
    Benson vs. Anderson.
    rióse of lj“ye™£¡íe w»4 pertj^aUegmB8»t hetoo’u uasa <ih« tress for a certain sum for rent due to [Á ‘á® mount himfkuJ ’he*»»* ftr the .aid rent,-, Óif S^re™”* “ ‘p® who niad<'tlin.0s“¡£ ti.ath- did or did nos owe any rent, but requested JD to take other property instead of the negroes, which was refused. — Held, that the evidence was not suN iieieni to prove that any rent was due, lor which a distress could be jaadoj though it would be sufficient to shew that rent was due by the plaintiff
    Appeal from Montgomery County Court. Trespass for entering the close of the plaintiff, (now appellee,) and tying away negroes, &c. The defendant, (the appellant,) pleaded the general issue, with leave to give the special matter in evidence.
    At the trial the defendant gave in evidence, that he by Ids agent, the witness, took the property stated in the de-deration, he the witness alleging, at the time of taking it, that betook the same as a distress for a certain sum rent due the defendant by the plaintiff; that he stated to the plaintiff the amount of rent alleged to be due from him to the defendant, and told him that he was going to take the negroes as a distress for the said rent, the negroes being then on the said premises of the defendant, then in occupation of (he plaintiff. That the plaintiff made no ob-iection to the sum so stated to be due for rent, nor did he deny that he owed rent, but requested him (the witness,) to take other property instead of the negroes, which was refused, The witness at the same time stated that the plaintiff made no acknowledgment that he did or did not owe any rent, and said nothing more than what is here stated on the subject. The plaintiff then prayed the court to direct the jury, that the evidence so offered by the defendant, that the plaintiff did not deny, upon the taking of the negroes, that anj rent was due, is not sufficient evidence to prove that any rent was due. and to support the issue on the part of the defendant. This instruction the Court \_Ridgely, A. J.j gave. The defendant excepted; and the verdict and judgment being against him, he appealed to this court.
    The cause was argued before Buchanan, Earle, Johnson, Martin, and Dorsey, J.
    Magruder, for the Appellant,
    contended, that if the evidence was admissible to any extent, though it was not sufficient of itself to entitle the defendant toa verdict, the court erred in rejecting it.
    Taney, for the Appellee.
    A sufficient justification for the taking is not stated in the bill of exceptions. 1. If it were necessary to plead a justification in a'case like this, it would be necessary to show a holding as tenant at a certain rent payable at a certain time. The evidence, under the plea of not guilty, with leave to give the special matter in evidence, must be equally particular. It must show the right to take. 2. There is no proof on the part of the defendant. The plaintiff made no admission; and there was no other legal testimony to show that any rent was due. . 8. It did not appear that the plaintiff ever held at any time, as tenant to the defendant.
   The Court were of opinion, that the acknowledgment of the plaintiff, to be implied from the evidence, was not sufficient to support the issue. That it would have been sufficient to prove that rent was due, but not to prove that it was a rent for which a distress could be made. That therefore the judge below correctly decided that the testimony did not support the issue on the part of the defendant.

JUDGMENT AFFIRMED.  