#### *Brooks v. Wilcox.

July Term, 1854,

Lewisburg.

Absent Daniel, J.

a. Distress for Rent—Ascertainment of Value of Rent— Case at Bar.—A landlord having distrained for rent in arrear reserved in salt, has the affidavit and warrant of distress returned to the Circuit court; and the defendant appears there, and a jury is impaneled to ascertain the value of the rent in arrear, which not being able to agree is discharged; and the landlord dismisses the case in that court. He may then apply to the County court to have the value of the rent ascertained, basing his application on the same affidavit and warrant of distress.*

2. Same—Additional Levy.—If the officer levying the distress thinks that he has not taken sufficient effects, he may make a second levy.

3. Same—Ascertainment of Value of Rent—Oath to Jury.—The defendant having elected to have the value of the rent reserved ascertained by a jury, it is not error to swear them to ascertain the rent *said to be due.*

*4.*Evidence—Order of Introduction—Discretion of Court.†—Whether a plaintiff shall be permitted to introduce further evidence after the defendant's evidence is introduced, is a matter within the discretion of the court trying the cause; and its exer cise will rarely, if ever, be controlled by an appellate court; Clearly he is entitled to introduce evidence to rebut that of the defendant.

5. Distress for Rent—Objectof Jury.—The only object of the proceeding before a jury in the case of a distress for rent, is to ascertain the value in money of the rent in arrear. It is not necessary for the landlord to prove to the j ury that a distress warrant has been levied for rent in something other than money, and that it is due and in arrear.

6. Same—Value of Rent Ascertained—Order of Court.— The jury having ascertained the value of the rent in arrear, the court makes an order directing the officer to sell the property distrained as is directed by law, and after satisfying the rent due, with interest and costs, to pay over the balance to the tenant. This is substantially in accordance with the statute.

7. Interest on Rent in Arrear—Statute.—Under the act of March 2d, 1827, the landlord was entitled to interest on rent in arrear, from the time it was due.*

*At the January term 1850 of the County court of Kanawha, Luke Wilcox filed a notice, with an affidavit of its service, to James G. O. Brooks, that he would apply to said County court to ascertain the value in money of five thousand bushels of salt of first quality, &c., it being for rent in arrear, and reserved upon contract with him, and for which said Brooks’ property had been distrained; and for such other and further order as the court might lawfully make in the premises. Upon this notice he founded a motion to ascertain the value of five thousand bushels of salt reserved for rent. . This motion was continued until the December term of the court, when the defendant appeared and moved to quash the motion, on the ground that the plaintiff had previously made a similar motion in the Circuit court, which had been entertained in that court, and there had been a trial by a jury, which could not agree, and were discharged: And then the court on his *209motion, had permitted him to withdraw his notice and motion, and dismiss the same from the docket at the December term 1849. And he produced a record of the proceedings in the Circuit court, which showed that these proceedings were based upon the same affidavit of the plaintiff as to the rent due, and the same warrant of distress, on which this motion in the County court was based. And he showed that the officer had first levied the warrant on four hundred and five barrels of salt i>ending the proceeding in the Circuit court; and after that proceeding was dismissed, he levied on an additional two hundred and thirty-five barrels. The County court refused to quash the motion; and the defendant excepted.

The defendant then elected that the value of the salt said to be due from him to the plaintiff, should be ascertained by a jury; which was accordingly impaneled, and sworn to ascertain the value of the rent in *money of the salt said to be due from the defendant to the plaintiff.

On the trial the plaintiff introduced witnesses to prove the value of salt in 1849, and then rested. Thereupon the defendant by his counsel then informed the plaintiff that if he had other evidence of the value of salt in that year, he should then introduce it, or it would be objected to if offered after the defendant had introduced his evidence on that subject. The plaintiff, however, declined to examine other witnesses; and the defendant introduced his evidence as to the value of salt in 1849, and closed. The plaintiff then introduced a witness whom he had sworn before and omitted to examine, and asked him as to the value of salt in 1849; to which evidence the defendant objected, on the ground that it was evidence in chief which the plaintiff had voluntarily omitted to introduce in the opening of the case after notification by the defendant. But the court overruled the objection; and the defendant again excepted.

