delivered the opinion of the court, May 2d 1881.
This complaint is against the plaintiff in error, as bailiff of Powers & Weightman. As such he distrained, for the non-payment of rent, goods on the premises demised by them to Hall & Richardson. The warrant issued, and the distress was made on the 20th of April 1878.
That rent was then due and unpaid is found as a fact. That the goods of the defendant in error found thereon were liable to distress for the rent, cannot, under numerous authorities, be questioned: Karns v. McKinney, 24 P. F. Smith 387.
What, then, is the grievance of which the defendant in error complained, and which he sought to redress in this action ? Without the consent of Powers & Weightman, he appears to have leased a portion of the demised premises of Hall & Richardson. Claiming the latter had goods on the premises of sufficient value to satisfy the rent, he demanded of Powers & Weightman that they should release his goods and first proceed against the goods of Hall & Richardson. He also requested the bailiff to proceed first against their goods. On their declining so to do, he, on the second day after the distress, brought this action of replevin for his goods, and gave bail to the sheriff. The latter made return that he had replevied as commanded; had duly summoned Jimison on the 24th of April 1878, and delivered the property to Reifsneider, and nihil hahent as to the other defendants.
The plaintiff in error made cognisance. The first plea thereto denied that he was bailiff, and the second that there was any rent in arrear. On both these pleas the 'jury found for the plaintiff in error. The third plea averred that, at the time of taking the goods of defendant in error, the bailiff also took, in the same distress, goods of Hall & Richardson, of value more than sufficient to satisfy the rent, and afterwards, to wit, on the 23d of April 1878, that said Powers & Weightman and said Jimison did release and discharge said last goods from said distraint, knowing the goods 'in said cognisance mentioned belonged to defendant in error. The replication denied all. such release and discharge of said goods. Issue was joined on the pleas, and on this third plea the jury found *1413n favor of the defendant in error. They also found the property distrained was of much greater value than the rent in arrear. The court considered the distress excessive. It appears to have assumed that fact to be fatal to the right of the landlord to dis-train, and thereupon entered judgment against the plaintiff in error.
The question of excessive distress was irrelevant in the action of replevin, and the evidence thereof inadmissible: Karns v. McKinney, supra. If, in fact, the distress was excessive, the proper remedy is by action on the case, founded on the Statute of Marlbridge: 3 Black. Com. 12; Roberts’s Dig. 177; McKinney v. Reader, 6 Watts 41; Karns v. McKinney, supra.
All the facts necessary to give a right to distrain existed. It was exercised by making one distress on property found on the premises, a portion of which belonged to the under-tenant. One complaint now is, a refusal within two days after distress made, to release and discharge his goods from the distraint, or at least to agree to sell first the goods of Hall & Richardson; the other is that the said last goods were released and discharged from the levy. The evidence sustains the fact averred in the first complaint. No authority was cited showing such release to be demandablo of right. None that it was error to refuse. The uncontradicted evidence is, that the bailiff made but one distress, and did not at that time know anything about the ownership of the goods distrained. There is no evidence that any of the goods of Hall k Richardson were released and discharged from the levy before the writ of replevin was executed. After its execution, the landlords told their bailiff to stop proceedings. Thereupon he did nothing further, but let them have them, and, as we have shown, the sheriff delivered the others to the defendant in error. This action was not for detaining the goods of the defendant in error after they were replevied, but for refusing to release them before they were replevied. There was really no evidence in support of the third plea to submit to the jury. But having been found they were insufficient, in law, to support the judgment, it was assumed by the learned judge that the defendant in error had paid his rent to Hall & Richardson. A careful examination fails to find any such averment in the pleadings, or in the evidence on the trial; nor is it found in the verdict as set forth in the paper-book. If, however, such was the fact, it in no wise changed the right of Powers & Weightman to distrain his goods. He was not their immediate tenant; they had not recognised his tenancy. He had not paid them, nor by their authority paid to any other person : Quinn v. Wallace, 6 Whart. 452. When his writ of replevin was executed, he gave security which was satisfactory to Powers k Weightman. The goods of the plaintiff in the writ were taken out of their hands. They had a right to rely on that security. They were precluded from then proceeding further *142against the goods thus replevied, and had an undoubted right to stay-proceedings against the other goods distrained. In so doing, after the writ of replevin was executed, they did not in the least render invalid any act of theirs prior to its execution, which was valid when performed.
The court therefore erred in not entering judgment in favor of. the defendant below, on the whole record, notwithstanding the verdict on the third plea. This view of the case makes any more specific answers to the assignments unnecessary.
Judgment reversed, and judgment in favor of the plaintiff in error, non obstante veredicto.