Opinion by
Rice, P. J.,
The plaintiff was the bailor, and Edna Kane was the bailee, of goods on the premises leased by Friedman Realty Company, the other defendant, to the latter. These goods were distrained by the landlord for rent in arrear. After the distress was made the plaintiff issued a writ of replevin against Edna Kane for the goods covered by the bailment, by virtue of which the sheriff [558]*558delivered them to the plaintiff. The sheriff, finding the goods in the possession of the bailiff under a landlord’s warrant, served these parties, and afterwards an appearance was entered for them. Edna Kane did not appear. The jury were sworn to try the issue between the parties named in the caption of this opinion, and rendered a verdict finding the title of the goods to be in the plaintiff subject to the claim of Friedman Realty Company for rent, interest, and costs, amounting to $228.38, to be paid by the plaintiff. From the judgment on the verdict the plaintiff took this appeal.
1. The plaintiff’s principal contention on the trial was that the distress was illegal, and the constable a trespasser, because of the manner of his entry upon the premises, which was very much the same as that which was under consideration in Ewald v. Fidelity Title & Trust Co., 43 Pa. Super. Ct. 593. The learned trial judge charged the jury 'that this contention must be sustained unless the entry was justified by the clause of the lease which reads: “If the premises at any time be deserted or closed, the lessor may enter by force without liability to prosecution or action therefor, and may distrain for rent,” etc. He also submitted to the jury the question whether the premises were deserted or closed, and, after calling their attention to some of the facts testified to by the defendant’s witnesses, instructed them that, if they believed these witnesses, their verdict should be for the defendant, but, if not, it should be for the plaintiff. The part of the charge which is quoted in the second assignment of error should be read in connection with the final instructions to which we have alluded. The substance of the uncontradicted testimony was, that the landlord’s warrant was issued on October 5, and that the bailiff visited the premises a number of times and was unable to get in until October 13, when he gained entrance through a screen door leading into a covered alley or area-way at the side, by putting his hand through a hole in the glass part of [559]*559the door and unlocking the spring lock; after thus getting into the yard he entered the house through the kitchen door, which he found ajar, and made the distress; he found none of the inner doors locked and no one on the premises. In view of the fact that on a later day, when he went to make the appraisement, Edna Kane was apparently living in the house, the facts above alluded to would scarcely warrant the conclusion that at the time of the distress she had “deserted” it, that is, had forsaken it with the intention not to return; and so the learned judge plainly instructed the jury. But the facts as to the conditions at the time of the distress, and when the repeated previous attempts to enter were made, taken together, do warrant the conclusion that the premises were “closed,” within the true intent and meaning of the above quoted clause of the lease.
2. It is fairly inferable, from the testimony of the constable as to the time he made the distress and as to the attendant circumstances, taken as a whole, that it- was not made after dark, but during the daylight hours of October 13. To speak within bounds, such finding by the jury would not have been clearly unwarranted. But whether it was made between sunrise and sunset of the day, was not shown either directly or inferentially. The subject was not alluded to either in the direct examination or the cross-examination of the witnesses who could have given the information, the trial having been conducted in such manner as to lead the trial judge to suppose that the sole matters really in controversy were the construction and the applicability, under the evidence, of the clause of the lease above considered. But at the conclusion of his charge the plaintiff’s counsel suggested that there was no evidence that the distress was made between sunrise and sunset, ■ and that the burden of proving that fact rested on the defendant. In response to this suggestion the learned court stated that he would not charge that it was necessary for the [560]*560defendant to prove it affirmatively. Probably all difficulty in this branch of the case would have been avoided if the point had been made earlier in the trial. But, as the plaintiff’s counsel had in due time presented a point for binding direction, and as the learned judge did not dismiss the suggestion on the ground that it came too late, we assume that the question specifically presented by the first assignment of error is properly before us for decision.
