Opinion
(Spring Term, 1800.)
A landlord has no power in this State to distrain for rent, the process of distress never having been adopted here.
This was a writ of error, brought in the Superior Court of Law for Edenton District, to reverse the judgment of the county court of Pasquotank, in a cause between the above-mentioned parties.
The record stated this action to have commenced by a warrant of distress, issued by Grandy, the landlord, directed to the sheriff of Pasquotank, requiring him to go on the land where Dalgleish lived and to distrain so much of the property of said Dalgleish as would satisfy Grandy for one year's rent in arrear, being £ 150, and to cause the property so distrained to be appraised and sold after the expiration of five days, except they should be replevied; in pursuance of which warrant the sheriff distrained sundry articles of property belonging to Dalgleish, which were replevied. The warrant of distress and replevy bond (250) were returned to the next court of pleas and quarter sessions held for said county. The defendant, Dalgleish, appeared by his attorney and pleaded "nil debet, payment and set-off, tender, refusal, release, and satisfaction, with leave to give the special matter in evidence"; and at September Term, 1796, a jury being impaneled, found for the plaintiff, Grandy, and assessed his damages to £ 150 and costs; the defendant's attorney then moved in arrest of judgment, and filed his reasons, viz.: That the verdict is contrary to the bill of rights, the Constitution, and the law of the land. That the proceedings are illegal and irregular as they appear on the record, and that even supposing the verdict could be justified by the Constitution and laws of the county, the plaintiff showed no cause of action; which reasons being overruled, the defendant then prayed a writ of error, which was granted, and the cause brought up to the Superior Court.
It does not appear from the record that any errors were assigned; but if they were, they must have been the same in substance and effect with the reasons in arrest of judgment. The question in this case was, whether the remedy elected by Grandy to recover the rent said to be due to him by Dalgleish was a legal and constitutional one or not.
There being no laws in force in this State regulating proceedings on a warrant of distress for rent, I am of opinion that the judgment of the county court be reversed.
I am not informed of any general usage in this State which has heretofore amounted to an adoption of the common and statute laws of England relative to distresses. They were anciently in the nature of pledges, which the distrainer had no power to sell, and the authority for that purpose is given by the Statute of Will, and Mary, ch. 5, which is certainly not in force here. This warrant directs a sale after the expiration of five days, unless the chattels are replevied, thereby conforming to the provisions of the statute, which have no operation in this State. The process is in the first instance erroneous. (251) But if this mode of proceeding had ever been sanctioned by custom before the revolution, it is utterly irreconcilable to the spirit of our free republican government. Justice does not make a distinction in favor of a creditor whose debt arises from the lease of land rather than that of him who has hired a chattel; it does not require that the former should be entitled to a process in rem, when the latter can only proceed in personam, but both should ascertain their demand by the verdict of the jury, allowing to the debtor an opportunity of contesting it before his property is seized upon. The Legislature has provided for these cases when it is expedient that property should be taken in the first instance, and their refusal to pass a law authorizing distresses has been upon the ground that it is unconstitutional. I am of opinion that the judgment should be reversed.
No such remedy for the recovery of rent, as it is attempted to be used in the present case, is known in this State, and is contrary to the spirit of our laws and government, and cannot be supported.
Judgment reversed.
Cited: Kornegay v. Collier, 65 N.C. 70; Harrison v. Ricks, 71 N.C. 12; Smithdeal v. Wilkerson, 100 N.C. 54.