
    Smith against The Sheriff of Charleston District.
    No distress for re-!, un-c'íc^um '^be r°h fee.though cssumjstf will it- h;r .is,, and occupation, See.
    ciüiAii'a bill nop^M-ofthe exe-ume _<>f lease, kc. viue ¿¡miiln.Jacks.
    
    UPON a motion for the sheriff to restore sundry negro slaves who had been seized as the property of Barnard Beck-ifier??, at the suit of Arthur Bardeleben.
    
    
      Pinckney stated, that the plaintiff, Smith, was the guardian of Charles Beelman, the son of Barnard Beekman, and 7 owner of the house and lot occupied by his father; and that . . iiri the negroes m question had been seized and sold for house-rent due by the father in 1793 ; at which sale, the plaintiff, Smith, ivas a fair and bona f.de purchaser. Re admitted that there had been an execution lodged in the sheriff’s office previous to the seizure against Barnard Beckman, at the suit of ° ’ Bardeleben. But he contended in support of the motion, that under the statute of Anne, where levies are made on premises where rent is in arrear, that the sheriff is bound to pay one year’s rent •, and that the negroes in question were not more than the value of a year’s rent, which was estimated at 130/. and the negroes sold only for 127/.
    Rutledge, Pringle and Desaussure, were for the defendant,
    and contended, that as no rent or specific sum had been reserved, either by deed, writing, or parol, diere could be no distress. For in order to authorise a distress a sum certain must be reserved and made payable, either by-deed, some instrument of writing signed by the party chargeable, or by some parol agreement. A.nd that as no deed or agreement ivas alleged or proved in this case, none could be presumed; that as none could either be presumed or proved, there could be no distress legally made ; and if no distress could be made, then there could be no legal sale, _ ‘ 0 or title in the present plaintiff. That even supposing rent. really due, the sum was uncertain : the quantum was matter of fact proper for a jury ; and until that was ascertained, it could never be known to what extent the tenant was chargeable. That the statute of Anne expressly relates to a year’s rent reserved by lease, and did not extend to unascertained sums for the use and occupation. They relied on 2 Bac. 1017. Id. 359. Wood's Inst. 385. Stat. Ann. Smith v. Jacks, ante. They also insisted that by the lodging of the execution at the suit of Bardeleben, which was prior to the seizure for rent, the property was devested out of Barnard Beekman, and transferred to the sheriff; and that the ne-groes being accidentally on the premises afterwards, did not make them liable for rent. Bull v. Horlbeck, ante.
    
    
      Pinckney, in reply,
    compared the rent due on this occasion to a rent-charge, which he said was very different from rent reserved on a lease, and this, he contended, would warrant the distress and sale, although there was no lease. Besides, said he, the sheriff’s bill of sale (that is, the city sheriff’s, for he made the distress and sale of the negroes) states, that the distress was for one year’s rent, 130/. due previous to the sale, which he compared to an agreement, or voucher, that the 130/. had been the specific sum reserved for one year’s rent.
   By the Court,

unanimously, (all the judges present.) No distress for rent can be made, unless a specific sum be reserved, either by some lease, deed, agreement in writing, or by parol, though assumpsit will lie for the use and occupation ; in which case, the quantum, or sum, must be found by a jury. This point has been determined in the case of Smith v. Jacks, ante. And as it does not appear, in this case, that any sum has been reserved by deed or by parol, the distress was irregular, and being irregular, all the proceedings under it were void, and consequently no title could be derived from it. This cannot be compared to a rent-charge, which is generally an annuity issuing out of lands, with a clause of distress for non-payment. And it is called a rent-charge because the lands are charged with distress by the express grant or provision of the parties, (4 Bac. 336.") which by no means appears in the present case. And as to the recital in the bill of sale made by the city sheriff, it is no proof whatever of the existence of a lease, or of any agreement by which this sum of 130/. was reserved.

Motion discharged.  