10 Pa. Super. 544 | Pa. Super. Ct. | 1899
Opinion by
The question in this case is whether the personal property of a married woman which has been removed from demised premises can be followed by the landlord of her husband and a distress levied upon it for rent in arrear. No authority is needed for the general proposition that the exercise of the right of distress for rent in arrear must be had whilst the goods are upon the demised premises, and that all goods upon the premises, whether belonging to, the tenant or other persons, with some exceptions designed to aid in the encouragement of trade not necessary to mention here, are subject to such distress. But the right to pursue the- goods after their removal from the premises must be found in the terms of the Act of March 21, 1772, 1 Sm. L. 370. If this act does not give the right it does not exist: Grant & McLane’s Appeal, 44 Pa. 477; Owens v. Shovlin, 116 Pa. 371. In Grace v. Shively, 12 S. & R. 217, it was said that this act of assembly is very nearly a verbatim copy of the statute of II Geo. 2, ch. 19, sec. 1. In England it has been decided that their act does not empower the landlord to levy a distress upon the goods of a stranger after they have been removed from the premises: Thornton v. Adams, 5 Maule & Selwyn, 38; Postman v. Harrell, 6 Carrington & Payne, 225; and long before these decisions it had been decided in this state that our act did not allow a stranger’s goods to be levied upon after they had beeii removed from the premises: Adams v. LaComb, 1 Dall. 463. Can the wife be said to be a stranger within the meaning of those decisions? We think so. The words of the act apply only to a lessee and his goods. There can be no uncertainty as to who was the lessee in this case. The lease itself shows that it was the husband. The fact -that he had a wife can in no sense be said to have made her also a
The appellant insists, apparently for the first time in this court, that the evidence did not show such a degree of proof of the ownership of the property by the plaintiff as is required where a wife’s goods are levied upon by the husband’s creditors. Under the pleadings in this case we do not think this question can arise. There can be no doubt of the rule that in an action of replevin the plea of non cepit admits ownership of the goods in the plaintiff. The same must be true in the case of an avowry such as was in this case. The defendant admitted the taking of the goods of the plaintiff and claimed he was justified in doing so because there was rent in arre&r. “ Where the de
Judgment affirmed.