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BUSINESS LAW 2 CHAPTER ONE

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Page 1
3 Scam. 301, 4 Ill. 301, 1841 WL 3322 (Ill.)
(Cite as: 3 Scam. 301, 4 Ill. 301 (Ill.), 1841 WL 3322 (Ill.))

233VIII Rent and Advances


233VIII(D) Distress
Supreme Court of Illinois. 233k265 Right to Distrain
Alexander Penny, plaintiff in error, 233k265(1) k. In General. Most Cited
v. Cases
James Little et al., defendants in error. A landlord may distrain for rent, though no power
December Term, 1841. of distress is contained in the lease.
W. A. Minshall, for the plaintiff in error, relied
Error to Schuyler.
upon the following authorities:
*1 The provision in the ordinance of July 13, 1787,
R. L., 676, sec. 6; Stephen on Plead., 377, 430; 3
ceding the northwestern territory to the United
Black. Com., 6, note 8; Kent's Com., 400-1, 483,
States, that the inhabitants of said territory shall al-
note a; 2 Black. Com., 42-3; 3 Kent's Com., 470;
ways be entitled to the benefit of judicial proceed-
Bradby on Distress, 30, 99, 100; 3 Kent's Com.,
ings, according to the course of the common law,
484; 3 Cruise's Dig., 308, sec. 8; Burn's Justice,
intends the common law as it was then understood
425; Woodfall's Landlord and Tenant, 152.
and expounded, by the courts in America.
C. Walker and J. B. Thomas, for the defendants in
A landlord has a right to distrain for rent, where no error.
FN(a)
power of distress is contained in the lease.
DOUGLASS, Justice, delivered the opinion of the
FN(a). O'Hara v. Jones, 46 Ill., 288, and
court:
Denslow's note.
The plaintiff, Penny, sued the defendants in an ac-
This cause was heard in the court below at the April
tion of trespass, at the November term, 1838, of the
term, 1841, before the Hon. Stephen A. Douglass.
Circuit Court of Schuyler county. The defendants
West Headnotes pleaded the general issue, which was joined, and
also three special pleas, justifying the supposed
Common Law 85 13 trespass, under a landlord's warrant for rent. The
plaintiff demurred to the special pleas, and the de-
85 Common Law murrer being joined, was overruled by the court,
85k10 Adoption and Repeal and, the plaintiff failing to answer further, judg-
85k13 k. Constitution and Laws of United ment was rendered against him for costs, at the
States. Most Cited Cases April term, 1841.
The provision in the ordinance of July 13, 1787, or-
ganizing the Northwestern Territory, ceded by Vir- The errors assigned are:
ginia to the United States, that the inhabitants of
said territory shall always be entitled to the benefit First. The court erred in deciding the law to be
of judicial proceedings, according to the course of against the plaintiff below, on the demurrer to de-
the common law, intends the common law as then fendants' pleas in bar.
expounded by the courts in America.
Second. The judgment of the Schuyler Circuit Court
Landlord and Tenant 233 265(1) was rendered for the defendants, when, by the laws
of the land, it should have been for the plaintiff.
233 Landlord and Tenant

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Page 2
3 Scam. 301, 4 Ill. 301, 1841 WL 3322 (Ill.)
(Cite as: 3 Scam. 301, 4 Ill. 301 (Ill.), 1841 WL 3322 (Ill.))

