
    Solomon Tifft vs. Alexander Verden.
    It seems that while, as a general rule, the circuit court cannot, when a cause has been set, under the statute (How. & Hutch. 619, §27) for a particular day, after the term has commenced, change the order of business by re-setting the causes differently; yet actions of replevin, which are triable at the first term, without regard to order of'priority, (How. & Hutch. 662, §61,) are, with causes of like description, exceptions to the rule, and may be re-set for a different day.
    Under the statutes of this state (How. & Hutch. 668, § 46, 47) authorizing attachments for rent, there must be a special contract; a lease, either written or a valid verbal one, must exist, before the owner of the premises can be entitled to the remedy ; he must recover on the strength of the special contract.
    V. sued out an attachment against T. for fifty dollars’ rent, alleged to he due ; T. replevied ; and on the trial of the replevin suit, in order to establish a lease, V. introduced evidence of the contents of a three months’ rent bond (the bond itself having been lost) previously given by T. on a former attachment sued out by V. against him for the rent of the same premises ; held, that the execution of the bond established a strong presumption of the existence of a lease; and if it showed the rate at which the premises were leased, it would be sufficient.
    But it is not sufficient in a replevin suit for the avowant merely to show that a lease existed, he must also show the price agreed to be paid ; and having established the fact of a lease, he cannot by other proof show what the leased premises were worth per annum, by way of establishing the amount of rent due ; he must show the specific sum agreed to be paid.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    Solomon Tifft instituted his action of replevin against Alexander Yerden, by which he was restored to the possession of effects attached by Yerden for rent alleged to be in arrear by Tifft to him. . Tifft declared against Yerden in the usual form.
    
      Verden filed his avowry, “because that the said plaintiff, for a long, &c., held and enjoyed the ground upon which the house was situate, as tenant thereof to the said defendant, at and under a certain yearly rent of $50 per year, and because the sum of $50 of the rent aforesaid, for the said space of one year, ending on the 1st day of December, 1844, was due, &c., he took in the house,” &c.
    To this avowry Tifft plead, “ that he did not hold or enjoy said lot and house in and upon which the said goods and chattels were taken, as tenant thereof to the said Alexander Verden.” A jury was sworn, “ the truth to speak upon the issue joined, to inquire whether the rent distrained for is justly due or not;” and the verdict was, “we of the jury find the issue for the said Alexander Verden, and we find the sum of arrears of rent due to the said Verden from the said Tifft, at the time of taking in the avowry and declaration mentioned, to be fifty dollars.”
    Two bills of exceptions were sealed; by the first it appears, that the clerk in making out his docket before the term commenced, had docketed this case for the thirty-third day of the term. That after the commencement of the term on the first week thereof, the clerk, by direction of the judge, docketed the case for the twenty-second day of the term. On the twenty-third day of the term the case was called. Tifft, the plaintiff, objected to proceed to trial, because the day for which the cause had been set by the clerk, as above, had not arrived. The court overruled his objection, and compelled him to go to trial, to which he excepted.
    The second bill of exceptions shows, that on the trial the defendant, for the purpose of admitting parol evidence of the contents of a bond formerly given by Tifft for the payment of rent, for which a former attachment had issued, introduced an affidavit of Verden, that the bond was lost. To the sufficiency of this affidavit Tifft objected, but the court overruled the objection, and admitted evidence of the contents of the lost bond. The affidavit is not set out, as the court did not pass upon it. The defendant then introduced Austin Morgan, who stated, that witness and J. H. Boyd, who were both justices of the peace, kept their offices in the same room. Boyd left in January or February, 1844, when his term of office expired. But when Boyd left the office, he left all the papers of his office in witness’s custody. That among them was a package, containing the papers in an attachment case, (Verden against Tifft,) containing, as witness believed, a bond made by Tifft to Verden. If he did not read the bond, he knew it to be such a bond by the indorsement. That he had since searched for the papers, but could not find them, and thinks they must have been lost. He could not say that Boyd might not have removed them, as he had free access to the papers. Boyd was at the time of the trial in Jackson.
    J. H. Ledbetter testifies, that he was a constable in 1843. That in December of that year he executed a distress warrant, Verden against Tifft. That Tifft gave a bond to pay the rent in arrear in three months. That he filed the bond in Boyd’s office. He had since made diligent search for it, and could not find it. It was for rent on the same lot mentioned in this case. He said, on being questioned thereto, that the rent was worth four or five dollars per month. That Tifft had occupied the lot for four or five years.
    D. Shelton states, that he wrote out all the papers and bond in the above mentioned attachment at Brandon, and sent them to Jackson by some one unknown. That the bond was in the penalty of $225, payable to Verden, conditioned to pay the rent in arrear, amounting to $112-50, at the end of three months. That he had seen Boyd look amongst the papers left by him at Morgan’s office, and Boyd could not find the bond.
    The bill of exceptions adds that, during the progress of the trial, the court permitted evidence to prove what the rent of the lot was reasonably worth. To all the evidence the plaintiff objected, but the court overruled the objection.
    The court, on motion of the defendant, instructed the jury:
    1. A tenant cannot deny the title of his landlord, nor set up a claim adversely to it.
    2. If the jury believe that at the time of making such bond, Tifft was the tenant of Verden, and acknowledged himself to be such, he is still his tenant, unless Tifft proves that in the interval he has re-delivered the possession to Yerden, and taken possession under some other person.
    3. The making of a three months’ bond is evidence that Tifft was tenant to Yerden at the time the rent accrued.
    Tifft sued out this writ of error.
    
