
    B. Bagwell v. J. Jamison.
    
      Qumre, whether so much of 11 Geo. 2, c. 19, is of force here, as provides that defendants entitled to rent may give special matter in evidence under the general issue.
    
    In trespass against a bailiff, for levying under a distress warrant alleged to be void, defendant justified by plaintiff’s admissions that rent was due. Acknowledgments by the landlord, (deceased,) of partial satisfaction, were admitted in reply.*
    Levy, under a distress warrant, some months after the death of the landlord who had issued it, was a trespass ; for the warrant was but a power of attorney, which expired eo instanti with the principal’s death.
    Executors and administrators may not distrain for rent due at the death of their testator or intestate. The stat. 32 Hen. 8, c. 37, to the contrary, not of force here.
    The acquiescence, in a trespass, of one who has been deceived by a pretence of legal authority, is not such consent as to affect his remedy at law.
    Trespass vi et armis is the proper remedy for a levy under a warrant avoided by the landlord’s death, or under a pretence of authority in his administrator.
    Before Earle, J., at Laurens, Spring Term, 1840.
    
      Trespass vi et armis, for taking certain household chattels, &c. The talcing, in September, 1838, was proved, and a subsequent sale by the defendant, to the amount of about one hundred and fifty dollars.
    On the general' issue, the defendant was permitted by the plaintiff to justify. He relied on a distress warrant issued by one Kingman on the twenty-sixth April, 1838, for one hundred and ten dollars, claimed as rent for 1837. Soon after issuing this warrant, Kingman died, and the subsequent proceeding was under the authority, or by the direction of Squire Colhoun, the administrator of Kingman, who was present on the occasion of the levy. The advertisement of the sale was signed by Col-houn, and bore date the twelfth September, 1838. The defendant relied, also, on the plaintiff’s acknowledgment that rent was due, and on his not resisting the levy, or forbidding the sale, but expressing his anxiety that the rent should be paid.
    The evidence on the question of rent in arrear was uncertain, and consisted entirely in admissions of the plaintiff. In reply to which, (there being no actual demise shown, nor any evidence in writing, or by parol, of the duration of the term, or of the amount of rent reserved, or when payable,) the Court admitted the admissions of Kingman to be proved, that he had received near three bags of cotton in the Fall of 1837, in payment of rent. Such admissions, the presiding Judge observed, he apprehended were competent under any circumstances. The warrant was the act of the landlord only, and, to afford a legal justification to his bailiff, it should have been made to appear that the landlord had authority to issue it at the time, and for the amount specified.
    But, expressly waiving that point, his Honor put the case to the jury on the single ground that the death of the landlord, after granting the warrant to the defendant, and five or six months before any proceeding was instituted under it, was a revocation, in law, of the authority; and that the administrator could not, afterwards, enforce the distress by levy and sale.
    
      On the principle of volenti non fit injuria, the jury were instructed that the plaintiff might have waived the trespass by assent; but not, if his submission arose from the impression that he could not resist what he was led to believe was a legal process.
    Verdict for the plaintiff three hundred dollars.
    The defendant moved the Court of Appeals for a nonsuit, because the action for the injury alleged should have been case and not trespass.
    
    And for a new trial on the following grounds:
    That the declarations of Kingman had been improperly admitted:
    That his Honor erred in charging that the warrant was void, notwithstanding the plaintiff had consented to the levy and sale.
    
      
      
        Ante 100. An.
      
    
   Curia, per Earle, J.

The general rule of pleading in actions of trespass, at common law, is that, whenever the act complained of would, prima facie, appear to be a trespass, any matter of justification, or excuse, such as a warrant, or other authority, must be specially pleaded. The statute 11 Geo. 2, c. 19, provides that, in actions against persons entitled to rent, they may plead the general issue, and give the special matter in evidence. That statute has not been made of force in this State; although in Pemble v. Clifford, (2 M’Cord R., 41,) the Court says that it “has been adopted in practice, and, as a usage, has become obligatory upon us.” There are other important provisions in that statute, which I am not prepared to say that I should consider part of the statute law here; and how far it is to be considered of force, I shall reserve my opinion until some question shall specially arise.

The defendant, in the case under consideration, relied for his justification on the warrant of distress issued by King-man, April 26, 1838. As it was only the private act of the landlord, it had none of the force of a judgment, or execution, so as to be conclusive evidence of rent in arrear; and it was necessary to prove, in some way, that rent was due. The acknowledgments of the plaintiff were competent for that purpose, and, if sufficiently explicit and certain, might have established both the tenancy and the amount of rent due. If they were competent for that purpose, surely the admissions of the landlord, who gave the warrant, and for whose benefit the distress was made, were equally admissible to show that the rent had been paid, either in the whole or in part. Such admissions do not come within the rule of hearsay evidence, and are not rendered competent in consequence of the death of the landlord: they are competent as the admissions of the principal party in interest.

A warrant of distress is nothing but a power of attorney. The bailiff, or other person executing the warrant, is only the agent of the landlord. And the power, both in regard to the extent of the authority and its duration, is to be construed according to the law of principal and agent, except where regulated by statute. It is the general and settled doctrine, that the authority of an agent determines by the death of his principal, which is an absolute and instantaneous revocation of the authority of the agent, unless the power be coupled with an interest. (2 Kent Com., 646.) No valid act can be done in the name of a dead man.

The defendant, having exhibited the warrant as his justification, ought, perhaps to be held to it, in the same manner as if he had pleaded it specially. But his defence, in the argument here, has been put, in part, upon the ground that Col-houn, the administrator of Kingman, by whose order the distress was made, was himself personally present, and, therefore, that it was a lawful distress, without the warrant. At common law, neither the heirs, executors, nor administrators of a man seised and entitled to rents, had any remedy for the arrearages incurred in the lifetime of the owner of such rents. (Co. Lit. 162, a.) For remedy whereof the stat. 32 Hen. 8, c. 37, provided that the executors and administrators might distrain for rents due their testator or intestate, at the time of the death,'upon the land charged with the rent; and a later statute, in England, in the time of William IY., has been found necessary further to extend this right of the representatives of a deceased landlord. But the stat, of 32 H. 8, has never been made of force here, either expressly by the Legislature, or by necessary implication; nor am I aware of any judicial decision by which it has been held to be of force, as other English statutes have been, especially on the subject of rent; and sometimes, perhaps, without sufficient reason. The remedy by distress is a rigorous proceeding, often harsh in its operation, not congenial to the spirit of our institutions and government, and not to be extended beyond the clear and settled limits, except by express enactments of the Legislature.

That the plaintiff might waive the want of legal authority to distrain, and might assent to the taking and sale of his goods, so as to prevent him from maintaining trespass, is clear enough, and so the jury were instructed. If he was misled into acquiescence by a show of authority which was not legal, but which he was induced to believe was so, it was only an aggravation of the trespass.

If the warrant of distress was a nullity, in consequence of the death of Kingman, and if the administrator had no legal power to make distress, either personally or by bailiff, then the defendant’s justification only fails, as there was no lawful authority for taking the goods, although there may have been rent in arrear. It was not a mere abuse of authority so to make case the proper remedy; but an unlawful taking, without authority, and trespass was properly brought.

Sullivan, for the motion;

Irby, contra.

The motion for nonsuit, as well as for new trial, is therefore refused.

Gantt, Evans and Butler, JJ., concurred. Richardson and O’Neall, JJ., absent. 
      
       6 Rich.. 213. An.
      
     
      
      
         See 1 Sp. 285. An.
      
     
      
       2 Stat. 579. An.
      
     