after stating the facts, and that Pott was the legal, and Bowers the equitable owner of the estate, proceeded as follows:
The case principally turns on the construction of this agreement. It raises one question to which the others are more or less subordinate, viz., whether William Pott has a right to distrain for rent on the lease from Bowers to Fisher. And this depends on two considerations : 1st, Did the relation of landlord and tenant exist between William Pott and Solomon Helser and William McGrath ? and 2d, Was such a demand made of the rent as to enable him to distrain ? On both points we think the defendants have failed in their defence.
We see nothing in the agreement, or the attending circumstances, which constitute the relation of landlord and tenant between the parties, so as to give Pott a right to use the summary process of distress. The plaintiffs, in answer to the avowry, plead non demisit, and non tenuit; which denies the demise or tenure, as set forth in ■the avowry, and throws the issue upon the defendants, who must prove a demise. In order to support his pleas, he must show a lease; for an agreement for a lease is in many cases insufficient. 6 Law Lib. 317, Comyn’s Landlord and Tenant, and the authorities there cited. It is indispensable, under the pleadings for the defendants, to prove that Pott stands in the situation of a lessor.
*185The case is free from difficulty, as to the-existence of a lease ; for the lease between Bower and Fisher is a good and binding contract, drawn in all due and proper form. Nor can it be doubted, that the plaintiffs, as to the payment of the rents during the occupation of the demised premises, occupy the same position as the original lessee. The only doubt is, whether Pott is the assignee of the lease; and this depends on the intention of the parties to the contract of the 12th of May, to be gathered from the agreement endorsed on the lease, and signed by the plaintiff. Does it amount to an assignment ; or is it merely an appropriation of the rent, to the use of Pott ? In our judgment, the latter is the fair import of the contract; for we cannot consider this more than an" appropriation of the rent to be paid to Pott, in iron, according to the order of Bowers. We see no indication of an intention that Bowers should cease to be lessor, or that Pott should have control of the rents, so as to enable him to distrain for its non-payment. . Had an assignment of the lease been in contemplation of the parties, it seems strange it should be drawn in its present form. It is an instrument so simple, that few persons are so ignorant as not to know how to clothe it in apt and proper terms. It is difficult to understand what is meant by the expressions, “paying the rent to Pott by Bowmrs’s order,” if Bowers was to cease to be lessor, and Pott to become the lessor. The suggestion, that Bowers was to be agent of Pott, is not a satisfactory explanation. The order to the plaintiffs is to come from' Bowers, not as agent, but as principal. He, as the agreement runs, is to have control as to the time and manner of drawing the order, and as to the size of the iron. Such, we think, is the only fair construction of the contract. It is said, that the agreement, although dated the 12th of May, was not executed until the 20th of July; that it was signed in Pott’s office, and that Pott took possession of it. Be it so; but in this we see nothing to vary the construction of the agreement, or to indicate an intention to assign the lease. Pott had an interest in ■the payment of the rent, which may well account for his possession. The contract was drawn by Helser; one of the lessees; and it may well have assumed its present form, to exclude the conclusion that it was an assignment; for it- was of some importance to the plaintiffs that Bowers should remain lessor, as in that case he had the benefit of a set-off, of which he is deprived by the substitution of Pott. Nor do I perceive that any inference unfavourable to this construction, properly arises from the assignment of the 21st of January, 1842. The clause in relation to Pott, seems to have been designed for the sole purpose of giving a reason for his exclusion from the second. *186class of creditors, by stating what we cannot doubt, that although he was a large creditor, yet he held his indemnity in his own hands; having retained the legal title as a security for the purchase money.
But, granting he was landlord, had he a right to distrain, without proof that the plaintiff failed to perform the contract, refusing to deliver iron on an order from Bowers, specifying the size of the iron ? It will be remembered, that the rent is payable in bar-iron of good merchantable quality, to be drawn not less than one-half inch, nor more than one inch and a half. This is, be it observed, a very essential and important stipulation; for it is doubtless the interest of iron-masters to pay in their own commodity, rather than cash; and non constat, had an .order been presented and demand made, but that the order would have been complied with in good faith. Of this benefit he cannot be deprived; and if the lessor is in default in this essential particular, what right had he to take the remedy in his own hands by distress? There is a material difference when the remedy is by re-entry, and when it is by distress. In the former case, there must be an actual demand previous to entry. In the latter, generally, no demand is necessary previous to the distress. But to the general rule there are exceptions. Thus, when the rent is payable at a place off the land, with a clause, if the rent be behind, being lawfully demanded at the place off the land; or with a clause, that if the rent be behind, being lawfully demanded of the person that is to pay it, that then he may distrain ; in these cases, though the remedy be by distress only, yet the grantor cannot distrain without a previous demand; because here the distress and demand being not one complete, but different acts, to be performed at different places and times, the demand must be previous to the distress; for the distress is a matter of agreement between the parties, not of common right, and therefore must be used in the same manner it was given. 6 Bacon’s Abr. 26, 28, and the authorities there cited. There is no mistaking the intention of the parties to this contract; for it is very certain, that it was not designed by them that the lessor should distrain until the tenant made default, by a refusal to furnish the iron, after a specific and actual demand. A contrary construction would lead to injustice; because it would enable the landlord to exact cash in payment, instead of that article in which it is agreed the rent may be paid, putting the tenant in a more unfavourable position than is called for in the agreement. It is contended that the very taking the distress is a legal demand ; and that the tenant is not injured by the distress, because upon the tender of the rent, the pledges are immediately to be returned, as a writ of *187detinue lies after the question of rent has been settled in replevin. 6 Bacon’s Abr. 26. And this is true of a rent reserved in money, or in many cases in kind; but can this principle apply here ? for how can the tenant know when, how much iron, or of what size to tender? By the contract, within certain restrictions, the lessor himself is the sole judge of those particulars. The distress, as has been before shown, is a matter of agreement, and not of common right; and must be construed by the intention of the parties, cessante ratione cessat ipse lex. The rationale of this contract is, that the tenant must bave reasonable notice, that he may be able to comply with the contract.
We'see no error in admitting William Bowers to testify. If he has an interest, which we cannot perceive, it is adverse to the party calling him.. His testimony gives the rent to Pott., which otherwise belongs to himself.,.
It seems to me that the paper marked -A, should have been admitted as part of and explanatory of the transaction, particularly if, as has been testified by Bowers, the defendant’s witness, the contract was made on the 20th of July, instead of the 12th of May, the day it purports to bear date. What effect it may have, need not be determined. And indeed it will be of little consequence ; for unless a different case is made, or another trial,..there is nothing in the way of the plaintiff’s recovery. 1
Judgment reversed, apd a venire facias dé novo awarded.