      D. Mayes, for plaintiff in error.
    I contend that the judgment should be reversed, because,
    1. The court required Tifft to go to trial on the twenty-third day of the term, when the cause had been docketed for the thirty-third day. H. & H. 619¡Fall & Howard v. Commlrs of the Sinking Fund, 3 S. & M. 127.
    That the judge, after the commencement of the term, caused the case to be re-docketed and set for the twenty-second day, is not an answer to this objection.- The statute directs that the docket be made out before the term, and provides that “no cause shall be taken up for trial or hearing at a day previous to that for which it may be set.” It confers on the court no power to change the docketing of causes, after the commencement of the term.
    That causes by attachment are to be tried at the first term, makes no difference. That provision only authorizes the court to take them up before they are regularly reached in calling the docket, after the day has arrived to which they have been docketed by the clerk; but it does not authorize the judge to change the docketing after the term commences, or to take them up before the day to which they have been set.
    2. There was not a sufficient foundation for the introduction of parol evidence to prove the contents of the bond. Boyd, the magistrate in whose custody it was, should have been introduced.
    3. It was an error to admit evidence to prove the reasonable value of the rent. An attachment will not lie for rent upon a quantum valebat. The whole statute indicates that it can only be maintained where there is a demising for a sum agreed, or certain by the terms of the leasing. The landlord is on oath to specify the sum due. H. & H. 558, sec. 46. If the rent dis-
    
