
    Remington v. Linthicum & Hunter.
    If the marshal takes the goods of a tenant in execution, and before he removes them, the landlord distrains them for rent; and the marshal then removes them from the premises, without paying a year’s rent to the landlord who then replevies them, the Court will, on motion of the defendant, at the return of the writ, order the goods to he returned to the defendant, upon .giving a sufficient bond to return them, &e.
    The return, in such case, is a matter of course, unless the Court should be satisfied that the defendant obtained possession of the property by force or fraud; or that the possession being first in the plaintiff, was got or retained by the defendant, without proper authority or right derived from the plaintiff.
    Replevin, returnable at the present term.
    
      Mr. Marbury, for the defendants,
    moved for a return of the property upon giving the usual retorno habendo bond.
    The circumstances of the case were these: The defendant, Hunter, the marshal, levied an execution in favor of Linthieum, the other defendant, upon the goods of one Offutt, who was tenant, and owed rent to the plaintiff, Remington. After the goods were seized in execution by the marshal, the plaintiff, Remington, the landlord, distrained the same goods for his rent. The marshal, without paying the rent, removed the goods to the house of the defendant, Linthieum, where Remington, the plaintiff in the present suit, replevied them. At the return of the writ, Mr. Marbury moved for a return of the property, upon giving the usual bond; and contended that by the levy of the goods under the fieri facias, they were in the custody of the law, and the plaintiff could not lawfully distrain or replevy them. Comyn on Landlord and Tenant, 386, 387; his only remedy being an action or a motion against the marshal for removing the goods, without paying one year’s rent. Comyn on Landlord and Tenant, 395, 396.
    But the question now is, not whether the marshal had a right to levy the execution upon the goods of the tenant, and to remove them without paying the rent, but whether the defendant has not the common right to a return of the property upon giving the usual bond.
    The Act of Maryland of 1785, c. 80, § 14, authorizes the Court to refuse a return only in cases where the defendant has obtained the possession by fraud or force; or where the possession, being first in the plaintiff, was got or retained by the defendant, without proper authority or right derived from the plaintiff.
    In the present case, the defendant did not obtain the possession by force or fraud, and the plaintiff was not first in possession ; the Court, therefore, is not, by that statute, authorized to refuse a return of the property upon the usual bond.
    Before the statute of 8 Anne, c. 14, the landlord could not dis-train goods taken in execution, because they were in custodié legis; and that statute does not give him any such right; it only forbids the sheriff to remove the goods before the rent is paid; and authorizes him to levy the money paid for rent, as well as the execution money.
    
      
      Messrs. Brent & Brent, contra,
    
    cited Arnet v. Garnett, 3 B. & A. 440, and contended that the landlord is not confined to his action on the ease against the marshal for removing the goods without paying the rent. He had a right to distrain them before they were removed. The statute expressly declares that the goods'shall not be liable to be taken by virtue of any execution, on any pretence whatsoever, unless the party, at whose suit the execution is sued out, shall pay the rent before removal of the goods from the premises.
    The goods therefore could not be taken by the marshal, and were not in custodiá legis, when the plaintiff levied his distress. By that distress he had a qualified property in the goods, which will maintain his replevin. Henchett v. Kimpson, 2 Wilson, 140 ; Comyn on Landlord and Tenant, 396.
   The CoüRt

(Thruston, J.,

absent,) ordered a return of the property upon the usual bond being given.  