Washington v. Williamson

Weisel, J., after stating the facts of the case, (ante pp. 245 and 246,) delivered the opinion of the Court, as follows : The points in the appellant’s brief constituted his causes below against the passage of the order appealed from. . In this case the goods levied on were not removed from, but sold upon the premises, and the remedy by motion for the Sheriff to pay the rent due out of the moneys in his hands, was an appropriate one, and fully sanctioned by all the authorities. It was not necessary that he should have removed the goods from the premises, to entitle the landlord to his rent upon a motion of this kind; though he could not have maintained an action on the case against the Sheriff, on the Statute of 8 Anne, without having removed the goods. White vs. Binstead, 76 Eng.

C. L. Rep., 1001. The Sheriff must have notice of the rent; and of this we think he had sufficient notice. The one accompanying the distress warrant informed him, with sufficient certainty, of the amount due, the time when due, and the person to whom duo and to be paid. The Statute of Anne prescribes no form of notice, ifor does the law of Maryland.

This, however, does require, that whenever any landlord shall give notice of rent due, there shall be appended to such notice an affidavit of the amount of his rent claimed to be due. 1 Code, Art. 53, sec. 21. The notice in this case was supported by the requisite affidavit. Every thing in relation to this branch of the proceeding appears sufficiently plain and unambiguous. Col yer vs. Speer, 2 Brod.

Bing., 67. There is no proof, that we can perceive, that Mrs. Wilkes, or her agent, waived her right, by consent actual or implied, to the rent due. She expressly notified the Sheriff that she would expect it to be paid out of the proceeds of the sale of goods seized under the executions; and it was at the Sheriff’s option to remove the goods or not from the