
    A. Talvande vs. O. Cripps, et. al.
    
    Upon demurrer, notwithstanding the defects of the pleading demurred to, the ■court will give judgment against the party whose pleading was first defec* tive in substance.
    If tennants in common join or are joined in a suit, as avowry for rent, they must plead jointly; but if each proceeds for his own, each miist avow, for himself.
    In an avowry for double rent, under the act of 1808, the avowry need not state that three months in writing to quit, was served on the tenant, where the tenant himself gave such notice of his intention to quit.
    Under the act of 1808, the demand in writing to be made, for surrender of possession by the tenant three months afterwards, need not be made by all the tenants in common, but it is sufficient if made by one tenant in common, requiring delivery ofpossession to him,for himself and co-tenants.
    
      After verdict, upon an avowry for doable rent, a demand before the distress will.be presumed. But when the tenant himself gives notice of his intention to quit, a demand may be made after distress; and quiere, if any demand is necessary.
    The law allowing a landlord, to distrain for double rent, where the tenant holds over after notice to quit, is not unconstitutional; for by the continu- - anee of the tenant he makes it his contract.
    When the jury find for a defendant on all the issues made, a general verdiptis good.
    Action of Replevin.
    Tried before his Honor Judge Huger, Charleston, May Terra, 1821.
    The plaintiff had occupied a house belonging to the defendants, for the rent of which they distrained. The plaintiff replevied and the defendants avowed and contended that they were entitled to double rent, under the act of 1808s as plaintiff held over after notice to quit had been given.
    
      Á note from the plaintiff was produced, dated Miareis '23rd, 1818, in which he gives the defendants notice that he would quit at the end of the year. On the 2nd of June following, he addressed them another note, stating that he must hold over. On the 29th of June, 1818, the plaintiff was informed, through Mr. Abbott, that he must quit the house, and if he held over, he must pay ‡ 2,600, payable quarterly; a copy of this notice and demand was produced. At the expiration of the quarter, $650, the sum for hich the warrant issued, was demanded, which he refused to pay, but said he was ready to pay the half of that sum; but he did not tender it. The warrant was signed by O. Cripps, and Talvande was in the house at the time the demand was made, which was, as the' witness f Abbott) thought, about October 1818.
    Mr. Ball stated that he had agreed with Mr. Cripps to take the house from the 1st June, ? 818, at ‡ 1300 per annum. Before lie made the agreement he visited the house and examined it. Mrs. Talvande was at home, and in the house at the time, and must have known his object. He afterwards agreed to purchase the house, and was to give $ 20,000 for' it. He did not purchase, in consequence of plaintiff refusing to give it up. . He understood that the property belonged to ' the children of the late Mr. Cripps, and that a sale had been ordered' by the court of equity. It was admitted that the ..avowants were the children of the late Mr. Cripps. Mr. Hunt, the commissioner in equity, stated that the house was ordered to be sold by the court of equity; that he had not been consulted by Mr. Cripps about renting it, but that the plaintiff had offered to pay him the rent, which he refused to take, ■saying he had only authority to sell. The decretal order of the court was dated 25th November, 1816. He had never been in actual possession of the house, but had advertised it for sale. Mri Cripps had indeed mentioned to the witness that be had rented it to the plaintiff, and'he^ the witness, had not objected to it. .
    
