we suppose will be the
strata Of rhermopyId in the that charge
might be dstrsned for common law where the lease
provided for it. whether the lease forever or for
shorter period and whether reyersionary
remaining in the lessor or no-see Woods Institutes,
10th London edition. Book second Chap. 3d. l54 Lit
tleon 2l7, 2ls referred in Brady Distress,
page %. Black Comm i3; Bacon Douslass's Rep
part l. G27. See also the very OF Cornell Lamb.
Cow 652 ard The People Haskins, Wen. 453, TO
which the writer has referred and BY which will be
that where there clause OF distress there the
right ia evident
But LAYING the common law aside we will now refer TO
law, which plain, esops further inqui
r. whether contradictory Of the common law not and
taking this for guide think safe in saying
that seek which was rent reserved oy deed without
any clause OF distress and where the Of the rent
had no future interest eyerson IN the land can De
collected in this the present time by the remedy
of distress If this be sustained every doubt must
disappear and every quibbe be set at rest.
The of 4, Geo. ID chapter 2s annued the te-
dious and uncertain process OF action oy which reatsec
could alone be collected and abolished all distinctions
between the several kinds of rent so far as 10 give the
same remedy by distress in all cases The statute Of
n. Y. 10 quote the words of Chancellor hent has not
adapted the provision OF fourth Geo in many words,
but gives the remedy py distress IN az cases where any
certain services or certain rents Eeservcd OUT OF ancs
or .eneu,en,s remain due. The remedy Is extended
equally 10 the grantees and assignees of Lessor and
10 the heirs and administrators OF the party
entitled There s therefore the same universal
dy bv action and distress for every species of rent o.
services lawfully due, when The same Is certain and
is not this conmed by the words OF the Statute of 1920
Vol ls Sec 5. p 7i7 which Is much liberal than
tie Statute OF I5e, VIZ when any certain services or
certain rent reserved out Of any lands tenernents
sa te paid rendered wien due the person emil
ted thereto may dstrain for the same"
An objection been raised that this provision Of the
does not apply 10 rent arising leases anterior
to passage of tie statutes. Bu-!e. for mo-
uent whether this be sol AL must admit that this rent
gt coil f.iab-
What then has me done Simply 10 alter the
remedy 70 the remedy by action, It has superadded
the remedy by distress and this apprehend without
in the s2htesrdesree imparng the sb!ga.ion OF con-
tracts, for has been zoo often decided TO remain now
an open question that legislation touching the remedy
only, is lot considered as affecting the validity of
contract. LEX
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