      trained for is found to be due, the party replevying is subject to a recovery of double the value of the rent in arrear and dis-trained for. H. & H. 562, sec. 59. If the attachment is to be maintained where the sum to be paid has not been reduced to a certainty by contract, the landlord and tenant may well differ in opinion as to the reasonable value.
    The 47th sec. H. &H. 559, makes it apparent that the attachment is not maintainable, for it speaks of rent reserved upon any demises, lease or contract, and we can form no idea of rent reserved upon a demise, when no sum has been agreed. But the 51st sec., page 560, which directs the mode of proceeding, where the tenant is about to move before the expiration of the term, fortifies my position strongly. The landlord shall “ make oath what rent,the tenant is to pay.” This is inconsistent with the idea that he is to pay what the premises are reasonably worth.
    The definition of “rent,” which is a technical term, shows that an implied contract to pay what premises are reasonably worth, is not a “ rent.” It is a certain profit issuing yearly out of lands and tenements corporeal. 1 Chit. Black. Part 2, 41. Rent is a certain profit in money, provisions, chattels, or labor, issuing out of lands and tenements, in retribution for the use. 3 Kent’s Com. 160. There is remedy by distress for every species of rent, when the same is certain. 3 Kent, 160. That the rent must be certain, see Smith v. Colson et al, 10 Johns. R. 91; Jacks v. Smith, 1 Bay, R. 315 ; Smith v. SheHff of Charleston, lb. 443; 1 Wheat. Sel. 550; Grier v. Cowan, Addis. R. 347. By the statute of Mississippi it is presumed no attachment would lie, if the rent was reserved in services, but by common law it might; but whether the rent was in money or services, it must be certain, as “ to shear the sheep of the manor.”
    “The reservation of rent ought to be certain; for if a man demise, rendering ‘after the rate of’ £18 per annum,while the lease continues, it will be void, for it does not appear what rent he shall pay in certain, or at what time.” Woodfall’s Landlord and Tenant, 184.
    4. It is contended that the remedy by attachment is, under our statute, not co-extensive with the remedy at common law by distress, much less does it embrace a case where at common law there could be no distress.
    Again. The statute gives an attachment in no case but for rent reserved. Its whole language shows this. It does not declare what shall be a good reservation, but leaves that to the common law; and the common law knew no such thing as a demising with reservation of rent by implied contract. The whole treatise of Woodfall on the general incidents of leases, commencing p. 184, proves this; we find no such thing as a reservation of rent implied in law. Nor do I remember ever to have had such an idea suggested to my mind, until in this case. Indeed, it has been held at common law that even assumpsit would not lie for rent on an implied promise. 2 Lev. 160; Bull. N. P. 188. And this defect was remedied by Stat. 11, Geo. 2, c. 19, sec. 14, which authorized the landlord to recover a “reasonable satisfaction,” &c. Woodfall, 433.
    The case of Dunk v. Hunt®-, 5 B. & A. 322, shows that a landlord could not distrain, unless there be an actual demise at a specific rent.
    5. In addition to the foregoing objection to evidence of the value of the rent per month, the plaintiff in the attachment, and avowant in replevin, avows the taking, because Tifft “held and enjoyed the ground upon which said house was situate, as tenant thereof to the said defendant (Yerden,) at and under a certain yearly rent of $50 per year, and because the sum of $50 of the rent aforesaid for the said space of one year, ending on the 1st day of December, 1S44, was due,” &c.
    6. The first instruction is not the law. Second, if true as a general proposition, the state of the pleadings in this case excludes the operation of the rule.
    1st. The tenant is not estopped to deny the title of his landlord, unless by deed sealed by both parties; even a deed-poll, would not estop him. Woodfall on Landlord and Tenant, 155, 156. And again, the estoppel must be mutual. Ib. Yerden here could not be estopped by the bond, which was said to have been lost, for that was taken by the officer who levied the attachment. The doctrine, that the tenant could not dispute the title of his landlord in a proceeding to recover rent, never existed at the common law, except as above stated. By construction of 11 Geo. 2, it was extended to parol demises. Syllivan v. Sir ad-ling, 2 Wilson, R. 208. This statute of 11 Geo. 2d never rvas in force in Mississippi. Geo. 1st died June 11, 1727. In 1732 Geo. 2d granted the charter to Lord Percival and others for the colony of Georgia. This was in the fifth year of his reign, consequently the statute of 11 Geo. 2d was never the law of Mississippi; and the common law, so far as it relates to the point in discussion, now is, and ever has been, the law of this state. Even if 11 Geo. 2d had been in force in Mississippi, all English statutes were repealed by the territorial legislature in 1808. Tolman’s Digest of Laws of Mississippi, p.
    7. Let it be remembered, that we are not discussing the relation of landlord and tenant as it affects the action of ejectment, or trespass, to try the title. There, I admit the tenant' cannot deny the title of his landlord; for having entered under him, he shall not attorn to, or take possession under another, nor shall he set up title in himself, but shall be compelled to restore the possession to him from whom he obtained it, ^his possession being the possession of his landlord; and public policy required that the seisin or possession should not be changed by any such means. But when it comes to the question of paying the rent, the policy and reason is different, there must be a quid pro quo ; and if the landlord had no title, the tenant might be compelled to pay the rents to the right owner, and thus have to make double compensation. The landlord himself would be liable to the true owner for the rents and profits. The landlord had the possession, and the tenant shall not deprive him of the benefit of it. But if he had no title, another is entitled to the rent, and to that other the landlord and tenant are severally liable.
    8. Tifft plead that he “did not hold or enjoy the said lot and house, in and upon which the said goods and chattels were taken, as tenant thereof to the said Alexander Verden.” If he was estopped, the estoppel should have been replied, and cannot be otherwise set up. 1 Chit. Plead. 522, (edit, of 1828,) which will also establish my view of 11 Geo. 2, c. 19.
    
