Trespass on the case by Landis against Stowman. The declaration contains three counts. The first complains that the defendant had distrained and sold certain property of the plaintiff for rent, when no rent was due. The second is for an unreasonable distress. The third is in trover. Plea, the general issue. The jury found for the plaintiff 382 dollars. New trial refused, and judgment on the verdict.
This suit was founded on sections 217 and 220, R. S. 1843, p. 830. The latter section is relied on in support of the judgment. It provided that “the owner of any property distrained for rent, pretended to be due, when in truth no rent was due, may, by action of trespass on the *431case, recover against the person so distraining, double the value of the goods distrained.”
The evidence shows that on the 15th of December, 1849, a written agreement was entered into between the parties, whereby Stowman rented to Landis “a saw-mill and a sufficiency of water for the purpose of sawing at all times, for the term of one year from that date.” Stowman was to keep the mill-dam and fore-bays in good order, and if, for any space of time, the water should become insufficient, or be drawn off for the purpose of repairing the dam, during such time the rent was to stop. For the rent Landis stipulated to pay 320 dollars, in good merchantable lumber, at the market price, to be paid every three months during the year, if demanded, or at any time the same was due. It was shown that Lamáis, in pursuance of the agreement, went into possession of the premises, and used them for the term above stated; that in July, 1850, Stowman demanded the rent of Landis, and also on the 2d of October of that year, made another demand of rent; that the mill, in the summer and fall of 1850, ceased running at least forty days, on account of the insufficiency of the water, and also because the dam was in bad order.
It was proved that Stowmam, on the 20th of November, 1850, procured a justice of the peace to issue a distress-warrant against Landis, claiming of him 145 dollars for the rent of the mill; that the warrant was placed in the hands of a constable, who, by virtue thereof, distrained certain property belonging to Landis, and sold it for 139 dollars; but the property sold was shown to be worth 190 dollars. The Court, upon the close of the evidence, charged the jury as follows:
1. “ The rent, by force of the contract, would not become due until the 15th of December, 1850. It might be made to fall due quarterly, hoAvever, by the act of Stowman, if he has made a proper demand for each quarter. Stowman might make a demand for either quarter’s rent he might designate, at any time before distraining. If Stowman made a general demand, without designating any partic*432ular quarter’s rent, the demand would be good for the quarter’s rent due next preceding the demand.”
2. “ If the jury find that the water was drawn off during the continuance of the lease, for the purpose of repairing the dam, fore-bay or mill, the time the water was off would be a proper deduction from the rent, and would render the amount of rent uncertain, and, therefore, not distrainable, unless the quarter’s rent during which there had been no such deduction, had become due and fixed by the demand.”
3. “ If Stowman had made any one quarter’s rent due by demand, he could distrain for that quarter at any time afterwards. Otherwise he could not distrain, under this contract, until the 15th of December, 1850.
The first and third instructions are unobjectionable. The second, in our opinion, is erroneous. Whether the rent was or not distrainable, was an inquiry not properly involved in the case. This is shown by the statutory provision above quoted. If any rent was due when the justice issued the distress-warrant, though it may have been the subject of deduction, and on that account uncertain in point of amount, it was not competent for the jury to return a verdict for double the value of the goods distrained. The statute does not authorize a recovery for an irregular distress, but only fór a distraint when no rent is really due. In the abstract, the instruction is correct. To authorize the collection of rent by a landlord’s warrant, “the sum must be certain and be stipulated by contract.” Still rent may be due, though in amount uncertain. It follows that the jury, in this form of action, had no authority to render a verdict for double the value of the property taken, if rent was actually due, whether the demand for it was certain or uncertain.
We are of opinion that the second instruction should have been withheld, because it was irrelevant, and may have induced the jury to predicate their verdict upon the result of an inquiry unconnected with the real merits of the controversy.
I. Hartman and I Bush, for the plaintiff.Per Curiam. — The judgment is reversed with costs. Cause remanded, áse.