
    *Redford v. Winston.
    February, 1825.
    Attachment for Rent — Removal of Effects — Plea of Tenant. — Where an attachment is issued against the estate of a tenant, forrent to become due at a future day, on the oath of the landlord that he h as sufficient grounds to suspect that bis tenant will remove his effects out of the county or corporation, before the expiration of his term. &c., it is not competent for the tenant, on the return of the attachment, to plead that his landlord had not sufficient grounds to suspect that the tenant was about to remove, &c.
    Same — Amount.—An attachment in such case'cannot issue for more than the rent next due.
    Samet — Replevin.—Qutere. Whether a replevin, either at common law or under the statute, will lie in such a case ? Two judges gave their opinions in the negative, and the other two were silent.
    Same — Personal Judgment against Tenant. — It seems, that a personal judgment cannot be rendered against a tenant in such a case.
    This was an appeal from a judgment of the Superior Court of Henrico county, affirming a judgment of the Court of Hustings of the city of Richmond.
    The case was this. Winston made affirmation before a justice of the peace of the said city, that Redford had agreed to pay him for the rent of a house, from the 1st of July, 1819, until the 1st of October, 1830, the sum of $1187 50 cents, in the manner following, viz. $337 50 on the first day of October then following; and the like sum of $337 50 cents on each first day of the succeeding January, April-, July and October, making, in the aggregate, for five quarters rent, the aforesaid sum of $1187 50 cents; of which he had received no part; and that the deponent had sufficient grounds to suspect, and verily believed, that the said Redford would remove his effects out of the corporation aforesaid, before the expiration if his term, so as no distress for the said rent could be made, and before the said rent would become due.
    Upon this affirmation, the justice of the peace issued an attachment against the estate of the said Redford, for so much as would satisfy the said Winston the rent aforesaid, and costs; and, if thereupon the said Redford should not enter into recognizance with one or more sufficient sureties, for the payment of the said rent as it falls due, in the ^manner before stated, and the costs, then the sheriff was directed to secure the estate so attached, that the same might be liable for further proceedings to be had therein, at the next Court to be held for the said corporation, when he was to make return of the attachment, with an account of what he should have done thereupon.
    The deputy sergeant made the following return on this attachment: “Executed on the whole stock of goods in the house occupied by. Edmund Redford on E street, which are now in my possession, and subject to the order of Court.”
    Winston executed a bond with security, according to law, to pay all such damages as might be legally awarded against him, by reason of suing out the attachment aforesaid.
    Upon the return of the attachment, Redford tendered a plea, that the said Winston had not sufficient grounds to suspect and verily believe, as he had affirmed in the said attchment, that the said Redford would remove his effects out of the corporation aforesaid (either at the time of the emanation and date of the said attachment, or at any time prior thereto,) before the expiration of his term, so as no distress for i he said rent could be made, and before the said rent could become due; and he concluded to the country. To the truth of this plea, lie made affidavit. Another plea was idled to the same effect, differing only from the first, in concluding with a verification
    To the filing of these pleas Winston objected, and moved the Court to reject them; ■which the Court accordingly did.
    Redford then filed a demurrer to evidence, which is not material to this report. He also filed a bill of exceptions to the opinion of the Court rejecting the pleas.
    On the motion of the plaintiff, the Court decided that the plaintiff should recover against the defendant $1187 50 cents, his debt in the attachment mentioned, and costs; and that the sergeant should make sale of the attached effects, *upon a credit, until the said debt became due, taking bonds with security of the purchaser or purchasers; and that he should assign as much thereof as should be necessary to the plaintiff in satisfaction of the judgment, and the overplus to the defendant, &c. From which judgment, the plaintiff appealed to the Superior Court of Law.
    The Superior Court affirmed the judgment of the County Court, and the defendant obtained a supersedeas from the Court of Appeals.
    This case veas twice argued. On the second argument, the attention of counsel was called to particular points by the Court.
    Stanard for the appellant,
    contended: .1. That the pleas were improperly rejected, because the grounds of suspicion were an issuable matter. The act of Assembly, 1 Rev. Code 448, § 9, makes the “grounds to suspect” a condition precedent to issuing the attachment. The law with respect to absconding debtors, 1 Rev. Code 476, ch. 133, § 6, provides that the attachment may issue on the complaint of the creditor. But. in this case the language is different, and requires the landlord to make oath that he has sufficient grounds to suspect, &c. This difference of phraseology clearly indicates a different intention in the two cases. I' is immaterial whether the tenant could plead or not, because the plaintiff was bound to make out his own case, and to shew that lie had sufficient grounds, &c. Any other construction would leave a tenant at the mercy of a malicious landlord, without the possibility of redress.
    3. The Court rendered a judgment in this case, which they were not authorised 1o do. By tlie law, the Court were only empowered to order the sale of the property, &c. "1 Rev. Code 448, § 9. But, they go on to render a judgment against the defendant, in addition to the order for tlie sale. It is termed a judgment by the Court itself; and tlie appeal is granted from the judgment.
    
