Clayton’s Notebook, 61
High Court of Errors and Appeals of Delaware.
June, 1818. Semble.
Alston had demised land, to one Read for one year from March to March, rendering a rent of two hundred bushels of corn in May, after the expiration of the lease. In January preceding, all the corn raised by Read on the land was sold at sheriff’s sale to White for thirteen dollars, subject to the rent which Alston was to receive from Read, the tenant. The corn sold was from two hundred and eighty to three hundred bushels. White refusing to pay the two hundred bushels to Alston, an action of [____][1] was instituted in the Supreme Court for the recovery of it, and judgment for White, the defendant. On error brought, the question was whether the suit would lie under the Act, 4 Del. Laws 265, c. 88, s. 3.
CHANCELLOR RIDGELY. (Present: BOOTH, C. J., WARNER, COOPER and PAYNTER.)
The Court is of opinion that the judgment below should be reversed. We do not go into the consideration of the general question whether a suit would lie in every case. We decide this case upon its own peculiar circumstances. Alston could not distrain before May, when the rent became due, and previous to that time the greater part of the corn had been wasted, so that no sufficient distress remained. The object of the Act was to render the purchaser liable for the rent. As White refused to perform the duty which the Act imposed on him, Alston has, by the equity of it, a remedy by suit. The right of action is cumulative to the right of distress.
Judgment reversed, and cause remanded for new trial.
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