#### *Johnson v. Garland.

January, 1838,

Richmond.

Landlord and Tenant — Attachment for Undue Rent— When Lessor Not Entitled to.* — Under the 9th section of the statute concerning rents, 1 Rey. Code, ch. 113, the lessor is not entitled to an attachment for rent not yet due, before the commencement of the term for which the rent is to be paid.

Same — Same—Issuance before Commencement of Term —Rights of Lessee.* — If such attachment for rent not yet due, be issued before the commencement of the term, and levied on the goods of the lessee; an d the lessee thereupon enter into a recognizance to pay the rent; the lessee may, notwithstanding the recognizance, move the court to which the process is returned, to quash the attachment for irregularity; and on such motion, the court ought to quash the attachment, and the recognizance likewise which was founded upon it.

This was an attachment issued by a justice of Amherst, upon the application of Garland, against the effects of Johnson, for the rent of a house, which had not yet become due. The proceeding was under the statute of 1 Rev. Code, ch. 113, § 9, p. 448.

It appeared, that Garland had let the same premises to one Knight, for a term which was to end on the 1st December 1833; and during the continuance of that term, he let them to Johnson, for a year to commence on the day of the expiration of Knight’s term. Then Johnson contracted with Knight for the residue of his term, and under that contract took possession of the premises.

Before the new term had commenced, namely, on the 26th November 1833, — upon Garland giving bond with surety as required by the statute, and making affidavit, that Johnson had agreed to pay him 200 dollars for the rent of the house then occupied by him, for a year to commence on the 1st December 1833 and to end on the 1st December 1834, and that he had just cause to suspect and verily believed, that Johnson would remove his effects from the rented premises before the time of ^payment of the rent, — an attachment was issued by the justice against Johnson’s effects, returnable to the next term of the county court of Amherst. The attachment was levied by the sheriff on the goods of Johnson on the same 26th of November ; and Johnson entered into a recognizance with surety, with condition to pay the 200 dollars rent on the 1st December 1834, together with all the costs and charges of the proceeding ; upon which the sheriff restored the attached effects to him, and returned the attachment, stating in his return, his levy of the same, the recognizance given for the rent by Johnson, and the restoration of the attached effects to him.

Johnson, at the next term of the county court, moved the court to quash the attachment ; and Garland also appearing to oppose the motion, it was, by consent, transferred to the circuit superiour court of Amherst.And that court, upon a hearing, overruled Johnson’s motion to quash, with costs. Johnson asked and obtained from this court a supersedeas to the judgment.

Garland, for the plaintiff in error,

insisted, that the attachment ought to have been quashed, because the statute gave no warrant for such a process in a case like this, where not only the rent had not become due, but the term for which it was to be paid had not commenced ; and that the recognizance for the rent, having been exacted from Johnson by the coercion of this unjust process, ought to have been likewise quashed with the process ; though, perhaps, if the attachment was quashed, that alone would suffice to render the recognizance nugatory.

The -attorney general, for the defendant in error,

endeavoured to shew, that the provisions of the statute embraced the case, and authorized the issuing of the attachment. But, he said, if the attachment was irregular, the tenant waived all objection to it by giving the recognizance for the rent. He thereby, in effect, *cut off the inquiry he afterwards sought to raise. Eor, upon his giving the recognizance for the rent, the attachment was functus officio; and though it was returned to court, yet there was no cause in court upon which the court could act.

*

See monographic *note*on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.

*

It is obvious, from these remarks, that the judge understood the state of the case to be somewhat different from that which the reporter has above given of it. The reporter has stated it from the record, according to his understanding of it, after a very careful examination. — Note in Original Edition.

BROCKENBROUGH, J.

I think it very clear, that under the 9th section of the statute concerning rents, an attachment for rent which is to become due at a future time, cannot be issued before the commencement of the term. Eor, until the commencement of the term, the relation of landlord and tenant does not exist. In this case, Garland had made a contract with Johnson, previous to the 1st December 1833, that he would let his house to him, for one year, for 200 dollars; the term to commence on that day, and to end on the 1st December 1834. It happened, that on the 26th November 1833, Johnson had sundry goods on the premises, probably under the lease of Knight,* who was the tenant for that year until the 1st December 1833, when the lease of Johnson was to commence. Until then, Johnson was not the tenant of Garland ; and by the very words as well as the plain meaning of the statute, Garland, not' being the landlord of Johnson, had no right to sue out the attachment. Johnson having goods on the premises in the possession of Knight,* had complete control of them ; and there being *64no attachment for rent which would thereafter become due from Knight, nor any lien which would restrain Johnson from disposing of the goods as he pleased, he had a right to remove them from the premises at any time before the 1st December.

The attachment having been irregularly issued, the defendant appeared on the return thereof, and moved *the court to quash the process. The plaintiff also appeared to contest the motion. This motion to quash was the correct mode of proceeding, and the court to which the process was returnable was the proper tribunal; Redford v. Winston, 3 Rand. 148.

Johnson’s entering into the recognizance to pay the rent, did not take from him his right to have the attachment quashed for irregularity. He entered into that recognizance under compulsion and the vis major of the sheriff, who would otherwise have kept his goods which he had already seized : he had no other way of peaceably regaining his goods but by entering into the recognizance.

I think the judgment should be reversed, the attachment quashed, and with. it the recognizance which was founded on it.

PARKER, CABELE and BROOKE, J., concurred.

TUCKER, P.

I agree that the attachment was irregular. But Johnson having entered into the recognizance, it was not competent to him to move to quash it, there being no cause in court. His remedy was to plead the irregularity of the proceeding in avoidance of the recognizance, whenever he should have been sued upon it. It is indeed stated, that the parties appeared in court. But if the motion was regular, the proceeding would have been right, though the landlord had not appeared; and thus, a judgment upon his rights would have been given, when there were no parties in court. Eor, by giving the recognizance, the attachment was functus officio. Nothing further could be done ; nothing further was to be done; for no motion lies upon such a recognizance, but the landlord’s remedy is only by action upon it.

The judgment must, indeed, be reversed, because the court gave the landlord his costs ; which ought not to *have been done. The court should merely have struck the cause from the docket. The costs of the attachment were included in the recognizance.

The majority of the judges, however, are of opinion, that the judgment should be reversed, and the attachment and the recognizance both quashed ; thus coming at justice by a short road; which I do not regret, though I cannot concur in it.

Judgment reversed.