
    Pickering v. Yates.
    
      Replevin — Landlord and tenant — Claim property bond — Act of April 19,1901, P. L. 88.
    
    The Act of April 19, 1901, P. L. SS, entitled, “An Act relating to replevin and regulating the practice in cases where the writ of replevin is issued,” does not confer upon a landlord the right to give a claim property bond in an action of replevin and retain the tenant’s goods seized on a warrant of distress.
    Argued April 12, 1912.
    Appeal, No. 85, April T., 1912, by Emma K. Lindsay, Executrix, from order of C. P. No. 3, Allegheny Co., Aug. T., 1911, No. 258, making absolute rule to strike off bond in case of M. H. Pickering Company v. Y. M. Yates and Emma K. Lindsay, Executrix of the Estate of Homer J. Lindsay, deceased.
    Before Rice, P. J., Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Rule to strike off claim property bond.
    Kennedy, P. J., stated the facts to be as follows:
    On October 10, 1910, the plaintiff, being the owner of certain goods and chattels, by a bailment of that date, leased them to the defendant, Mrs. V. M. Yates, who subsequently made default in the payment of the rental due upon said goods and chattels, and by reason of said default, the plaintiff being entitled to repossess itself of the goods and chattels, caused to be issued on June 12, 1911, a writ of replevin for the same, having first filed a bond as required by the act of April 19, 1901. Upon service of this writ, the sheriff found the goods upon the premises leased by the defendant from one Mrs. Emma K. Lindsay, executrix of the estate of Homer J. Lindsay, deceased, in the custody or care of a constable named W. J. Morris, and Gault & Giffen, who were the agents of the said landlord, who, as such agents, had on June 7, 1911, issued a landlord’s warrant and distrained upon said goods and chattels which were left upon the said premises in the possession of the said constable and said agents of the said landlord.
    Subsequently, naively, on June 22, the said landlord, executrix of the estate of Homer J. Lindsay, presented a petition to this court, out of which said writ of replevin had issued, alleging, amongst other things, that said Gault & Giffen, agents who had issued said landlord’s warrant, were the agents of the said landlord, and as such had leased the premises upon which the goods and chattels were found, and distrained upon them for arrears of rent, by said landlord’s warrant, and alleging also’ that the sheriff of the county, by virtue of the said writ of replevin, had seized and taken possession of said goods and chattels; and alleging also that the goods so seized by the sheriff had been levied upon and distrained upon by the petitioner, and that the right of possession of the said goods belonged to the petitioner, by reason of her hen thereon for the rent due as above stated; and thereupon prayed the court for leave to intervene as party defendant in the proceedings at the above number and term, and an order was made allowing the said landlord to so intervene as party defendant, and subsequently the said landlord appeared before the prothonotary and claimed the right to file a counter bond, under the provisions of the said act of 1901, and was allowed by the prothonotary so to do, and on the same day a counter bond was filed and approved by the prothonotary; and on June 28, the plaintiff, having ascertained that a counter bond had been filed, as above stated, filed a petition setting forth the facts above stated, and prayed that a rule be granted upon said landlord, to show cause why said counter bond so approved and filed should not be stricken from the record, and pending the determination of said rule, the sheriff be directed to maintain his possession of said goods; and thereupon the rule prayed for was granted by the court.
    
      Error assigned was in making absolute rule to strike off bond.
    
      
      Hallock C. Sherrard, with him Gibson D. Packer, for appellant.
    — We submit that the effect of filing a counter bond is to reverse the positions of the parties with reference to the goods claimed, and the right to file a counter bond must rest upon the same foundation as the right to bring an action in replevin. This right is based upon the right of immediate possession: Harlan v. Harlan, 15 Pa. 507; Rickard v. Major, 34 Pa. Superior Ct. 107; Midvale Steel Works v. Hallgarten, 15 W. N. C. 47; Crawford v. Fulmer, 14 Pa. Dist. Rep. 487.
    A careful examination of the whole act of 1901 will show the terms “title” and “right of possession” are so interwoven as to be practically synonymous: Houghton v. Du Bell, 33 Pa. C. C. Rep. 267; Crawford v. Fulmer, 14 Pa. Dist. Rep. 487; Fenninger v. Grebe, 33 Pa. C. C. Rep. 564; Drumgoole v. Lyle, 30 Pa. Superior Ct. 463.
    
