tion and expulsion, such as trespasses in the field or barnyard.
If the former, the rent for that half year is wholly suspended ;
and if the latter only, it affords the tenant no such defence."
The plaintiff excepted to the charge of the court.
383
341 SUPEEME COURT [Philadelphia,
[Bennett v. Bittle and another.]
The following specification of errors was assigned in this
court :
"1. The court erred in charging the jury, that the lot in
which the barn stood did not pass by the terms of the contract,
and the legal interpretation of the lease.
" 2. The court erred in refusing to charge the jury as requested
by the plaiutift's counsel, upon the question of eviction.
" 3. The court did not instruct the jury correctly upon the
legal operation of the lease, and improperly restricted their in-
quiry upon the question of eviction under the evidence given in
the cause.
" 4. The court erred in charging the jury that there must be
an absolute expulsion, or turning out of the tenant to constitute
an eviction, and they should have left it to the jury to decide
whether the acts proved, did or did not constitute an eviction
in point of law."
The cause was argued by Edwards for the plaintiff in error,
and by Tilghman for the defendants in error, after which
*The opinion of the court was delivered by
KENNEDY, J. The first exception is, that "the court
erred in charging the jury, that the lot in which the barn stood
did not pass by the terms of the contract, and the legal inter-
pretation of the lease." TLe president judge is not fully repre-
sented, I think, by the terms in which this error is assigned, in
what he said to the jury on this point. The words of his charge
are: (his Honour here stated the words of the charge.) In this,
I think, he was certainly right. And it would require, I appre-
hend, a case connected with peculiar and special circumstances
to be made out by evidence, in order to make the lease of a
barn, by the word " barn," without more, carry with it also a
lease of eleven acres of land, with which it happened to be in-
closed. The word " domus" or " house," which, although ad-
judged to be nomen cottectivum, 4 Leon. 16, has been said where
it was used in a devise thereof, without the addition of the words
" cum pertinentiis" not to be sufficient to pass the garden and
curtilege. 2 Ch. Ca. 27 ; Kielway, 57. And in Moore, 24, pi.
82, a grant of a messuage which was formerly thought to be of
more extensive signification than the word "domus" or "house,"
was held to include and pass nothing but the house and circ-uit
of the house. This however may be going too far, because the
curtilege and garden have been considered as parcel of the
house, and therefore will pass by a demise or conveyance of it,
without the words " with the appurtenances," being added.
Cardeu v. Tuck, Cro. Eliz. 89; s. c. Leon. 214; Hill v. Grange,
384
Tan. 11,1834.] OF PENNSYLVANIA. 342
[Bennett v. Bittle and another.]
1 Plowd. 171 j Smith v. Martin, 2 Saund. 401, and note (2).
And iu the case of a grant or demise of a house with the appur-
tenances, it seems to be established as a general rule, that no
more than the garden, orchard, curtilege, and yard adjoining the
house will pass with it, although other lands have been occupied
with the house. Blackburn v. Edgley, 1 P. Wins. 603; Smith-
son v. Cage, Cro. Jac. 526 ; Betsworth's Case, 2 Co. 32 ; Co.
Lit. 5 b, 56 a, b j Hill t. Grange, 1 Plowd. 171 ; 2 Saund. 401,
note (2). But see Gary, 24, where a messuage was demised
(cum pertinentiis), and certain lands had been previously occu-
pied therewith for the same rent and by the same words, and by
advice of the judges Lord Chancellor Bromley decreed, that the
land should pass also. But the word "barn" is still of more
limited signification than that of " house," and a demise or con-
veyance of it without other words superadded to extend its
meaning, would pass no more land than would be necessary for
its complete enjoyment. In Archer v. Bennett, 1 Lev. 131 ;
s. C. 1 Sid. 211, it was held, that a conveyance of "mills cum per-
tinentiis" did not pass the close on which they stood. There is
certainly no good reason why a close, in which a barn stands,
should pass by a grant of the " barn cum pertinentiis" more
than for passing the close in which mills stand by a grant therof
cum pertinentiis. But in the case before us, the words " cum
pertinentiis" are wanting, Avhich, perhaps, makes it still more
strong against the plaintiff's claim.
