
    Hamilton vs. Reedy.
    A landlord can not distrain upon any other property than personal chattels.
    
    But he can not distrain upon-personal chattels after they are in the custody of the law; viz: as after being levied on under a Jifa.
    
    By the statute of Anne, no goods or chattels talcen on any lands leased for life, years, Sic. shall be taken in execution, unless the party, at whose suit the execution is sued, before removal of goods, pay to the landlord the arrears of rent, if not exceeding one year’s rent. 'But the same right of the landlord does not exist as to chattels real-, "but tiimti ties real may be sold exclusively for the satisfaction ofthe execution. . The landlord must give'the sheriff notice of liis claim for rent- 
    
    This was a rule -upon the city sheriff of Charleston, tried before the Recorder of the city court, who made the .following report:
    “The actor had leased to the defendant, Tho’s Reedy, a lot of Jan d in Charleston for a term of years, for a certain rent payable annually,.. Subsequently to the execution of this lease, the plaintiff, James Hamilton under a judgment, obtained by him against the defendant, sued out a writ of fieri facias, under which the lease-hold estate purchased by Reedy from the actor was sold by the sheriff and .purchased by the actor. At the time of this, sale, more than a year’s rent was due by the defendant, of which the actor gave regular notice to the sheriff, and demanded from him the amount of a year’s rent, pursuant to the statute of Anne. The execution creditor resisting (his claim, the sheriff refused to comply with it; upon which the actor took out this rule to compel the sheriff to allow him.the rent he demanded. The execution creditor contended that a landlord was only entitled to require from the sheriff a year’s rent when personal property had been levied upon and sold under a fieri facias, and that as in this case the property sold was a chattel real, the proceeds must be paid over to the creditor, without any deduction for the rent in arrear. The counsel for the actor (who was the landlord) insisted that the sheriff was bound, both by the common law, and under the statute of Anne, t® pay to.him a year’s rent; although the property sold was a chattel real; and he cited a number of cases to support this position. In giving my decision in this case, I stated that whilst the feudal system prevailed in England in its full force, the non-performance of any of those feudal services, which, were reserved, among which rent was included, occasioned an absolute forfeiture of the feud and a reversion of it to the lord. Tiie rigor ofthis law was afterwards mitigated and the lord was restrained to an entrance upon the land and taking it into his possession, until he obtained satisfaction. But this practice, after some time, was changed,- and in it's stead was substituted a right to serse the cattle and other moveables found upon the land, and to detain them as a pledge, until the rent was discharged.- The exercise of this right being found to be oppressive and injurious to tenants, various statutes were passed upon the subject, until at length the law of distress became such as it is at the present day. A distress was defined to be “the-taking a personal chattel oat of the posession of the wrong doer into.the custody of the party injured, to procure a satisfaction for, the wrong committed.” (3 Blaehsione’s C&nim. 6.) The same author in page T. says, “all chattels personal are liable to be distrain-ed, unless particularly protected or excepted-.” It thus appears by the ancient law, that where rent was not paid, the land reverted to the lord; that afterwards, when rent was due, the land Was held by the lord until his demand was satisfied; that to this right succeeded the power of levying upon personal chattels to be held by the lard as a pledge, until his rent was paid, and that, at a later period, the doctrine of distress was introduced as it now prevails. During these various practices and usages ('before -the statute, which I shall presently refer toj no provision existed respecting the interfering claims of a landlord and a creditor of die tenant, who, under an execution, -might have levied upon the property of his debtor. It was an ancient rule of the common law, which still remains unimpeached, that goods in the cus*-tody of the law cannot be distrained. If, therefore, the sheriff, under a fieri facias, levied upon the goods of a' debtor, being, when levied upon, in the custody of the law, they are exempt from distress by a landlord. But altho’ the landlord cannot take such goods into his hands, as a distress, yet a provision contained in the statute 8 Anne, c. 14. (of feree in this state) has given to him, to a certain extent, a lien on his ' tenant’s goods, when taken in execution. That statute enacts that no goods or chattels taken on any lands, leased tor life, years, &c. shall be taken in execution, unless the -party at whose suit, execution is sued, before removal of the goods, pay to the landlord the arrears of rent, if not-exceeding one year’s rent. So far as this statute extends, the landlord is relieved: In all other respects, his right and .those of the execution creditor, remain as they existed before the statute, in the exposition of this statute, it has been determined, that the landlord, to avail himself of its provisions, must give notice to the sheriff of his claim for rent. From this view of the law of replevin, the following conclusions, seem to me to result:
    That the landlord cannot distrain upon any other ' species of property than personal chattels;
    
