
    10663.
    DAVIS v. HUFF ET AL.
    
    (107 S. E. 905)
    Replevin — Tenant, Who Asserts That Distress Was Illegal, May Serve Landlord in Claim and Delivery Proceedings by Publication. — Although the landlord was a nonresident, yet, where the tenant claimed that a distress taken by his agent was illegal, such tenant, having sued and duly served the agent in possession in claim and delivery proceedings, might serve the landlord by publication.
    Before PpuriPoy, J., Newberry, April, 1917.
    Reversed.
    Action in claim and delivery By Adams Davis against Beaufort Matthews Huff and W. P. Allen. From order setting aside seizure of property the plaintiff appeals.
    
      Messrs. Simpson, Cooper & Babb, for appellant,
    cite: was case should have been heard on its merits: Code Proc. 1912, Sec. 184. He being agent of the owner: Sec. 290 Id. Plaintiff had right to replevy within 5 days after distress: 1 Civ. Code, 1912, Sec. 3521; 46 S. C., 199. Claim and delivery proper to recover goods unlawfully distrained: Sec. 3521, 1 Civ. Code, 1912; 81 S. C., 188. Landlord and bailiff responsible for wrongful levy : 25 Cyc., 1329.
    
      Mr. Marshall F. Sanders, for respondents,
    cites: Agency terminated: 2 C. J., Sec. 149, p. 256. 
      Service insufficient: Code Proc., 1912, Sec. 260. If action fails for want of jurisdiction, provisional remedy fails with it: 32 S. C., 319.
    June 30, 1921.
   The opinion of the Court was delivered by

Mr. Justice Cothran.

Appeal from an order of Circuit Judge,'setting aside as illegal a seizure of certain personal property (taken possession of by the sheriff under claim and delivery proceedings), upon the ground that the landlord, under whose distress warrant the property had been distrained by her agent for rent past due, had not been served with process, although the agent in whose possession the property was seized was duly served.

Although the landlord was a nonresident, the tenant, who claimed that the distress was illegal, had the right to sue the agent in possession under claim and delivery proceedings, and serve the landlord by publication. This right he was denied by the order.

The order is reversed, with leave to the defendant Mrs. Huff to answer the complaint within 20 days from the filing of the remittitue, if she be so advised; otherwise, that the plaintiff have leave to serve her by publication.  