      Here the evidence closed, when the plaintiff s counsel moved to have judgment entered up for the plaintiff, as the avowants had not shewn that any rent had been reserved.
    The motion was refused.
    It was contended on the part of the avowants, that the plaintiff’s letters proved that the first year ended on the 1st June 1818; and that in October following, he offered to pay for a quarter due, the half of $650, which was sufficient to shew that the rent was reserved.
    ■ 2nd. That the authority of Octavius Cripps could not be disputed by the plaintiff, who was his tenant, and that it was not necessary to produce a power of attorney from the co-heirs.
    It was contended on the part of the plaintiff, that the act of 1808, so far as it declares that a tenant holding over shall forfeit double the value of the use of ,the premises was unconstitutional, and therefore void; and the case of Allen and the Treasurers was relied upon in support of the position. That Octavius Cripps had no authority to issue the warrant;' that the suit had abated by the death of Octavius Cripps; that they had distrained for double the rent, and not for double the value of the use of the house.
    His honor told the jury that the evidence was sufficient to shew that the first year ceased on the'first of June, and that on that day a new quarter had commenced. That the offer of theplaintiffto pay in October $ 325 for an unexpired quarter, was sufficient to shew that so much rent had been paid per quarter before the 1st June. That he did not regard the act of 1808 as unconstitutional; as prior to the. act, the power to distrain existed, and the act only altered the measure of damages.
    A verdict was rendered for the avowants for ‡ ——.
    The plaintiffs appealed on the grounds:
    1st. Because the act of 1808 is unconstitutional, so far as it authorizes a distress for double the annual value of the premises, when the landlord gives notice to quit, or double rent when the tenant gives notice.
    2nd. Because it appeared in evidence that plaintiff was a tenant for a year prior to the 2nd June, and notice to quit was given only on the 28th June; that fay construction of law, the tenancy continued for another year, because no notice to . quit was given at the end of the 3rd quarter either by the land lord to the tenant, or vice versa.
    3rd. Because no such act was done by the tenant, as to ratify and confirm the supposed purport of his notice, that he should deliver possession pursuant to the act of 1808.
    4th. Because the notice of the landlord to the tenant was in no respect whatever in compliance with the act of 1808 and did not entitle the landlord to double the value per annum, nor was the notice by the tenant such an one as the act-of 1808 contemplated.
    5th. Because there was not legal proof of a warrant of distress by the parties interested, to Solomon Moses, the defendant, who made cognisance.
    6th Because the warrant was otherwise insufficient and not warranted by the act.
    7th. Because no one, according to the proof in the cas<^, was entitled to the remedy by distress but Octavius Cripps, in as much as he only stood in the relation of landlord to the plaintiff, and the said Octavius being dead, the suit is abated.
    8th. Because the avowry was totally insufficient and not supported by the proof in the case, in as much, as it alleged the annual rent to be 1,100 dollars, when no given sum was proved, and claimed $650 as the double annual value, when the distress was for one quarter’s rent simply, due offi 30th September; and further, because the avowry set forth a title as tenants in common, and yet was a joint avowry, as in' the case of joint tenants, whereas the evidence shewed the plaintiffs were tenants in common, and by law, could only avow separately,
    
      9th. Because, as is respectfully submitted, his honor erred in stating to the jury that they could find ‡ 650 as double the annual rent; because there was no proof what was fhe rent of the preceding year, and because, in a penal action when the penalty is stated on the record, the party claiming the same cannot recover less than the specific sum.
    10th. Because the verdict is erroneous, in not finding the sum therein stated, as single or double rent, or single or double value.
    11th. Because the verdict for the bailiff is erroneous, .in as much as it is a general verdict, and there was no proof of rent in arrear.
    A motion was therefore made for a new trial, on the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, and 9th grounds; and in arrest of judgment on the 7th,. 8th, 9th, 10th and 11th grounds.
    
      Grimlccy for the motion.
    As to the motion in arrest of judgment, observed that the avowants were tenants in common, not joint tenants, and were bound to make separate avowries. (1 Chitty 543. 5 Term Rep. 249.) Under our statute of distributions, heirs are tenants in common. Sur-vivorship isthe characteristic of joint tenancy. It was erroneous to allow the suggestion of other parties and their avowry. The suit had abated as to Cripps, and was in force only against Solomon Moses, the bailiff. The avowry for double rent, must be considered as an action upon a penal statute, and the avowants must bring their record within the terms of the penal statute, by stating notice to quit, &c at the expiration of the lease, Sic. This lease was before the act of 1817. (See act of 1808, 1 Brevard 217.) Averment of notice to quit in the avowry, is only in the name of Octavius Cripps and not in the name of the avowants. They should have distinctly averred a demand of double value before distraining. (Hobart 82, 133.) Avowry being only for the double value cannot support a verdict for the rent. (1 JLd. Rayd. 2,56.) In an action for a penalty the plaintiff cannot recover more or less than the penalty. By the 1st clause of the act of 1808, where the landlord gives the notice, as was the case here, the penalty is double the value, and the record states the value, at ‡ 1300, which should have been the criterion of the vir~ diet. The virdict should have been for ‡-, the value of one quarter and the judgment should have been for double. (4 Crunch 299 )
    
    The verdict as to the bailiff, Solomon Moses, is infor» mal. Each issue should have been found distinctly.
    As to new trial, the first question is, whether the remedy by distress, or any summary remedy for the penalty, is constitutional? (2 M‘Cord 55. 1 Bay 382. 2 Haywood 329.) In the case provided for by the act, the relation of landlord and tenant has ceased, and the double rent can only be considered as a naked penalty upon a trespasser. The objections to give the party interested the power to enforce it, greater than to lodge the power any where else.
    2nd question, as to the evidence. The notice to quit produced in evidence does not correspond with the one contained in the avowry. The one requiring ‡ 2,600 per quar» ter, and the other 2,600 to be paid quarterly. The distress warrant is for single rent, and the avowry for double rent. The distress warrant is signed by Octavius Cripps, for himself, and as administrator and agent for the heirs.
    