    That he cannot distrain upon personal chattels after they are in the custody of the law;
    That where personal chattels upon the premises are sold under a fi.fa. the landlord, upon giving notice to the sheriff, is entitled to receive from him one year’s rent, if so much be : due at the time of the sale; and,
    That after a sale of a chattel real by the sheriff, no such right is given to the landlord, but the whole of the proceeds ■ must be paid to the execution creditor.
    For these reasons, I dismissed the rule, and ordered ibe whole proceeds of the sale to be paid to the plantiff.”
    ‘ From this decision, the actor appealed, on the ground, that the sheriff was bound, under the statute of Anne and the .common law, to pay a year’s rent from the proceeds of the sale of the lease, though it be-a chattel real.
    
      Argued 11th March, 1825.
    
      Gadsden, for the motion
    Contended that the term 
      was pledged for the rent. (2 Bacon, Jib. 341. Tii Distress.^ The proceeding by distress is taken from the civil law, and is a substitute for forfeiture. The lands leased are hypothecat-ed to the landlord for the payment of rent: so the whole profits of the land, which must include this term Formerly the nonpayment of the rent was a forfeiture of the lease, but distress was substituted for this forfeitu're. (Gilbert on Distress, 3.) Distress is the taking of chattels; which-comprehends all chattels. (Woods Inst. 199. Finch, 135.} Coice, (upon Lit. 46. 47. a.) defines a distress to be of a thing whereof a valuable property is in somebody; whichwill comprehend a lease. The old forms .of distress conformed to that of a fi. fa. A fi. fa, may take a term, and why not a distress? Besides, possessioncan be taken by the sheriffofa term». (8 East, 484.’JVby, 43.) A lease may be sold under a oren-ditioni exponas. (Dyer. 363. a.) Besides, the statute of Anne is susceptible of this construction: For whatever is ■within the intention of a statute, is as much within ..the statute as if it were expressly, included, (Plowd. 366. 10 Rep. 10.) The statute of Anne must be construed liberally to give a specific lien. (2 Wilson, 71..} He cited also, 2 Bacon, 7J, Tit. Covenant. 2Binney, 146. 2 Tidd, 849. 2 Black. Com. 416-7. Gilbert on Rents, 86.. - ■'
    
      Dawson, contra
    At common law the lien does not at" tach till rent is due. The lien is not taken as a satisfaction, but as a security. It is in the nature of a pledge, which is only in reference to chattels, (2. Bacon, Jib. 349.) Before the statute the landlord lost his lien if execution issued. To remedy this the statute was passed. There is no lieu upon a lease, like that of a vendor’s, where the purchase money' is unpaid. The statute included no other property than such as was distrainable at common law,, It was only to make the lien available. (2 Bacon, 344.) The statute of Phil, and Mary and.others, against removing goods, regard things distrainable as being only moveables. Besides the writ of replevin, which is to take goods out of the hands could not apply to a term. (Bacon, Hist. 252-3.) If the; term might be distrained, so might fixtures. (Bac. 343. 2-M'Gord 330,. 423.) Besides the statute is. too plain for construction. (1 Const, Rejp: Tread, edition,' 119-20 and'2-1, 2 Brevard Dig. 185. title, Rent.
    
    
      Grimke, on the same sijde
    The right of distress is dif. ferent- from hypothecation. It is of feudal origin. Fieri facias has-been confounded with levari facias. The landlord never had a right to take a growing crop till the statute passed. The sheriff can not turn the-lessee out ol possession. Vendee must bring ejectment. ( 2 Bac. 714. tit. Execution.)
    
    
      
       í presume nothing more is meant by the court, than that the sheriff 'must know that there is rent due to the landlord; as in Andrews vs. Dixon, (3 Barn. & Ald. 645,) the court.held, that “where a sheriff with the knowU edge that there is rent due to the landlord, proceeds to sell the tenant’s goods by virtue of a writ of ji. fa. without retaining a year’s rent, he will be liable for itjxtlthough no specific notice has been given to him by the landlord.'’
      
    
   Per Curiam.

The opinion of this court, concurs with that delivered by the Recorder.' The motion is therefore refused.  