*The three remaining errors all relate to the same r* 040-1
point, and present but one question, which is, Did the "-
president judge charge the jury correctly as to what in law
constituted an eviction ? He was requested by the counsel for
the plaintiff to instruct the jury " that any entry on the prem-
ises demised, against the will or wishes of the tenant, is an
eviction in point of law, and suspends the rent. In reply to
this, the president judge told the jury (Judge Kennedy here
repeated the charge in the language of the judge who delivered
it.) If the president judge had instructed the jury as the coun-
sel for the plaintiff requested, the charge would have been mani-
festly erroneous ; for an entry on the demised premises by the
lessor, against the will, or even against the express prohibition
of the tenant, without doing more, does not amount to an evic-
tion, and consequently would not extinguish or suspend the
payment of the rent. At most it is only a trespass, for which the
tenant may obtain compensation in damages by an action of
trespass. In Roper v. Lloyd, T. Jones, 148, which was an
action of covenant for the non-payment of rent reserved under
a lease for years of a messuage, &c., where the defendant pleaded
that after the lease, the plaintiff had separated, pulled down,
VOL. iv. 25 385
343 SUPREME COURT [Philadelphia,
[Bennett v. Bittle and another.]
taken and carried away a penthouse, fixed and annexed to the
said messuage and part of the premises demised, and detained
it, before the rent became due, et adhue detinet, to which the
plaintiff demurred, judgment was given for him, " for/' as the
court said, "this was no suspension of the rent, but a trespass
for which the defendant may have his action." So in Harri-
son's Case, Clayton's Rep. 34, where A. having made a lease of
a house reserving rent, afterwards, during the lease, commanded
the breaking a partition wall in the house ; this was held no
such re-ent ry into the house as will make an extinguishment
of the rent ; for that must be a continuance of the possession,
and putting out the lessee." 18 Vin. Abr. 504, tit. Rent, (A.
a,) pi. 11. In Bushnell v. Lech more, 1 Ld. Raym. 370, in an
action of covenant by the plaintiff for rent, and eviction pleaded
by the defendant, Lord Holt said, " whether the plaintiff en-
tered by virtue of any power, or whether he was a mere tres-
passer, if the defendant was not evicted it will be no suspen-
sion of the rent." In Reynolds v. Buckle, Hob. 326, in debt
for rent, the defendant pleaded, that before the rent became due,
the plaintiff entered upon him, but did not say that he expelled
him, or held him out, and so issue was taken on non iniravit
and found, according to the report of the case, for the defend-
ant. This seems to be a misprint of the word "defendant,"
instead of " plaintiff," and so alleged by Lord Holt in the case
of Jones v. Boddinger, Comb. 380, who in speaking of it, says,
"I take the case of Reynolds, Hob. 326, to be misprinted, for
the entry is no bar. Expulsion makes the first part of the bar,
and holding out the rest, the book saith. It was found for the
defendant, which could not be, the judge must direct the jury
otherwise." And again, in Arnold v. Foot, 3 Keb. 453, in debt
upon an obligation and agreement to pay twenty shillings a
r*^44l 7 ear f r * ne premises, so long as enjoyed, where the
J *defendant pleaded entry by the plaintiff before the
24th of June, 25 Car. 2, and before any rent became due, and
that an ejectment was brought, and judgment had in Michael-
mas term after; to which the plaintiff demurred, because it was
not said expulit or amovit, nor that the plaintiff continued in
possession, as it ought to be, being pleaded by way of suspen-
sion : but by way of eviction it were well enough, which the
court agreed, in case it were payable as a rent.
Mr. Chambers, in his treatise on the law of Landlord and
Tenant, lays it down, that "if the lessor enter without ousting
the tenant, although he damages the premises irreparably, it
will not be a sufficient entry to suspend the rent," p. 591. He
refers to some of the cases cited above, and to two others, Cher-
bern v. Rye, Cro. Eliz. 341, and How v. Broom, Goulds, 125,
386
Jan. 11,1834.] OF PENNSYLVANIA. 344
[Bennett v. JBittle and another.]
