Daily national Republican. (Washington City [D.C.]) 1870-1872, 1870-01-18
THE COURTS.

The CUUKTS.
suFhznH OoUET or TnR DISTRICT OF
CoLUMBfA.--ChlefJ Justice Cartier and Jus
tlces Wylle'aud Fisher sat IN bdne yesterday.
p" LTTOHFHTs ADMITTED. a1'r
Mr.. Jas. o. Clephane was admitted 10 the
bar en- the favorable report Of the commit.
tee OF examination. =
Talbott 7. Fowler 70. william W. Raploy
and David 8. Cooling. Chief Justlce Cartier
delivered the opinion ofthe court, az follows.
This e an action Of rcplevln brought BY
Talbert 7. Fowler TO recover the possession
Of a certain quantity Of ice which had been
attached by tho Marshal Of tho District at
tho instance Of the defendant, Raploy.
Tho facts In the case may DO briefly
summed up as follows -,
The defendant, Raploy, being tho owner
OF certain wharf in INC city OF Washing
ton, rented the same 10 Messrs. q. A. Hall
Y Thomas Btackpole, dealers In Ice and
lumber, at the rate Of 800 per month.
Said Hall & Stackpole, while continuing
70 occupy and use the same for the purposes
OF their business, for q period Of five
months-from the 1st Of August, 1867, to tho
1st Of january, 1s08-failed' TO pay any rent
for the aamo, thus becoming indebted 10 the
defendant, Rapley, In tho sum OF $500.
In November, 1867, MOssrs. Hall & Stack.
pole made sale OF their business and entire
stock 10 ono Perkins, who subsequently sold
and delivered the same to the plaintiff.
While the Ice was still on the premises,
aud amor the sale 10 Fowler, the defendant,
Rapley, attached for rent, and thereupon
Fowler sued out a writ Of replcvin.
Tho repleyin suit was referred 10 w, b,
Webb, esq, who reported in favor Of the
defendant. To his report exceptions were
fled, which, after argument In tho Circuit
Court, were sustained by the court. From
that Judgment an appeal is taken To this
court. .''..-.
The writ Of attachment was sued out un.
der the 12th section Of the act Of Congress
OF February 80, 1857, chapter "a, GAS. at
Large, p. l04, which proVldesi 80 I'd. b
ufrhAt the power claimed and exercised as
By his own aathoSlts he personal sH sSst.sI. y
his tenant for rent arreAr IL hereby abolished,
and instead Of II the landlord shall have q tacit
tells upon tho premises IS are subject TO exeeu.
ton for debt, to commence with the tenancy
and oontlnue for three months after tho rent
for such rent brought within said three
| months. And this may be enforced "A. r..
MFirlt BY attachment to DO issued upon
not due, that the defend ant is aboutto remove
or sell all or some Of said ohattels; or,
"Seeond; BY judgment against the tenant,
/ ana execution 10 DO IeNleQ on nhlu onALLoIn. OF
any Of them, In whosoever hands they may DO
THIRD. BY s,tlon sgsius, any purchaser Of
any 2, ss,a Sh Az Tth noIss o. ths len !,
/ for the value OF the ohAttels purchased 6V the
defendant, but not exceeding the rent 10 Atrear
The question arises whether the landlord
under this act was authorized 10 proceed
against this property by attachment, while
Il was In the hands Of bona fds purchaser,
| without notice.
Tho plaintiffs right 10 the remedy he has
sought against the defendant, must be made
70 depend upon the provisions Of this statute,
and necessarily leads TO an inquiry as 10 lie
legal signincatlon and proper construction.
Tho first question 10 "What arc tho rela-
lions Of the respective parties to the prop.
l-ertyp The plaintiff sustRlns the relation
Of bona dds purchaser upon good consider.
ton, and without express notice Of lien Of
Membranes.