The plaintiff having proved its ownership of the goods, the burden of proving that it was nevertheless not entitled to the absolute and unqualified possession by reason of a lien acquired by the defendant by a distress for rent, was cast on the latter: Drumgoole v. Lyle, 30 Pa. Super. Ct. 463, 467. Upon application of the principles of that and other cases, it is clear that the burden was on the defendant to make good its lien by affirmative proof of all the facts essential to its asserted right to issue the landlord’s warrant in question, and the bailiff’s right, by virtue of that warrant, to seize these very goods on October 13. It is not claimed that the proof is lacking in any of these essentials, whether common law or statutory, or that anything was done or omitted, after the distress was made, that invalidated it. But, according to the common-law rule, as stated by Blackstone, "all distresses must be made by day, unless in the case of damage feasant; an exception being there allowed, lest the beasts should escape before they are taken:” 3 Bl. Com. 11. And, according to other authorities cited in the learned and exhaustive brief of appellant’s counsel, daytime, as used in this connection, means between sunrise and sunset. We quote from some of these authorities It is plain from all the authorities that a distress for rent must be made in the daytime; and the only question- is, whether ‘daytime’ is to be considered as the time after sunrise and before sunset, or after daybreak and before dusk. We think that sunrise and sunset form the true limits. . . . [561]*561So far as we can ascertain, there is not a single authority to the contrary, nor any dictum to the effect that a distress may be made before sunrise or after sunset:” Martin, B., in Tutten v. Darke and Nixon v. Freeman, 5 Hurlstone & Norman, 647. “It is also laid down by Coke and other authorities, that distress for rent cannot be made in the night, but in the daytime: (3 Thomas Coke, 254, 142a,) which in note C, same page, is said to be between sunrise and sunset: Mirr. C. 2; S. 26, and 7 Co. 7a. And this, as the note says, to give the tenant an opportunity of preventing the distress by tendering the rent. If then it were true that the rent became absolutely due and payable at sundown on the 31st day of December, and even if distress could be legally made on the same day on which the rent became due, it could not properly have been made in the night:” Fry v. Breekenridge, 7 B. Monroe (46 Ky. 35). “With respect to the taking of the goods, that cannot be justified as for a distress, because no one has a right to make a distress after dark:” Aldenburgh v. Peaple, 6 C. & P. 212.
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Opinion by
Rice, P. J.,
The plaintiff was the bailor, and Edna Kane was the bailee, of goods on the premises leased by Friedman Realty Company, the other defendant, to the latter. These goods were distrained by the landlord for rent in arrear. After the distress was made the plaintiff issued a writ of replevin against Edna Kane for the goods covered by the bailment, by virtue of which the sheriff [558]*558delivered them to the plaintiff. The sheriff, finding the goods in the possession of the bailiff under a landlord’s warrant, served these parties, and afterwards an appearance was entered for them. Edna Kane did not appear. The jury were sworn to try the issue between the parties named in the caption of this opinion, and rendered a verdict finding the title of the goods to be in the plaintiff subject to the claim of Friedman Realty Company for rent, interest, and costs, amounting to $228.38, to be paid by the plaintiff. From the judgment on the verdict the plaintiff took this appeal.
1. The plaintiff’s principal contention on the trial was that the distress was illegal, and the constable a trespasser, because of the manner of his entry upon the premises, which was very much the same as that which was under consideration in Ewald v. Fidelity Title & Trust Co., 43 Pa. Super. Ct. 593. The learned trial judge charged the jury 'that this contention must be sustained unless the entry was justified by the clause of the lease which reads: “If the premises at any time be deserted or closed, the lessor may enter by force without liability to prosecution or action therefor, and may distrain for rent,” etc. He also submitted to the jury the question whether the premises were deserted or closed, and, after calling their attention to some of the facts testified to by the defendant’s witnesses, instructed them that, if they believed these witnesses, their verdict should be for the defendant, but, if not, it should be for the plaintiff. The part of the charge which is quoted in the second assignment of error should be read in connection with the final instructions to which we have alluded. The substance of the uncontradicted testimony was, that the landlord’s warrant was issued on October 5, and that the bailiff visited the premises a number of times and was unable to get in until October 13, when he gained entrance through a screen door leading into a covered alley or area-way at the side, by putting his hand through a hole in the glass part of [559]*559the door and unlocking the spring lock; after thus getting into the yard he entered the house through the kitchen door, which he found ajar, and made the distress; he found none of the inner doors locked and no one on the premises. In view of the fact that on a later day, when he went to make the appraisement, Edna Kane was apparently living in the house, the facts above alluded to would scarcely warrant the conclusion that at the time of the distress she had “deserted” it, that is, had forsaken it with the intention not to return; and so the learned judge plainly instructed the jury. But the facts as to the conditions at the time of the distress, and when the repeated previous attempts to enter were made, taken together, do warrant the conclusion that the premises were “closed,” within the true intent and meaning of the above quoted clause of the lease.
2. It is fairly inferable, from the testimony of the constable as to the time he made the distress and as to the attendant circumstances, taken as a whole, that it- was not made after dark, but during the daylight hours of October 13. To speak within bounds, such finding by the jury would not have been clearly unwarranted. But whether it was made between sunrise and sunset of the day, was not shown either directly or inferentially. The subject was not alluded to either in the direct examination or the cross-examination of the witnesses who could have given the information, the trial having been conducted in such manner as to lead the trial judge to suppose that the sole matters really in controversy were the construction and the applicability, under the evidence, of the clause of the lease above considered. But at the conclusion of his charge the plaintiff’s counsel suggested that there was no evidence that the distress was made between sunrise and sunset, ■ and that the burden of proving that fact rested on the defendant. In response to this suggestion the learned court stated that he would not charge that it was necessary for the [560]*560defendant to prove it affirmatively. Probably all difficulty in this branch of the case would have been avoided if the point had been made earlier in the trial. But, as the plaintiff’s counsel had in due time presented a point for binding direction, and as the learned judge did not dismiss the suggestion on the ground that it came too late, we assume that the question specifically presented by the first assignment of error is properly before us for decision.
