dissenting.
The question presented for our consideration and judgment in this ca.se is, whether the plaintiff is entitled to distrain the defendant’s goods and chattels for rent due, on the statement of facts contained in the record. This is a question of practical importance, and should be settled in accordance with the fundamental principles of the law governing that particular class of contracts. The evidence in the record is, that the plaintiff told the defendant, who was then living on the land, that he could have fifty acres of it, intended to charge him for it, but did not tell the defendant so; made no contract with him for rent, no amount was specified, nor was anything said about payment. The Court below on the trial of the case charged the jury; “it is not pretended that there was any express contract to pay rent; if you believe from the evidence that defendant went into the possession of the land of the estate, and occupied it, and cultivated it, the law implies a contract to pay what the land was worth; it is not necessary that there should have been an express contract to pay money or anything. If you find that there was such an implied contract, the plaintiff must recover in this case what he has shown the land to be worth, unless you find that the understanding between them was that no rent was to be paid. I see no reason why a distress proceeding should not be good in this case as well as in all others, if you find there was an implied contract.” In my judgment, this charge of the Court was erroneous, in view of the facts of the case, and the law applicable thereto. The question was not whether the plaintiff was entitled to recover, in a proper form of action, for the use and occupation of the land, what the law would imply the same to have been reasonably worth, according to the custom of the neighborhood, or otherwise, but the question was, whether the plaintiff was entitled, under the law, to distrain the goods and chattels of the defendant, for rent due, on the statement of facts then before the Court.
When there is no express contract on the part of the alleged tenant to pay a certain sum of money for the rent of *522the land, or any other specific thing for the rent thereof, can the plaintiff distrain for rent due, under the laws of force in this State? What is rent, in the legal acceptation of the term ? Blackstone defines rent to be “ a certain profit issuing yearly out of lands and tenements corporeal. It may consist in services or manual operations, as to plough so many acres of ground, to attend the king or the lord to the wars, and the like; which services, in the eye of the law, are profits. This profit must also be certain, or that which may be reduced to a certainty by either party.” 2d Blackstone’s Commentaries, 41. Rent, as defined by Chancellor Kent, is "a certain profit in money, provisions, chattels, or labor, issuing out of lands and tenements in retribution for the use. There were at the-common law, according to Littleton, three kinds of rent, to-wit: rent service, rent charge, and rent seek. Sent service was where the tenant held his land by fealty, or other corporeal service, and a certain rent, and it was called rent service because there was some corporeal service incident to the tenancy, as fealty, homage, or other service. A right of distress was 'inseparably incident to this rent.” 3d Kent’s Commentaries, 460. Blackstone says that for neglecting to do suit to the lord’s court, or other certain personal service, the lord may distrain of common right. 3d Blackstone’s Commentaries, 7. The principle to be deduced from these authorities is, that the right of distress was by the common law confined to rent service, which was for a certain rent, or such as might be reduced to a certainty. To entitle a person to distrain for non-payment of money, it must be due under a demise and for rent fixed in its nature, and if therefore a person be let into possession under an agreement for a lease which does . not contain words of Immediate demise, no distress can be made, unless from a previous payment,of rent, or other circumstance, a tenancy from year to year can be inferred, and the only remedy is by action for use and occupation. Lord Coke quaintly says, “ it is a maxim in law, that no distress can be taken for any services that are not put into certainty, nor can be reduced to any certainty for id cerium est quod cerium reddipotest, but yet in some cases there may be a *523certainty in uncertainty. Therefore, if a man hold land paying so much per acre, although in the terms of the demise the number of awes be not fixed, the lord may distrain. But where an estate has been let without in any way fixing the amount of rent, the only remedy is by action.” 3d Blackstone’s Commentaries, 7, note. In Dunk vs. Hunter (7th English Common Law Report, 116) Abbott, C. J., said: “A party has no right to distrain, unless there be a fixed rent agreed, upon; if that be not so, the law gives him a remedy by the action for use and occupation. There can be no distress, unless there be a contract for an actual demise, at a specific sum? In Regnart vs. Porter, (20th English Common Law Reports, 196,) Tindall, C. J., said: “Before a landlord takes into his hand the speedy remedy of distress, he must? see that the amount of rent to be demanded has been settled with precision? “Distress for rent will not lie, unless there be an agreement for a sum certain, either in writing, or by parol:” Jacks vs. Smith, 1st Bay’s Reports, 310. Smith vs. the Sheriff of Charleston, Ibid, 438. “A landlord has no right to distrain and sell the goods of his tenant for the use and occupation of demised premises, unless the rent by agreement of the parties is certain, either in money, or services, or is such as may be reduced to certainty? Valentine vs. Jackson, 9th Wendell’s Reports, 302. “A claim for an unliquidated amount of rent, without an express contract, will not authorize a distress Roberts vs. Tennell, 4th J. J. March’s Reports, 160. According to the living principles of the common law, of force in this State, applicable to rent contract, no distress-warrant can be taken out and enforced for the non-payment of rent, unless there has been an express contract between the parties that the alleged tenant should pay rent, either in money, or other specific thing; the rent agreed to be paid must be fixed and certain, or of such a specific nature as may be reduced to a certainty. But if there has not been