APRIL, 1810, On these grounds, I am of opinion that the judgment of the District Court ought to be reversed, and that of the County Greenbow Court affirmed. But the Court being divided, the latter judgment V. Barton. must be AFFIRMED. Tuesday, 1. A landlord is not entitled by motion, on a that such bond was ta She Smiths against Ambler and others; and Smith and Weaver against the same. THESE two cases were argued and decided together. In to the sum- each a judgment was obtained on motion, (the parties being make distress, fects. agent, may levy a not sell the bonds were witnessed by " James Edmunds, D. S.” distrained ef fects, which, The judgments in question were affirmed by the District in such case, Court holden at Haymarket; and writs of supersedeas to both a were awarded by a Judge of this Court. are only to be held as pledge, compel to tenant to pay the rent. the The petition for the supersedeas assigned three errors in each 2. That it did not appear, from any thing shewn by the proceedings, what were the costs charged by the persons levying the said distress, which are said to be included in the condition of the said bond; and, 3. Because it appears by the condition of the replevin bond that the said distress was made by the obligees, to whom thẹ 1 rent was payable, in person, and not by any officer who could have been authorized to make sale of the property distrained. Botts, for the plaintiffs in error, did not waive the two first points, but pressed the third, as sufficient to reverse the judg ments. APRIL, 1810. Smith V. Ambler. c. 89. s. 1. Call, contra. The act of Assembly, (a) it is true, speaks only (a) 1 Rev. of the "Sheriff or other officer serving the distress;" though Code, p. 133. by the common law, distress might actually be made by the landlord himself; and the constant practice is for him to give a warrant of distress. But that is no question in the present cases. The defendants made no objection on that ground, so as to enable the plaintiffs to shew that, in fact, the distresses were served by an officer. The court will intend that all the requisites of the law were complied with, since the contrary does not appear; especially when it appears that the general tenor of the law has been followed. On the same principle this Court affirmed a judgment on a forthcoming bond, in which no security had been given.(6) Wickham, in reply. As I understand the law, though the landlord may distrain in person, he must, in that case, proceed according to the course of the common law. He must hold the property as a pledge, to compel the tenant to pay the rent; but he cannot sell. If he proceeds under the statute, he must employ an officer. The tenant has one advantage, he may gain time: the landlord has another, the property may be sold. case of a forthcoming bond (referred to by Mr. Call) is not analogous to this. The granting the debtor indulgence, without requiring security, was a benefit to him; and no man shall be permitted to object to that which is for his own benefit. The I have no doubt but these are good bonds at common law, and actions may be maintained upon them. Suppose no statute had been made; and the tenants had offered security for the money on being indulged three months; the landlord, I apprehend, might have accepted the bonds, and recovered upon them. But he cannot resort to the summary remedy by motion, with (b) 3 Call, 13. Washington v. Smith, APRIL, 1810. Smith V. Ambler. (a) 2 Wash. 57, 58. out strictly complying with the terms of the statute which gives that remedy. Wednesday, May 30. The Judges pronounced their opinions. Judge TUCKER. This appeal is from a judgment on a replevin bond taken to replevy goods distrained for rent. The condition of the bond recites, that the appellees (not saying by a Sheriff or other officer) had distrained the goods, &c. of the appellant, A. S. for rent in arrear, which had been restored to him in consequence of entering into that bond. There is the name of a witness to the bond, who does not designate himself as an officer; nor is there in the record any thing to shew that the distress was in fact levied by an officer. The County Court gave judgment by the obligees, on motion: that judgment was affirmed by the District Court. ses. The right of distraining for rent arrear is a common law right, which every landlord may exercise in person, or by his bailiff; that is, by an agent, authorized for that purpose, who might seize any goods or chattels of the tenant found upon the premiBut the distress so taken was, by the common law, only in nature of a security for the rent, and could not be sold to make satisfaction. This proving a great inconvenience to landlords, statutory remedies have been provided, both in England and in this country; which are nearly the same. Our law declares, that "where any goods or chattels are distrained for rent, if the tenant shall not, within ten days, replevy the same, by sufficient security given to the Sheriff or officer serving such distress, to pay the