The State v. Howell

• Citation: 38 A. 748,61 N.J.L. 142
• Decision Date: 15 November 1897
• Court: New Jersey Supreme Court
• Parties: THE STATE, ROBERT E. HAND, PROSECUTOR, v. WILLIAM G. HOWELL

38 A. 748

61 N.J.L. 142

STATE (HAND, Prosecutor)

v. HOWELL.

Supreme Court of New Jersey.

Nov. 8, 1897.

(Syllabus by the Court.)

Certiorari to court of common pleas, Mercer county; Woodruff, Judge.

Certiorari by the state, on the prosecution of Robert E. Hand, against William G. Howell, to review a judgment against the prosecutor rendered on appeal from a district court Reversed, and venire de novo awarded.

Hand was sheriff of the county of Cape Slay, and as such, at the suit of Hubbard & Co., took in execution the goods and chattels of one Elliott, a tenant of Howell, and on May 24, 1894, on the demised premises, sold the same.On June 8, 1894, he paid to the plaintiff in execution the proceeds of such sale.Howell sues for eight months' rent due at the time of the sale.At the trial, Howell testified that on May 23, 1894, he posted, prepaid, at Morrisville, Pa., a letter, directed to the sheriff of Cape May county, Cape May Court House, N. J., containing notice of his claim for rent; that on the envelope was printed his business card, and a request for a return of the letter if not delivered within five days; and that the letter had never been returned.He further testified that on the same day he sent to the same address a telegram of like purport.Hand testified that he had never received either the letter or the telegram.Elliott testified that on the day of the sale the sheriff asked him if there was rent due, and that he replied that there was.Hand testified that Elliott told him that no rent was due, and, further, that he had no knowledge or information when he paid over the proceeds of sale that any rent was due.Howell had judgment on verdict, which Hand now attacks as erroneous, for various reasons.The following only need be considered: (1)) The court charged the jury that Howell was entitled to a verdict if Hand, before paying over the proceeds of execution, received notice in any way that the rent was due.(2)The court refused to charge, as requested in behalf of Hand, as follows: "The mailing of a letter, directed and properly superscribed with the defendant's proper address, raises only a presumption that it was received; and the defendant's positive denial that any such letter was received rebuts the presumption, and disproves, therefore, its receipt."(3)The court admitted in evidence proof of the contents of a letter from Howell to Hand, written and received December 22, 1894, as follows: "When may I expect a settlement of my claim in the Elliott matter, in which notice was served on you in May last?" to which letter Hand sent no response.

Argued June term, 1897, before DIXON, LUDLOW, and COLLINS, JJ.

Barton & Dawes, for prosecutor.

Carroll Robbins, for defendant.

COLLINS, J.(after stating the facts).Liability of the sheriff in this case must rest on the "actconcerning landlords and tenants"(2 Gen. St.p. 1915).Section 4 of that act is the descendant of the statute of 8 Anne, c. 14, which forbade the removal from leased premises of the tenant's goods taken in execution, unless rent to the time of the levy—but not exceeding for one year—should be first paid.Our act carries the claim for rent down to the time of removal, and extends to other process.If a sheriff or other officer ignores this statute, he is liable for such rent; but, in order to hold him, it is necessary that he shall have notice that rent is due.The English courts hold that such notice may be given after removal, so long as the goods or the proceeds of sale remain in the officer's hands.Arnitt v. Garnett, 3 Barn. & Aid. 440; Watson, Sheriffs, 193.But in this state it was held that the notice must be before removal.Ayres v. Johnson, 7 N. J. Law, 119;Peacock v. Hammitt, 15 N. J. Law, 165.In Ryerson v. Quackenbush, 26 N. J. Law, 236, it was decided that the distress act was to be considered as in pari materia with the other statute; and this court construed a sale by the officer upon the demised premises to be a removal, within the terms of the law.The charge of the court in this case, therefore, on the subject of notice, was not correct; but it did the prosecutor no harm, as the only notice of which competent proof was offered was before or at the sale.The point of objection to the charge was not that it permitted notice up to time of payment, but because it was not limited to a notice in writing.Section 5 of the act does require notice in writing, but that section, enacted after Ayres v. Johnson, supra, and doubtless because of that decision, is only applicable to cases where there has been an actual removal by the officer, from the demised premises, of a tenant's goods, before sale, and before notice of rent due.The notice, under section 5, must be given within 10 days after such removal.Under the statute of Anne, and section 4 of our act, formal notice is...