The plaintiff having proved its ownership of the goods, the burden of proving that it was nevertheless not entitled to the absolute and unqualified possession by reason of a lien acquired by the defendant by a distress for rent, was cast on the latter: Drumgoole v. Lyle, 30 Pa. Super. Ct. 463, 467. Upon application of the principles of that and other cases, it is clear that the burden was on the defendant to make good its lien by affirmative proof of all the facts essential to its asserted right to issue the landlord’s warrant in question, and the bailiff’s right, by virtue of that warrant, to seize these very goods on October 13. It is not claimed that the proof is lacking in any of these essentials, whether common law or statutory, or that anything was done or omitted, after the distress was made, that invalidated it. But, according to the common-law rule, as stated by Blackstone, "all distresses must be made by day, unless in the case of damage feasant; an exception being there allowed, lest the beasts should escape before they are taken:” 3 Bl. Com. 11. And, according to other authorities cited in the learned and exhaustive brief of appellant’s counsel, daytime, as used in this connection, means between sunrise and sunset. We quote from some of these authorities It is plain from all the authorities that a distress for rent must be made in the daytime; and the only question- is, whether ‘daytime’ is to be considered as the time after sunrise and before sunset, or after daybreak and before dusk. We think that sunrise and sunset form the true limits. . . . [561]*561So far as we can ascertain, there is not a single authority to the contrary, nor any dictum to the effect that a distress may be made before sunrise or after sunset:” Martin, B., in Tutten v. Darke and Nixon v. Freeman, 5 Hurlstone & Norman, 647. “It is also laid down by Coke and other authorities, that distress for rent cannot be made in the night, but in the daytime: (3 Thomas Coke, 254, 142a,) which in note C, same page, is said to be between sunrise and sunset: Mirr. C. 2; S. 26, and 7 Co. 7a. And this, as the note says, to give the tenant an opportunity of preventing the distress by tendering the rent. If then it were true that the rent became absolutely due and payable at sundown on the 31st day of December, and even if distress could be legally made on the same day on which the rent became due, it could not properly have been made in the night:” Fry v. Breekenridge, 7 B. Monroe (46 Ky. 35). “With respect to the taking of the goods, that cannot be justified as for a distress, because no one has a right to make a distress after dark:” Aldenburgh v. Peaple, 6 C. & P. 212. “A man cannot distrain for rent or rent charge in the night (which, according to the author of the Mirrour, is after sunset and before sunrising); because the tenant hath not thereby notice to make a tender of his rent, which possibly he might do, to prevent the impounding of his cattle:” Gilbert on Distresses (4th ed.), 49. He may not distrain before sunrise or after sunset: Jackson & Gross, Landlord & Tenant, sec. 231 (31). It is seen from these and other citations that might be made, that the rule is variously stated, and, therefore, to ascertain its full scope it is pertinent to see how and under what circumstances it has been applied in practice. In all of the reported English and American decisions brought to our notice by counsel, as well as in the unreported case of May, Stern & Co. v. Dailey et al., it affirmatively appeared that the distress was not made between sunrise and sunset, and in some that it was made after dark. None of them, read in the light of the controlling facts, unequivocally decides that [562]*562it shall be deemed unlawful if the distrainor does not affirmatively prove that it was made between sunrise and sunset. The principle involved in the adoption of that rule would be very far reaching, and would extend to very many other cases than the present. As pointed out by the learned trial judge, it would oblige the landlord to prove affirmatively that he did not break open a locked door or use any other unlawful means to gain, entrance to the premises. Many other pertinent illustrations might be given if the many things the landlord may not do were enumerated. To treat the making of a distress for rent before sunrise or after sunset as an act which will convert a distress, otherwise lawful and regular, into a trespass, and, if proven, will sustain an action for damages or will defeat the landlord’s claim in an action of replevin brought by the owner of the goods, is as far as we are positively required to go by the precedents to which our attention has been called in which the common-law rule has been applied. Notwithstanding the able argument of appellant’s counsel, we are of opinion that sound principle does not require us to go farther and hold that the landlord must be deemed a trespasser, and the distress unlawful and of no validity, if he does not prove affirmatively that it was made between sunrise and sunset.
The assignments of error are overruled and the judgment is affirmed.