The opinion of the Court was delivered by
Kennedy, J.
This is an action of replevin founded upon a distress made under the authority of the widow of John Starr, deceased, for interest, as it is alleged, coming to her in lieu of her dower, upon the one-third of the valuation money of the real estate of the said deceased, which was taken by his eldest son, William, under a proceeding and decree had in the Orphans’ Court of Cumberland county, wherein the estate-was situate. The estate consisted of between six and seven hundred acres of land, which was divided by the eldest son, after it was decreed to him, into three parcels, two of which he sold, one to his brother Jacob Starr, and the second to his brother-in-law Henry Coover. The third he retained till his death; when his brother Jacob, as one of his heirs, became the owner of it under a decree of the same Orphans’ Court. Jacob Starr subdivided all that he acquired, and sold the most, if not the whole of it, to various persons. In making some of his sales, he left in the hands of the purchasers as much of the purchase money as would enable them to pay their respective proportions of the interest coming to the widow, taking from them, however, a security that they would do so, and at her death pay the principal to himself. Henry Coover disposed of his nearly in a similar manner. At the time the distress was made, there was no interest in arrear or due to the widow or her husband. All that had become payable, had been paid either to her or her husband, by [411]*411Jacob Starr, John Zug, or some other of the holders of the land. The only question then, which arises in the case is, whether the widow and her husband, who are the plaintiffs in error, had a right to make or cause a distress to be made on the goods of the plaintiff below, who is the defendant in error, for the use of those who it was alleged, had paid beyond their due proportion, to the amount of what it was claimed, he, as a holder of part of the land, ought to have paid, but had failed to do so. It is very clear that the widow had no claim, when the distress was made, as she had been fully paid all that was previously due to her. Distress may be regarded as festinum remedium, when not founded upon the previous judgment of a tribunal established for the purpose of administering justice, and being given to the party claiming to be redressed by means of it, to be administered in some degree according to his or her will and judgment in the matter, it would, therefore, seem to be right not to extend it beyond the occasion or the necessity which induced the granting of it, or permit it to be exercised for the benefit of those who do not stand precisely in the situation, in every respect, of the party who was designed to be protected by it. Generally, it is given only in cases where assessments are made to supply the public wants, or rents becoming due annually, under leases made of lands, or under a partition of lands between co-parceners for owelty of the same, or where rent is granted to a widow out of lands, of which she is dowable, in lieu of dower; the law considers the rent or owelty in such cases a charge of common right, because a valuable consideration, that is, a right that the party had in the lands charged has been given for it, and therefore, the law gives a remedy by distress for the recovery of it; Lit. Sec. 58, 213, 214, 216; 1 Inst. 47 a, 142 a, 169 b; Gilb. on Rents 20; or in case of another’s cattle damage feasant, the right of distress is given from the necessity of the thing itself, as otherwise it might be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage. 3 Bl. Com. 6. Although the law gives the lessor a right to distrain, it will not permit the like right to be exercised by the lessee, if he assigns his term reserving a rent, or taking a stipulation from the assignee that he shall pay the rent to the lessor as it shall become payable; 2 Wils. 375; and it is said by Mr. Archbold, that the lessee will not be permitted to distrain in such case, even if the deed of assignment contains a clause of distress. 3 Bl. Com. 6, note (1). Now if it be, that the lessee, who may have paid the rent due to his lessor, cannot distrain upon his assignee for the rent reserved to himself, in order to reimburse what he paid to the lessor, it would seem to indicate that his position is not entitled to the same favour as that of his lessor. And if he cannot distrain under an express reservation of an authority to do so, it is difficult to comprehend upon what ground he shall be permitted to use the name of his lessor for recovering the rent, [412]*412by way of distress, reserved to himself, or the lessor shall be permitted, after being paid the rent coming to himself, to distrain for the benefit of his lessee. So, if there be lord and tenant by fealty and certain rent, and the lord by deed grant the rent in fee, saving the fealty, and grant further, by the same deed, that the grantee may distrain for the same rent in the tenancy, albeit a distress were incident to the rent in the hands of the grantor, and although the tenant attorn to the grant, yet the grantee can not distrain; because the distress cannot be separated from the seigniory. 1 Inst. 150 b. These authorities go to show that the right of distress can only be exercised where a particular relationship exists between the parties, and that the party invested with such right cannot transfer it without transferring also along with it the interest to which it is incident; or that the party who was liable to pay the rent and to be distrained for it, on account of his situation, cannot devest himself of that situation by making an assignment of his interest in the land charged with the rent, and at the same time thereby secure to himself a right to distrain on his assignee. And when the lord or the lessor has actually been paid the whole of the rent due by those who were bound to do so, his right to distrain must be considered as gone in regard to that which has been so paid; and upon no principle known, either to the law or equity, can he be permitted to exercise it for the benefit of those whose relative situation, in regard to the duty was such that the policy of the law would not even allow them to stipulate on their own behalf for the exercise of it in their own names. The right on the part of the widow to distrain, in the case before us, was given by law not only from a consideration of the great meritoriousness of her claim upon her husband's estate for a support during her natural life, but likewise from the consideration, that unless the remedy were put into her own hands, to be administered by hérself, as her necessities might require it, she might be without the means of support, and the first and great object of the annuity given to her, in some degree defeated by delay in making payment of it to her. But as long as it is promptly paid to her, she cannot distrain, nor can there be any occasion for it. Her wants being supplied, to the full extent of her right under the decree of the Orphans’ Court, by those who either had been or were bound to do so, she has no occasion to concern further with the matter, nor right to make a distress for the purpose, as it is claimed here, of administering justice to those who paid her, on the ground that they, as they allege, paid more than their proportion of the annuity coming to her, or that which the plaintiff" below ought to have paid. This, certainly her necessity did not require, nor does it seem to have been within the contemplation of the law giving her the right of distress.