      Petigru, Attorney General contra.
    Some defects are cured by verdict which would be fatal on demurrer, (Com. Dig. Pleader, S. 47.) The reason of the rule that tenants in common must avow separately, does not apply to this case. {Gilb. Law Replevin 146.) This was a joint contract made by the avowants with the plaintiff, through their agent O* Cripps, and they must avow jointly. These avowants are coparceners, and they must avow jointly. The determination of the lease is suíñciently avowed. It is not necessary to state how it determined. The objection that the notice is only in the name of Octavius Cripps, is of no weight. The notice to quit is a sufiicient demand of double rent, and this is a remo Aral IcivV and not penal; being the same as the Stat. Geo. II (5 Burrows 2694.) [Objected here by Grimlce that the English statute, does not give the remedy by distress.] The verdict for Sol. Moses satisfies him and the plaintiff has no fight to object to it. The case from 4 Cranch tvas on a Virginia statute.
    As to the new trial. “ Unless by the law of the land,’5 means that no man shall be mulct without being called upon to answer. (Lord Colee.) This is no more unconstitutional, than the attachment act. In the case of the State vs. Allen, the act authorized the tax to be levied without giving him a hearing. The law of distress always subsisted with ■magna charta.. Distress warrant quite immaterial.
    
      Toomer, same side.
    If the avowants are tenants in •common they may avow jointly, (Cro. Elis. 530. 1 Chitty 544. 2 Selwyn 605.) Whenever the demise has expired, unless expressly renewed, the landlord upon giving notice to quit has his remedy by double rent. (8 East. 258.) The plaintiffs letter to O. Cripps was a recognition of a notice to quit. If the avowry be defective it is aided by the verdict. (Í Chitty 546.) Annual value, and annual rent, are synoni-mous.
    Mr. Toomer was told by the court, it was unnecessary to say any thiug on the constitutional objection.
    
      Hunt in reply.
    The history of the case is, that at first a distress was issued for the quarters rent, and a replevin thereupon, on the ground of no rent in arrear; but it is now converted into an action for double rent under the act of 1S08. In an action for the penalty, tent cannot be recover, ed. The one is founded on contract, the other in tort. Distress forrent is an. acknowledgement of subsisting tenancy. (Brady on Distress 104. The pleadings cannot be supported; the heirs of Octavius Cripps are not parties. The avowry is for a penalty; and the proof that the taking was for rent. The avowry states the demise to be at an end; and in replevin the plaintiff must recover where there is no demise. . Distress can only be for a sum certain. No proof that Octavius Cripps was the agent of the avowants. The notice to quit was not conformable to the act. It is in the alternative; and plaintiff may stay upon paying the higher rent. But the avowry says there was no lease at the time of the distress, After the expiration of the lease, the plaintiff was a tenant from year to year. Three months notice necessary to determine the lease. ( Gardon vs. Long, Symonds vs. Bey Grimke J. 150.) As to the constitutional objection, he said the double value was unliquidated; and for an injury founded in tort, the legislature cannot authorize a man to make such reprisals. It is not like attachment; that is ajudical proceeding, and ifjudgment be given by default, plaintiff must still prove his debt; not' so here.
   Colcock, J.

It is unnecessary to follow the counsel through all their arguments on the subject of the pleadings in this case. For if the second plea of the appellant coul.d by possibility be considered as a demurrer, it would reach the defects complained of; and if it is a plea, and a bad one, of which I can entertain no doubt, then the demurrer of the respondents opens his proceedings to all the objections of the appellant; for it is an established rule that upon the argument of the demurrer, the court will, notwithstanding the defects of the pleading demurred to, give judgment against the party whose plea was first defective in substance. (1 Chitty 647.) We are then to enquire whether there are any substantial defects in the avowry or not? and in this inquiry I shall pursue the order of the appellants counsel. The first objection is “that in the avowry the respondents are styled joint tenants and yet it sets forth a tenancy in common. The avowry is joint, as though the defendants had been joint tenants; whereas it should have been several, because being tenants in common they could not unite.” — The estate is set forth in the avowry as a joint tenancy and perhaps it may be considered as such. It certainly possesses all the unities which constitute a joint tenancy; an unity of interest eh -title, of time and possession; and the only objection which is presented to its being so considered is, that it is said a joint tenancy cannot be created by operation of law. Blackstone in treating óf the different tenancies, (2 Vol. 180,j says: “ The creation of an estate in joint tenancy depends on the wording of the deed or devise by which the tenants claim title; for this estate can arise only by purchase or grant, that is, by the act of the parties, and never by the mere act of law ” He then goes on to treat of estates in coparcenary, and says, that they possess three of the unities which are necessary to constitute a joint tenancy, to wit, the unities of interest, title and possession, and shows that time is not indispensably necessary, though it often must exist in the title: “ For if a man hath two daughters to whom his estate descends in coparcenary, the one dies before the other; the surviving daughter and the heir of the other, or, when both are dead, their two heirs, are still parceners.” The difference then between these two estates is that the “ jus accrescendi does not obtain in the latter, and that the former cannot be created by the mere operation of law. Now when we advert to the fact that lands in England do not descend to all the children of the deceased, we at once perceive the reason why the estate of joint tenancy cannot be created by the mere operation of law; and when we recollect that the 11 jus accrescendi,” is taken away in this state, perhaps .ue may consider this as a joint tenancy. There are undoubtedly objections to this, and I do not mean to decide upon the nature of the estate, because it is not necessary to the determination of the case. Suppose it a tenancy in common, yet the rule contended for cannot apply to this case. It is true that Chitty says: “ Joint tenants and coparceners must join in avowry, but tenants in common must sever.” But he says immediately afterwards that, “ if an action of replevin be against two tenants in common they should join, the one avowing, the other, as his bailiff making cognisance,” Sic. (1 CUtty 5.44.) And-by a reference to -the cases, it will be seen, that the good sense of the rule is, that when they join viy are joined in a suit, they may plead jointly,- but if each proceeds for his own interest, each must avow for himself. In the case of Harrison vs. Barnby, 5 Term. Rep. 246, the rent had been paid to one tenant in common contrary' to the express notice of the other. Lord Kenyon, does say' in the case, “ that tenants in common ought to avow for their separate portions is clear from the section in Littleton,” though he adds, théy may join in actions on joint contracts, as in covenant where the covenant is entered into with both.

