delivered the opinion of this court:
Whatever may be the law elsewhere, in this State when a debtor applied for the benefit of the insolvent laws under the act. of 1805, ch. 110, and its supplements, his property came under the custody of the law, for the benefit of his creditors. Alexander vs. Ghiselin, 5 Gill, 138. Waters vs. Dashiell, 1 Md. Rep., 455. And it being well settled that goods in the custody of tile law are not liable to be distrained, it. follows that the distress relied upon by the appellee cannot be sustained, the property at tile time having been beyond its reach.
That a claim for rent is of peculiar character, and may be recovered in full, when other creditors of the tenant will be allowed a dividend only of his estate, cannot be denied. But we do not understand this to lie in consequence of the rent being, per se, a lien on goods found on the premises. It is because the law allows the landlord to collect, his rent by seizing the property as a pledge, to be dealt with according to its requirements. That it hinds as a lien only when this legal right of distress has been exercised, is conceded by the appellee’s argument, and the cases referred to show this to be the law. Eden, 304. Bouvier’s Bac. Abr., 695; In England the doctrine in cases of bankruptcy is different from the law in this State in cases under the insolvent system. According to their decisions the landlord is allowed a preference, although he distrains after the bankruptcy; but it is upon the ground that the proceedings do not. place the property in custodia legis, as we hold the acts of insolvency do here. It follows, there*156fore, that if we are right in saying that under our acts of Assembly the insolvent’s estate is placed in the hands of the law, the reason of the English rule is against allowing the appellee a preference. 1 Atk., 102, 103, 104.
The legislation upon the subject indicates that rent was never considered as possessing the attributes of a lien. If so, why was it declared by the statute of Anna that sheriffs, levying executions, should satisfy one year’s rent? If rent was a lien before the statute, the property passed to the sheriff, incumbered with the landlord’s claim; and the plaintiff in the execution could have had satisfaction only after payment of the rent. Again, by our act of 1836, ch. 192, such demands, under certain limitations, are allowed priority in the administration of deceaseds’ estates without a distress. Surely this act would not have been passed-if it had been supposed that rent was already a lien or incumbrance. The act of 1826, ch, 266, does not, as we think, support the appeliee’s claim. It relates to removals of property “by the tenant, or by his order and direction,” declaring certain removals to be clandestine, and does not, in terms or by intendment, affect titles acquired by insolvent trustees.
But we think the act of 1805, ch. 110, sec. 7, is decisive of the question. It gives priority to judgments, incumbrances and liens; but it declares also that no process against the property. shall have any effect thereon, “except writs of Ji. fa. actually and bona fide laid before the time of the application.” Whether a distress for rent levied before that time is process within the intent of the act, does not arise on this appeal; nor would such a construction aid the appellee, because he made no such distress. The point is, whether, without a previous |§vy, the demand for rent, due at the time of the application, accompanied by a subsequent distress, followed the property as an incumbrance or lien into the hands of the trustee. The design of the law was to prevent creditors from acquiring liens after the application, and to deny preference to claims which had not become liens before. If a distress warrant be regarded as process, it is excluded by the last words of the section, having been'levied too late; and if rent is pot q lien or incumbrance, *157the present claim is not protected by the previous clause. We consider this section as equivalent to a denial of the preference asserted on the part of the appellee.
We do not think that this view of the subject deprives the landlord of any peculiar right. The law has granted him a remedy enjoyed by no other class of creditors. If he fails, when entitled, to avail himself of it, he has no more reason to complain, if loss results, than has a judgment creditor who neglects to sue out his fi.fa. and have it laid before his debtor becomes an insolvent petitioner. As happens in other cases, the landlord here has lost his preference by delay, and we cannot relieve him without disregarding what we take to be well settled principles of law.
The order ratifying audit No. 2 must be reversed, and audit No. 1 ratified and confirmed, according to the case stated; but costs will not be allowed in this court.
Order reversed.