Pierce v. Scott , 4 Watts & Serg. 344 ( 1842 )

The opinion of the Court was delivered by

Gibson, C. J.

— It is a rule, without an exception, that a landlord cannot distrain goods which are in the custody of the law, though for the rent of - a single year, he is protected by statute. In England it is enacted by the 8th Anne, c. 14, that goods on leased premises shall not be taken in execution unless the creditor pay the landlord the arrears of rent before they are removed, not exceeding in the whole the rent of a single year due at the time of the levy; and our statute is nearly the same, the principal difference being that with us the year’s rent is to be paid out of the proceeds of the sale without regard to the removal of the goods. The British statute has been held to extend to process of outlawry, which was considered to be a species of execution at the suit of the subject, in Graves v. D’Acastro, (Bunb. 194), which overruled Rex v. Southey, (id. 5). But whether a seizure on 'foreign attachment is within the statute, is not the question here, though it might be the turning point of a motion to pay the landlord out of the proceeds after a sale by the. sheriff: the true question is, was the property in the custody of the law ? A bankrupt’s goods are not privileged; and the reason seems to be that bankruptcy merely changes the ownership, and goods remaining on the premises are liable to distress, be the ownership in whom it may. And this holds before assignment, even while the goods are in the custody of a messenger. The nature of the possession in bankruptcy, however, furnishes no satisfactory analogy to the custody in foreign attachment; nor would it, perhaps, to the custody in domestic attachment, which, like bankruptcy, is a process of distribution. Foreign attachment, being a process to compel the defendant to appear to an action, is analagous to outlawry, which is also a species of execution, and which consequently requires manual seizure of the property where it is susceptible of it, or security for its forthcoming in lieu of it. - From the time therefore that the attachment is laid, the property is exempt from distress. When it is sold, however, the landlord will have priority of satisfaction as in the case of any other execution; but he cannot proceed by distress without committing a trespass against the officer. This attachment was laid on growing grain; and according to the principle of Peacock v. Purvis, (5 Moore 79; S. C. 2 B. & B. 362), it was not subject to distress after it was sold and before it was removed. The jury were properly instructed, therefore, that the defendant was answerable in damages to the value of the property without deducting a year’s rent.

Judgment affirmed.