Keller v. Weber

Bowie, O. J., delivered the opinion of this Court. The appellees sued the appellant in replevin, for taking and detaining various goods and chattels. The defendant made cognizance, as bailiif of one Young, in whose behalf he distrained the goods mentioned, for rent in arrear, due and owing by one Rinehart, as tenant of a dwelling house, by virtue of a certain demise, etc. Secondly, upon a demise to Rinehart, since deceased, but during the term, the said dwelling being in the occupation of the wife of the deceased. To the first cognizance, the appellee pleaded, “non tenuit,” and no rent in arrear, and thirdly, that at the time of the taking, Rinehart was dead, and no administration had been granted.

The appellant joined issue on the first and second pleas of the appellees and demurred to their third. The issues in fact do not appear to have been tried, the Court below having overruled the demurrer to the third plea, judgment was entered thereon for the defendants, from which this appeal is taken. The question raised by .the demurrer is,-whether a landlord ⁶⁶⁵ may distrain during the term for rent due, after the death of the tenant, hut before administration granted. The remedy by distress, is not an action prosecuted by one party against another, to which of necessity there must he a plaintiff and a defendant, but a proceeding in rem, given by the common law to the landlord, whereby he seizes and holds the property found on the premises, as a pledge, until the tenant redeems the property by payment of the rent. 3 Black.

Com., 7 ; Smith’s Landlord and Tenant, 220. By the Act of 2d Will, and Mary, ch. 5, sec. 2, it was enacted, where goods were distrained for rent due, and the tenant or owner of them did not within five days next after the distress and notice thereof left at the chief mansion house, or other most notorious place upon the premises, charged with rent, replevy the same, the person distraining, having first appraised, might sell the same toward satisfaction of the rent, etc. This statute was a remedial one, as much