
    John H. Margart, vs. Thomas B. Swift.
    SSotice by the landlord to the sheriff, before the whole of the goods are removed off the premises is in time, under the statute of 8 Anne, c. 17, to entitle the landlord to demand of the sheriff one years rent; or should the goods sell for less than one years rent, then for as much as they produce, after paying the sheriff such costs as were incurred before notice given him of the rent due, and after all just allowances.
    Tried before the Recorder in October term, 1825.
    This was a process for $22 50 in the nature of case, by a landlord, against the defendant as a constable, for executing a fieri facias, and removing goods off the premises before the landlord was paid his rent due, pursuant to the statute 8 Amé c. 17, of force in this state. The first witness call-ét), was Mrs. O’Callagau who testified that the ''efendant eame to her house on the 11th April i 23, with an execution as he said. He took every thing in the house, beds, bedding &,<•. and left nothing but the walls; that witness was the tenant of the plaintiff, and owed three months rent on the 13th March proceeding. The fourth month would have been ap the 13th She told defendant that she owed rent, and he said he did not care: 
       she asked for a schedule of the property, and he said he would not give it. Even her children were deprived of their bed, and her husband was absent. The defendant came there a week before, but did not carry any thing away then, but took an inventory of the contents of the room in which he sat. The rent was ‡7£ per month. Defendant said he would sell the things if it cost him SI,000 and this was after Mr. Gadsden had cautioned him against doing so. Witness told him how much was due, and Mrs Pennington, (he plaintiff’s aunt and agent told him too. Mrs. Pennington said there would be $30 due the plaintiff on the day after that; witness hired the bouse of Mrs Pennington, and paid the rent to the plaintiff
    Mrs. Pennington’s testimony was then read; and she gave the defendant notice of 4 months rent being due, and told him, if he would pay the rent, he should have the goods. He refused and carried away the goods Witness gave him notice of rent being in arrear a fortnight before he made the levy, and again when he made it. The residence of the defendant in the city and his having a regular execution from a magistrate, under which he levied, was admitted.
    Moses P Belknap was called by defendant. He testified that the defendant in March or April called on him to accompany him to Blackbird Alley to make a levy; that he levied on the furniture of O’Callagan, but they found a prior levy then, and did not remove the goods. About two weeks after that, witness was again called on to accompany defendant to the same place, and, he, defendant, levied on the' tilings. It was on the 11th or 12th April, he thought the 11th They were carried away and placed in the store of ■witness for one night, who had a distress warrant, taken out by plaintiff, issued againt them; that Mrs. Pennington was present at the levy and told \,vñjl whilst he was removing the things not to do so as re:;l was due the plaintiff) the goods were, on a cart in the street at the time, except two articles which Still remained in the yard, Mrs. Pennington said, there were three months due, and in a. day or two, there would he four months rent due. The distress warrant which was produced, was given to witness by justice Chitiyan the 12th April, and after the goods had been removed. They were not taken under the warrant, because the plaintiff gave an order dated 12th March which was attached to the warrant giving the bailiff leave to deliver the goods, seized under the same, up to O’Callagan. The witness was proceeding to seize the goods in company with the defendant, when they met Mrs O’Cal-lagan with the order, and then witness turned back without seizing the goods under the warrant. After that, defendant had them sold by witness and defendant kept the account of the sales. The witness did not recollect what the goods were sold, for, but on a memorandum being handed to him in defendant’s hand-writing, he said he believed- it to be correct, and that the whole sales did not exceed $15; and to the best of his recollection were $]2 6£. That defendant wás perfectly willing to give up the goods till tlie order of plain--tiffin Mrs O’Callagan’s favour was produced.
    Mr. Gadsden
    testified that he told the defendant not t© sell the property, and he said he would sell it. Witness advised the taking out the distress warrant, and plaintiff gave the order spoken of, and which is attached to it, that they might be restored to the woman and not sold. The 'goods were not distrained on under the warrant. The case here closed.
    Mr Rice for defendant contended,
    1st. that the goods >ere actually removed before the notice of the rent was given, W'Mhh under the statute was fatal to plaintiff’s recovery; that even a bill of sale of a sheriff was held a sufficient removal, ( Woodfall 467;) 2ndlv That plain'tiffhad elected another re^-medy, viz. a distress warrant, and this discharged his claim or lien of the gos>ds by the order in favour of Mrs. O’Calla-gan; and Srdly, that if those grounds failed, defendant was only responsible for the actual amount the goods sold for, vizi. $12 6£ and not the three months rent, 'Woodfall 4.69.)
    
    These positions were denied by Mr. Gadsden; who contended that under the Statute, he was entitled to the whole rent due, provided it did not exceed onp year’s rent, without regard to the value of the goods, and the amount was given in nature-of damages for the tort commuted by the defendant in selling after notice from the landlord.
    The Recorder was of opinion on the first ground taken by the defendant’s attorney, that the notice having been given by the agent of the plaintiff before the whole of the goods were removed off the premises, was sufficient to satis-' fy the statute; that on the 2nd point, though the plaintiff actually procured a distress warrant, yet the officer did not execute it; the goods were not touched by him by virtue of it, but the defendant retained possession and proceeded with his sale, under the execution: consequently the warrant and the plaintiff’s order founded upon the expected seizure of the goods under it were both nugatory and could not interfere with plaintiff’s claim; that'with respect to the 3d and last ground, he was of opinion, and so decreed that the defendant was responsible for the actual amount the goods sold for, viz. $12 6£, and not for the whole rent due; that it did trot appear to him that the statute meant that the sheriff should pay the rent to the landlord, whether the goods brought the amount or not, but merely that the landlord should stand as if no execution had issued, in which event he could have no more out of the goods than their value; that he thought this construction the only one which the statute was susceptible of, and that it had been so- decided in the case of Eenchett vs. dKimpson., % Wilson, 140, cited by Miv/iice. from Wood-■ 
      fall, where the court, on motion to the sheriff to shew cafts'e why be should not pay the landlord'one year’s rent under the statute, (the rent amounting to £30 and the sales of the goods to only £21.) ruled, that “ the landlord under the statute should have the like benefit of distress for one year’s rent as if there had been no execution at all, and was, on motion to the court, entitled to have restitution, to the amount of the goods the sheriff sold, which they directed the prothonotary to take’ an account of, and to allow the sheriff such costs as were incurred before notice given him of the rent due to the landlord, and after all just allowances, that the rest of the mone^ should be paid by the sheriff to the landlord ” He thought this settled the construction of the statute, as well as if the decision had been an action of case on the statute, instead of si motion: He therefore, decreed for the plaintiff ‡ i 2 6J
    An appeal was made on the following grounds:
    That the Recorder decreed that the plaintiff could only recover the price for which the goods sold; when under the statute and by the form of the action, the plaintiff, the landlord, was entitled to recover his rent of the defendant for the tort in selling the goods after notice.
    
      
      
         See ante 39 note (», )
      
    
   Nott, J.

The court concur with the recorder in the View which he took of this case below.

The motion is therefore refused,

Gadsden, for the motion.

Rice, contra. 
      
      
         In Andrews vs. Dixon, 3. Barn and Ald. 645, it was decided that' where the Sheriff with the knowledge that there is rent due (o the landlord; proceeds to sell the tenant’s goods by virtue of a writ offi. fa. without retaining a years rent, he will be liable for it, although no specific notice haV •Theen given to him by the landlord. "
     