17 Pa. Super. 1 | Pa. Super. Ct. | 1901
The rule that all goods upon demised premises are liable to distraint for rent still obtains in Pennsylvania, although subject to some exceptions. Where the landlord has followed with precision the provisions of the act of 1772, and in so doing has sold the goods of a stranger,. he may not be held liable for a trespass: Toledo Tinware Mfg. Co. v. Duff, 16 Pa. Superior Ct. 383. But as the proceeding is statutory, the directions of the statute must be strictly followed, not only as to a seizure, but also as to all subsequent steps, otherwise the protection of the statute is lost: Snyder v. Boring, 4 Pa. Superior Ct. 196; Esterly Machine Co. v. Spencer, 147 Pa. 466. Assuming then, that the plaintiff in this case was the owner of the goods sold for rent due by the tenant, this action in trespass would not lie if the landlord had clearly followed the act of 1772. But the landlord accepted from the tenant a waiver of the appraisément required by the act, and in so doing lost the protection of its provisions: Briggs v. Large, 30 Pa. 287; Chestnut Street Nat. Bank v. Crompton Loom Works, 73 Fed. Repr. 614. If in ignorance of a stranger’s claim of title, the landlord accepts a waiver of appraisement from the tenant, the landlord in respect to such stranger is none the less a trespasser. See cases above cited. It is true that it is the duty of the owner of goods levied upon for another’s rent to bring replevin before their sale, if he have knowledge of the distraint and opportunity to take out his writ, and that it is the landlord’s duty to give him such opportunity. But if the owner of such goods fails to replevy them, it does not follow that he loses his right to sue in trespass, if the landlord, by failure to proceed strictly within the act of 1772,’renders himself “ a trespasser ab initio by his departure from the directions of the law: ” Esterly Machine Co. v. Spencer, supra; Snyder v. Boring, supra; Davis v. Davis, 128 Pa. 101.
In this case the goods sold by the landlord consisted of a
The court below has not indicated upon what ground the nonsuit was entered in this case. We are unable to sustain the judgment which we reverse and award a venire facias de novo.