51 Pa. Super. 436 | Pa. Super. Ct. | 1912
Opinion by
It is clear that a landlord could not give a claim property bond in an action of replevin and retain the tenant’s goods seized on a warrant of distress prior to the act of 1901. Such was the decision in Baird v. Porter, 67 Pa. 105, and Cassidy v. Elias, 90 Pa. 434. The reason is that the landlord has neither a general nor special property in the goods, nor an immediate right of possession. When a writ of replevin was served on the landlord it was his duty to deliver up the property in accordance with the mandate of the writ, and in place of the goods he obtained the security of the bond given to the sheriff, for the sufficiency of which the sheriff was responsible. By the giving of the bond the property was released from the landlord’s claim and remained subject to the control of the owner: Frey v. Leeper, 2 Dali. 131; Gray v. Wilson, 4 Watts, 39. The object of this writ as applied to a distress for rent was to restore the property to the owner and to remit the landlord to his remedy on the bond in which the plaintiff obligates himself to prosecute his suit and to return the property distrained in the event that the landlord’s right should be established in the action. On receiving the security it became the duty of the sheriff to restore the things distrained to the tenant. The goods after seizure were a pledge merely for the payment of the rent and by the replevin the security in the bond was substituted for them and the pledge released. A distress for rent is a summary remedy having the features of an execution and is a process merely for the enforcing of the claim. Any defense against the distrainor’s right must be asserted in the action of replevin as provided by the Act of March 21, 1772, 1 Sm. L. 370: Esterly Machine Co. v. Spencer, 147 Pa. 466, 470. Does the Act of April 19, 1901, P. L. 88, change the practice in this respect? It is entitled,
The order is affirmed.