The case has been submitted without argument, and fourth year of the reign of King James I.,” with
it is understood that the only question presented for three exceptions therein named, “and which are of a
the decision of this court is, whether the right of the general nature, and not local to that kingdom, shall
landlord to distrain for rent exists under the laws of be the rule of decision, and shall be considered as
the state, when the deed or lease does not expressly of full force, until repealed by legislative author-
reserve this privilege. It is to be regretted that so ity.”
important a question should have been submitted
without argument; a question which involves the By the common law of England, there were three
legality of a supposed right daily exercised by a several kinds of rent, to wit: first, rent service;
FN1 FN2
large portion of our community. Our statute secondly, rent charge; and thirdly, rent seck.
provides that, “When any goods or chattels shall be
FN2. 7 Bac. Abr., 3-8.
distrained for rent, and the tenant or owner of the
goods so distrained shall not, within five days after Rent service was where the tenant held his land by
such distress taken, and notice thereof, and the fealty, or other corporeal service, and a certain rent;
cause of taking, replevy the same, with sufficient and it was called rent service because it was given
security according to law, the person distraining, or as a compensation for military, or other services, to
his agent duly authorized, may, with the sheriff or which the land was originally liable. A right of dis-
constable of the county, cause the goods and chat- tress was inseparably incident to this rent. Rent
tels so distrained to be appraised by two reputable charge is where the rent is created by deed, and the
freeholders, under oath; which oath may be admin- fee granted; and as there is no fealty annexed to
istered by such sheriff or constable, to appraise such a grant of rent, the right of distress is not an
such goods and chattels, according to their best incident, and it requires an express power of dis-
judgment and understanding; the person making tress to be annexed to the grant, which gives it the
such distress, on giving ten days' notice, may sell name of a rent charge, because the lands are, by the
such goods and chattels at public auction, and after deed, charged by a distress. Rent seck, or barren
retaining the amount of rent distrained for and the rent, was rent reserved by deed, without any clause
costs of distress and sale, shall pay the overplus, if of distress, and in a case in which the owner of the
any there be, to such tenant or tenants.” rent had no future interest or reversion in the land.
The owner of the rent was accordingly to pursue the
FN1. R. L. 676; Gale's Stat., 435.
slow and tedious remedy by a writ of annuity, or a
FN1
*2 It is apparent that this statute does not confer the writ of assize.
right upon landlords to distrain for rent; but recog-
FN1. 3 Kent. Com., 368.
nizes the existence of such right, at the time, and
prior to the passage of the act, and regulates its fu- Thus stood the common law prior to the fourth year
ture exercise. The existence of the right of distress of James I., and even as late as the fourth year of
being recognized and established, it becomes neces- George II., when, by an act of parliament, all dis-
sary to inquire into the extent of the right, and the tinctions between the several kinds of rent were ab-
kinds of rent to which it pertains. The laws in force olished, so far as to give the same remedy by dis-
in this state are all to be traced to one of two tress in cases of rent seck, rents of assize, and chief
sources, the acts of our legislature and the common FN2
rents, as in case of rents reserved upon a lease.
law. By an act of our legislature, approved Febru-
ary 4, 1819, it is provided, “That the common law FN2. 3 Kent. Com., 368.
of England, all statutes or acts of the British Parlia-
ment made in aid of the common law prior to the Prior to the passage of this statute, the right to dis-
train for rent in England, was restricted to rent ser-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 3
3 Scam. 301, 4 Ill. 301, 1841 WL 3322 (Ill.)
(Cite as: 3 Scam. 301, 4 Ill. 301 (Ill.), 1841 WL 3322 (Ill.))

vice and rent charge. The question now arises, the fourth year of James I., and our own statutes.
whether our statute in relation to landlords and ten-
ants, taken in connection with the act adopting the The common law is a beautiful system; containing
common law of England, and the British statutes the wisdom and experience of ages. Like the people
prior to the fourth year of James I., is to be under- it ruled and protected, it was simple and crude in its
stood as recognizing the right of distress as it exis- infancy, and became enlarged, improved, and pol-
ted at that date, and excluding all the supposed be- ished, as the nation advanced in civilization, virtue,
nefits of the statute of fourth George II., extending and intelligence. Adapting itself to the condition
the right of distress to all kinds of rent alike. If such and circumstances of the people, and relying upon
is to be the construction of our statute, its provi- them for its administration, it necessarily improved
sions, in relation to distress for rent, will be as the condition of the people was elevated.
rendered, nearly, if not wholly, inoperative.
It is to be presumed, then, that our legislature, in
*3 The right to distrain for rent, as has already been adopting the common law of England, and the Brit-
shown, at the fourth James I., was confined to rent ish statutes in its aid, prior to the fourth of James,
service and rent charge. In this country, we have no intended to exclude all the improvements in the
such description of rent as rent service. To consti- common law since that period? I do not wish to be
tute that kind of rent, it was necessary that the ten- understood as saying that the act of the fourth
ant should hold the land of his landlord by fealty or George II., extending the right of distress to all
FN3 kinds of rent indiscriminately, was an improve-
homage, as well as a certain rent.
ment; but I do say, that if we are to be restricted to
FN3. Bradby on Distress, 30-35-100; 7 the common law, as it was enacted at fourth James,
Bac. Abr., 4. rejecting all modifications and improvements which
have since been made, by practice and statutes, ex-
From the nature and principles of our institutions, cept our own statutes, we will find that system en-
as well as our land system, the tenant can not bear tirely inapplicable to our present condition, for the
fealty or homage to his landlord, and consequently simple reason that it is more than two hundred
can not hold by the tenure of rent service. years behind the age.

