
    James Ferguson and Two Others v. Moore.
    April Term, 1795.
    Replevy Bond — Distress for Rent — Return of Bond-Execution of Bond. — A Rond taken upon replevying property distrained for rent, must be returned to tbe Court to which the officer levying the distress belongs, or to the Court of that county in which the land lies. Such a bond is good if executed by the original lessee, though he be not the tenant in actual possession, nor the owner of the property distrained, if he hath assigned his lease to a third person, without the privity, or assent of the lessor.
    
      Distress for Rent — Sale.—Property restrained for rent can be sold only by an officer duly qualified as such; as by a Sheriff, or Constable.
    The appellee directed a distress to be made upon the property of M’Rae his tenant, for the rent of a house, situate in the town of Petersburg, by the serjeant of the Court of Hustings of the said town, which being replevied for three months, a bond was executed by the appellants, and was returned into the County Court of Dinwid-die, and on motion of the landlord, judgment was rendered thereon in the same "court. The defendants below, filed exceptions to the judgment, and assigned the following objections to it. 1st, That the bond was not executed by M’Rae, the tenant in possession,.nor by the owner of the goods distrained, — 2d, That the court had no jurisdiction over the. cause, it appearing from the face of the bond that it was taken by the serjeant of the corporation of Peters-burg. — 3d, That James Ferguson one of the obligors, was the original lessee of th.e premises, and assigned his interest in the term to John M’Rae the present tenant in possession, without the privity or consent of the lessor. ,
    Upon an appeal to the District Court, off Petersburg the judgment was there affirmed. To this judgment, a supersedeas was. awarded by this court.
    Marshall for the appellant. It is a principle founded in much reason, and has-often been approved in this court,. that. *where a statute authorises a summary remedy unknown to the-common law, the provision of such a statute must be literally and strictly pursued. The act of Assembly (see the old body off laws p. 202) directs the bond to be given by the tenant or owner of the goods, and! where that is the case, a judgment may be obtained upon such bond, by motion. But the bond in question is stated to 'have been executed by persons not coming within-this description, and is therefore not entitled to the benefit of this law.
    As to the question about jurisdiction, there is more difficulty. The law requires-the bond to be returned, but does not point, out the court to which the return is to be made. Upon the reason of the case, I should suppose, that it ought to be made to that court, to which the officer taking the distress belongs, because if it might-in this case be made to Dinwiddie County Court, it might be made to any court in Virginia. Such a construction is too-unreasonable and absurd to be admitted for a moment. Upon this record, the court cannot judicially know that Petersburgh is in the county of Dinwiddie, and therefore the argument ab inconvenienti is as. strong, as if in truth the bond had been, ireturned to Monongalia Court, and the judgment rendered there. But if the court can properly take notice, that Petersburgh. is in the county of Dinwiddie, I should then contend, either that the bond should have been taken by the officer of Dinwid-die County Court, or as the case has happened, that it should have been returned to the corporation court of Petersburgh. There can be no doubt, but that this latter-court had jurisdiction of the case under the act of 1787, if the parties lived within the limits of the corporation.
    Wickham for the appellee. I admit, that if this were a common law right taken away by the act of Assembly, the principle laid down by Mr. Marshall in discussing his first point, might be correct. Such is the case of a security, who is. permitted by particular law of this state to obtain a judgment upon motion against the principal obligor, for money which he has been obliged to pay for him. In such a case, the principal is deprived of a trial according to the forms of the common law, and may therefore with propriety insist upon a strict adherence to the law, affording this summary remedy.
    But in the case now under consideration, the bond given upon repleving property distrained, has its origin in the act of Assembly, and is provided for the benefit of the tenant. Without such legislative interposition, the property would have been subject to an immediate sale. *The second objection is to the jurisdiction of the court where the judgment was rendered. The act of Assembly does not require that a distress should be made by an officer, much less by •the officer of a particular court. The landlord may personally, or by his bailiff take a distress as well under the act of 22, Geo. II, C. 10, as he might have done if that law had never been made.
    A constable is not the officer of a court, and yet no one will doubt, but that he may levy a distress for rent. Why is the bond to be returned to one court more than another? The property may be distrained in a county remote from that in which the land lies, as where it is fraudulently removed for the purpose of defeating the landlord’s remedy. Would it be contended in such a case, that the officer must return the bond to the court of the county in which the goods were found, because he belonged to that court? But the motion •could not be made in that court, because it is local in its nature, of course it could be made no where. The act- of 22, Geo. II, C. 10, which authorises the taking of a distress in such a case out of the county in which the land lies, does not speak of an officer at all, but authorises any person (for that purpose empowered by the landlord) to seize and sell the property.
    The serjeant in this case may have been the special bailiff of the landlord for any thing that this court can know.
    It is not necessary in order to enable the tenant to replevy, that the distress should have been made by an officer. If indeed a sale had been made, it might perhaps have ■required the aid of the sheriff.
    It is observable, that the remedy by motion upon bonds of this kind, is not given by the act of 1748, which authorises the taking of them, but by that of 1769, C. 4,
    $ 5; and in this law, the officer is not re•quired to return the bond at all. But if this were otherwise, yet process may be returned by a sheriff to a court, of which he is not the officer.
    It is objected that the bond was not executed by the tenant in possession, nor by the owner of the goods distrained. I do not find that this is necessary. The law au-thorises the replevy, upon the tenant giving good security to the officer. This he may do without executing the bond himself. Suppose an infant to be the tenant. He could not give a bond, which could bind him; it would be void by law, and yet if he did not do, what the law would declare to be invalid if done, he would be deprived of the benefit of replevying, unless he were permitted to give *other security. So too, the tenant might be absent when the distress was taken, and yet a friend might be willing to relieve his property' by becoming his security. But if it were necessary that the bond should be executed by the tenant in possession, the assignment having been made without the privity of the landlord, M’Rae cannot be considered as the tenant in possession.
    Mr. Ronold on the same side, observed, that the act making use of a common law term, it must be construed according to the understanding of the common law; and if so, a bailiff is an officer in a case like the present.
    Marshall in reply. If a distress had been made at common law, and a bond given similar to the present, no motion could have been made to recover the amount of it, though at common law the landlord might have immediately sold the property. But the remedy which the party has pursued, is merely statutary, and being a summary one, the law must be strictly pursued.
    It is true that the act of 1769 gives the remedy by motion on bonds of this sort, but it was the act of 1748 which authorised the taking of them, and that law directs them to be returned. The original lessee, by the assignment, departed with all his interest, and his assignee became the tenant in possession, and could alone give the bond.
    
