
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1803.
    Benoist & Dumouchet v. Sollee.
    To intitle a party to distrain for rent, there must be an agreement, either verbal, or in writing, for a sum certain, to be paid as rent.
    A landlord cannot avoid an agreement for the use and occupation of the land, rent free, on the ground of usury, in an action of replevin to try his right to distrain for rent.
    An agreement that land may he occupied rent free, in consideration of the loan of a sum of money, cannot be considered usurious. Semble.
    
   Motion for a new trial; in replevin, before Johnson, J. in Charleston. The defendant made avowry ; to rebut which, the plaintiffs produced a paper writing in evidence, of the following tenor: “ Whereas, I, John Sollee, owe to the ladies Benoist, sisters, the sum of £150, sterling, which they have lent me for the purPose °f carrying on my buildings; I, the said John Sollee, agree cheer-f°r me an^ my heirs, that the said ladies Bonoist shall possess and occupy the house they have rented from me, and they shall not pay any rent whatsoever, from the 1st inst., until I shall have faithfully paid the just sum aforesaid ; and besides, I agree that the house shall be freed from any rent whatsoever, for one month after the payment made in full. In consequence of the above obligation, I have signed, ás'c., 22d Aug. 1795 ; John Sol-lee.” Verdict for the plaintiffs.

Pringle, for plaintiffs. Besatjsstjre & Ford, for defendant.

It was contended for the defendant, that this writing, imported on the face of it a contract that was usurious, of which the de» feudant is entitled to take advantage. The court (Bay, Johnson, and Trezevant, Justices, in the absence of Grimke, J., Watiiss, J., and Brevard, J.) determined that a new trial should not be granted, principally because the agreement for the occupation of the premises, contained no reservation of rent; and that to entitle a party to distrain for rent, there must be an agreement, either verbal, or in writing, for a sum certain, to be paid as rent, The court were also of opinion, that the said writing produced in evidence, could not be considered in the light of an usurious agreement; and if it could be so considered, the defendant was not entitled to take advantage thereof, in the way insisted on for him,

New tria} refused.  