
    Aaron Solomon v. A. S. Harvey and James Beggs.
    Plaintiff declared in replevin, in common form against A. and B. Defendants avowed the taking for a certain sum due to A., for rent in arrears, setting forth the lease and the sum due. Plaintiff replied that B. was not the bailiff • of A. Held, that the defendant A., was not hound to prove the amount of rent, as the replication admitted the lease in mode and form, as set forth in the avowry, as well as the enjoyment of the tenant.
    Though the Stat. 17 Car. 2, c. 7, s. 2, is not made of force in this State, yet it has always prevailed in practice.
    This was an action of replevin. The plaintiff declared in the usual form.
    The defendants avowed the taking for a certain sum due to the said James Beggs, one of the defendants, *for rent in arrear, setting forth the lease, and the sum due, in legal form.
    The plaintiff replied, 1. That the said A. 8. Harvey was not the bailiff oí the said James, as the avowry alleged, and issue was taken thereon.
    2. A tender and refusal, but did not pay the money into Court. The defendants treated this plea as a nullity, as the money was not paid into Court.
    The pleadings were made up, and the cause tried on the first plea, although the plea of tender and refusal remained on the record; but there was no rejoinder thereto, nor had the plaintiff taken any judgment thereon, for want of a rejoinder. At the trial, the defendant offered no evidence of the rent, but relied on the state of the pleadings as proof of the same, particularly the plea of tender.
    The defendant obtained a verdict, and the jury assessed the damages of the avowant at the sum stated in the avowry.
    The case was tried at Charleston, in the Spring Term, of 1817, before Mr. Justice Grimke.
    A new trial was now moved for, on the grounds:
    1. That the verdict was without evidence, there being no proof of the lease, or of the amount of rent due and in arrear.
    2. That the money need not be paid into Court, in replevin, on a plea of tender.
   The opinion of the Court was delivered by

Cheves, J.

The practice of executing a writ of inquiry, in cases of replevin, originated on the 17 Car. 2, c. 7, sec. 2, which is not of force in this State. It lias nevertheless prevailed in our Courts. With us a verdict is usually taken on proof of the rent; the statute requires it to be limited by the value of the distress, if less than the amount of the rent; and the proof required must embrace both the value of the distress and the amount of the rent. The object of the statute was, that the fi. fa. should be final for the avowant to recover his ^damages, and to render the operation of the retorno habendo unnecessary, which was nevertheless a part of the judgment. (2 Sellon’s Practice, 179,180, 181.) Whether both can be attained under our irregular practice, I need not inquire ; nor whether the invariable practice will authorize the assessment of damages on proof of the rent only; because the only question made for the Court is, whether there was sufficient proof of the rent to authorize a verdict. The pleadings admitted the lease, in mode and form as set forth in the avowry, as well as the enjoyment by the tenant, and left nothing for the avowant to prove on the subject of the rent.

J. B. White, for the motion. Prioleau, contra.

The Court is therefore of opinion, in this point of view, that the verdict was authorized. The Court does not rely on the alleged admission in the plea of tender; and it considers this plea as abandoned by the plaintiff, as he did not oblige the defendant to rejoin, nor take judgment by default upon it.

The motion must be refused.

Colcock, Johnson and Nora, JJ., concurred.

Gantt, J., dissented.

See 1 Sp. 288 ; 2 Rich.. 402. 
      
      
         Of this Act of Stat. 17, c. 2, the first and second" sections (called 2d,) have been inserted in 2 Stat. 552, but the third and fourth sections are omitted, whiGh are equally authoritative, and applicable here.
     
      
      
        Post, 195, 242.
     