33 Md. 312 | Md. | 1870
delivered the opinion of the Court.
This is a special action on the case against a sheriff for seizing and selling the goods and chattels of a tenant under and by virtue of an attachment on warrant, and the order of the Court thereon, without paying the arrears of rent due the landlord, after due notice given under the Statute of 8 Anne, chapter 14, section 1. And the first and most material question is, can the action be maintained ?
' It is contended, on the part of the defendant, that the action does not lie against him, because the attachment proceeding under which he acted is not embraced or contemplated by the Statute on which the action is founded; that an attachment on warrant is not an execution within the meaning of the Statute of Anne.
The Statute referred to is entitled, “ an act for the better security of rents,” &c., and provides “ that no goods or chattels whatsoever, lying or being in or upon any messuage, lands, or tenements which are or shall be leased for life or lives, terms of years, at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is
It is not difficult to perceive that the provisions of this Statute are such as cannot well be adapted to the course of proceedings on attachment. The seizure of property under an attachment is not by way of execution, in the ordinary sense of that term, but is simply in execution of a power delegated to the officer to impound such property of the debtor as may be required to answer the demand of the creditor, to be subject to the judgment of condemnation of the Court issuing the process. If the debt or demand upon which the attachment is founded be not sustained, of course, no judgment of condemnation is rendered, and the property is released and again restored to the possession of its owner. The sheriff, upon laying the attachment, has no power to sell the property seized, unless it be by the express order of the Court; and if the arrears of rent were required to be paid as a condition to rendering the property subject to the attachment, the sheriff, not being authorized to sell under the process in his hands, could not levy and pay to the plaintiff “ as well the money so paid for rent, as the execution money,” as required by the Statute; and, consequently, the plaintiff would be deprived of the means provided for re-imbursing him the money paid to the landlord.
In the case of Fisher vs. Johnson, 6 Gill, 354, it was decided by the late Chief Justice Lb Gkakd, then an associate
Bor do we concur in the position of the plaintiff in this case, that the sale of the property seized by the sheriff, under the order of the Court, rendered the officer liable to this action under the Statute, as if the goods were seized and removed under an execution. The order of Court was authorized simply as a means of preserving perishable property from loss pending the attachment, and the sheriff was bound to execute it, and he is not liable to any one for so doing. The order, having been made by competent authority, afforded full justification to the sheriff for making the sale. The proceeds of sale remained subject to the final judgment of the Court; and all persons having superior claims to the property to that given the plaintiff in the attachment to render such property specifically liable for his debt, with knowledge of the pendency of the attachment proceeding, were bound to come in and assert their claim before condemnation; for the sheriff can neither be held liable for selling the property before judgment of condemnation under an order of Court, nor after such judgment, under a fi. fa. issued thereon. Trieber vs. Blocher, 10 Md., 14. And in a case like the present, although the officer be not liable as for seizing and removing the goods of a tenant under an execution, to the prejudice of the landlord’s claim
It results from the view that we have taken of this case, that the action is not maintainable, and consequently the judgment on the appeal of the defendant below will be reversed, and judgment entered for him; and as to the appeal of the plaintiff below, that will be dismissed.
Judgment reversed, and judgment for the defendant below; and, appeal of plaintiff below dismissed.