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The opinion of the Court was delivered by
Kennedy, J.
This is an action of replevin founded upon a distress made under the authority of the widow of John Starr, deceased, for interest, as it is alleged, coming to her in lieu of her dower, upon the one-third of the valuation money of the real estate of the said deceased, which was taken by his eldest son, William, under a proceeding and decree had in the Orphans’ Court of Cumberland county, wherein the estate-was situate. The estate consisted of between six and seven hundred acres of land, which was divided by the eldest son, after it was decreed to him, into three parcels, two of which he sold, one to his brother Jacob Starr, and the second to his brother-in-law Henry Coover. The third he retained till his death; when his brother Jacob, as one of his heirs, became the owner of it under a decree of the same Orphans’ Court. Jacob Starr subdivided all that he acquired, and sold the most, if not the whole of it, to various persons. In making some of his sales, he left in the hands of the purchasers as much of the purchase money as would enable them to pay their respective proportions of the interest coming to the widow, taking from them, however, a security that they would do so, and at her death pay the principal to himself. Henry Coover disposed of his nearly in a similar manner. At the time the distress was made, there was no interest in arrear or due to the widow or her husband. All that had become payable, had been paid either to her or her husband, by [411]*411Jacob Starr, John Zug, or some other of the holders of the land. The only question then, which arises in the case is, whether the widow and her husband, who are the plaintiffs in error, had a right to make or cause a distress to be made on the goods of the plaintiff below, who is the defendant in error, for the use of those who it was alleged, had paid beyond their due proportion, to the amount of what it was claimed, he, as a holder of part of the land, ought to have paid, but had failed to do so. It is very clear that the widow had no claim, when the distress was made, as she had been fully paid all that was previously due to her. Distress may be regarded as festinum remedium, when not founded upon the previous judgment of a tribunal established for the purpose of administering justice, and being given to the party claiming to be redressed by means of it, to be administered in some degree according to his or her will and judgment in the matter, it would, therefore, seem to be right not to extend it beyond the occasion or the necessity which induced the granting of it, or permit it to be exercised for the benefit of those who do not stand precisely in the situation, in every respect, of the party who was designed to be protected by it. Generally, it is given only in cases where assessments are made to supply the public wants, or rents becoming due annually, under leases made of lands, or under a partition of lands between co-parceners for owelty of the same, or where rent is granted to a widow out of lands, of which she is dowable, in lieu of dower; the law considers the rent or owelty in such cases a charge of common right, because a valuable consideration, that is, a right that the party had in the lands charged has been given for it, and therefore, the law gives a remedy by distress for the recovery of it; Lit. Sec. 58, 213, 214, 216; 1 Inst. 47 a, 142 a, 169 b; Gilb. on Rents 20; or in case of another’s cattle damage feasant, the right of distress is given from the necessity of the thing itself, as otherwise it might be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage. 3 Bl. Com. 6. Although the law gives the lessor a right to distrain, it will not permit the like right to be exercised by the lessee, if he assigns his term reserving a rent, or taking a stipulation from the assignee that he shall pay the rent to the lessor as it shall become payable; 2 Wils. 375; and it is said by Mr. Archbold, that the lessee will not be permitted to distrain in such case, even if the deed of assignment contains a clause of distress. 3 Bl. Com. 6, note (1). Now if it be, that the lessee, who may have paid the rent due to his lessor, cannot distrain upon his assignee for the rent reserved to himself, in order to reimburse what he paid to the lessor, it would seem to indicate that his position is not entitled to the same favour as that of his lessor. And if he cannot distrain under an express reservation of an authority to do so, it is difficult to comprehend upon what ground he shall be permitted to use the name of his lessor for recovering the rent, [412]*412by way of distress, reserved to himself, or the lessor shall be permitted, after being paid the rent coming to himself, to distrain for the benefit of his lessee. So, if there be lord and tenant by fealty and certain rent, and the lord by deed grant the rent in fee, saving the fealty, and grant further, by the same deed, that the grantee may distrain for the same rent in the tenancy, albeit a distress were incident to the rent in the hands of the grantor, and although the tenant attorn to the grant, yet the grantee can not distrain; because the distress cannot be separated from the seigniory. 