
    
      George Rogers vs. Alexander Brown and Alexander Scharlock.
    
    1. The 1st section of 11 Geo. 2, C. 19, is inconsistent with the 2d section of 8 Anne, C. 14, and as the latter has been by express enactment made of force, and the former not, the rule established in 2d section 8 Anne, C. 14, is that which must govern landlords in distraining goods fraudulently removed.
    2. The distress must be made within five days, and not within thirty days.
    
      Before Wardlaw, J., Charleston, May Term, 1842.
    Report of the Presiding Judge.
    This was an action of replevin. The plaintiff, in 1840, held a house at the corner of Queen and Meeting streets, and some adjoining buildings, under two leases from John I. Bulow. On the 17th January, 1841, a balance of $45 was ascertained to be due of the rent of 1840, and Bulow demised to the plaintiff the whole premises before enjoyed, for the term of one year, with the privilege of continuing for five years, at the yearly rent of $800, payable quarterly. During the second quarter, and whilst the first quarter’s rent was in arrear, to wit: on the 26th June, 1841, Bulow died, leaving a will, by which the premises in question, with other lots, were devised to the defendant, Brown, and two other persons, in fee, upon trust, that for a limited time they should receive the rents, and apply them as directed; and then upon further trusts; and the three devisees were made executors.
    Between the 3d and 8th of July, 1841, the plaintiff, being in an insolvent condition, openly, in day time, removed all his goods from the corner house aforesaid, to a house in Meeting street called the Shakspeare, leaving the corner house unoccupied: and on the 21st July, 1841, the defendant Scharlock, as bailiff of the defendant Brown, acting for himself and the other devisees and executors, having a distress warrant directing him to take the goods on the demised premises under the Statute 11th Geo. II., Cap. 19, Sec. 1 ; 2d Statutes at Large, p. 572, seized the goods mentioned in the declaration at the Shakspeare, as goods fraudulently removed from the demised premises, within the space of thirty days next before the seizure.
    The questions presented were,
    1. As to the claim of the executors to the balance of $45, and the first quarter’s rent. Is the Statute of 32 H. 8, c. 37, (see 2 Wins. Executors, 603,) of force in this State ?
    2. As to the same. Does that Statute provide for rent which accrued on a lease for years, made by a tenant in fee simple ?
    3. As to the rights of both devisees and executors. Is the 1st section of Statute 11 Geo. 2, ch. 19, of force in this State ?
    4. If so, does it provide against a fraudulent removal before the rent falls due?
    5. Were the goods fraudulently removed ? I left the fifth as a question of fact to the jury, saying that the fraud consisted in the intention to prevent the goods from being distrained, and that secrecy was not at all essential, 4 D. & R. 33 ; 16 Eng. Com. Law Rep. 187.
    Upon the other four questions I gave instructions in the affirmative, but with much hesitation. I am now satisfied that I was wrong as to the two first, although the decision in the case of Bagwell vs. Jamison, Cheves 249, might have been rested on the grounds taken on the circuit and in the appeal, yet as the Court of Appeals admitted argument on the additional ground of justification, by the presence of the administrator, and upon that of the warrant, and to the decision of that ground, the examination of the administrator’s right to distrain was indispensable, it cannot be taken, as I supposed, that the opinion declaring the Statute of 32 H. 8, c. 37, not of force here, is extrajudicial.— The plain right of an executor to maintain at common law an action of debt for arrears of rent due to the testator, either in the common case where rent is reserved on a lease for years, or the more unfrequent case where rent is granted, for the life of the grantee, (3 Bac. Ab. 63; 6 Bac. Ab. 41; 4 Rep. 496,) contrary to my first impressions, leaves little' occasion to regret that we have not the Statute which provides a double remedy for cases of the executors of tenants seized of freehold rents, that rarely occur amongst us, even if some such cases should be left without any remedy. In the case of Prescot vs. Brueber, 3 B. & A., 849, (23 Eng. C. L. Rep., 197,) in 1832, Lord Tenterden delivered the opinion of the King’s Bench, in which, after a full examination of the reasons and authorities, it was decided that the Statute of 32 H. 8., c. 37, does not embrace the case of the executor of a person who was seized in fee of land and demised it for a term of years, reserving rent. Since that time a Statute of 3d and 4th Wm. 4, c. 42, has given to such executor a right to distrain, which he never before had in England, and which has never been given to him in this State.
    The third, is an important question reserved in Bagwell vs. Jamison, but seemingly decided in Moorhead vs. Barrett, Cheves 99, and 1 McCord 299, in favor of the Statute 11 Geo. 2, c. 19, being of force here, and in 3 McCord, 44, against it. The 22d and 23d sections of the Statute are in daily use, and how have they been separated from the other sections 'l The reason and the authority for recognizing this Statute are the same which established 17 Chs. 2, c. 7, (1 N. & McC., 82,) and which, it will be found upon careful examination, have quietly incorporated into our practice many old English Statutes concerning replevin pud distress, which have never been expressly enacted by the Legislature, but have always prevailed, as essential to the usefulness of the remedies which the country is used to.
    Upon the 4th question, the English books afford the case of Watson vs. Main, 3 Esp. 15, in the negative, and Furneaux vs. Fotherby, 4 Camp. 136, contra; and Brown vs. Duncan, Harper’s R. 337, decided by our own court upon the authority of Watson vs. Main, in relation to like words in Statute 8 Anne, c. 14, would seem conclusive; but there may appear to the Court of Appeals sufficient reason to sustain the verdict, which, under error as to the 1st and 2d questions, I permitted, for convenience sake, to be taken as to the other two questions of law. Verdict for avowant, $445.
    The defendants appealed, on the annexed grounds:
    1. Because, it is submitted, an executor cannot, by the common law, distrain for rent due to the testator in his life time, and the Statute of Henry VIII. is not of force in South Carolina, and therefore, to this extent, the distress was illegal.
    2. Because, it is respectfully submitted, his Honor erred in charging the jury that the Statute of George II. giving a remedy to landlords against their tenants, to distrain 30 days after removal, is of force in the State of South Carolina.
    3. Because the only remedy of a landlord in South Carolina, is under the Statute of Anne, and the goods having been removed upwards of five days, at the time of the distress made, the same was illegal.
    4. Because the goods were removed before the rent fell due, and under the Statute of Anne, the remedy by distress was gone.
    5. Because, it is submitted, the verdict was in other respects against law and fact.
    Thompson, for the motion.
    Petigru, contra.
   Curia, per

