
    John E. Vausse vs. E. Russel.
    Tilings fixed to the freehold cannot be distrained, much less affeeholdji and of course a writ of replevin will not lie for a freehold illegally dis-trained.
    Motion before Mr. Justice Bay.
    
    IN this case, the defendant had issued a distress warrant against the plaintiff, who occupied a leased lot of land of hers on which he had built a house, for rent in arrear.— It was in the usual form, requiring the bailiff to take the goods and chattels of the tenant. The bailiff found no goods on the premises, nor any person in possession, and returned the warrant as levied on the house.
    The plaintiff obtained a writ of replevin, by virtue of Which he dispossessed a tenant who had been put in possession by Mrs. Russel, and on the return of the writ, a motion was made before Mr. Justice Bay to quash the writ, on the ground that replevin Would not lie in such case.
    On hearing the argument, the presiding judge quashed the writ, and a motion was now made to reverse the decision on the grounds;
    1st. Because, being a writ founded on an actual levy for rent in arrear, it was a legal and appropriate action.
    
      2dly. Because, if the proceeding was erroneous, if. might, by pleading, he brought under the decision of the court in term time in the ordinary process of law.
   Mr. Justice Colcock

delivered the opinion of the court»

ít has been a matter of great controversy and of some; doubt in what cases a writ of replevin will lie; but this is the first instance within my knowledge of an attempt to replevy a house. The first ground assumes the position that because an illegal distress was made, that therefore a replevin would lie. Suppose the bailiff had found the tenant in the house, but no goods or chattels, and had invaded his personal liberty by levying the distress warrant on him, would the remedy by replevin be appropriate ? And I should suppose it would as well apply, (and perhaps with more propriety indeed) in that than in the present case.— If any injury could result from such a nugatory act, the remedy would he by an action of trespass. It is expressly laid down by Mr. JBlackstonC, in speaking of the things which may be distrained, in the 2d volume of his Commentaries, page 9, that things fixed to the freehold cannot be. distrained ; and in the case of Cresson & others, vs. Stout, (17 Johnson’s Reports, 106,) it is decided that replevin does not lie for things fixed to the freehold, until they he severed. It was said in the argument that it was a common practice to levy on houses built on leased premises in this city for rent in arrear. This may perhaps be the case by the convention of the parties, but nothing of that sort was-proved. The object of the writ of replevin is to restore to the owner the possession of his goods, but here the effect of the replevin was to disseize the defendant of the freehold. On the second ground, it is only necessary to say that the point has been expressly decided by the cases of Bird OíHanlin, (1 Con. Rep. 401,) and Cole & Gist, (2 Nott & McCord’s Rep. 456,) and with great propriety. When the process of the court has been thus illegally used, why should the remedy be delayed? Why suffer a proceeding to be carried on, which-It is obvious cannot be supported ? As well might it be ¿said, that where the service of a capias ad respondendum, had been illegal, it should not be set aside on motion.

Bemieit 8? Hunt, for the motion.

Toomer? contra,

The motion is refused.

Justices Richardson, Johnson, Nott §■ Huger, com corred.

Gantt, Justice, dissented.  