The defendant, the relation OF landlord Il
to the tenement upon which the property
was located. M
Tho property having boon attached b.
the defendant, this action IL brought by thu
purchaser, without notice, to recover Il
back. "
The statute provides remedy by actor
against tho purchaser Of said chattels
1 r. ID
pllcation, denying the right Of action whor,
the party makes purchase ioithoHt notice o.
tho lien. Is this right extended under TIT
proylsions Of this statute when all Its pro
visions are read together, as claimed b.
counseli II Is urged that the earlier proVi
sions Of the statute defining the lien created
an incumbrance In behalf OF the LANDLORD
that cannot be satisfied as against the specl
DC property, except by the payment Of hi
rent, and that all sales and other disposition
OF the property Incompatible with the lnteg
rity Of the lien as against him are void. i
the statute had stopped with tho creation ant
definition Of the lien, without reference 4
the remedies for its enforcement, the posi-
ton would be correct; but, unfortunatel,
for that conclusion, 1t docs not. Il proceed
TO provide q remedy having reference 10 To
conditions Of the property. Tho first tw
provide . spooiho remedy upon tho proport
OF the tenant, where the same has not beef
allenated by sale, oven anticipating th
rent duein the remedy, and providing 70
the landlord q precautionary process agnlns
It's sale or removal. The third makes pro
vision for an action against the purchase
Of that property, provided the purchase ha
been made with notice Of the obligation Q
the property, TO satisfy Indebtedness 70
rent.
| Now, whether these remedial provision
OF the statute are 10 be regarded as segrS
gated from that portion Of the statute pre-
yiding for q lien, and treated In the II
| strlcted sense OF remedies, 10 enforce q con
plete statute, OF whether they arc TO b
treated as qualifications or provlsos TO tha
portion OF the statute estabilshing the Her
In giving construction and effect TO ID
statute, appears 70 us quito immaterial.
the third item In the schedule Of remed
| was designed by the law-maker as a qualif
| cation OF that portion OF the statute d.
claring the lien, clearly no action can b
maintained BY the landlord against tho bon
dla purchaser without notice. IL II Is 10 !
treated In the light OF q remedy II is equal
fatal, inAsmuch as the law provides .
right In the foundations Of this lien. vii
statutory process In remedy Of the lien. "
arc Inclined to treat II In tho light Of bot
The right and the remedy are corelatlV
and enforce corelatlye limitations upon eag
other. Il IL an axiom Of the law that l
| right exists without o remedy. The stat
L tory provision for remedy In the presai
Instance ia proof conclusive that no ,rigl
exists beyond II. ,.t.. -..-rr-I..gI I.
, This construction q vlndlcated by Il
I spirit and purpose Of the statutes. At u
time Of the passage OF the act, the rlghts
tho landlord In the premises were egnlatc
by the common law, establishing In him u
right OF destraint upon all property upon Il
promises for rent arrear, and TO DO execute
BY the process Of the landlord himself,
Tho common law made the Landlord h
own Judge and sheriff, and permitted hll
; | BY his own act 10 execute his Judgment, NJ
, | only upon the property Of tho tenant, b
also upon the property Of a stranger upon u
lptemlses. 49,. .., ..,-r..lg. u.
Among tho obvious objects Of the lay
makers, Il Is manifest they Intended 10 pos
pone the landlord az Judge In hIa own cas-
and refer him TO tho courts OF Justice, on
restrain him In tatisfhctlon Of Ills debt
the substance Of his dehtors. ~ NJ,
= Having disposed Of relic OF oppresslo
Inherited from o laud-holdlng aTiatoerac
Congress proceeded 70 enact this statute
: restraint Of the landlords re-exlstlng right
: The construction claimed In argument 4
defendant would work out the injustl
which the statute was enacted 10 avoid.
q would again subject the Strangers proper
TO the payment Of the LANDLORDS debt. O.
D tainly there can DO no distinction In pri
ciple between bona tide purchaser from q