which do not support his proposition ; for Popham and Gawdy,
Justices, thought that the entry of the lessor, and his pulling
down the house on the demised land, was a suspension of the
rent, although the tenant re-entered and enjoyed the land after-
wards; but Fenner and Clench, Justices, doubted whether the
rent was not revived by the re-entry of the lessee. Lord
Mansfield, however, in Hunt v. Cope, Cowp. 243, declares that
to occasion a suspension of the rent, the rule of law is clear,
there must be an eviction or expulsion of the lessee. And it
seems to be settled, that if the lessee, after having been evicted
by the lessor, re-enters and possesses again the demised prem-
ises before the rent becomes due ; it is thereby revived. Page
v. Parr, Styles, 432 ; 1 Selw. N. P. 432, 500 \ Cibels v. Hills,
1 Leon. 110. But if the lessor enter and oust the lessee, it is
not material whether he (the lessor) continue his possession
there or not ; for having once entered and expelled the lessee,
although he depart presently, the possession is in him sufficient
to suspend the rent, until the lessee does some act that amounts
to a re-entry. Cibel v. Hills, 1 Leon. 110. If the lessor enters
and expels the lessee from part only of the demised premises,
the latter may abandon and give up the residue ; and by doing
so, it is clear, that he thereby discharges himself from all liabil-
ity to pay rent, which otherwise would have become due subse-
quently. Smith v. Raleigh, 3 Camp. 513. But if he should
continue to possess and enjoy the residue, I will not say but
that he may be made liable upon a quantum meruit. Stokes v.
Cooper, Ib. 514, in note.
It appears, then, from an unbroken chain of authority and
decisions, that an entry of the lessor, without an expulsion of
the lessee from at least some part of the demised premises, is
insufficient to produce a suspension of the rent; it follows, that
the court below were right in refusing to charge the jury as re-
quested by the counsel of the plaintiff, and in directing them that
nothing short of an eviction or expulsion from at least a por-
tion of the demised premises, would be sufficient for that pur-
pose. Whether an eviction was proved or not, was left entirely
as a matter of fact to be decided by the jury, upon which I can-
not perceive that the president of the court in delivering the
charge, ventured to intimate an opinion. He seems to have met,
*very fully and fairly the proposition contended for by poici
the counsel of the plaintiff. And it was perhaps owing L
to a conviction resting on the mind of the plaintiff's counsel at
the time, that his evidence at most tended only to prove a mere
entry by the defendant against the will and consent of the plain-
'tiff, that he was induced to contend as he did, that such an entry
amounted in law to an eviction. For if he had conceived that
387
345 SUPREME COUKT [Philadelphia,
[Bennett v. Bittle and another.]
his evidence was, under any view that might be taken of it by
the jury, sufficient to establish anything beyond such entry, as
for instance, an exclusion or holding of the plaintiff out of the
possession and enjoyment of any part of the demised premises,
he ought to have shaped his proposition accordingly, and to have
asked the instruction of the court to the jury in regard to it ;
and in this way, it is more than probable, some of those things,
which it has been alleged on the argument that the court in ex-
planation of what in law amounted to an eviction ought to have
told the jury, would have been mentioned by the court to them.
But as the proposition of the plaintiff's counsel did not require
any such illustration, there was nothing improper on the part
of the court in omitting it.
The judgment of the court below is affirmed.
Cited by Counsel, 5 W. & S. 148 ; 9 S. 422 ; 19 S. 328 ; 7 N. 418, s. c. 7 W.
N. C. 140 ; 10 N. 323 ; 2 W. N. C. 610 ; 10 W. N. C. 30 : 11 W. N. C. 217 ;
13 W. N. C. 28.
Approved and followed, 4 Barr, 101, and re-affirmed, 2 Wr. 343.
[PHILADELPHIA, JANUARY 14, 1 834.]
Ankrim against Woodward and Others, Trustees under
a Domestic Attachment, &c.
IN ERROR.
In an action by the trustees under a domestic attachment issued against A.,
brought to recover from B., the father of A., the proceeds of the sale of goods
in a store which had belonged to A., and the amount of debts due to A. col-
lected by B., it is competent to the defendant to prove by the testimony of any
disinterested witness, admissions, declarations, 9nd acts of A. made or done at
any time prior to the issuing of the attachment, tending to show, that he had
given to his father the store and books of accounts, towards securing a debt
which he owed to his father ; notwithstanding A. was examined as a witness
on the trial for the father, and testified to nothing having passed between him
and his mother (who was alleged to have been his father's agent in this matter)
on the subject of the store and books of account, and of his giving them up to
his father, for any purpose whatever.
But without any agreement between the father and the son, by which the
latter assigned to the former the store, goods, and books of account, if the son
before the writ of attachment issued, gave up to the father the goods and books
for the purpose of enabling him to satisfy the debt due to him, out of the pro-
ceeds of the sale of the goods and the moneys collected, and the father, before
the suing out of the writ, accepted them for that purpose, he would be entitled
to have his debt satisfied out of the money arising from the sale of the goods
and the collection of the debts, whether the debts were collected before or
after the issuing of the writ of domestic attachment.