      *3. The attachment was irregularly issued for more than the instalment of rent to become due, next after the attachment issued. Tf the law is construed to extend to more than the next rent due, it must comprehend the whole term, even if it should extend to 99 years. This would be extremely oppressive upon tenants. It is true the law says, that the landlord may attach whenever he has sufficient grounds to suspect that his tenant will remove his effects, &c. “before tlie expiration of his term,” &c. But, all the following clauses restrict its operation to the rent next due. Thus, the law speaks only of the rent, not rents. It speaks of the time when it shall become due, not the times or periods, &c.. The same construction must be given to the 10th section of the same act, which relates to goods actually removed. But, this attachment issued for five rents, and is therefore erroneous.
    As to the question, put by the Court, whether the tenant can replevy, and put the landlord to his avowry? The act of Assembly makes no provision on the subject, and it must therefore depend on common law principles. The 33d section of the same act, relates entirely to distresses for rent in arrear. In Comyn’s Digest, 6 vol. 324, 325, the law of replevin is laid down; from which it appears, that replevin will not lie, when goods are taken under colour of judicial process.
    The act of 1823 passed after this attachment issued.
    Wickham for the appellee,
    said, that the Court had no power to judge of the sufficiency of the grounds, on which the attachment was obtained. The act, which the Court are to perform, is merely ministerial. No proof of the debt is required; no day is given in Court; but, the Court are simply required to order a sale of the attached effects. This proceeding is not analogous to attachments against absent defendants. In those cases, an express power is given to the defendant to make defence. 1 Rev. Code 478, § 12. But, in the case in question, no such power is given. *It is true, that by the 12th section, p. 449, the Court are empowered, where rent is reserved in wheat, corn, &c. to ascertain the value of the rent so reserved in money; but in this case, the act of the Court is confined to that single en-quiry. Even if it were a judicial enquiry, there is no plea that the defendant did not owe the money, but only that the plaintiff had not sufficient grounds to suspect, &c.
    This attachment for rent not due, is coextensive with the distress for rent actually due. They perform the same office, with this only difference, that the one is a preventive remedy; the other, a satisfaction for rent due. At common law, a distress for rent is the act of the party, and the officer is only his agent. Our statute does not alter the nature of the common law remedy, but regulates it in certain particulars, none of which relates to any right in the tenant to plead any matter of de-fence. If the attachment is regularly sued out, and fair on its face, the tenant cannot make defence that the rent is not due, or that the oath is unfounded in fact.
    It is said, that the Court erred in giving a judgment for money. This, however, is not correct in point of fact. The clerk could not issue an execution on such judgment. The judgment (as it is called,) does not authorise an execution for any deficiency after the sale of the attached effects. All that is said beyond directing a sale, is mere superfluity.
    
      It is objected, that the attachment is erroneous in providing for the whole rent which will become due, during the term. The argument from consequences cannot prevail against the express provisions of the law^ The Legislature did not think of providing for extreme cases which might never happen, but were governed by practical considerations. The words of the law are applicable to rent due for the ■whole term. No other construction can be given to ,the expression “before the expiration of his term.” If the Legislature had intended to confine the operation of *the law, to the next rent only, they would undoubtedly have used more restrictive language.
    As to the right of replevin, it exists in the case of rent reserved in wheat, corn, &c. Why should it not exist in this case? Why not in the case of rent to become due in future, as well as in case of rent actually due?
    February 10.
    