any express contract between the parties to pay any certain or fixed sum, or other specific thing, for the use of the land, the remedy of the plaintiff is not by distress-warrant against the defendant cultivating the land, but the remedy of the plaintiff is by an action *524for use and occupation of the land, to recover of the defendant what the use and occupation of the land is reasonably worth. These living principles of the common law, have not, in my judgment, been repealed or abrogated by the Code, so far as the legal right to distrain for the non-payment of rent is concerned. For it is one of the essential elements of a rent contract which will authorize the landlord to distrain for rent due, that the amount of the rent, or other service to be rend-' ered for the use of the land, should he fixed and certain by the express contract of the parties. The summary remedy by distress is given to the landlord for the non-performance of that which the tenant expressly agreed to pay, or to render, for the use of the land when he was let into the possession thereof, and not for that which the law would imply the use of the land was reasonably worth, either by the custom of the neighborhood, or otherwise. The 2259th section of the Code declares that the landlord shall have power to distrain for rent as soon as the same is due, or before due, if the tenant is seeking to remove his goods from the premises. If the tenant fails to pay the rent due at any time, the landlord may re-enter immediately and dispossess the tenant. The 4010th section of the Code provides the manner in which a distress-warrant for rent due shall be taken out. B'ut the Code is silent as to ■what are the particular contracts under which rent is claimed, which the landlord may enforce by distress and sale of the tenant’s goods and chattels. The landlord has the power to distrain for the non-payment of rent, under the Code, and so he had the power and authority to distrain for the non-payment of rent by the common law, but in what cases? The Code does not specify, and therefore, we must look to the common law for our guide in that respect. The Code must be construed in the light of the common law; that is to say, in all cases where by the common law the landlord was authorized to distrain for the non-payment of rent due, he can do the same thing under the Code. The Code only authorizes the landlord to distrain for rent due, in all cases where by law he would be entitled to distrain therefor, and the common law, as we have already shown, regulates and controls that *525question. The Code furnishes the remedy by distress-warrant for the non-payment of rent -due, and under certain circumstances, when not due, but when we desire to ascertain the particular state of facts which will enable us to employ that remedy, we must look to the common law for instruction, and regulate our conduct by it. Take this case and propound the question, can the plaintiff distrain the defendant’s goods and chattels, under the state of facts contained in the record, for the non-payment of rent ? The Code will not decide the question by reference to its provisions, but the common law is clear on the point of inquiry. The Code intended to give the power and authority to distrain for rent due, in all cases where by the common law such proceedings was allowed, and not otherwise. It is a sound rule of construction, that when a statute makes use of words the meaning of which are known to the common law, the words shall be understood in the same sense, and therefore, the words “distress for rent due,” or “distrain for rent due,” should receive the same construction and interpretation when used in the Code, as the same are understood and interpreted by the common law. In Cornell vs. Lamb, (2d Cowen’s Report, 656,) Woodworth., said: “Our Act concerning distresses does not expressly define what shall constitute a right to distrain; it would seem, therefore, that where there is not a clause of distress, the landlord’s right to this remedy cannot be more extensive than that given by the common law, which is limited to rent service.” Again, on page 657, “the Act concerning distresses does not expressly define the cases, in which a distress may be lawful; I think it, however, manifest from its provisions that the common law right was not intended to be abolished, but preserved in full force.” Anciently, the lord, the landlord'as we now call him, could enter upon the demised premises and distrain his tenant’s goods and chatties for the non-performance of rent service which the latter had agreed to perform and render; the law allowed the landlord to be his own avenger or to minister redress to himself for non-payment of rent, or other duties. But as the exercise of this right was liable to great abuse and oppression, the right to distrain has been regulated *526by law. The 4010th section of the Code prescribes the manner in which the landlord must proceed to distrain for rent due, and in all cases in, which he may distrain for rent due by the common law, he may have a distress-warrant therefor under the provisions of that section of the Code, but in no other. The party distraining must show the authority of law, upon a given state of facts, which will authorize him to take out a distress-warrant for rent due and distrain the alleged tenant’s property; otherwise, he will be a trespasser. If the facts of the case under the laxo, would not entitle him to distrain for rent alleged to be due, the taking out a distress-warrant therefor would not protect him. This speedy and harsh remedy can only De employed in such cases as are authorized by law, and it has been already shown in what cases the law does, and in what cases it does not authorize it. The majority of the Court in this case place their judgment on the ground that inasmuch as there was evidence of a custom in the neighborhood to rent land for one-third of the corn and one-fourth of the cotton, to be paid to the landlord, therefore, there was an implied agreement on-the part of the defendant-to pay rent according to that custom, and that the plaintiff,- on making oath of a specific sum due for rent, was entitled to have a distress-warraxit therefor, under the 4010th section of the Code. However true this position of the majority of the Court might have been, as to the implied liability of the defendant to pay what the rent of the land was reasonably worth according to the custom of the neighborhood,'had an action been