      9. The second instruction is false as an abstract legal proposition; even if true in the abstract, it was error. If Tifft had been the tenant of Verden upon a demise for a term, with a reservation of a certain rent, and that term had expired, he holding over would be a tenant at sufferance only, and no attachment would lie. The statute gives no attachment against a tenant at sufferance. It only gives it where rent is reserved. “Against a tenant at sufferance, it seems that an action of debt lay not for rent arrear, for the contract was determined, and they are in by wrong.” Woodfall on Landlord and Tenant, 345. The landlord, having neither remedy by distress nor action of debt, for use and occupation against a tenant at sufferance, the statute "4 Geo. 2, ch. 28, sec. 1, provided, “That if any tenant »for life, or lives or years, or persons coming in under or by collusion with them, hold over any lands, tenements, &c., after the determination of their estates, after demand made and notice in writing given for delivering the possession thereof, by the landlord, or the person having the reversion or remainder therein, or his agent thereunto lawfully authorized; such tenant or tenants thus holding over, shall pay to the person so kept out of possession at the rate of double the yearly value of the lands, tenements, &c. so detained, for so long a time as the same are detained, to be recovered by action of debt.
    10. The jury were not properly sworn; the oath was administered under a mistake of the issue, which was, whether Tifft did or did not hold and enjoy as tenant of Verden, and the jury were sworn the truth to speak upon the issue joined, to inquire whether the rent distrained for is justly due or not. This was not the issue.
    
      D. Shelton, for defendant in error.
    1. As to the objection, that the case was tried too soon, the case of Fall & Howard v. Comm’rs of Sinking Fund, 3 S. & M. 127, is relied on by plaintiff in error as being in point.
    The distinction is obvious; that case came under the general law regulating the dockets. H. & H. 619. This comes under a statute relating exclusively to these actions of replevin, which directs that, at the return term thereof, the court shall cause an. issue to be made up and tried, without waiting for its turn in the order of priority in regard to other suits. H. & H. 562, sec. 61.
    If there was any surprise of the party, the cause would doubtless have been continued, or even if there had been any showing of merits, but nothing of the kind was done.
    2. The introduction of Boyd was wholly unnecessary, for it is proven by Morgan, Boyd’s successor as justice of the peace, that the bond came to his possession, and was lost out of it.
    3. There are two satisfactory replies to the third position taken by plaintiff in error :
    1st. This evidence was not objected to at the given, in such a form as to make counsel’s position this court. The objection was generally to all evidence offered by Verden^ but not specifically tfi of it. This objection properly applied to the ad secondary evidence of the fact involved, to wit, the certain rate ; but it cannot be made to apply to ular item of such secondary evidence. To have done this, the objection should have been specific. If it be otherwise, counsel in the inferior courts will, at the commencement of these cases, have only to say: We object to all evidence to prove a certain thing, the court overrule it, and go into evidence of the fact. In the course of this evidence certain items of testimony are objectionable, but not objected to ; if objected to, they might have been excluded. Finally, a bill of exceptions is drawn up, embodying the whole of the evidence, and according to the argument of adverse counsel, the case must be reversed on an objection never made in the court below, and which that court could have corrected, if asked either to exclude the item of evidence, or to instruct the jury thereon.
    2d. This evidence was not given to aid in recovering quanhtm valebat, but as secondary evidence of a contract, the written admission of which had been lost. It was corroborative of statements of witnesses as to the contents of a lost bond; witnesses had stated from memory that the bond was for a certain amount of rent. The production of that bond would have established the times of the renting, according to the contract, as stated in Verden’s affidavit for the attachment, and also in his affidavit of its loss. It was certainly not incompetent to corroborate those statements from memory, as to the rates of renting, by proof that such a rate was reasonable.
    4. The answer to plaintiff’s fourth position is, the possession and occupancy is a quid pro quo for the payment of the rent, and having received that from the landlord, who had possession, and put him in, he shall pay him for it; but it is said the true owner may recover the rent from the tenant after he has paid it to his landlord. I deny this as a proposition of law. True, the real owner may arrest the payment to the landlord in some cases, but a tenant cannot, even after notice, file a bill of inter-pleader to protect himself until after ejectment brought.
    5. The second instruction was right. Proof that Tifft was Ver-den’s tenant a year before, that he acknowledged that tenancy, and gave bond to pay the rent which was in arrear, and proof that he has ever since been in possession constitutes some evidence that the tenancy has been continued from year to year under the old contract, and especially'when Tifft proved no new contract — no change in the former contract.
    6. As to the position, that the jury were not properly sworn, there are two sufficient answers to it. 1st. Tifft did not object to the irregularity in the court below, but without objection, went into the trial of the cause; by this he waived the irregularity, if one existed. If he had objected to the panel, it might have been corrected before the trial, he cannot raise it here. 2d. But in fact there was no irregularity. The jury were sworn to try the issues joined, and to inquire whether the rent destrained for was due. The issues were, whether Verden was guilty of the trespass in the declaration mentioned, and whether Tifft was Verden’s tenant. The rent distrained for was that stated in the affidavit; this was precisely what the jury had to do, and, therefore, what they were sworn to do.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This action of replevin was brought by the plaintiff in error, whose property had been attached for rent under the statute.