      
      Attachment for Rent. — See monographic note on “Landlord and Tenant” appended to Mason v. Moyers, 2 Rob. 606; monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
    
      
      Same — Pleas by Defendant. — In an attachment for rent on the oath of the landlord that he has sufficient ground to believe the tenant will remove his effects, etc., the tenant is not permitted to defend himself hy pleading that his landlord had no ground to suspect his removal. Olinger v. M’Chesney, 7 Leigh 687, citing principal case. And in Brooks v. Wilcox. II Gratt. 418, it was said that, in the principal case it was decidéd that the tenant could not put in any plea or make any defense which might call into question the truth of the landlord's oath before the magistrate, or contest his claim to rent upon the merits. To the same effect the principal case is cited in Mason v. Moyers. 2 Rob. 618; Claflin v. Steenbock, 18 Gratt. 848, 862, 864, 870. In this case, it is said (p. 848) that the Act of 1840-41. p. 77. cb. 67. § I, was passed in consequence of tbe decision in the principal case.
      See principal case also cited in Johnson v. Garland. 0 Leigh 152.
    
    
      
       Replevin. — See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
   The Judges delivered their opinions.

JUDGE CARR:

In this case, the landlord, under the act of Assembly, made oath before a justice, of the amount of rent reserved, at what time it would become due, and that he had cause to suspect, and did believe, that the tenant would remove his effects before the time of payment; and the justice issued his attachment, which was levied and returned to Court. The tenant tendered pleas to the Court, putting in issue the fact of his being about to remove his effects. These were over-ruled by the Court; a judgment rendered for five quarters of rent (it being payable quarterly;) and the attached effects were directed to be sold. The appeal comes to us from this proceeding.

The two questions which seem material to the decision of the case, and which were principally discussed in the argument are; 1. Could the Court, on the return of the attachment, hear and decide the cause on its merits, or were they merely to examine the regularity of the attachment on its face, and direct a sale of the goods? 2. Looking to the attachment, was it, upon the facts appearing on its face, regular; . in other words, could it issue for more than the quarter’s rent falling due next after its date?

As to the first question. I do not think the tenant can put in any plea, or make any defence, which may call in question the truth of the landlord’s oath before the magistrate, or contest his claim to rent, upon the merits. The attachment comes in the place of a distress; its purpose is *the same, and it is only resorted to, because the landlord fears a removal of the goods, before he could distrain. When a distress is made, and a replevy bond given, we know that on the motion on that bond, the tenant would not be heard to call in question the correctness of the landlord’s claim. In the proceeding on the attachment, the Court seem to me to perform nearly the same function. They cannot, in either case, go into the merits. Yet in both, they must notice defects apparent on the face of the proceeding; and if the bond has been taken, or the attachment has issued irregularly, or contrary to law, it would be the duty of the Court, I presume, if called on, to quash either the one or the other. On the first question, therefore, I think the Court did right in rejecting the pleas of the tenant.

On the second point, it is equally clear to me, that they did wrong. If the landlord, has just ground to suspect that his tenant will remove his effects from the leased tenement, “before the expiration of his term, so as no distress for the rent can be made,” he may go before the justice and make oath “what rent the tenant is to pay, and at what time the same will be due,”' and that he believes the tenant will “remove his effects before the time of payment.” Before the expiration of his term. Does this mean the expiration of the whole length of time for which the premises are leased? Impossible. The consequences involved, would, of themselves, forbid such a construction. But the words of the act put it beyond question, “that the tenant will remove his effects, before the expiration of his term, so as no distress for the rent can be made.” Now the rent, in all cases, is payable, either quarterly, or semiannually, or at the end of each year. But here it is quarterly. At the end of .each quarter, therefore, distress may be made, though the term of the lease may be 9!) years. The attachment before us, shewing that the rent was payable quarterly, and that it issued for five quarters, instead of one, ought to have been quashed.

