The opinion of the court was delivered by
Rogers, J.— The landlord’s warrant states a lease of a grist mill, a housé, and lot, in Augusta township, Northumberland, county* for .the term of on'e year, commencing on the 1st of April, 1825, for the one-third of the toll which the mill grinds, and avers, that one hundred and sixty, and. a half bushels of different kinds of grain, of the value of seventy-six dollars and eighty-five cents, still remain due and unpaid; and, this- appears to have been the contract bn which the distress was made. The plaintiff in replevin denies the right tó distráin for two reasons: 1st, He contends, that Fry was not the tenant, but. the servant of Jones; and, 2d, That the rent is une’ertain. It would b.e extraordinary if the first proposition of the plaintiff in replevin should avail him, as it would destroy tennancy almost altogether in Pennsylvania. In consequence of the fluctuation in prices, such a thing .as a fixed rent, either in kind or money, is scarcely known. We have almost always adopted the mode of renting, for a share of the produce of the farm, which is preferred by tenant and landlord.' If there is an advánce of price, or an abundant harvest, both partake of the benefit; and, if the price should be low, or the crop should fail, the tenant avoids ruin. A .difficulty has existed in relation to this matter from confounding a crop.per with a tenant. If one hires a man to wórk his farm, and gives him a share of the produce, he is a cropper. He has no interest in the land, but' receives- his share as the price of his labour. The possession is still in the owner of the land, who alone can maintain trespass; nor can he distrain, for he does not maintain the relation of landlord and tenant, which is inseparable from the right of distress, Fry was put into possession Of the house and mill, lives in the house with his family,, and agrees to give Jones one-third of the'toll. To say he is not. a tenant, is confounding two things which are entirely distinct. .
It is said the rent, is uncertain, and, therefore, Jones had no right to distrain.- In Co. Lift. 96, a, the principle which governs this case is- clearly stated.
It is a maxim of law, that no distress can be taken for any services that are not put into certainty, nor cart be reduced to any certainty; for, id est cerium, quod cerium reddi potest; for, oportet qúod certa res deducatur in judicium; for, upon-the avowry, damages cannot be' recovered for that which neither hath c.ertáinty, nor can be reduced to any certainty. And yet, in some cases, the author says, there may be a certainty in an uncertainty; as, a man may hold of his lord to shear all the sheep depasturing within the lord’s manor; and this is certain e'nough, albeit the land has sometimes a greater number, and sometimes a lesser number there-; and. *13yet, this uncertainty being referred to the manor, which is certain, the lord may distrain for this uncertainty. Et sic de'similibus. The uncertainty for Which distress may not be had, is put- by Littleton in the text, such as tenancy in Frankalmoigne;. And, if they which hold their tenancy in Frankalmoigne will not-, or fail to do such divine service, (as is said,) the lord may not distrain them for not doing this, &c., because it is not put in certainty what servicés they ought to do. In commenting on this text, Lord Coke explains what is meant by the uncertainty for which the lord cannot distrain. The services to be performed by a tenant in Frankalmoigne, are neither certain, nor can they by any means be reduced to a certainty. They who hold in Frankalmoigne, are bound of right before God -to .make orisons, prayers, masses, &c., and other divine services, not only for the souls of the grantor, or feoffor, but for the souls of their heirs which are dead, and for the prosperity and good life and good health of their heirs which are alive,. Co. Litt. 95, a, sect. 135. In tenure in Frankalmoigne, no mention is made of any manner of service; for none can hold in Frankalmoigne if there be expressed 'any manner of certain service that he ought to do, &c. We hold the principle to be, that a distress is inseparably incident to every service, that may be reduced to a certainty. If that should be the rule, we are at a loss to conceive in what the inconvenience or difficulty consists. If the tenant keeps an account of the toll, which it is his duty to do, the rent may be reduced to the utmost certainty. Nor can we perceive the danger which may arise to the tenant; for his rights are abundantly protected. By an offer to comply with his contract, with which he is best acquainted, he can defeat the landlord. And for an excessive distress, the law, as in other cases, has provided him an ample remedy. The avowry is well enough-, nor can the jury have any difficulty in estimating the damages. It is the interest of landlords and tenants, that the rights of the former should be protected; With right of distress unimpaired, a poor man can obtain a shelter and the means of livelihood for his family, which he would otherwise be unable to procure without security, which it would frequently be out of his power to obtain. Experience, which is the best test, satisfies us, that an interference with the remedies provided by the common law, causes mischief rather than good.
Judgment affirmed.