
    Wallach vs. Chesley et al.
    Law. No. 16,505.
    < Decided February 12, 1883.
    
      i The Chiei? Justice and Justices Hagnkb and Cox sitting.
    1. The landlord has no right to an attachment against his tenant’s chattels -which have been removed from the premises before the rent is due. His remedy is by judgment against the tenant and execution to be levied upon such chattels or any of them in whosesoever hands they may be found.
    2. Circumstances under which an attachment for rent may be issued by the landlord against the goods and chattels of the tenant.
    STATEMENT OE THE 'CASE.
    The plaintiff commenced an action before a justice of the peace to recover the rent of premises owned by her. The action was commenced by filing the following declaration :
    “ District oe Columbia,
    “ County Washington, to wit:
    
    In Justice’s Court, before A. C. Richards, one of the justices of the peace in and for the county and District aforesaid, this 10th day of February, 1882, in the case of—
    Susan L. Wallach, Plaintiff, Annie R. Chesley, Mary C. Chesley, and Catherine Harris, Defendant.
    
    j ^aw- ^0- 3075. j
    The plaintiff sues the defendants for that the plaintiff let to the defendants a certain house and premises, No. 332 Indiana avenue, northwest, in the city of Washington, D. C., to hold from the 15th day of October, 1881, for the term of one year, at $80 per month, payable monthly, of which rent $80 will become due on the 15th day of February, 1882, to wit, the rent due on the 15th day of February, 1882, and the defendants have quit the premises and left them vacant and unoccupied, and have removed all their personal property from the same, so that there is not sufficient property therein to satisfy said rent when the same shall become due and payable ; and the plaintiff' claims $80.00, as will more fully appear' by reference to the particulars of demand hereunto annexed.
    Susan L. Wallach.
    
      The defendants to plead hereto on the 16th day of February, A. D. 1882, at 1 o’clock p. m.; otherwise judgment.
    
      Particulars of Demand.
    
