
    
      H. L. Ayres vs. C. Depras.
    
    1. A writ in attachment being issued against the defendant, a rented store and the goods which had been in his possessson, were claimed by a third person, who was then served with a copy writ, as garnishee; but before the return day of the writ, and a few days before a quarter’s rent fell due to defendant’s landlord, filed his return, by which he surrendered the goods to the sheriff, who, on the same day, received possession of them from the garnishee. The sheriff then communicated with the landlord, and proposed, since the goods would depreciate by removal, if he would consent to postpone the distress, and permit the goods to be sold, as soon as the' order could be procured, there should be no disparagement to his legal claim, which proposal was accepted. When the goods were sold, the sheriff retained the rent, within a day of being due when he received possession.
    2. When the goods were received by the sheriff, they were in his possession by virtue oí a levy under the attachment, which it was his duty to make at any time before the return of the writ'.
    S. Although the goods remained on the demised premises until after the rent became due, the landlord could not distrain after the levy; and as no rent was due at that time, he could not, under the Statute of Anne, maintain his claim to be paid the rent which subsequently accrued out of the proceeds of the sale.
    4. Had the writ of attachment been returned, and afterwards the garnishee, who before claimed the goods, had offered them to the sheriff, it would seem that he could not, without further order of the court, have offi* cially taken possession.
    
      Before Wardlaw, J. Charleston, May Term, 1842.
    This was a rule on the sheriff. The facts of the case will be understood from his return.
    
      Return of the Sheriff,
    
    In this case several writs of attachment were issued, and the store and goods lately in possession of defendant were claimed by one H. C. Guerry, as his agent or clerk; upon which, pursuant to the exigency of the writ, he was garnisheed in each case, and he duly made his returns. He continued in the occupancy of the store, and was engaged in the disposal of the goods till about the 28th March, when the garnishee, anticipating a distress for rent, which became due on the 1st April, proposed surrendering the remainder of the goods to the sheriff, notwithstanding he claimed them as agent, at the service of the writ, and had made his return. The sheriff, at that time, declined receiving them, not recognizing any authority in law to do so.
    The rent became due on a day or two following, and it was necessary for some immediate action to anticipate a distress. The sheriff then consented to waive his objections, and did take the goods into his possession, and the keys of the store were delivered to him. Thereupon he communicated with the landlord, and proposed, since the goods would decrease in value by removal, if he, the landlord, would consent to postpone the distress, and permit the goods to be sold as soon as the order could be procured, there should be no disparagement to his legal claim. On the 15th April, the goods were sold, and the net proceeds duly paid into court, save the rent, which, at the time the sheriff took possession of the goods, was within a day of being due and payable, and which, by agreement, has been held subject to the order of this court. The amount reserved is two hundred and twenty-five dollars.
    On behalf of the plaintiff in attachment, it was admitted that S. N. Hart had demised the premises (on which were the goods attached) to the defendant in the suit, and that two hundred and twenty-five dollars, one quarter’s rent, became due and payable the 1st day of April. The facts stated in the return of the sheriff were admitted.
    
      Opinion of the presiding Judge.
    
    This rule, and the order for sale heretofore made, contemplate the possession- taken by the sheriff before the rent became due, as a regular seizure of the goods under attachment.
    Under the Statute 8 Ann, c. 14, the landlord acquired no right over the goods by the subsequent accrual of rent; for even though, in analogy to a capias utlagatum in a civil suit, which was held to be an execution within the terms of the Statute (Bunb. 194; ib. 5, ib. 269) an attachment should be considered an execution, a landlord can, under the Statute, claim only for rent due at the time of the taking the goods, and not for rent which accrued after the taking, and during the continuance of the sheriff’s possession. Hoskins vs. Knight, 1M.&S. 245 ; Peacock vs. Purvis, 2 Br. & Bin. 362 ; Me Willie vs, Hudson, 3 Brev. 60.
    In conformity with the agreement made between the sheriff and the landlord, the parties now before the court rest their rights upon the question, whether the landlord could have distrained after the rent became due, and whilst the goods in the possession of the sheriff under levy remained on the demised premises. In the case cited above from 3 Brev. Judge Brevard seems to think he could, notwithstanding the rule that goods in custody of the law shall not be liable to distress ; and looking to one reason usually given for the rule that the interest which the law has vested in third persons shall not be divested without their default, any improper delay or confidence in the debtor, on the part of the sheriff, the agent of the plaintiffs in execution, might be considered such default of the plaintiff as would take the goods from the possession of the sheriff, for the benefit of the highly favored rights of the landlord. But there seems to have been in this case no improper delay or confidence on the part of the sheriff; indeed, from the nature of the goods, the speedy removal of them was impracticable ; and it should be borne in mind, that further reasons for the rule before stated may be found in considering that goods in custody of the law the sheriff is justified in re» taming in his possession; they can, therefore, neither be seized by the landlord, nor replevied by the tenant, and to subject them, by way of distress, to any sort of reversion» ary right in the landlord, would be to give a remedy where the forms for testing the propriety of its exercise are inca» pable of application.
    The rule is made absolute»
    
      Grounds of Kppecd.
    
    1. That the goods having remained on the premises until the rent became due, the sheriff was bound, under the Statute of Anne, to have paid the landlord the rent due before removing the goods, and his Honor should have dismissed the rule.
    2. That by the .understanding and agreement of the parties, as set forth in the sheriff’s return, the landlord was to have his rent, at all events.
    
      Yeadon <Sf McBeth,for the appellant. Egleston, contra.
    
   Curia, per

Wardlaw, J.

Under the Statute of Anne, the landlord can claim payment only of the rent due at the time of the sheriff’s seizure ; and goods in the custody of the law are not liable to distress. But the landlord now contends that even admitting these principles, the sheriff here did not take the goods as sheriff, but only as agent; and that, in fact, the goods were not in the custody of the law until the order for sale was made. If the writ of attachment had been returned, and afterwards the garnishee, who before laid claim to the goods, and offered them to the sheriff, it might well be questioned whether the sheriff, without further'order, could officially have taken possession of them; but here the writ of attachment was returnable to May Term, 1842 ; the garnishee, when he was served with a copy, laid claim to the goods, but afterwards, on 29th March, before the return day of the writ, filed his return, by which he surrendered the goods to the sheriff, and on the same day the sheriff received possession of the goods from the garnishee. This can be regarded in no other light than as a levy by the sheriff upon goods of the absent debtor, not in the possession of any third person ; which it was the duty of the sheriff to make at any time before the return of the writ.

The landlord could not, after the levy, have distrained; and as no rent was due at the levy, he cannot maintain his claim to be paid the rent which subsequently accrued, out of the proceeds of the sale.

There is at least as much plausability in the creditor’s position, that the agreement between the landlord and sheriff was intended to refer to the rights of the parties, as existing at the day of the agreement, before the rent became due, as in the ground taken by the landlord, that by the agreement the landlord was to have his rent at all events. But the views which have been taken render it unnecessary to consider any plainer rights which the creditor might have under the agreement.

The order making absolute the rule to compel payment by the sheriff to the plaintiff in attachment, was therefore correct, and the motion is dismissed.

Richardson, O’Neall, Evans, and Butler, JJ. concurred.

Frost, J. had been of counsel for the plaintiff.  