
    
      Elias Jackson vs. Jesse Lee.
    
    Plaintiff declared, under statute 2 "W. and M. c. 5, for distraining where no rent was due : at the trial he proved a distress for more rent than was due j for more goods than enough to satisfy the rent; and that com growing and potatoes in the ground were distrained: no motion was made for a non-suit because the allegation and proof did not correspond, nor was objection made on that ground until the plaintiff’s counsel had nearly closed his argument to the jury: verdict for plaintiff, and new trial ordered with leave to plaintiff to amend.
    
      Before Frost, J., at Marion, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ At the opening of the case, this was stated to be an action to recover damages for an illegal distress. It was shewn that the defendant had issued a distress warrant dated the 8th Oct. 1851, for $42 61, ‘ part of two years’ rent due’ the 1st of October in the same year. The first year’s rent was $25, of which a balance of $5 was due, and the rent of the second year was $35, making $40 due, at the date of the distress warrant. The bailiff levied on some seed cotton and' fodder, and also on some corn in the fields and potatoes in the ground. They were appraised at $53, and were sold for $56 : — balance over $42 61 was paid to plaintiff.
    
      “ A motion was made for a non-suit, on the ground that the plaintiff, in the declaration, alleged the rent distrained for, to be sixty dollars, and that no rent was dpe ; whereas the evidence shewed that only $42 61 was distrained for, and that $40 was due. The motion was over ruled, because on the defendant’s statement the plaintiff had established a cause of action, by proof of an excessive distress.
    “Evidence was then offered by the defendant, (in mitigation of damages,) that the plaintiff was trying to evade the payment of the rent, by offering his cotton for sale, &c., &c.
    “ In the course of the argument it appeared that the plaintiff claimed, as damages, double the value of the goods distrained, under the statute 2, William and Mary, made of force in this State. On reference to the statute, it appeared that such damages are allowed in case the landlord should distrain and sell the distrained goods, under the provisions of the statute, when no rent was due. So the plaintiiPs attorney was told that the damages he claimed, under the statute, could not be given ; but he might recover general damages. W hen the argument was nearly concluded, the defendánt’s attorney objected, that the declaration was framed under the statute, and that the action being so brought, if the plaintiff did not make out a.case under the statute, no damages at all could be recovered. The case was so nearly ended, I thought it best to let a verdict be rendered ; and without considering the question of pleading, disallowed the objection, and directed the jury that they might find general damages.
    “ Respecting the assessment of damages, the jury were instructed that the plaintiff was entitled to recover certainly the excess of the rent distrained for, above what was due. They were advised that they might give more. That the plaintiff had sold effects to an amount exceeding the rent claimed, was stated to them as a subject of damage, and the sale of the corn in.the field and of the potatoes in the ground, was disadvantageous to the plaintiff. They were told that such sale was illegal, but the illegality of the sale was not declared on, as a cause of action. Yet that the injury sustained by the excessive sale might be compensated in damages. They found for the plaintiff $ 13.”
    The defendant appealed, and now moved for a non-suit or new trial, on the grounds :
    1. Because the plaintiff’s declaration set forth the cause of action expressly under the statute of 2 William and Mary, and having admitted that the greater portion of the rent distrained for was due at the time of the distress, was not entitled to recover on the case made by the pleadings.
    2. Because the amount of rent distrained for was due at the time of issuing the warrant, and if not all due, there was so small a difference, that it clearly appeared the difference was a mistake of the magistrate who made the calculation of the amount of rent due ; and there was nothing in the case going to show oppression or misconduct on the part of the defendant.
    3. Because there was no claim made by the declaration of damages sustained, on account of corn standing in the field and. potatoes in the ground; and the plaintiff was entitled to recover nothing for these items.
    4. Because the plaintiff was entitled to recover only the excess of the distress, if entitled to recover at all, which the defendant insists was not the case ; and that the verdict was corn trary to law and evidence.
    
      Harllee, for the motion.
    Miller, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The declaration in this case is framed under the statute 2 W. and M. c. 5, § 5, for distraining where no rent was due. (2 Stat. 531.)

The proof did not sustain this allegation : and therefore a motion for non-suit might have prevailed if this objection had been made at the proper time, but it seems it was not started on the trial below, until the plaintiff’s attorney was near the close of his argument. This entitles it now to no favor, and if the case could be sustained under the verdict, as the record now stands, I should be disposed to do it. But the case made is so wholly foreign to the allegation, that we cannot permit the judgment for the plaintiff to be entered.

As it, however, appears, he has a meritorious cause of action, for that the defendant distrained for more rent than was due : that he distrained more goods than enough to satify the rent, and that he distrained the corn growing and potatoes in the ground; we will not turn the plaintiff round, but order a new trial, with leave to the plaintiff to amend by adding a count or counts to cover the injuries which he has sustained.

It is, therefore, ordered, that a new trial be granted : that the plaintiff have leave to amend his declaration by adding one or more counts, as he may choose, provided the said amendment be made within the nest sixty days : and the plaintiff shall post the usual thirty day rule requiring the defendant to plead to the same.

Wardlaw, Withers and WhitNer, JJ., concurred.

New trial ordered.  