
    *John Seigling vs. William R. Main.
    The wife of a tenant is a competent witness "between the landlord and a third person.
    The Act of 1827 makes the action of trover, commenced under its provisions, a proceeding in rem; and when a writ is issued and served, the chattel is in the custody of the law and cannot he distrained for rent.
    Before O’Neall, J., at Charleston, May Term, 1840.
    This was an action of trover, for the recovery of damages for the conversion of a piano forte.
    It appeared that a man of the name of Taylor, having a wife then alive married a Miss Horton ; after their marriage they rented a house belonging to the defendant. They lived together for some time, when Taylor abandoned his second wife. In the early part of November, Miss Horton, (alias Mrs. Taylor,) left the demised premises ; there was then twenty-four dollars rent due, in payment of which she and her mother swore that the defendant accepted a bureau worth twenty-six dollars. When she left the premises, she left the bureau and the piano forte ; the latter, they swore, she did not buy from the plaintiff, but that it was, by him hired to her at four dollars per month. In this respect she was corroborated by the plaintiff’s clerk, Mr. Ulrick, who proved that she hired the piano forte in the month of May. She was contradicted by Tenent, Singletary and Mr. Main, the son of the defendant, all of whom proved that they had heard her say she had paid one hundred and seventy-five dollars or one hundred and seventy dollars for it, and young Mr. Main and Singletary both said, that she said, she had left it in pawn for the rent. The plaintiff demanded the piano forte from the defendant; he refused to give it up, unless twenty dollars rent was paid ; the plaintiff made the affidavit required by the Act of 1827, and issued a bail writ, in trover, which was executed by the defendant entering into the bail bond required by the Act, on the 6th of December, 1839 ; subsequently the defendant executed his distress warrant, (which he had previously issued,) and seized and sold the piano forte for the rent which he alleged to be in ar-rear. The value of the piano forte was proved to be from one hundred and fifty dollars to one hundred and seventy dollars. When Miss Horton, (alias Mrs. Taylor,) was offered as a witness, she was objected to by the defendant, oh the ground that she was the wife of the tenant. I thought she was admissible, on two grounds, 1st. according to* her own proof, she was not the wife of Taylor 2nd. If she was his wife, still she was competent. For he had no interest in the event of this suit. The recovery here by the plaintiff would not be evidence for him, that there was no rent in arrear. If the defendant succeeded, then indeed it would show, that the rent was satisfied by the sale of the piano forte ; but in that point of view, Taylor, would, in testifying for the plaintiff, be testifying against his own interest, and the defendant could not, therefore, object to him. The case of O’Farrell vs. Nance, (2 Hill, 484,) is full to the point, that the tenant is a competent witness, between the landlord and a third person. If the husband would have been competent, it followed that the wife must also be.
    The jury were instructed, 1st, to enquire, was there any rent in arrear. If Miss Horton, (alias Mrs Taylor,) was believed, it was paid by the delivery of the bureau. The question of her credit was distinctly submitted to the jury, and her testimony was contrasted with that contradicting her. If there was no rent in arrear, it would be only necessary then to inquire — to whom did the piano belong, and how much was it worth ? Here again, the case depended on the credit of Miss Horton, (alias Mrs. Taylor,) and Mr. Ulrick, as compared with the testimony of the defendant’s son, Messrs. Tenent and Singletary. . If the jury should conclude, 1st, that there was rent in arrear, and 2d, that the piano forte was the property of the plaintiff, then it would be necessary to enquire, had the landlord the right to seize and sell it under his warrant of distress, after the service of the writ in trover ? I thought he had not. The Act of ’21 makes the action of trover, commenced under its provisions, a proceeding in rem 
      
       So soon, therefore, as the writ was issued and served, it had the effect of placing the chattel in the custody of the law ; and in that point of view, it was not the subject of distress. It was a mistake to suppose, that the landlord has any lien on the goods of a third person, upon the demised premises ; he may, while they remain, distrain them for rent arrear. But if he prevent their removal, and thus compel the owner to have them on the premises, he could not take advantage of his own wrong and distrain them. So, too, if he convert them to his own use, he cannot afterwards recur to his own right of distress. In any of these points of view, I thought the plaintiff, on this question, entitled to ^recover. The jury found for the plaintiff, the value of the piano forte, with interest from the time of conversion.
    The defendant appeals, on the annexed grounds :
    GROUNDS OF APPEAL.
    1. His Honor, the presiding Judge, refused to exclude the wife of the tenant but permitted her to testify and swear off the debt to the landlord, and was therefore interested.
    2. Ilrs Honor erred, in charging the jury, that although the articles dis-trained were in the house hired by the tenant, and the house and articles in the house then (at the time of the demand) in possession of the landlord, there was no lien existing- upon the articles, and the levy of the distress warrant could only create such lien.
    3. The verdict was against law and evidence,
    
      Wilson, for the motion,
    said that the wife of the tenant was an incompetent witness to give evidence between the landlord and a third person. He cited 2 Term Rep., 2(J3; 4th ¡6., 078. Trover, he contended, W'as an action of trespass, and not a proceeding in rom. Until the rent is paid, (when due.) the lien of the landlord is unimpaired. The lien of the landlord does not attach without a distress warrant. McWillie ys. Hudson, 1 Tread. Con. Rep., 119; 3 C. & P., 558.
    
      Rice, contra,
    contended that the tenant was a competent witness to give evidence between the landlord and a third person, and it followed, of course, that if he was, the wife would also be. Here the witness was not the wife of the tenant and could not be excluded.
    
      
       6 Stat., 237. An.
      
    
    
      
       2 Sh., 34; 1 Strob., 239 ; 3 Hill, 12. An.
      
    
   Curia, per

O’Neall, J.

The Court is satisfied with the decision of the case below.

The point ruled as to the competency of the witness, and the instructions of the presiding Judge, are regarded as right by this Court. The motion is dismissed.

The whole Court concurred.  