*There is another question, to which the attention of the bar was called by the Court, who heard the former argument. It is this. Could the tenant, ill cases of attachment for rent, avail himself, in any way, of the writ of replevin? I have-looked a good deal into this question. Indeed, it is the only point in the cause, about which I have felt any doubts. These doubts I have not been able to dissipate; and as it is not necessary to the decision of the cause, 1 had rather decline giving any opinion on the question. It is of the less consequence since the act of 1822-3.

I think the judgment of the Court below should be reversed, and the attachment quashed.

JUDGE GREEN:

The first enquiry is, whether the defendant, upon the return of the attachment, could prevent the order of sale by pleading, as he offered to do, that there was no just cause to believe that he was about to remove his - properly off the premises, before the rent became due, or to dispute the amount of the rent claimed by the landlord. I think he could not. There is no provision in the act of 1736, (which was 'he first act authorising an attachment for rent not yet due, and which has continued, with slight verbal variations not affecting this question, to this time,) authorising the tenant to re-gain his property attached, in any way but by giving a bond or recognizance, to pay the rent claimed -when it should become due. When this act was passed, laws were in force authorising attachments against absconding debtors, which were, in effect, nothing btit a ne.w process allowed for commencing a suit, when the ordinary process could not be served; and the debtor was authorised to replevy the property, upon appearing and giving bond and security to perform the judgment of the Court, and to plead to the action as ill any other suit. But even in that case, he could not plead that the attachment was ^founded on a false suggestion. If that were the fact, he was left to his action upon the bond re-quired from the plaintiff before the attachment issued. With these laws before the Legislature, they would, if they intended that any defence should be made by the tenant, upon the grounds above stated, or any other, have explicitly provided for such defence and its incidents; as in the case of attachments against absconding debtors. They would at least have provided for the security or disposition of the property, pending the controversy, and for expediting the decision of the case, by giving it a priority to other causes on the docket, as in cases of writs of replevin. They could not be unapprized, that keeping negroes or live stock which might be attached, in the hands of the officer, until a suit could be decided in the regular course of proceedings, would be attended with serious loss to the party finally liable to pay the expenses of keeping, and possibly expose the landlord to the loss of his rent, by reason of the property perishing. The Court are not author-ised to give any judgment, or to make any enquiry; and although the Legislature have since frequently had the laws respecting attachments against absconding debtors and for rents, before them, they have not thought proper to remedy this defect. It has been decided in Hallam v. Jones, Gilm. 143, that the general laws relating to attachments against absconding debtors, do not extend to attachments for rent, notwithstanding the generality of the words “all attachments.” It seems to me that the law contemplated the oath of the landlord, as to the grounds of suspicion that the tenant intended to remove his property, the amount of the rent, and the time when it became due, as a sufficient foundation for the order of sale; leaving him to his responsibility for any wrong thereby done to the tenant, in an action by the latter.

I think too, that no replevin lay at common law, or under our statute, in such cases. Not at common law, because the seizure and sale is made by express direction of the statute; and in such cases, no r e p le v i n lay at common *law. But the views taken upon other points of this case, renders it unnecessary to discuss that point; especially since the act of 1823, has abolished the common law replevin altogether.