    Annie E. Chesley, Mary C. Chesley,
    and Catherine Harris,
    To Susan L. Wallach, Dr.
    Feb. 15,1882:
    To one months’ rent, due on the 15th of Feb., 1882, for premises 382 Indiana avenue, $80.00.”
    On the same day the plaintiff" procured the justice to issue an attachment against the goods and chattels of the tenants. The affidavit, which is set out in full in the opinion of the court, was dated February 10th, and alleged that the rent would become due on the 15th of that month; that the plaintiff" had a tacit lien upon the chattels of the defendants, and that the defendants had removed the said chattels off' the premises. On the trial the justice rendered a judgment for the rent, and condemned the chattels to satisfy the judgment. Whereupon the defendants appealed to the circuit court, and there moved to quash the proceedings before the justice, on the ground of want of jurisdiction and for other reasons appearing on the record, which motion the court certified to the General Term to be heard in the first instance.
    E. B. Lewis and Thos. J. Miller for plaintiff':
    1st. Congress, in conferring jurisdiction on justices of the peace in cases of debt or damages arising out of contracts, &c., intended, by Section 997Kevised Statutes, to limit their jurisdiction to cases where the amount claimed does not. exceed $100. It does not necessarily imply that the debt must be fast due. When other courts could take jurisdiction of a claim for debts not due (as for rent to become due at time of suit brought preceded by attachment), justices of the peace could likewise entertain jurisdiction. The language of the act does not necessarily impute that the amount claimed must be past due.
    2d. Justices of the peace, before the passage of the landlord and tenant act, sec. 677, et seq., Eevised Statutes had. power to issue distress warrants. That act does not provide that the landlord’s lien by attachment shall be enforced in any particular court. By fair construction it must have been intended by Congress to confer the jurisdiction to issue attachments on all the courts that had before that time jurisdiction to entertain actions for rent.
    The act of Congress passed for the organization and government of the District of Columbia, see Revised Statutes, sections 61 and 62, especially conferred the power upon the legislature of the District of Columbia to confer additional jurisdiction upon the judicial courts of the District of Columbia, and also to define the jurisdiction of justices of the peace and prescribe their duties ; accordingly the legislature did pass an act empowering justices of the peace to issue attachments, see that act, section 6, part 2, paragraphs 87 and 38, Laws of the Legislative Assembly.
    3d. Attachments by virtue of section 678, Revised Statutes, can issue for rent not due.
    4th. The words “ on the premises,” in section 679, define the particular personal chattels to which the landlord’s lien attaches. It lasts for three months after rent is due, even though the chattels have been removed off the premises, and we contend that it was manifestly the intention of the legislature in the passage of this act to provide (and that the language of the act necessarily so implies) that when rent is not due and the tenant has removed his chattels subject to the lien, off the premises, an attachment for the same may issue on affidavit “ that the defendant is about to sell all or some part of said chattels.”
    The affidavit “ that the defendant is about to remove said chattels ” applies to cases when the goods are yet on the premises.
    The disjunctive or gives this remedy in either case ; i. e., if the tenant is about to remove the chattels off' the premises, and, no matter where the goods may be, if he is about to sell them.
    Otherwise, in case of an absconding tenant, one who would take up his goods in the night time and leave the premises, the landlord practically loses the benefit of the lien conferred by the act. The tenant, pending any suit against him could easily dispose of the chattels to a purchaser without notice of the lien.
    E. A. Newman for defendant :
    The motion to quash, certified to this court to be heard in the first instance, raises the following questions :
    1st. Whether a justice of the peace has jurisdiction to issue an attachment for rent ?
    2d. Whether a justice of the peace has authority to issue a writ in any action where the debt or demand is not due or claimed to be due?
    3d. Whether, after goods have been removed from the premises, the landlord can enforce his lien by attachment ?
    4th. Whether the affidavit filed by plaintiff is sufficient under the statute to justify the issuance of the writ of attachment ?
    The power of a justice of the peace to issue the writ must be obtained, if at all, from sections 678, 679, 997 and 1018 of the Revised Statutes D. C., and it is apparent from a fair construction thereof that no such authority is conferred thereby.
    Writs of. attachment were unknown to the common law ; and being a summary process, and an extraordinary remedy provided by special statute, the power to issue the same must be expressly authorized and not left to inference or conjecture. No such authority has been conferred upon justices of the peace in this District.
    The courts of justices of the peace are not courts of record, and they must therefore confine themselves strictly to the authority conferred upon them by statute. Cox vs. Broshong, Burns (Wis.), 150.
    An attempt -was made by the late legislative assembly to give justices of the peace jurisdiction in all cases of attachment and replevin where the amount in controversy did not éxceed the sum of $100 (see see. 6, part II, pp. 37 and 38, Laws of the Legislative Assembly); but this court held, in the case of Riggs vs. Kernwein, No. 13,722, at law, that under that statute justices of the peace had no jurisdiction in l'eplevin. By parity of reasoning they have no power to issue writs of attachment.
    This court has held in several cases that the said legislative assembly had no authority to legislate upon general subjects, but merely in reference to matters of a police and municipal character.
    In the case of Oppenheimer vs. Lawrence, No. 16,371, on the law side of this court, decided in 1877, it was held at nisi prius that justices of the peace had no power to take cognizance of writs of garnishment.
    Justices of the peace have power to issue execution only. Rev. Stats. D. C., sec. 1018.
    A justice of the peace cannot exercise jurisdiction in any case where the amount sued for is not due or claimed to be due ; and in attachment proceedings for rent, the plaintiff, under certain circumstances, can institute suit before the debt is due. It is, therefore, manifest from the law that they are wholly destitute of the power claimed. Rev. Stats., secs. 997 and 67ff.
    After the goods have been removed from the premises, the method of enforcing the landlord’s lien is not by attachment, but by one of the other two modes prescribed by the statute, Fowler vs. Rapley, 15 Wall., 328; Webb vs. Sharp, 13 Wall., 14.
    The affidavit in support of the writ is not in accordance with the statute, and for that reason, if for none other, the writ should be quashed.
   Mr. Justice Cox

delivered the opinion of the court.

This was an action commenced before a justice of the peace to recover the sum of eighty dollars for rent due to the plaintiff’, and an attachment was issued by the justice of the peace against the goods and chattels of the tenants upon the following affidavit;

District or Columbia, )
Washington County.}
rn .. . 1
In Justice’s Court before A. C. Richards, one of the justices of the peace in and for the county and District aforesaid, ' in the case of—
Susan L. Wallace, Plaintiff, Annie R. Chesley, Mary C. Chesley, and Catherine Harris, Defendants.
} No. 3075.
Personally appeared, Susan L. Wallach, the plaintiff in the above entitled cause, and makes oath that she is the plaintiff, and that the defendants, Annie R. Chesley, Mary C. Chesley, and Catherine Harris, are tenants under a lease as set forth in the declaration, and that the moneys she claims therein to become payable to her by the defendants, is for the rent of the said premises, which will become due on the 15th day of February, 1882, exclusive of all set-offs and just ground of defence, and to secure which the plaintiff has a tacit lien upon the personal chattels of the defendants, and that the defendants have removed all said personal chattels off the premises, and are about to sell some part of the same.
Susan L. Wallace, [seal.].
Subscribed and sworn to before me this 10th day of February, A. D. 1882.
A. C. Richards, J. P.

