Stamps v. Gilman & Co.

Citations

• 43 Miss. 456

Syllabus

<p>1. Landlobd and Tenant — Attachment fob Rent not Doe — Removal of Goods by Tenant. — It is not ovory contemplated removal by a tenant of his effects from the, leased premises, that will warrant an attachment -under art. 3, p. 340 of the Rev. Code. It must be such a removal as would defeat a distress for rent.</p> <p>2. Distbess at Common Law. — Distress for rent at common law was a dormant righ t of the landlord to seize the tenant’s effects as a means of compelling the payment o ^ rent. The right was utterly impotent, and in no wise encumbered the title of the tenant till the right was made active by an actual seizure.</p> <p>3. Distress Under Mississippi Statutes. — The right of distress by attachment in favor of a landlord exists under the statute, not because of any lien at common lav? or by statute, but because of rent in arrear, or because of a contemplated removal.</p> <p>4. Legal Relations op Landlord and Tenant. — But subject to the landlord’s right or privilege of attachment or distress, to be made active only by its exercise, the tenant is as completely the owner of his effects as any other debtor; and excepting this right or privilege, the landlord has no advantage over other creditors.</p> <p>5. Saving Landlord’s Right against Judgment Creditor-Eng. Stat. 8 Anne C. 17. — The provision of the Rev. Code, art. 288, p. 531, forbidding sales under execution in certain cases, unless a year’s rent be paid or tendered, implies no lien in favor of the landlord. The British prototype of this statute (S Airne, ch. 17) has received repeated interpretation by the English courts Co. Litt., 47, C; 1 Strange, 97; 1 Atk., 104; 2 Wilson, 141; 5 Maulé & Selw. 38.</p> <p>6. General Principle. — A debtor is under equal duty and moral obligation to pay all his debts; and he has a right at common law to select one rather than anothor. 15 Wend., 396; 7 Bing., 243 ; 3 J. J. Marsh, 4S2 ; 3 Watts, 247.</p> <p>7. Goods Sold and Remaining on Demised Premises — Rule and Exception