delivered the opinion of the court, November 20th 1882.
*223In view of the evidence, the learned judge was clearly right in holding that there could be no recovery under the declaration as originally filed; and we are not prepared to say that, under the circumstances, there was any error in permitting plaintiff to amend, by adding a count charging defendant with having distrained for more rent than was dne. The right of amendment was neither waived nor abridged by the agreement to dispense with trial by jury and submit, the decision of the case to the court, under the provisions of the Act of 1874. By allowing the amendment the plaintiff below was permitted to present for consideration and decision the only important question raised by the evidence, viz: Whether the defendant, as his landlord, did distrain for more rent than was due. Under the evidence, that became a mixed question of law and fact. If the landlord, in determining the amount of rent due at the time he issued his warrant, was legally bound to deduct from the rent in arrear, according to the terms of the lease, not only actual as well as constructive payments on account, but also the unliquidated claim for damages which the tenant appears to have had against him, it would follow that the distress was made for more rent than was due. On the other hand, if he Avas not required to deduct the tenant’s claim for unliquidated damages, the conclusion would be that he did not distrain for more rent than he was then entitled to collect by distress.
It appears that after deducting the tenant’s bill for carpenter work, the balance of rent in arrear was about $160, for which amount the landlord issued his warrant and distrained. The tenant thereupon commenced proceedings before a justice of the peace under the 20th section of the Act of 1810, Purd. 849, pl. 33, to compel the landlord to defalcate or set off, against the rent distrained for, the claim of the former for unliquidated damages. The suit thus commenced was so proceeded in, first before the justice, afterwards before arbitrators, and finally in court, that a special verdict was rendered, finding for the landlord, “ defendant the sum of eighty dollars, that being the amount, balance of rent due after deducting defalcation.”
The sum that was equitably due from the tenant to his landlord at that time was, of course, settled by the special verdict, but did it determine the amount for which the latter had a right to distrain when he issued his warrant? He contended that it did not; and, for the purpose of obtaining the opinion of the court on that question, he submitted several propositions, the refusal of which has been assigned for error. In the first point the learned judge was requested to say, that,-“under the evidence and admissions in this case, the claim made by Spencer for rent, for which distress was levied, was not larger than the amount actually due, unless the amount claimed by way of set-*224off or defalcation is deducted therefrom.” This proposition, according to the undisputed testimony, was correct, and should have been affirmed without any qualification. And, as we understand the second point, it should have been affirmed also. The third point Was, “ That if the amount claimed by Spencer and for which distress was levied, was not larger than was actually due, unless reduced by way of set off or defalcation the plaintiff cannot recover.” This, together with the fourth and fifth points, which are merely deductions from the preceding propositions, should have been affirmed. The undisputed evidence was, that after deducting the tenant’s bill for carpenter work, there remained, — independently of the claim for unliquidated damages, — at least $160 rent due ; and, it is only by liquidating that claim at not more than $80 and deducting it from the amount for which the warrant was issued that the special verdict, above quoted, could be made up. Indeed, it is expressly stated therein, that the $80, found in favor of the landlord, is “ the balance of rent due after deducting defalcation,” that is, the amount allowed for damages theretofore unliquidated. While the $80, thus found, is the balance equitably owing by the tenant to his landlord at that date, it is not the amount of rent due, and for which the latter was entitled to distrain, when he issued his warrant. lie was not then required to credit, on the rent in arrear, anything except actual payments, and such sums as the parties had agreed to treat as payment on account of rent. He was under no legal obligation whatever to deduct the tenant’s claim for unliquidated damages. If, at the risk of being compelled to pay damages for excessive distress, a landlord is bound to deduct from the rent in arrear every conceivable claim or demand his tenant may have against him, the remedy by distress will soon become practically useless. But such is not the case. In ascertaining the amount of rent due, he is not required to credit the tenant with anything except payments on account, actual or constructive. Other matters of claim or account, which the parties do not agree to treat as payment, must be enforced by the tenant in some other way, either under the Defalcation Act before a justice of the peace or by separate suit.
We think therefore that the learned judge erred in not affirming the propositions of the defendant below, and in not holding that the claim for unliquidated damages, which was settled in the defalcation proceeding, had nothing to do with the question whether the landlord distrained for more rent than he then had a right to collect in that form of proceeding.
It is contended however that the court found there was only “ Eighty dollars rent due and owing,” when the distress was made; and, that this, as a finding of fact, is conclusive. We do *225not think so. It is evidently an inference drawn from the special verdict in the defalcation proceeding. The learned judge reached that conclusion by substantially holding — as ho erroneously did in refusing to affirm defendant’s first and third points — that the landlord was bound to deduct the unliquidated claim for damages from the rent in arrear. It manifestly resulted from an error of law, and, in effect, it is practically the same as a verdict based on erroneous instructions. If the defendant’s first and third propositions had been affirmed without qualification, and adhered to, no such inference could have been legitimately drawn. On the contrary, the irresistible conclusion would have been, that there was at least $160 due at the time the warrant issued, and that plaintiff in error had a right to dis-train for that amount, and therefore, under the pleadings, there could be no recovery.
From what has already been said it follows that the seventh and eighth assignments of error should also be sustained.
Judgment reversed.