To constitute rent charge, it is necessary that the Why, then, it may be asked, did our legislature fix
lease should contain a clause reserving the right to the fourth James I., instead of the date of the de-
distrain for the rent. This is contrary to the univer- claration of independence, or of the formation of
sal practice of this country. Probably such a lease our constitution, as the period for transplanting the
can not be found in the state, yet scarcely a day common law of England into this country? The his-
passes that we do not see landlords distraining for tory of our own country furnishes the answer. That
rent. It is possible that landlords may have usurped, was the period at which the first territorial govern-
and daily exercised for twenty years, a summary, ment was established in America, and with it the
and by many supposed to be an arbitrary and op- common law of England as it then existed. From
pressive remedy, for the collection of rents; and that period we must look to American legislation,
that their tenants have quietly and tamely submitted and the reports of American courts for improve-
to the usurpation, and that the bar have approved, ments and modifications in the common law. In
and the courts sustained the same, without conceiv- Virginia, the right to distrain for “any rent reserved
ing that it was illegal; and such must inevitably be and due upon a demise, lease, or contract whatso-
the case, if we are to be confined, in our decisions, ever,” was recognized by statute as early as May,
strictly within the limits of the common law of Eng- FN1
1730. The provisions of this statute, like our
land, and the British statutes in aid thereof, prior to own, did not confer the right of distress; but recog-

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Page 4
3 Scam. 301, 4 Ill. 301, 1841 WL 3322 (Ill.)
(Cite as: 3 Scam. 301, 4 Ill. 301 (Ill.), 1841 WL 3322 (Ill.))

nized its existence, and regulated its exercise, in of the land. The legislation of the territory and of
terms which clearly show that it was intended to ap- our state was adopted with reference to the law as it
ply indiscriminately to all kinds of rent certain. The thus existed in the country. Upon this principle and
district of country northwest of the Ohio river, in- none other, can we account for the numerous cases
cluding the present state of Illinois, was then within in which the common law has been changed by
the territorial limits of Virginia, and in 1778, was statute in England, since the fourth of James I., and
organized into the county of Illinois. In 1783 it was those changes adopted by the courts in this country,
ceded by the state of Virginia to the United States; without having been first re-enacted by our legis-
and by the ordinance of the thirteenth of July, 1787, latures. In confirmation of this principle, it is suffi-
was erected into a territorial government. That or- cient, for our present purposes, to cite the act of the
dinance contains certain articles of compact territorial legislature, and the acts of 1819 and
between the original states and the people in said 1827, recognizing the right of distress in all cases,
territory, which articles, it is declared, shall forever where the rent is certain, without reference to
remain unalterable, unless by common consent. In whether the lease contained a clause reserving the
said articles, it is provided, among other things, that privilege of distraining for rent. We are, therefore,
the inhabitants of said territory, shall always be en- of the opinion, that as the law now stands in this
titled to the benefits of judicial proceedings accord- state, a landlord has a right to distrain for rent,
ing to the course of the common law. Did the without reserving the privilege in the lease.
parties to this compact intend to adopt the common
law as it existed in England, before the settlement The judgment is affirmed, with costs.
of America, or did they intend to adopt the common
Judgment affirmed.
law as it then existed in this territory, modified, and
improved, and adapted to the condition, circum-
stances, and habits of the people, by a long course Ill. 1841.
of American legislation and American practice? Penny v. Little
The mere statement of the proposition furnishes a 3 Scam. 301, 4 Ill. 301, 1841 WL 3322 (Ill.)
sufficient answer. It was evidently their intention to
secure to the inhabitants of the territory, the bene- END OF DOCUMENT
fits of the common law as it was then understood
and expounded by the courts in America.

FN1. 4 Henning's Statutes, 288.

*4 The inhabitants of this country always claimed


the common law as their birth-right, and at an early
period established it as the basis of their jurispru-
dence. Slight changes and modifications were
found necessary, and consequently adopted by
common consent, from time to time, to adapt it to
our peculiar institutions, and the habits and customs
of the people. These changes, modifications, and
customs having, for a long course of years, been ac-
quiesced in by the people, and sanctioned by the
courts, have acquired the force of law, and become
incorporated into and made part of the common law

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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