On that affidavit the usual warrant was given, and an attachment was issued against the goods and chattels of the tenants, and it was levied on those goods and chattels off the premises. The justice gave a judgment in favor of the plaintiff' for eighty dollars and costs, and also a judgment of condemnation of the chattels seized by the constable. An appeal was taken from the justice’s judgment, to the circuit court, and a motion was made there “to set aside the judgment of the justice of the peace and quash all the proceedings before the said justice of the peace for want of jurisdiction on the part of said justice of the peace, and for other good and sufficient reasons appearing in the record.” That motion was certified here in the first instance.

It is contended, on the part of the defence, that if a justice of the peace can issue attachments under any circumstances, he had no authority to do so under the circumstances set forth in these proceedings. It will be observed that the affidavit here shows, first, that the rent was not due at the time the affidavit was made and the attachment issued ; and in the next place, the affidavit further shows that the chattels had been already removed from the premises. Now, it is contended that the justice had no jurisdiction to issue an attachment undetf those circumstances, and we are referred to the act of Congress on that subject. That act provides, in the firsto section, for the abolition of the common law right of the landlord to distrain for rent. That right, as we know, was the right to seize the goods of either the tenant or a stranger, upon the very land itself. It was a right incident to a reversion. It related to the land. It involved no power of seizing the tenant’s chattels anywhere but on the land.

There was a statutory extension of this right in favor of landlords, to the effect that, if the goods had been clandestinely removed by the tenant, they might be pursued within a period of thirty days by the landlord. But with that -exception, the power of distress was confined to the chattels of the tenant on the land. That light is abolished by the first section of the act of Congress in question. As a substitute for this right so abolished, it is provided that the landlord shall have a tacit lien on such of the tenant’s chattels on the premises as are subject to execution for debt, to commence with the tenancy and continue for a limited period. It then .goes on to provide how this lien shall be enforced. It does not give the landlord a lien without any ■means of enforcement. It provides fbr several conditions of things; first, when the rent is due; and, next, when the rent is not yet matured. When the rent is due, the lien may be enforced by an attachment issued upon an affidavit that the rent -is due and unpaid. There is no trouble about that. But it will occur to anybody, that the tenant may, just before the maturity of his rent, and in order to avoid compulsory payment of it, remove M3 chattels or change the property in them. To meet that contingency, it is further provided that, even before the rent is due, if the landlord will make affidavit that the tenant is about to remove or sell all or some part of his chattels, the attachment may issue. And those are the only two cases provided for in the statute, in which an attachment is the remedy intended.

It is provided further, as we all know, that a lien may also be enforced by the landlord by obtaining a judgment against the tenant and issuing an execution which can be levied on the goods in whosesoever hands they may be found ; and the landlord is also authorized to sue the purchaser and get judgment against him to the extent, of the rent in arrears.

Now, the language that the defendant is “about to remove,” clearly applies to a case where the goods have not yet been removed, and is inapplicable to a case where the goods have been removed from the premises. It is contended for the tenant here that the words “ or sell,” are limited to the same condition of things, and, we think, correctly. So that the statute should be interpreted as if it read, “ that the landlord shall have a tacit lien on the tenant’s chattels on the premises, and when his debt is not yet due, it may be enforced by attachment on affidavit that the defendant is about to remove or sell all or some part of the chattels on the said premises.” But after they have been removed from the premises, the remedy is that provided in the second clause of section 679, that is, by judgment against the tenant, and execution to be levied upon such chattels, or any of them, in whosesover hands they may be found. And there seems to be sufficient reason for the distinction. As we have already stated, the common law right of distraining was confined to the chattels upon the premises. It was an exceptional right, and a very oppressive one in many cases; and the remedy by attachment, given by this statute as a substitute for that, is itself an extraordinary and exceptional right, varying from the course of the common law, and there is reason enough for holding that that remedy, which is a judicial seizure, as the other was a private seizure, of the debtor’s property, before any judgment, should be confined to the condition of things in which the relation of landlord' to the tenant, and of both to the property subject to the right, was unchanged. But if the property has been once removed from the premises and may have gotten into other hands, there ought to be a judicial determination of the cause of action before this extreme 'remedy can be resorted to, of a seizure before any hearing upon the merits of the claim.

We think, therefore, that after the particular chattels have been removed from the premises, the landlord whose debt is not yet due, has no right to an attachment for recovery, but must resort to a j udgment and execution, and, therefore, the justice was without jurisdiction in issuing the attachment in this case. The motion, therefore, will be sustained. It is unnecessary to decide other questions which suggest themselves as to the power of a justice to issue attachments in any case, which is not necessarily involved.in this case.

The motion is granted  