Emig v. Cunningham

Bryan, J., delivered the opinion of the Court. The Court below decided that the goods of a married woman could not be distrained for rent due by her husband, when found on the demised premises. By the common law, upon marriage the husband became the owner of all the goods and chattels of the wife, and, of course, they could be subjected to the payment of his debts in the same way as any other property which he possesséd. Under the operation of this principle, cases of grievous hardship frequently occurred, and it appeared wise to the law-making power to change it.

In this State, a series of alterations were made in the law which finally culminated in the provision made in the Constitution of 1867. By the 43rd section, of the third Article, of that instrument, it is declared that the property of the wife shall be protected from the debts of the husband. Her property was secured from her husband’s creditors, as • fully as if she had remained unmarried. But it is obvious that none of the enactments on the subject of the property of married women, were intended to have any reference to the law of distress for rent, or to interfere in any way with the relations of landlord and. tenant.

The landlord has the right to distrain for rent due any goods and chattels on the demised premises, except such as are specially exempted by law. The liability to distraint .arises from the fact that they are found on the premises, and not from the ownership. The goods of a stranger are liable equally with those of the tenant. This right is an ancient privilege of the common law, which had its origin in the feudal tenures.

Lord Coke informs us that it was an inseparable incident of the seigniory. It is a remedy which is confined to the land out of which the rent issues, and does not