After all the evidence had been introduced, the defendant moved the court to give six several instructions to the jury. These instructions were in substance, that to entitle the plaintiff to a verdict he must prove a lease by himself to the defendant, reserving a rent in some other property than money; and that the rent was in arrear, and a distress haá been levied. The court refused to give the instructions; and the defendant again excepted. The jury then found a verdict by which they ascertained the value of twenty-five hundred bushels of the salt to be five hundred dollars, and the value of the other twenty-five hundred bushels to be five' hundred and seventy-five dollars: And they ascertained the value of fifty barrels of salt, which had been received in part of the rent due, to be eighty-three dollars and sixty-three cents. Whereupon the court made an order directing the officer who *'had made the levy, to make sale of the salt mentioned in his return, as is directed by law: And out of the proceeds of such sale, if sufficient for the purpose, to pay to the plaintiff the amount ascertained by the verdict, with interest from the time it was due until paid; subject to the credit ascertained by the verdict; and also to pay the plaintiff his costs. And he was further directed to pay any balance of the proceeds of sale to the defendant.

The defendant obtained a supersedeas to this judgment from the Circuit court, where it was affirmed. Whereupon he applied to this court for a supersedeas, which was allowed.

McComas, for the appellant.

Fry, for the appellee.

*

See the opinion of Judge Moncure for the statutes, 1 Rev. Code of 1819, ch. 118, § 12, p. 449; Sess. Acts 1827, ch. 27, § 3, p. 26.

†

Evidence—Order of Introduction — Discretion of Court.—In the fourth headnote of the principal case it is said that, whether the plaintiff shall be permitted to introduce further evidence after the defendant's evidence is introduced, is a matter within the discretion of the court trying the cause. For the above proposition the principal case is cited and approved in the following cases: Scott v. Shelor, 28 Gratt. 895; Perdue v. Caswell Creek Coal, etc., Co., 40 W. Va. 383, 21 S. E. Rep. 873 ; Myers v. Trice, 86 Va. 838, 11 S. E. Rep. 428 ; Burke v. Shaver, 92 Va. 352, 23 S. E. Rep. 749 ; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. Rep. 497; Clarke v. Ohio R. R. Co., 39 W. Va. 749, 20 S. E. Rep. 702.

See, in accord, with the principal case the following: Fant v. Miller, 17 Gratt. 187, and *note;*Bowyer v. Knapp, 15 W. Va. 277 ; Robinson v. Pitzer, 3 W. Va. 335 ; Johnson v. Burns, 39 W. Va. 658, 20 S. E. Rep. 686.

So also, the court may, in its discretion, admit evidence even after argument by counsel. See *foot-note*to McDowell v. Crawford, 11 Gratt. 377.

For the proposition that the granting of continuances is also within the discretion of the trial court, see Harman v. Howe, 27 Gratt. 676, and *note*; Hewitt v. Com., 17 Gratt. 627, and *note.*

MONCURE, J.

This is a supersedeas to a judgment of the Circuit court affirming an order of the County court of Kanawha, directing a sale of certain property dis-trained for rent reserved in salt. The order was made in pursuance of 1 Rev. Code of 1819, ch. 113, § 12, p. 449, which declares, that ‘ Whenever any distress shall' be made for rent reserved in wheat, corn, or anything other than money, it shall be lawful for the landlord or lessor to apply to the court of the county or corporation, or to the Superior court of law for the county in which the leased tenement may lie, to ascertain the value in money of the rent in arrear so reserved, and to order the property so distrained, or so much thereof as may be necessary, to be sold for the satisfaction of such'rent. And the court to which such application shall be made, ten days’ previous notice thereof having been given to the tenant, or in case of his absence from the county, being set up at some conspicuous place on the tenement, shall proceed to ascertain the value in money of the rent in arrear *so reserved, either by their own judgment, or if required by either party, by the verdict of a jury summoned and impaneled at their bar for that purpose, without the formality of pleading ; and having so ascertained the value, shall order a sale of the property so distrained, and award costs to the landlord or lessor. ’ ’

Various errors in the proceedings in the case were assigned by the plaintiff in error, some of them in the petition for a supersedeas, and others, for the first time, in the argument of his counsel in this court. I will notice them in the order of time in which the proceedings complained of occurred.