Wardlaw, J.

The consideration of the other questions made in this case, is rendered unnecessary by the conclusion which this court has attained upon the third question presented by the report. Is the 1st section of Statute 11 George 2, c. 19, of force in this State'? See 2 Statutes at Large, 572. Besides the English Statutes expressly enumerated in the Act of 1712, putting in force the Statutes therein particularly mentioned, many others are of force by virtue of the 2d, 3d and 11th sections of that Act; (see 2 Statutes at Large, 401, 413, 415, 549 to 572; the appendixes to Grimke’s P. L. and 1 Brev. Rep. Ii9,) some of which are not to be found in any of our published collections, and much qualification of some of those which are enumerated prevails by virtue of the 4th, 5th and 14th sections of the said Act. There is another class of old English Statutes, like the Statute of quia emptores, which are recognized as part of the common law, which, as it was imported and understood by our ancestors, was enacted by the Act of 1712, and a few of date subsequent to 1712 have authority, because by their terms they were expressly extended to the American Colonies. (See 2 Statutes at Large, 570, 580.) But besides all these, there are certain English Statutes of date subsequent to 1712, or parts of them, to which reference is made in this State, not because of any efficacy either inherent in them or imparted to them by the legislative power here, but because they have given rise to usage in the community or practice in the courts, that has acquired the force of law, and they are looked to as containing the rules of the usage or practice that has given them authority. An instance of an English Statute applicable to all bonds, and confined here to a particular kind of bond, adopted by the practice of the court, we have in the Statute of 9 W. 3, c. 11, sec. 8, as explained in the case of the Treasurers vs. Bates, 2 Bail. 379, and in the later case of the Treasurers for Maloney vs. Buckner, Charleston, February Term, 1842. Of Statutes referred to as rules of authoritative usage, there may be instances in relation to other subjects, of which none now occurs to me; but upon the subject of rent, the remedies for its collection, and the relation of landlord and tenant, there are various striking instances of Statutes never enacted here by legislative authority, yet prevailing as rules of practice or evidences of usage. The case of Solomon vs. Harvey, 1 N. & McC., 82, recognizes the Statute 17 Car. 2, c. 7, as having given origin to the practice in our courts of executing a writ of inquiry in cases of rent; and it will be observed that this Statute is of date prior to 1712, and that whilst the 1st and 2d sections of it have been published in Statutes at Large, 552, (the first publication in any collection made in the State,) the 3d section has been omitted, although that section merely gives in cases of judgment for avowant or cognizor upon demurrer, the same remedy given by the 2d section in cases where the plaintiff in replevin may be non-suited; and the 4th and only remaining section of the Act is also omitted, which allows, where the value of the distress may not be found so much as the rent in arrear, “that the party to whom .such arrears were due, his executors or administrators, may from time to time dis-train again for the residue of the said arrears.”