The trustees under a domestic attachment are only invested with those
rights which existed in the person against whom it issued immediately before*
the writ is sued out, unless he before that time assigned or convejed away his
388
Jan. 14, 1834.] OF PENNSYLVANIA. 345
[Ankrim v. Woodward and others.]
estate, or anything belonging to him for the purpose of defrauding his cred-
itors ; in which case the trustees have power, under the fifth section of the act
of 1 807, to recover and dispose of whatever may have been so conveyed away,
in the same manner as if he had been seized or possessed thereof at the time
of suing out the writ of attachment.
*Wnrr of error to the Court of Common Pleas of r^rM/n
Chester county.
In the court below the action was assumpsit, brought against
the plaintiff in error, Josiah Ankrim, by John Woodward,
John Way, and George Gregg, trustees under a domestic attach-
ment issued at the suit of Dennis M'Credy and Samuel Parker,
trading under the firm of M'Credy & Parker, against Adam
Jeuner Ankrim, the plaintiffs below and defendants in error.
The defendant below pleaded non assumpsit, and two special
pleas of set-off, averring that Adam Jenner Ankrim, prior to
the issuing of the domestic attachment, and the trustees, prior
to the commencement of this suit, as trustees, &c., were indebted
to the defendant in a larger sum than that claimed in this suit.
The replications to the special pleas merely traversed the al-
legation that the plaintiffs, as trustees, were indebted, &c.
Upon the trial, the plaintiffs, among other things, gave evi-
dence that Adam Jenner Ankrim was a son of the defendant,
Josiah Ankrim, and kept store in Jennerville, Chester county,
near his father's residence, for about one year. viz. : from Sep-
tember, 1825, to October, 1826, when he left the state, and his
father took possession of the store, goods, and books, under cir-
cumstances tending to show a misunderstanding between them ;
that the father afterwards treated them as his own, sold out the
goods, and collected some of the debts.
The domestic attachment was issued on the 8th of September,
1827, and this suit commenced on the 23d of September, 1830.
The defendant then proved that Adam Jenner Ankrim was
indebted to his father in a large sum of money : That prior to
leaving the state, he had married to his father's displeasure :
That he continued keeping the store until October, 1826, at
which time (according to his own deposition read in evidence
in the case) he delivered up the keys of the store to his sister
Margaretta Ankrim, for the purpose of having them delivered
to his father, that he might convert the effects of the store into
the means of discharging the debt he then owed him : That he
then resided in New Jersey, and was in business there, and in-
tended to return to that state : That his father did not consent
to his going into business as a storekeeper in the first instance,
but afterwards became reconciled to it : That he was on such
terms witli his father, that he preferred delivering the keys to
him through the hands of his sister, rather than directly to him-
389
346 SUPREME COURT [Philadelphia,
[Ankrim v. Woodward and others.]
self, and thai it was his intention that his father should have
his books of accounts, to collect the outstanding debts.
He annexed to his deposition a statement showing the debts
due to his father, and explained the nature of them. They ap-
peared to have arisen from money lent, and from debts paid by
the father for the son. It also appeared that the amount of
these debts exceeded the value of the goods in the store, when
the father took possession of it.
The defendant's counsel then called as a witness Delia Ankrim,
and in connection with the evidence thus given, proposed to ask
f*^471 ^ er *^ e flowing question : "If you know anything
J of a conversation between Jenner Ankrim and his
mother, as the agent of your father, respecting a transfer by
Jenner of his property in the store, and the debts due to
Jenner, to secure his father, state it." The question was ob-
jected to by the plaintiffs' counsel, and overruled by the court,
who signed a bill of exceptions.
The defendant's counsel then put the following question to
the same witness : " If you know that your mother was agent
for your father, in obtaining a transfer by Jenner to his father
of the store goods, and Jenner's outstanding debts to secure
his father for debts due to him, state what you know." To
which the witness answered thus : " I believe my mother was
agent for my father ; she was constituted agent by my father's
conversations."
The defendant's counsel then put the following question to the
witness: "Do you know of Jenner treating with your mother
as agent of your father in the transfer of the store, books, &c. ?"
This question being objected to by the plaintiffs' counsel, was
overruled by the court, upon which another bill of exceptions
was tendered and sealed.
