Waring v. Slingluff

Miller, J., delivered the opinion of the Court. The appellee replevied sundry marble monuments and tombstones, an iron safe, a horse and set of harness, appraised at $2390. The defendants, described as heirs of Louisa Torrance, avowed the taking of the property under a distress for rent. In the avowry, it is averred in substance, that one Jacob Weinman was tenant to the defendants of certain premises at a certain rent, which was in arrear to the amount of $139.50, and that the goods and chattels in question were on said premises, and were justly taken as a distress for the rent so in arrear.

To this the plaintiff pleaded, 1st. that Weinman was not-tenant of the defendants, 2nd. that he was not tenant-at the renting stated, 3rd. that he was not in arrear for the amount claimed, and 4th. that the distrained chattels were exempt from distress ; and on these pleas issues were joined. The avowants were very numerous, and at the trial, it-came out that one of the heirs had been omitted, and that the name of a party who was not an heir, and had no interest in the rent had been inserted as an avowant, and on motion the avowry was in these particulars amended* But when the distress papers were offered, the same defect appeared. In the account, the affidavit to it, and the ⁵⁵ warrant, the name of one of the heirs entitled to a portion of the rent was omitted, and the name of a party not so entitled was inserted. The Court rejected the prayers offered on hoth sides, and instructed the jury that the avowants were not entitled to recover by reason of these defects in the distraint proceedings, and this ruling presents the main question in the case.

It has been argued that no issue is made by the pleadings as to the sufficiency of the distraint proceedings, but in Joynes, et al. vs. Wartman, 5 Md., 195 , where there was a similar set of pleas, the Court held the avowant was hound to defend his distress, and that the plaintiff in the replevin could show that it was not in conformity with law, and thus defeat the avowry. In fact, the avowry is in the nature of a declaration, and always proceeds upon the ground that the goods have been legally distrained. The avowant takes upon himself the onus of proving the legality of the distress; this is the first thing to be proved and for that reason he is entitled to the opening and conclusion at the trial. It is equally plain that distress proceedings once executed cannot be amended, and least of all can defects in them be cured by any amendment of the avowry in replevin.

The question therefore is, are the defects referred to in these proceedings substantial, and fatal to the legality of the distress ? The law on the subject as to how the distraint shall he made where the landlords are joint-tenants, coparceners, or tenants in common, is thus stated in Archbold’s Law of Landlord and Tenant, 110: “If the lessors be joint-tenants all must join in the distress, but any one of them may distrain in the names of all. So parceners, as in law they constitute but one heir, must join in the distress, but in that case also one may distrain in the names of all. But tenants in common, as they have several titles, may distrain severally.

Each for his own