Lambson v. Matthew

5 Del. 28

• Court: Superior Court of Delaware
• Decided: July 5, 1848
• Status: Published

Opinion

By the Court.

Habbington, Judge.

The levy of a distress for rent is the act of the landlord, or his bailiff. It gives him a special property in the goods until replevin or sale. If the property be not replevied in five days after notice of the distress, the sheriff or a constable is required on application to have an inventory and appraisement made of the property, and proceed to sell it. This is a statutory execution. The law for very good reason requires the sale to be conducted by a public officer. The contract of the purchaser is with him; the money is payable to him, to be applied according to law, and he is responsible under his official obligation for such disposition of it. There may be prior execution liens, or other preferred claims to the landlord’s rent, which cannot be enforced properly if the proceeds of sale are not payable to the officer; neither would it. be proper in reference to any surplus, to turn the tenant round to the landlord instead of the officer, who is bound to pay it to him. If the officer, Sparks, then has the right to recover the money of defendant, the landlord cannot, and this plaintiff must be nonsuited.

Nonsuit ordered; and rule to show cause why the nonsuit should not be taken off.

Whitely, in support of this rule.—The constable has no property in the goods; the landlord has. The duty of the constable is mere ly to sell and pay over proceeds; yet having no property in the goods, he has no power to bring the suit.

Whitely, for Lambson. Gilpin and Gordon, for Matthew.

Crilpin.—At common law the landlord had no right to sell the tenant’s goods. He might distrain the goods, and thus coerce payment ; but he could not sell. The right to sell goods distrained is entirely derived from the act, and the power is there given to a public officer. The landlord may distrain, by himself or by a bailiff; but he cannot sell. The officer is the only person that can sell, or can make title to the goods; the only person who could give an acquittance for the purchase money; the only person to receive the money, or to apply it; acting in all as the officer of the law, and under authority of the law. Who then shall sue a purchaser of goods for the amount of his bid ? There, may be execution liens and a surplus; who is to receive the money and apply it, the landlord or the officer ?—the latter bound to official duty and official obligation; the former a party, without the means of knowing of liens, or the power of applying the proceeds, or responsibility for it.

WMtely.—Ho argument can be drawn from the condition of a constable’s bond, for a constable of the city of Wilmington might sell, and his bond might be different. The provisions requiring a constable to sell, instead of the landlord, or bailiff, was merely in protection of the tenant,

Eule discharged.