Thomson v. Baltimore & Susquehanna Steam Co.

Alvey, J., delivered the opinion of the Court. This is a special action on the case against a sheriff for seizing and selling the goods and chattels of a tenant under and by virtue of an attachment on warrant, and the order of the Court thereon, without paying the arrears of rent due the landlord, after due notice given under the Statute of 8 Anne, chapter 14, section 1. And the first and most material question is, can the action be maintained ? ' It is contended, on the part of the defendant, that the action does not lie against him, because the attachment proceeding under which he acted is not embraced or contemplated by the Statute on which the action is founded; that an attachment on warrant is not an execution within the meaning of the Statute of Anne. The Statute referred to is entitled, “ an act for the better security of rents,” &c., and provides “ that no goods or chattels whatsoever, lying or being in or upon any messuage, lands, or tenements which are or shall be leased for life or lives, terms of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is ³¹⁷ sued out, shall, before the removal of such goods from off the premises, by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution;” and if more than one year’s rent is due, “ then the said party, at whose suit such execution is sued out, paying the said landlord, or his bailiff, one year’s rent, may proceed to execute his judgment as he might have done before the making of this act; and the sheriff or other officer is empowered and required to levy and pay to the plaintiff as well the money so paid for rent, as the execution money.” It is not difficult to perceive that the provisions of this Statute are such as cannot well be adapted to the course of proceedings on attachment.

The seizure of property under an attachment is not by way of execution, in the ordinary sense of that term, but is simply in execution of a power delegated to the officer to impound such property of the debtor as may be required to answer the demand of the creditor, to be subject to the judgment of condemnation of the Court issuing the process. If the debt or demand upon which the attachment is founded be not sustained, of course, no judgment of condemnation is rendered, and the property is released and again restored to the possession of its owner. The sheriff, upon laying the attachment, has no power to sell the property seized, unless it be by the express order of the Court; and if the arrears of rent were required to be paid as a condition to rendering the property subject to the attachment, the sheriff, not being authorized to sell under the process in his hands, could not levy and pay to the plaintiff “ as well the money so paid for rent, as the execution money,” as required by the Statute; and, consequently, the plaintiff would be deprived of the means provided for re-imbursing him the money paid to the landlord. In the case of Fisher vs. Johnson, 6 Gill, 354 , it was decided by the late Chief Justice Lb Gkakd, then an associate ³¹⁸ Judge of the Baltimore County Court, that an attachment on warrant was not an execution within the meaning of the Statute of Anne; and upon appeal, while the question does not appear to have been considered by the Court of Appeals, it was expressly conceded and asserted by counsel on both sides, that such an attachment could