
    GENERAL COURT,
    MAY TERM, 1799.
    Swearingen vs. Magruder.
    Appeal, from Frederick county court, in an action of replevin brought by the present appellant; and one fíela of rye, containing 209 shocks was replevied and delivered to him. Jlvowry,. That the defendant, as bailiff of his father, took the rye for rent in arrear, from one® Benjamin Beckwith., under a demise from the father, &c. Pleas. 1st. That the defendant, in his own wrong, and not as bailiff, made the distress. 2d. Payment of part of ' the rent in arrear. And 3d. as to the residue of the rent pretended to be in arrear, Beckwith assigned the residue of the term, &c. to the plaintiff, who tendered to the defendant the residue of the rent,, and that the defendant refused to accept, &o. Replications. To the first plea, that he took the rye as bailiff, &c„ To the second plea, nonpayment; and to the third plea he did not refuse to accept, &c. Issues joined. Verdictsivpon&ll the issues for the defendant, and 23Í. current money,, rent in arrears found for the defendant. Judgment upon the- verdict.
    
      Bum or Exceptions.
    The defendant, at the trial, ¡nade cognizance as bah Rff 0f his father for rent arrear due to his said father, Tlie phdntiff offered in evidence to the jury, by the constable who m ade the distress, that the distress upon which this action of replevin is grounded, was made by the constable, by the direction of the defendant,’in the name of and/»)- tile said defendant, and for rent §aid to be in .arrear'and due to the said defendant,
    ’ The defendant then moved the court for their opinion and direction to the jury, that if the jury are of opinion that he the defendant, at the time he caused the said distress to be, made, had authority from his father fo; dis-train for rent due, (upon the place where the same was made,) to ins said father, that he tito defendant might well make cognizance as bailiff of his said father, notwithstanding the said distress had been made in the manner and in the right of him the defendant.
    The County Court, [Craik, Ch. J.] gave the direction to the jury as moved. The plaintiff excepted, and brought the present appeal.
    
      Mason, for lite appellant,
    
      Sluuff, far the appellee.
   On argument in' the General Court, the following cases, were cited — 1 Ld. Ray. 454 to 465. 2 Leon. 196. 4 Bac. Ab. 392.

Tim General Court reversed the judgment of the County Court, and awarded a writ'of procedendo.  