money, &c. such Sheriff or officer shall and may sell the goods," &c. In the case of Ferguson v. Moore,(a) Judge Lyons, in delivering the opinion of the Court, said, "It is true that at common law a distress might be levied by any private person, authorized by the landlord for that purpose; but it is equally true, that such person, so appointed, had no right to sell the property distrained, or to take a replevy bond." The power of selling is given by statute, and can only be done by an officer; that is, one duly qualified as such. Now, here, it does not appear that this distress was served, or the bond taken, by an officer. We must, therefore, understand it (as the bond seems to import) to have been levied by the landlord himself, or his private agent. To entitle him to the benefit of a statutory proceeding by motion, instead of an action of debt, the plaintiff ought to have shewn that he had proceeded regularly according to the directions of the statute. That not being the case, the judgment is erroneous, and ought to be reversed. APRIL, 1810. Smith V. Ambler. The acceptance of a bond for rent (unless taken as the act di-, rects) does not extinguish the rent; for that is higher than the bond; and, where the tenant gave a note for the rent, and the landlord afterwards distrained for the rent, upon trespass brought by the tenant, it was held that the landlord might nevertheless distrain. Our act of 1748, c. 10.(a) declared, that bonds taken (a) Edit. of pursuant thereto should have the force of judgments; which 1769, p. 202. shews the great difference the law intended to make between a bond taken by a private person, and one taken by an officer pursuant to the statute. (¿) Judge ROANE. It ought to appear in the bond, in order to justify this summary remedy by motion, that it was taken by a Sheriff, or officer making the distress, in whom confidence is reposed by the act, touching the amount of the money, or tobacco, and the costs due, for which the bond is to be taken, as well as respecting the sufficiency of the surety to the bond. Where it does not appear to have been the act of the officer, the party himself may have exacted bond for more than was due, or been otherwise guilty of duress or extortion: in which case he ought not to have the high privilege of getting judgment in a summary way, and the further privilege that on the execution of his judgment, “no security is to be taken." I will hold the party to a strict, if not literal, compliance of the law, (and that as appearing to this Court,) before I extend to him the privilege of the summary remedy. (b) See Bull. N. P. 182. The case of Ferguson v. Moore(a) is supposed to be an autho- (a) 2 Wash rity, that a bond taken under the act in order to warrant a judg ment by motion, ought to be taken by an officer. My opinion, therefore, is, that the judgment be reversed. Judge FLEMING was of the same opinion. 54. APRIL, 18:0. Smith V. Ambler. BY THE WHOLE COURT, the judgments of the District Court and County Court both reversed, and the motions overruled with costs. Wednesday, 1. A vendor of land accor lines must be Moon against Campbell, Executor of M'Donald THIS case was argued by Hay, for the appellant, and Wickding to certain ham, for the appellee; being an appeal from a decree of the Supresumed in perior Court of Chancery for the Staunton District, by which a terested, and decree of the County Court of Berkeley was reversed. therefore in a witness, to competent as The only point of importance was, whether Magnus Tate, who establish those had sold the land in controversy to M'Donald, the plaintiff in lines, unless he did not warrant title. the it appear that equity, was a competent witness in his favour to establish the lines by which he had purchased from Tate, as the plaintiff himself alleged in his bill. The deed from Tate to M'Donald did not appear in the record; nor was it stated whether it contained a clause of warranty or not. Wickham contended, that the party attempting to impugn the competency of the witness, ought to prove that he warranted the land according to the lines in question. On the other side it was insisted, that prima facie the witness was incompetent; and that the burden of proof lay on the party who wished to avail himself of his testimony. Saturday, May 12, 1810. The Judges delivered their opi nions. Judge TUCKER. This cause, which has been eight and twenty years nearly depending, had its origin in a tortious partition and sale of lands held in joint-tenancy between James Moon, of full. age, and Jacob Moon, an infant under the age of twenty-one years, by the former, without the consent of the latter. The partition is alleged to have been made some time in the year 1755; and the metes and bounds are particularly set forth in the bill. In June, 1755, James Moon conveyed the part which he had allotted to himself, and which, by a survey made in the cause, is found to contain 504 acres, to Magnus Tate, by deeds of lease and release, leaving to his younger brother 292 acres, as his |