The defendant's counsel then requested the witness to state,
" what she knew of the transfer of the store by Jeuner to his
father ;" to which the witness answered : " I was not present
when Jenner put father in possession of the keys ; my father did
get possession of that store about the 6th of October, or within
a few days of it."
The defendant also proved, among other things, by Margaretta
Ankrim, that Jenner gave her the keys about the 6th of October,
1826 : That when he delivered them to her he requested her to
hand them to her father, and tell him to manage the store in his
own way, or make the best use of what was there : That she
gave the keys to her father on the same evening, and she be-
lieved she mentioned to her father the statement her brother had
made . That her father, the next morning, took possession of
the store, and she attended it for her father ever since it came
390
Jan. 14, 1834.] OF PENNSYLVANIA. 347
[Ankrim v. Woodward and others."]
into his possession : That it was at the time of the trial in her
possession : That the value of the store goods at the time her
father took possession was from twelve to fifteen hundred dol-
lars, and that Jenner was not in possession of the store after
the keys were delivered to her.
After having examined several other witnesses, and given in
evidence certain documents, the contents of which it is unneces-
sary to state, the defendant again called Delia Ankrim, and re-
quested her, " if she knew anything of a negotiation between
her mother (at the request of her father) and Jenner, but a short
tiaie previous to the delivery of the keys of the store to her
sister Margaretta, respecting such delivery or transfer, to state
it." The question was objected to by the plaintiffs' counsel, and
the objection was sustained by the court, who sealed a third bill
of exceptions.
In conclusion, the defendant's counsel requested the court to
charge the jury as follows :
*"lst. Jeuner was by law permitted to prefer the debt po.rn
due to his father, and such preference did not render the L
transfer fraudulent.
"2d. The debts due to the defendant from Jenuer before
issuing the attachment, must be set off against the claim of the
trustees, so as to bar a recovery by the plaintiffs, except for the
balance, if any, after the set-off.
"3d. An assignment to an individual for his own use in dis
charge of a debt to him, need not be recorded within thirty days,
under the act of assembly.
"4th. If the defendant by the authority of Jeuuer, either as
agent, care-taker, or manager for Jeuuer, or under a transfer to
himself by Jenner, in discharge of, or in security for his debts,
collected the outstanding debts of Jenner, then he has a right
to set off the debts due to him from Jeuner, before issuing the
attachment."
The court gave the following answers in writing to these
propositions, which, at the request of the defendant's counsel,
were filed of record :
"1. The first is a correct abstract proposition of the law of
Pennsylvania, and is so laid down to this jury.
"2. The pleas of set-off in this case are wholly inapplicable;
there was not, nor could there be any mutual dealings between
the trustees, plaintiffs, and defendants, which is the foundation
of the right to set-off. The tenth section of the act of 4th De-
cember, 1807, relative to domestic attachments, which has been
so strongly relied upon to support the proposition, has no bear-
ing upon this question, but only prescribes the duty of the trus-
tees when they come to distribute the effects among the cred-
391
348 9 SUPREME COURT [Philadelphia,
[Ankrim v. Woodward and others.]
itors; they will, under that section, give the defendant his
dividend of the effects, upon the real debt due to him, after
allowing the proper set-off, in respect to the dealings between
him and Jenner Ankrim ; therefore the debt due from Jenner
before the issuing of the attachment cannot be set off' against
the claim of the trustees, but the money due on Jenner's books,
collected by the defendant, must go into the hands of the trus-
tees for distribution amongst all the creditors ; unless the jury
shall believe it belongs to him in his own right, by virtue of a
valid agreement and assignment before the attachment.
" 3. Affirmed by the court.
" 4. Nothing short of a transfer or sale to Dr. Ankrim of the
debts due Jenner Ankrim, in consideration and satisfaction of a
debt due to him, can prevent the trustees' recovery ; an author-
ity given by Jenner to his father, as agent, care-taker, or man-
ager for him, will not, as before stated, protect fuprn the opera-
tion of a domestic attachment ; and there is no pretence for set-
off, as answered to the second of the two first propositions
offered by the same counsel/'
The jury found a verdict in favour of the plaintiffs below for
six hundred and forty dollars and fifty-four cents, and the de-
fendant prosecuted this writ of error.
r*^4Q1 *The following errors were assigned in this court :
-J 1. The court erred in rejecting the evidence offered,