      Jas. T. Buchanan, for appellee.-
    — A landlord having made a distraint for rent due, has no right to file a counter or property bond, and retain possession of the chattels distrained: Brisben v. Wilson, 60 Pa. 452; Esterly Machine Co. y. Spencer, 147 Pa. 466; Tinware Mfg. Co. v. Duff, 15 Pa. Superior Ct. 383; Quinn v. Wallace, 6 Wharton (Pa.), 452; Holland v. Townsend, 136 Pa. 392.
    The action of replevin in Pennsylvania lies for the property of one person in possession of another whether the claimant ever had possession or not, and whether his property be absolute or qualified, provided he has the right of immediate possession, and cannot be maintained without showing either a general or special property in the plaintiff, together with the immediate right of possession, is fully sustained by the following cases and’many others that might be cited: Mead v. Kilday, 2 Watts, 110; Harlan v. Harlan, 15 Pa. 507; Young v. Kimball, 23 Pa. 193; Lake Shore & Mich. So. Ry. Co. v. Elisey, 85 Pa. 283; Miller v. Warden, 111 Pa. 300; Strong v. Dinniny, 175 Pa. 586.
    A landlord, not claiming property cannot give a “claim, property” or counter bond: Baird v. Porter, 67 Pa. 105; Hockey v. Burkhalter, 68 Pa. 221; Cassidy v. Elias, 90 Pa. 434.
    October 14, 1912:
   Opinion by

Henderson, J.,

It is clear that a landlord could not give a claim property bond in an action of replevin and retain the tenant’s goods seized on a warrant of distress prior to the act of 1901. Such was the decision in Baird v. Porter, 67 Pa. 105, and Cassidy v. Elias, 90 Pa. 434. The reason is that the landlord has neither a general nor special property in the goods, nor an immediate right of possession. When a writ of replevin was served on the landlord it was his duty to deliver up the property in accordance with the mandate of the writ, and in place of the goods he obtained the security of the bond given to the sheriff, for the sufficiency of which the sheriff was responsible. By the giving of the bond the property was released from the landlord’s claim and remained subject to the control of the owner: Frey v. Leeper, 2 Dali. 131; Gray v. Wilson, 4 Watts, 39. The object of this writ as applied to a distress for rent was to restore the property to the owner and to remit the landlord to his remedy on the bond in which the plaintiff obligates himself to prosecute his suit and to return the property distrained in the event that the landlord’s right should be established in the action. On receiving the security it became the duty of the sheriff to restore the things distrained to the tenant. The goods after seizure were a pledge merely for the payment of the rent and by the replevin the security in the bond was substituted for them and the pledge released. A distress for rent is a summary remedy having the features of an execution and is a process merely for the enforcing of the claim. Any defense against the distrainor’s right must be asserted in the action of replevin as provided by the Act of March 21, 1772, 1 Sm. L. 370: Esterly Machine Co. v. Spencer, 147 Pa. 466, 470. Does the Act of April 19, 1901, P. L. 88, change the practice in this respect? It is entitled, “An Act relating to replevin and regulating the practice in cases where the writ of replevin is issued.” It contains no provisions in relation to the right of distress nor mode of procedure in cases of controversy between landlord and tenant. It is the act of 1772 which provides for the sale of goods distrained for rent and which gives to the tenant a remedy for a wrongful seizure. The third section of the act of 1901 authorizes the defendant within seventy-two hours after the goods or chattels have been replevied to file a “counter.bond,” but this is the claim property bond which the law theretofore permitted. The object of the action is to establish title. This is recognized in the first section of the act which requires any person applying for a writ of replevin to first execute and file with the prothonotary of the court a bond conditioned that if he fail to maintain his “title” to the property replevied he shall pay to the party thereto entitled the value of such goods and the person found in possession of the property is to be served by the sheriff and made a defendant in the action. Under the provisions of the third section any person making affidavit that the goods replevied “belong to him” may be made a defendant in the suit. These provisions are in harmony with the then existing practice and were evidently not intended to introduce a new system. The proceeding rests upon the assertion of title absolute or special or an immediate right of possession as under the act of 1705. The appellant does not allege in her petition that she is the owner of the property. On the contrary, it appears that she is not the owner; that her only interest is that of a landlord asserting a claim for rent. She has neither general nor special property in the subject of the distress, and the act of 1901 does not invest her with a right as to the filing of a counter bond which she would not have had before that statute was enacted. The effect of giving such bond would be to convert the property to the defendant, subject under the act of 1901 to the election of the plaintiff, but it never has been the policy of the law to take from a tenant his title to property seized for rent until there had been an adjudication that he was in arrears and only then by public sale in accordance with law. We think there is no evidence in the act of 1901 that it was the intention of the legislature to change the law in this respect. The case of Drumgoole v. Lyle, 30 Pa. Superior Ct. 463, is not an authority for a contrary conclusion. That case involved the sufficiency of the plaintiff’s statement. It was there held that the act of 1901 does not except from its application any action of replevin distinguishable from others because of the particular facts out of which it arises. But the question now before us was not in any way involved. The writ of replevin is still the remedy by which a tenant asserts his right against a wrongful distress and the law has not been changed as to the right of a landlord to give a claim property bond for the property seized on a claim for rent in arrears.

The order is affirmed.  