brought by the plaintiff for the use and occupation of the land by the defendant, I deny, that under the law, the plaintiff was entitled to distrain the defendant’s goods and chattels for rent due on this implied contract, and I contend that the affidavit of the plaintiff as to the specific sum due under this implied contract, did not alter or change the law as to his right to distrain the defendant’s property under such implied contract. It might be a sufficient reply to this assumed position of the majority of the Court to say, that the authorities already cited, establish beyond controversy, that the plaintiff was not entitled to distrain for rent due on an *527implied, contract of this character; but, as was said by Chief Justice Tindall, in Regnart vs. Porter, “Before a landlord takes into his hands the speedy remedy of distress, he must see that the amount of rent to be demanded has been settled with precision.” The amount of rent to be demanded is not to be settled by the landlord in his affidavit for the distress-warrant, but it must be settled by the rent contract between the parties, otherwise, the affidavit of the landlord would regulate and determine his right to distrain the goods and chattels of the defendant., instead of the law applicable thereto. All that can be said in this case, is that the defendant occupied the land by the consent of the plaintiff, but he never agreed to pay him one-third of the corn and one-fourth of the cotton, or any other fixed and certain amount for the rent of it; consequently, the alleged tenant has not committed any breach of fealty to the plaintiff as his landlord by the non-performance of any rent contract, or for the non-performance of any other stipulated rent service agreed to be paid or rendered on his part, which would authorize the plaintiff as his landlord under the law, to distrain his goods and chattels, even if the relation of landlord and tenant can, with legal propriety, be said to have existed between the parties. The 4005, 4006, 4007, 4008 and 4009th sections of the Code relate only to the remedy against tenants holding over, and have no relation to the remedy by distress-warrant for rent due. The right of the landlord to distrain for rent, is based on the fundamental principle of the law, that there has been a breach of the express contract by the tenant, under the terms of which he was let into the possession of the rented premises, that he has violated the terms of the rent service which he expressly agreed to render for the use of the land, and therefore, the terms of that rent service must be fixed, and certain, so that the'Court may see that there has been such a breach of that express contract on the part of the tenant as will entitle the landlord to distrain for the non-performance of the rent service which the tenant expressly agreed to render to him for the use of the rented premises. To entitle the landlord to distrain the goods and chattels of the tenant, for non-payment of rent,' he *528must show that the tenant was let into the possession of the rented premises under an express contract to pay a fixed certain sum of money therefor, or to render some other fixed and certain specific service for the use thereof, and that the tenant has failed or refused to perform that express contract. It is in that class of cases only, that the landlord is entitled to the speedy and harsh remedy of a distress-wrrrant for the nonpayment of rent, under the law. The reason of the law which allows the landlord to have the speedy and harsh remedy of distress against his tenant for the non-payment of rent is, that the tenant has violated the express terms of the contract under lohich he was let into the possession of the land by the landlord; and therefore, the amount of rent or other specific service which the tenant agreed to pay, or render therefor, must he fixed and certain to entitle the landlord to distrain. There can be no distress for rent claimed- to be due on an uncertain, implied contract, when the amount actually due is to be ascertained by the verdict of'a jury by implication of law, as to what the use of the land is reasonably worth by the custom of the neighborhood, or otherwise. If the tenant is let into the possession of the land without any express contract as to the payment of rent therefor, or as to any certain specific service to be rendered by him for the use thereof, the law will raise an implied undertaking on his part to pay what the use of the land was reasonably worth, and in that class of cases the law affords the landlord a remedy by an action for use and occupation; but he cannot have the summary remedy by distress-warrant on an implied contract raised by operation of law, to collect, in that way, what the use of the land is reasonably worth. The fact that the landlord may re-enter immediately and dispossess the tenant if he fails to pay the rent due at any time, as provided by the 2259th section of the Code, clearly contemplates that 'the amount of rent due should be fixed and certain by the contract of the parties; otherwise, it would be entirely in the power of the landlord to judge for himself and say what amount was due on an implied contract for rent, and dispossess the tenant immediately.
*529In this case there was no contract made 'with the defendant for payment of rent, no amount specified, nor anything said about payment of rent for the use of the land, and I am clearly of opinion, both upon principle and authority, on the statement of facts contained in the record, that the plaintiff was not entitled to distrain the defendant’s goods and chattels for rent claimed by him to be due in his affidavit for a distress-warrant. There was no certain or specific rent service agreed to be paid, or rendered, by the álleged tenant, to the plaintiff, when he was let into the possession of the premises, for the use thereof; and the right of the plaintiff to dis-train for rent due, did not exist under the law. The right of the landlord to distrain for rent due .under the law, is confined to rent service, and is inseparable from it, that is to say, to such certain rent service as the tenant expressly agreed to pay, or render to the landlord, when he was let into the possession of the land, for the use thereof, and not otherwise. The law does not authorise the landlord to distrain for rent claimed to be due on an implied contract. I am therefore of the opinion' that the judgment of the Court below, should be reversed.