The second objection is, that the avowry should have set forth a notice of three months to quit on the first of June, and not having set it forth, the tenants continued in for another year. This objection is removed in two ways: first, that the tenant himself had given notice that he would quit at the end of the term; and secondly', that if he was in for a second year, it did not prevent a distress for the preceding year.

The third objection is, that the notice to deliver possession does not follow the law, which requires the demand to be by the person having the remainder or reversion of the estate, after the expiration of the lease, or the agent of such. Whereas the avowry alleged a demand by Octavius Cfipps' for himself and his joint tenants, to deliver possession to the said Octavius only. — I can perceive nothing in this objection. The law itself does not say to whom possession shall be delivered, it leaves that to the plain inference of common sense. It says, “ the demand shall be made in writing, for delivering possession thereof, by the person having the reversion or remainder therein, or his agent.” The demand then was in compliance with the law, and the possession of course was to have been delivered to him who made the demand.

The fourth objection that the avowry does not set forth a demand ofthe quarter’s double annual rent, precedent to the distress, which was indispensable, to entitle the defendant to distrain,, not for rent, but for a penalty. — The avowry states that in consequence of the demand and the holding over, the double rent was due and owing; and it will be presumed, if necessary, after verdict, that it was demanded before the distress. But it seems it is not necessary. Cobb vs. Stokes, (8 East 358,) shews that the demand may de made after, in the case of the tenant giving the notice himself that he will quit at the expiration of the term. This is a decision on the statute from which ours was taken. The demand,' in my opinion, is not necessary at any time, for he may be considered as voluntarily holding on the terms prescribed by thu law.

Having disposed of the objections to the proceedings of the respondents, 1 proceed to examine the grounds in arrest of judgment and for a new trial.

The first ground is, that the act of 1808' is unconstitutional, so far as it authorizes a distress for double the annua! value of the premises when the landlord gives notice to quit, or double rent when the tenant gives notice.

The law does not create a new remedy. The remedy by distress for rent in arrear is as old as the law itself; and the constitutionality ofit was never questioned before, that I know of either here or in England, where there is the same guard as is found in our constitution. The act only makes a contract of rent for the parties, under particular circumstances; and if the tenant acquiesces in this contract, which he is supposed to do by holding over, the law refers the landlord to the old remedy. If then the constitutionality of the remedy itself is not questioned, its application to the case before us cannot be* If the law should affix a penalty, eo nomine, and authorize a distress, I should think it unconstitutional; or if it should affix a penalty under any other name upon.the performance' or non-performance of any act, unconnected with any contract, as in thecase of Allen, I should hold it unconstitutional. But where it affixes a penalty to the non-performance of a contract, and a party enter into such contract, he contracts in reference to the penalty and it is as much his penalty as if he had inserted it in his written agreement.,

The second, third and fourth grounds have been sufficiently answered in my observations on the pleadings. To the fifth and sixth, it is enough to say, that the warrant was in all respects a sufficient authority to the bailiff. To the seventh ground, the answer is, that the court in the former cases gave the respondents leave to plead and pursue their rights. On the eighth and ninth, I remark, that the avowry alleged the annual rent was eleven hundred dollars, and it was not contradicted, - To the tenth and eleventh, it is a sufficient answer to say, that the verdict is in strict conformity with the record. When a jury find for a defendant on all the issues made, a general verdict is good.

Motion dismissed.

drirnke and Hunt for the motion.

jdetigru and Toomer, contra.  