Two bills of exceptions were taken on the trial. The first raises this question: When a cause has been set under the provisions of the statute (H. & H. Dig. 619, sec. 27,) for a particular-day, can the court, after the term has commenced, change the order of business by re-setting the causes differently? Generally it could not do so. 3 S. & M. 127. But causes of this description seem to constitute an exception to. the rule; they are triable at the return term, without regard to the order of priority. H. & H. Dig. 562, sec. 61. By construing the two statutes together, the one creates an exception to the general rule prescribed by the other.

The second bill of exceptions raises objections to the evidence and the charges of the court. It seems that the avowant had, on a former occasion, instituted proceedings by attachment for rent of the premises, in which the plaintiff had given bond to pay the rent within three months, as the statute provides. The bond was relied on in the present case to establish the leasing; but it had been lost, which fact was shown by the affidavit of Verden, and thereupon parol proof was admitted of its contents.

The objections now taken are, that one of the witnesses was asked to state the yearly value of the premises, and also to the charges of the court.

The officer, who levied the former attachment, stated that he received such a bond, for rent due on the same premises; but he does not state for what amount the bond was given, or for what length of time the rent secured by it was due. Another witness states, that he drew a bond for $ 112, the sum due, but he does not state for what length of time the rent was in arrear. The bond may have been given to cover one or five years’ rent. The bond affords a strong presumption of the leasing, but there is nothing to establish the yearly price, except the statement of the witness, that the premises were worth four or five dollars per month.

A careful examination of the statute authorizing an attachment for rent, (H. & H. Dig. 568, sec. 46, 47,) has led us to concur in the view urged by counsel, that there must be a special contract; a lease, either written, or a valid verbal lease, before the owner of the premises can be entitled to the remedy. On the strength of the special contract he must recover. The plaintiff sued out his attachment for fifty dollars, but this was no evidence of the price agreed on. The lessor cannot be permitted to introduce proof applicable only in case of an implied contract, when he must recover on a special contract. As he introduced proof of a special contract, he cannot recover as on an implied one, unless the case be such, that if there had been no special contract, he could recover on an implied one; but it is not; in this form of proceeding there must be a special contract. If the bond was the best evidence of the lease, it might also have furnished evidence of the yearly price; but it was not used for that purpose, nor does the proof of its contents show any thing on that' subject. The bond may have been given for five years’ rent for any thing that appears. The lessor cannot drop the price agreed on and recover the yearly value. The value of the premises, as stated by the witness, evidently controlled the jury. For this error, the judgment must be reversed, and the cause remanded.  