      
      Tbe principal case is cited with, approval in Smith v. Ambler, 1 Munf. 598, 599.
    
   LYONS J.

The first objection made by the appellant’s counsel to the judgment in this case is, that the bond was not executed by the tenant in possession, nor by the owner of the property distrained. The court are of opinion that M’Rae cannot be considered as the tenant in possession, the assignment having been made to him without the privity or assent of the lessor. The lessor is not bound thereby, but may still consider the original lessee as his tenant, and therefore it is sufficient under the law, that the bond was executed by him..

The second objection is to the jurisdiction of the County Court of Dinwiddie. It is true, that at common law, a distress might be levied by any private person au-thorised by the landlord for that purpose, but it is equally true, that such person so appointed, had no right to sell the property destrained, or to take a replevy bond. The power of selling is given by statutes in .England, and by an act of Assembly in this state, and can only be done by an officer; that is, by one duly qualified as such. And whether that officer be a sheriff, or a constable, they are both appointed by the court, are considered as being persons of credit and of good character, and bjr such a person, the bond so taken is to be returned. But then the question is, to what court is the *bond to be returned? The answer is an obvious one, and results from the nature of the case. It should be to that court to which the officer belongs, of which he is the representative, and whose orders and process he is bound to obey and execute, or to the court of that county, in which the land lies. This must be a general rule, unless in some special case where the law hath otherwise directed, and which on that account will form an exception. This case comes properly within that rule, tho’ no precept issues from ahy court.

Consider what would be the situation of both parties, were the law otherwise. If the sheriff may return the bond to a court whose officer he is not, he may return it to any court in the commonwealth, which might prove as inconvenient to the landlord, as to the tenant. If the bond be delivered to the party, the same reason requires that the motion should be made in the same court which would have had jurisdiction, in case the sheriff had returned it according to the rule before mentioned.

The above observations are intended to shew the necessity of confining the return to some particular court, and is a corn-píete answer to the supposed case of a distress made in a different county, from that in which the land lies, in which case, the bond should be returned either to the court of the county in which the land lies, or to that to which.the officer belongs.

Judgment reversed.  