
    *Mayo v. Winfree.
    November, 1830.
    (Absent CoAi/rau, J.)
    Equitable Relief — -Excessive Distress for Rent. — A tenant complaining- of distress made for more rent than was In arrear and due, not having resorted to an action of replevin for redress, nor shewing any reason for failing to resort to his remedy at law, is not entitled to relief in equity.
    Winfree exhibited a bill against Mayo, in the county court of Chesterfield in chancery, setting forth, that Winfree having rented a tenement of Mayo, for one year, at a stipulated rent of 130 dollars per an-num, Mayo, during the year, sent him a notice that the rent in future must be 400 dollars per annum, payable quarter yearly; whereupon Winfree was preparing to quit the tenement, but meeting with Mayo shortly after he received the notice, he complained to him, that the rent he demanded for the future was too high, and Mayo agreed that Winfree might occupy the tenement for another year at the rent of 130 dollars per annum which had been stipulated for the first year; and upon these terms Winfree continued to hold the premises for a second year. But at the end of the third quarter of the second year, Mayo distrained for three quarters rent in arrear at the rate of 400 dollars per annum ; Win-free gave a three months replevy bond for the rent so distrained for; and the rent not being paid according to the tenor of the bond, the county court of Chesterfield awarded execution thereon, under the statute concerning rents, 1 Rev. Code, ch.' 113, § 1, 2, pp. 446, 7. And the bill prayed an injunction to restrain Mayo from proceeding on his execution for "the excess of the rent claimed by him above the rate of 130 dollars per annum. The injunction was awarded.
    Mayo in his answer, stated, that he had given Winfree written notice that if he continued on the tenement a second year, he must pay 400 dollars rent per annum, quarter yearly, and that Winfree continued on the premises accordingly; *and he positively denied, that he had af-terwards agreed with Winfree, that he might continue at the reduced rent of 130 dollars.
    The case was removed by certiorari to the superiour court of chancery of Richmond.
    There was proof, that the stipulated rent of the first year was 130 dollars, and that Maj'o, during the first year, gave Winfree written notice that he should demand and expect a rent of 400 dollars per annum, payable quarterly, if Winfree should continue his tenancy. The question of fact, upon the merits, was, whether, after that notice was given, there was any agreement between the parties, that Winfree should continue to hold at the old rent of 130 dollars per annum? The chancellor upon the hearing, thought there was sufficient proof of this agreement; and he perpetuated the injunction as to the excess of rent demanded by Mayo, above the rate of 130 dollars per annum. Mayo appealed to this court.
    The cause was argued here by the attorney general for the appellant, and S. Taylor for the appellees,
    as well upon the merits, as upon the question of jurisdiction, whether Winfree’s case, upon his own shewing in the bill, was a proper one for relief in equity?
    
      
      See generally, monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578; monographic note on “Landlord and Tenant” appended to Mason y. Moyers, 2 Bob. 606.
    
   BROOKE, P.

This is an action of re-plevin in the disguise of a bill in chancery. The allegations of the bill, if all true, shew a case to which the remeds* by writ of replevin is peculiarly adapted: neither is any reason shewn or pretended, why Winfree failed to resort to his legal remedy. To entertain such a bill as this, were to allow a tenant complaining of a wrongful, distress, to evade all the provisions of the statute regulating the writ of replevin ; the duty of giving bond and surety to perform, and satisfy the judgment of the court, if he be cast, and the penalty which the law in that case imposes upon him; 1 Rev. Code, ch. 113, § 23. The court of chancery had no jurisdiction of the case: and *if it had, the court would reverse the decree upon the merits: the case set forth in the bill is not proved. The decree is to be reversed, the injunction dissolved, and the bill dismissed.  