In the case of the City Council vs. Price, 1 McC., 302, Judge Nott says that the action of replevin has undergone so many alterations, that it may now be considered almost a statutory process; and although many of the English Statutes concerning it have not been directly made of force, yet I believe, that with the exception of the Statute 11 Geo. 2, c. 19, they have all been adopted in practice. I say with the exception of that Statute of 11 Geo. 2, if indeed that is an exception. The Statute 4 Geo. 2, c. 28, in particular, has been) said to have been adopted in practice — ■ (See Marshall vs. Giles, 2 Tread. 638,; 3 Brev. Rep., 489,) yet it is to be found in none of our published collections, and upon examination it will appear, that of its seven sections, only the fifth has ever come under the consideration of our courts, (which gives like remedy by distress for recovery of rents seek, rents of assize and chief rents which have been answered or paid for three years, as in case of rent reserved upon lease,) whilst the sixth, which permits the renewal of a chief lease without surrender of the under leases, is perhaps adopted by us, and the other five sections are either inapplicable to our institutions, or have been superceded by our legislation.

The Statute 11 Geo. 2, ch. 19, consists of twenty-three sections, and at various times several of its provisions have been recognized as of force here, whilst at all times from the publication of Grimke’s Justice, in 1788, (see 3d edit, p. 139, 147,) down to this time, the admission that it has not been made of force, has always accompanied the recognition. The 23d section is in daily use; referred to in Grimke’s Justice, acknowledged by Judge Nott in 1 McC., 302, and yet in 3 McC., 44, not implicitly obeyed. The 22d section is expressly sanctioned in Moorhead vs. Barrett, Cheves, 100. About the 21st section doubt is expressed in Bagwell vs. Jamison, Cheves, 251, and upon the same footing of expediency and usage as this, seem to stand the 19th and 20th sections. The 18th has been superseded by our Act of 1808, (5 Statute at Large, 565; ) the 14th is referred to by Grimke’s Justice, p. 139, and is the origin from which the action of use and occupation familiar to our practice has proceeded ; the 11th is conformable to a principle often applied in our Law of Real Estates; portions at least of the 10th and 13th, would probably be found to be adopted in our practice; upon the 8th, 9th, 15th, 16th and 17th, some diversity of opinion might exist; the 12th and some of the seven first are clearly inapplicable to our institutions and practice, and the question is how, as to the first, with which the six next, following, are closely connected.

The 2d section of Statute 8. Ann, c. 14; 2 Statute at Large, 447, of force by the provisions of the Act of 1712, authorizes a landlord, in case of a fraudulent removal of goods from the premises, with intent to prevent their being distrained for arrears of rent, to seize them as a distress, wherever they may be found, within five days after removal ; and the 1st section of the Statute 11 Geo. 2, c. 19, in almost the same words used in the Statute of Ann, authorizes the landlord, to seize such goods within thirty days after the removal. Is the rule with us five days, or thirty days? There is no evidence of any usage which has adopted the longer space, and when it is observed that Grimke’s Justice, p. 145, speaking of the landlord’s right in question, confines it to five days, and it is remembered how influential that book has been in directing the practice of magistrates and landlords, there is much reason to conclude that all usage has been in favor of the law found on our Statute book. In confirmation of this conclusion, is the case of Brown vs. Duncan, Harp. Law Rep. 337, which, whilst it decides the fourth question in this case, in a manner fatal to the defendants, seems by the assent of the court and all persons concerned in the case, to take the space of five days prescribed by the Statute of Ann as the limit of the landlord's right to pursue goods removed It would, under these circumstances, be a dangerous stretch of power, for this court to amend an Act of the Legislature, in a matter affecting rather the rights of parties, than the practice of the courts, because an amendment, supposed to be expedient, is suggested by an English Statute, which of itself, is not of force, here, although many of its other provisions have been adopted as rules of practice, or as evidences of established usage.

Note. — Two of the grounds of appeal in this case, in reference to points in the pleadings, together with so much of His Honor’s report as relates to that subject, are omitted. From, the questions discussed and decided by the court, their publication, it will be perceived, was unnecessary.

The right of the avowants, then, depending upon the “space of thirty days,” and not being covered by the “ space of five days.”

A new trial is ordered.

Richardson, O’Neall, Evans and Butler, JJ., concurred.  