1 Inst. 150 b. These authorities go to show that the right of distress can only be exercised where a particular relationship exists between the parties, and that the party invested with such right cannot transfer it without transferring also along with it the interest to which it is incident; or that the party who was liable to pay the rent and to be distrained for it, on account of his situation, cannot devest himself of that situation by making an assignment of his interest in the land charged with the rent, and at the same time thereby secure to himself a right to distrain on his assignee. And when the lord or the lessor has actually been paid the whole of the rent due by those who were bound to do so, his right to distrain must be considered as gone in regard to that which has been so paid; and upon no principle known, either to the law or equity, can he be permitted to exercise it for the benefit of those whose relative situation, in regard to the duty was such that the policy of the law would not even allow them to stipulate on their own behalf for the exercise of it in their own names. The right on the part of the widow to distrain, in the case before us, was given by law not only from a consideration of the great meritoriousness of her claim upon her husband's estate for a support during her natural life, but likewise from the consideration, that unless the remedy were put into her own hands, to be administered by hérself, as her necessities might require it, she might be without the means of support, and the first and great object of the annuity given to her, in some degree defeated by delay in making payment of it to her. But as long as it is promptly paid to her, she cannot distrain, nor can there be any occasion for it. Her wants being supplied, to the full extent of her right under the decree of the Orphans’ Court, by those who either had been or were bound to do so, she has no occasion to concern further with the matter, nor right to make a distress for the purpose, as it is claimed here, of administering justice to those who paid her, on the ground that they, as they allege, paid more than their proportion of the annuity coming to her, or that which the plaintiff" below ought to have paid. This, certainly her necessity did not require, nor does it seem to have been within the contemplation of the law giving her the right of distress. Besides this, it involves questions of fact and of law, which seem to be opposed to the exercise of the right for such purpose. It [413]*413cannot be exercised so as to do justice to the several holders of the land charged with the widow’s annuity, without having it equally or justly apportioned among them, according to the relative value which each one’s share bears to the primitive value of the whole quantity of land. But this neither the widow nor the court has the means of ascertaining; it is a question of fact which can only be determined by a reference of it to a jury. Hodgkins v. Robson, (1 Ventr. 276); Gilb. on Rents 189. Then unless the amount for which the distress is to be made can be reduced to certainty it is not clear that a distress can be made on account of it. For it is a maxim in law, that no distress in general can be taken for any duty or services that are not stated with certainty, or so at least as to be capable of being rendered certain; for oportet quod certa res deducatur in judicium. 1 Inst. 96 a. A question of law also may arise, whether it be competent for the original or other tenant of the land, in such case, by his own act, after dividing it into several parcels, to sell and convey the same so divided to different persons, and by doing so to apportion the annuity among them, so that a separate distress may be made on each for his proportion thereof. I take it that he cannot bind the annuitant to observe any apportionment which he may attempt to make in this way; nor yet can she avail herself of it even if she were willing to do so. This would be more than the lessee, yielding a rent service for the land he occupies, could do; though his lessor, it would seem, may by a grant of part of the reversion to a stranger, apportion the rent between himself and the stranger, because the rent is incident, in such .case, to the reversion, so that by parting the reversion the rent is apportioned. 1 Inst. 148 a. This, however, cannot be done by the grantee of a- rent charge, which rent, in this particular, somewhat resembles the annuity here; consequently, I take it that neither the tenant of the land in this case, nor yet the widow or annuitant, can divide and apportion the annuity. The annuity here, then, being an entire sum, and incapable of apportionment, and.the right of distress being given by the Act of Assembly for that entire sum, one distress only, if sufficient goods are to be found, can be taken for it. Anon. Moo. 7; Anon. Cro. Eliz. 13; Wallis v. Savill, (Lutw. 1536). But it is said that in the present case a sufficient portion of the purchase money, to be paid by each tenant of the land for his portion thereof, was left in his hands to enable him, by using it, to pay all that is required. Admitting, however, this to be so, still, as it appears that the widow has been satisfied the amount secured to her by the Act of Assembly and the decree of the Orphans’ Court, she can have no right to distrain for any greater amount, or any thing above that sum. If Jacob Starr, in disposing of the land, intended to make a further provision in her favour, the right of distress given by the Act of Assembly cannot be extended to that. But, in truth, it would seem that the distress here was [414]*414made for the benefit of Jacob Starr, and not the widow. Stili, however, whether it was for his or her benefit, the remedy by distress is not the one which must be resorted to for the purpose of recovering it. But above all, it is a powerful objection to the distress being made for the claim of the plaintiffs in this case, that no authority or case has been adduced by their counsel going to support it, nor ám I aware of an instance in which there has been a subrogation by either a court of law or equity to the remedy by distress.
Judgment affirmed.