
    Wm. S. Price vs. Robert Limehouse.
    Where a tenant had leased premises for six years, and gave his bond for the payment of the rent in gross, it was held that the landlord might, notwithstanding, distrain for the rent, the bond not having been paid.
    It is not necessary to support a distress that rent should be reserved eo nomine, if it appear really to be due. ' ,'
    This was.an action of Replevin brought.by Wm. S. Price against Robert Limehouse. The defendant was owner of a house and lot in King-street, Charleston, which, on the 1st September, 1821, lie leased to the plaintiff for six years and a half, commencing from that date. In consideration of the lease, the plaintiff agreed to pay, to the defendant the sum of $804 in cash, and to execute a bond in the penal sum of $2113, conditioned to pay $1056 50 cts. in two equal instalments, the first payable on the 13th April, 1823, and the second, in two years from that date, with interest on the whole sum, payable annually, from 1 Bib April, 1823. The plaintiff having complied with ibis agreement, by paying the cash part and executing the bondffor the remainder, continued in peaceable possession of the premises, under the lease, from the date thereof, until on or about the 5 th of August, 1824, when the defendant issued a distress warrant and levied upon certain articles of furniture belonging to the plaintiff, for the sum of $711, being part of the bond remaining unpaid as al-ledged. The plaintiff replevied. — The defendant pleaded the common avowry and cognizance for rent; to which the plaintiff replied in bar (craving oyer of the said demise and setting it forth in the plea) that he had executed the bond required by the demise, and that the defendant had no remedy by distress for default of payment, but should have resorted to his action upon the bond. To this plea the defendant demurred generally, and the plaintiff having joined in demurrer the case came on to be argued before his honour, Judge RichabdsoN, who sustained the demurrer.- — Whereupon the defendant took a verdict for the amount of principal and interest due on the bond.
    A Motion was now made to set aside the verdict, and to reverse the decision upon the demurrer.
    
      Moise, for the motion.
    The defendant, by taking a bond for the rent of the premises relinquished, ipso facto, Ins right to the remedy by distress, and must seek redress* in the usual form by action on the bond. There was no rent reversed in the demise which is necessary to the support of the remedy by distress. — 1 Bay, 315; lb. 443; 2 Const. R. Tread. Ed. C37. Even if there were such reservation of rent in the demise, it extended to the whole term for which the lease stipulated to run, to wit, for six and a half years, aud therefore any distress prior to the expiration of the term was premature and illegal. To entitle the defendant to distrain, the rent, if it couhd be claimed as such, should havebeen payable annually — Co. Lit.'" 144. This distress was for interest on tho Bond also, whieb was illegal — 6 Johnson, 43. - The bond was a common money bond, and if any distress could have been made to enforce its payment, it should have been made for the penalty, and not for any of the instalments.
    
      Henry Grimke, contra.
    The leading question is, whether rent has been reserved. If it has been, the right to distrain follows of course. The parties by their contract may fix the time whenever they please, that the rent should become due — 2 D. & E. 600; Gilbert on Distress, 32. Taking a bond or note will not extinguish the right to distrain — 3-M‘Cord, 484.
    
      T. S. Grimke, same side,
    cited Brady on Distres, 102;-2 Bin. 146; Yan Leon vs. Smith.
    
      II. A. He Saussure, in reply,
    cited Parker vs. Harris, 1 Salk. 262.
    
   Cujua per

Nott, J.

The Court concur in opinion with the Judge below.

I will avail myself of this opportunity to correct an expression whieh I made use of in the case of Marshall & Giles—2 Const. R. Tread. Ed. 637—that a distress will not be allowed except where “rent is> reserved eo nomine.” It is not necessary that it should be reserved by the name of rent. — It is suffi-tient if it shall appear to be for the use and occupation of lands or houses, though not denominated rent. The mot ion is therefore refused'.

Judgment-affirmed..  