
    Smith v. Ambler and Others. Smith and Weaver v. The Same.
    Tuesday, May 29, 1810.
    1. Landlord and Tenant — Replevin Bond — Motion on by Landlord. — A landlord is not entitled to the summary remedy by motion, on a three months’ replevin bond; unless it appear that such bond was taken by a Sheriff, or other officer legally authorized to make distress, and to sell the dis-trained effects.
    2. Same* — Distress—Sale of Distrained Effects. — A landlord, in person, or by a private agent, may levy a distress; but cannot sell the distrained effects, which, in such case, are only to be held as a pledge, to compel the tenant to pay the rent.
    
      These two cases were argued and decided together. In each a judgment was obtained on motion, (the parties being heard by their attorneys,) in the County Court of Eauquier, on a three months’ replevin bond, dated the 3d of May, 1804; the condition of which recited, that, “whereas Ambler and others, heirs and devisees of John H. Norton, had distrained upon the goods and chattels of the above bound (Augustine Smith, in one instance, and James Smith in the other) for rent in arrear and due on the land of Effing-ham-forest, in the County of Eauquier, amounting to the sum of 631. 16s. 4d. 1-2, in one instance, and 581. 15s. lOd. 1-2, in the other) including all costs to this date, which said goods and chattels have been again restored to the said Smith in consequence of entering-into this bond,” &c. ; without stating, in any part of either bond, that the same was taken by a Sheriff or other officer. Both bonds were witnessed by “James Edmunds, D. S.”
    The judgments in question were affirmed by the District Court holden at Haymarket; and writs of supersedeas to both were awarded by a Judge of this court.
    The petition for the supersedeas assigned three errors in each case; 1. That it did not appear by the replevin bond what was the amount oí rent due for which the distress was made;
    2. That it did not appear, from any thing shewn by the proceedings, what were the costs charged by the persons levying the said distress, which are said to be included in the condition of the said bond; and,
    3. Because it appears by the condition of the replevin bond that the said distress was made by the obligees, to whom 597 the *rent was payable, in person, and not by any officer who could have been authorized to make sale of the property dis-trained.
    Botts, for the plaintiffs in error,
    did not waive the two first points, but pressed the third, as sufficient to reverse the judgments.
    Call, contra.
    The act of Assembly,  it is true, speaks only of the “Sheriff or other officer serving the distress;” though by the common law, distress might actually be made by the landlord himself; and the constant practice is for him to give a warrant of distress. But that is no question in the present cases. The defendants made no objection on that ground, so as to enable the plaintiffs to shew that, in fact, the distresses were served by an officer. The court will intend that all the requisites of the law were complied with, since the contrary does not appear; especially when it appears that the general tenor of the law has been followed. On the same principle this Court affirmed a judgment on a forthcoming bond, in which no security had been given, 
    
    Wickham, in reply.
    As I understand the law, though the landlord may distrain in person, he must, in that case, proceed according to the course of the common law. He must hold the property as a pledge, to compel the tenant to pay the rent; but he cannot sell. If he proceeds under the statute, he must employ an officer. The tenant has one advantage, he may gain time: the landlord has another, the property may be sold. The case of a forthcoming bond (referred to by Mr. Call) is not analogous to this. The granting the debtor indulgence, without requiring security, was a benefit to him; and no man shall be permitted to object to that which is for his own benefit.
    I have no doubt but these are good bonds at common law, and actions may be maintained upon them. Suppose no statute had been made; and the tenants had offered security for the money on being indulged three months; the landlord, I apprehend, might have accepted the bonds, and recovered upon them. But he cannot resort to the summary remedy by motion, 598 without K'strictly complying with the terms of the statute which gives that remedy.
    Wednesday, May 30.
    
      
      Landlord and Tenant. — On this subject, see mono-graphic note on “Landlord and Tenant” appended to Mason v. Mayers, 2 Rob. 606.
    
    
      
       1 Rev. Code, p. 153, c. 89, s. 1.
    
    
      
       3 Call, 13, Washington v. Smith.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

This appeal is from a judgment on a replevin bond taken to replevy goods distrained for rent.

The condition of the bond recites, that the appellees (not saying by a Sheriff or other officer) had distrained the goods, &c. of the appellant, A. S. for rent in arrear, which had been restored to him in consequence of entering into that bond. There is the name of a witness to the bond, who does not designate himself as an officer; nor is there in the record any thing to shew that the distress was in fact levied by an officer.. The County Court gave judgment by the obligees, on motion: that judgment was affirmed by the District Court.

The right of distraining for rent arrear is a common law right, which every landlord may exercise in person, or by his bailiff; that is, by an agent, authorized for that purpose, who might seize any goods or chattels of the tenant found upon the premises. But the distress so taken was, by the common law, only in nature of a security for the rent, and could not be sold to make satisfaction. This proving a great inconvenience to landlords, statutory remedies have been provided, both in England and in this country; w'hich are nearly the same. Our law declares, that “where auv goods or chattels are distrained for rent, if the tenant shall not, within ten days,, replevy the same, by sufficient security given to the Sheriff or officer serving such distress, to pay the money, &c. such Sheriff or officer shall and may sell the goods,” &c..

In the case of Ferguson v. Moore, Judge Eyons, in delivering the opinion of the Court, said, “It is true that at common law a distress might be levied by any private person, authorized by the landlord for that purpose; but it is equally true, that such person, so appointed, had no right to sell the property distrained, or to take a replevy bond.” The power of selling is given by statute, and can only be done by an officer; that is, one duly qualified as such. Now, here, it does not appear that this distress was served, or the bond taken, by1 an officer. We must, therefore, understand it (as the bond seems to import) to 599 have been levied *by the landlord himself, or his private agent. To entitle him to the benefit of a statutory proceeding by motion, instead of an action of debt, the plaintiff ought to have shewn that he had proceeded regularly according to the directions of the statute. That not being the case, the judgment is erroneous, and ought to be reversed.

The acceptance of a bond for rent (unless taken as the act directs) does not extinguish the rent; for that is higher than the bond; and, where the tenant gave a note for the rent, and the landlord afterwards distrained for the rent, upon trespass brought by the tenant, it was held that the landlord might nevertheless distrain. Our act of 1748, c. 10, declared, that bonds taken pursuant thereto should have the force of judgments; which shews the grea't difference the law intended to make between a bond taken by a private person, and one taken by an officer pursuant to the statute.

JUDGE ROANE.

It ought to appear in the bond, in order to justify this summary remedy by motion, that it was taken by a Sheriff, or officer making the distress, in whom confidence is reposed by the act, touching the amount of the money, or tobacco, and the costs due, for which the bond is to be taken, as well as respecting the sufficiency of the surety to the bond. Where it does not appear to have been the act of the officer, the party himself may have exacted bond for more than was due, or been otherwise guilty of duress or extortion : in which case he ought not to have the high privilege of getting judgment in a summary way, and the further privilege that on the execution of his judgment, “no security is to be taken.” I will hold the party to a strict, if not literal, compliance of the law, (and that as appearing to this Court,) before I extend to him the privilege of the summary remedy.

The case of Ferguson v. Moore is supposed to be an authority, that a bond taken under the act in order to warrant a judgment by motion, ought to be taken by an officer.

My opinion, therefore, is, that the judgment be reversed.

JUDGE EEEMING was of the same opinion.

*By the whole Court, the judgments of the District Court and County Court both reversed, and the motions overruled with costs. 
      
       2 Wash. 57, 58.
     
      
       Edit, of 1769, p. 202.
     
      
       See Bull. N. P. 182.
     
      
       2 Wash. 54.
     