To give a construction to this statute, which would enable the landlord to attach for all rents which might thereafter become due, at ever so remote periods, would involve such consequences as I am sure the Legislature would never have sanctioned, if foreseen. The statute is in the most general terms, and provides equally, and in the same terms, for all rents growing due; whether upon terms, the duration of which is certain, or upon terms, the duration of which is uncertain. Upon a lease for life or other uncertain term, rent may become due after the termination of the estate of the tenant; but only one rent can so become due. There is no inconvenience in allowing an attachment for one rent, so certainly to become due. But it never could be contemplated to allow an attachment for rents to become due after the first, and to sell the property of the tenant, for rents which may never become due. Again; an attachment will lie for rents reserved in corn, wheat, or other property. The Court or jury might estimate, with reasonable exactness, the value of such articles at a short time hereafter, but surely the Legislature could not intend to call upon them to estimate the value of such articles, at the distance of 15 or 20 years. If the tenant has actually removed his property, the landlord can only distrain for the rent due; or attach for the next rent to become due; and surely, the Legislature could not intend to put the landlord in a better, and the tenant in a worse situation, when the latter was only about to remove his property, than they would respectively be in, if the property was actually removed. The words “before the expiration of his term,” cannot receive s literal interpretation, without violating the literal meaning of many other words in the same clause, and involving the consequences before alluded to. I think, therefore, that the act only authorises. *au attachment for the next rent to become due, at the time of the attachment. It has frequently been settled, that such summary and harsh remedies must be strictly pursued; and if not, that the Court, ex officio, or upon the application of the party aggrieved, will quash the proceedings. The attachment in this case, irregularly issued for five quarters rent, when it could only regularly be issued for one quarter’s rent; and therefore, should be quashed.

The proceedings are erroneous also, inasmuch as the Court gave a personal judgment against the tenant, which the law did not authorise..

JUDGE COALTER:

I have struggled hard to support, what would seem to me to be very reasonable, that in case of a wrongful attachment, under the act of Assembly in question, the tenant should have some means of defending himself, either upon the return of the attachment, or by a common law replevin of the goods; and should not be left solely to his action at law for such wrongful taking, or to his bill in equity to stay proceedings. But when I consider that this law has been in force for near a century, and that it has frequently been before the Legislature, as well upon revisáis of the law, as for amendments thereto, without any provision to this effect being made, as it regards the tenant, at the same time that remedies have been provided, in relation to third persons, I am led to believe that the mischief, as to the former, has not been so great, as at first view it would seem; and that therefore, no remedy in this respect has been thought of, or deemed necessary.

The replevin, under the act in question, in case of rent in arrear, it would seem to me, would not lie; and as to the common law replevin, in addition to other objections, the act of 1822, ch. 29, § 9, which abolishes such replevin, although it passed since this case occurred, seems to be a strong Legislative opinion, that such replevin did not exist *in this case: and were we to decide that it did, cases since that act would be without that remedy. As to any effectual trial, on the return of the attachment, and which would operate as a bar to an action against the landlord, for suing a wrongful attachment, as the Court is not authorised to give any judgment in the case, it would seem to me, not to be authorised by the act; any more, than in the case of a distress for rent alledged to be in arrear. The attachment comes in place of such distress, and is given before the rent falls due, on the ground that such distress is about to be defeated by the wrongful act of the tenant.

This decision will not extend to preclude any objection for want of regularity apparent on the face of the attachment, which I think exists in this case; inasmuch as it appears to me, that it can only issue for the first rent growing due. It comes in lieu of the distress for such rent as aforesaid; and in addition to other ample reasons, which I need not repeat, a right to attach, for an indefinite number of rents growing due, would seem to defeat that section of the act which limits the' right of distress itself to five years rent;' that is, that no distress shall be made, but within five years after the rent shall become due.

I am also of opinion, that the Court had no -power to adjudge what rent would become due, or to enten a personal judgment against the appellant for such rent. Such adjudication, pre-supposes the right to hear the parties; whereas, the power of the Court is limited to an order to sell the attached effects.

In addition to the other reasons urged, such judgment being res adjudicata, might b'e a bar to any suit by the tenant for a wrongful attachment, on the ground that no rent was contracted for, or would become due, at the same time that no provision is made to enable him to make any effectual defence, on this or any other ground.

For these reasons, I think that the judgment and order of sale must be reversed, and the attachment quashed.

*The PRESIDENT:

Upon the first point made in this case, I am of opinion, that the two pleas of the appellant were properly rejected by the inferior Court.

On the second point, I am of opinion, that under the provisions of the act for better securing the payment of rent, the attachment was improperly awarded by the magistrate for more than the quarter’s rent next to become due, the rent being payable quarterly.

I concur, therefore, with the other Judges, that the judgment is to be reversed, and the attachment quashed. 
      
       Judge Cabell, absent.
     