John T. R. Joynes and Sarah Joynes, vs. Michael K. Wartman, 5 Md. 195

Le Grand, C. J., delivered the opinion of this court. This is an action of replevin.

In the court below the appellee avowed the taking of the property replevied by the appellants, as a distress for three months’ rent, due on the 9th of February 1851, under an alleged demise to them and Pomeroy & Co., of “The Sulphur Springs and furniture,” in Baltimore county, for $600, in quarterly payments, the rent to commence the 9th of May 1850, &c.; and averred, that within thirty days after the said rent had become due, the plaintiffs had fraudulently and clandestinely removed the same with intent, &c., and the defendant had pursued and taken it as a distress.

It appears from the testimony that an account was made out and sworn to by the appellee, but the account does not state against whom it is — it is blank, “Dr., to Michael K. Wart-man.” The warrant to distrain was given to William Thomas, constable, who returned it nulla bona. Subsequently the appellee went before a justice of the peace, in the city of Baltimore, and made oatli that the property had been removed from the demised premises, and under the warrant of the justice a certain D. H.

White was appointed to assist the bailiff of the appellee to take and seize the property alleged to have been clandestinely removed. It was under this process the property replevied was taken. At the trial the appellants offered fourteen prayers, some of which were granted and some of them rejected. The appellee asked and obtained the instruction of the court to the effect, that if the jury found the facts set forth in it the appellants were not entitled to recover. In the view we have of the case it is not necessary we should express an opinion in regard to each of these propositions.

The record discloses a state of facts which, under no circumstances, would enable the avowant to defend his distress. The act of 1834, ch. 192, sec. 3, provides, “that to all and every warrant or warrants authorizing any bailiff to levy a distress for rent claimed to be due to any landlord or landlords authorized by law to make a distress, there shall be prefixed or annexed the account of such landlord or landlords, stating,” <fcc.; and the fifth

section of the same act provides, “that any and every distress which shall be made, after the date when this act is to take effect, contrary to the provisions of this act, and all and every sale or sales which shall take place under and by virtue of such distress shall be held to be absolutely illegal and void, any law, custom or usage to the contrary notwithstanding.” Now in the case before us there Was no compliance with this statute.

It is not denied that at common law it would be very difficult, if not impossible, in an action of replevin to show an irregularity in the distress; the aggrieved party being most generally driven to his action of trespass. It is not unreasonable to presume, that among the reasons which induced the passage of the act of 1S34, was the desire to avoid this hardship and prevent circuity of action. It is similar to the act of New York of 1838, ch. 153. That statute has frequently undergone judicial

interpretation. It provides, that previous to a distress for rent in the city of New York, the landlord must file an affidavit with the clerk of the city and county that the rent distrained for is due; and it has been held, the avowry must aver that this was done or it will be bad on demurrer. Burr vs. Van Buskirk, 3 Cowen, 263. Without going thus far, we are fully warranted in saying, that the plaintiff in an action of replevin can show the act of 1834 has not been complied with, and thus render unavailing the defence of the avowant.

The sufficiency of the affidavit is constantly inquired into in actions of replevin in New York, and we think the privilege exists under our act. 17 Wendell, 417; 2 Hill, 648, and 20 Wendell, 450. Judgment reversed and procedendo refused. Eccleston, J., dissented.