First. I think the court did not err in overruling the motion of the tenant, the plaintiff in error, to dismiss or quash the notice and motion of the landlord, the defendant in error. The grounds on which it was contended that the landlord’s notice and motion should be quashed, were, that they were founded on the same affidavit and distress warrant, on which similar proceedings had been instituted in the Circuit court, but the jury having disagreed and been discharged, the landlord, with the leave of the court, withdrew his notice and motion in that behalf, and the case was *210dismissed from the docket of the court; and also, that’ after such dismission, and before the institution of the proceedings in the County court, the warrant was levied on two hundred and thirty-live barrels of salt, in addition to the quantity on which it had been previously levied. The statute gave the landlord a right to make the application to the Circuit or County court at his election. He made it to the Circuit court; but having withdrawn it by the leave of that court before it was finally acted on, he had a right to make it to the County court. There was no necessity for a new affidavit and warrant to authorize the proceedings in the County court. .The affidavit *and warrant were not affected by the abortive proceedings in the Circuit court; and the landlord had the same right to proceed’ thereon in the Countjr court, as if the proceedings in the Circuit court had not taken place. The warrant had not become functus officio when the additional levy on two hundred and thirty-five barrels of salt .was made; and that levy was therefore legal. A writ of fieri facias, after being levied on property insufficient, in the opinion of the officer making the levy, to satisfy the writ, may be levied on other property at any time on or before the return day of the writ. The same principle applies to a distress warrant, except that it has no return day, and may be levied at any time; at least, if it be a reasonable time after it is placed in the officer’s hands. The officer may be mistaken in the value of the property first levied on, or he may not be able to find sufficient property at first to satisfy the execution or distress warrant. And “it is for the advantage of the owner of the goods,” as was said by Lord Mansfield in Hutchins v. Chambers, 1 Burr. R. 579, 589, “that this should be so: it is better -for him that the officer should be at liberty to seize a second time, in case he makes an insufficient seizure the first time. Or else it might induce him to a necessity of taking effects of very great value at first; for, if he is to be precluded from thus making up the deficiency, he will certainly take care not to take too little at first.”

Secondly. 1 think the objection made to the form of the oath administered to the jury, “to ascertain the value of the rent in money, of the salt said to be due from the” tenant to the landlord, is invalid. The statute does not prescribe the form of the oath; and its requisitions were substantially complied with in this case. The words “said to be due” obviously refer to the notice in which the kind and amount of the rent in arrear, the times when payable, and the *fact that it was reserved upon contract, and had been distrained for, are minutely set forth.

Thirdly. I think the court did not err in permitting the landlord’s witness to answer the question, and give testimony as to the value of salt in the year 1849, after the tenant had ’ examined his witnesses, as stated in the second bill of exceptions. The subject of the examination of witnesses lies chiefly in the discretion of the court in which the cause is tried, and its exercise will rarely if ever be controlled by an appellate court. It does not appear to have been improperly exercised in this case, but the contrary. The testimony objected to seems to have been offered to rebut the evidence of the tenant’s witnesses, and for that purpose was certainly proper.

Eourthly. I think the court did not err in refusing to give the instructions asked for by the tenant. They are based on the supposition that, in such a proceeding it is necessary for the landlord to prove to the jury that a distress warrant has been levied for rent reserved in something other than money, and due and in arrear. I think that no such necessity exists. No judgment is rendered against the tenant. The only object of the proceeding is to ascertain the value in money of the rent in arrear. When that is done the landlord is placed in the same situation in which he would have stood if the rent had been reserved in money. The officer proceeds in the same way to complete the execution of his duty under the warrant: and the remedies of the tenant for a wrongful distress are the same in the one case as the other. The order of court ascertaining the value of the rent, and directing a sale of the property distrained, did not prevent the tenant from resorting to his remedy by writ of replevin, before that remedy was abolished by the Code; but he might have done so at any time before the property was actually sold. See Jacob v. King, 5 Taunt. R. *451, 1 Eng. C. L. R. 154; Archbold on Landlord and Tenant 125, 53 Law Libr. 131.

In the case of Redford v. Winston, 3 Rand. 148, which was an attachment for rent before the passage of the act of March 2d, 1827, Sess. Acts, ch. 27, p. 25, it was decided that the tenant could not put in any plea or make any defence which might call in question the truth of the landlord’s oath before the magistrate, or contest his claim to rent upon the merits, although two of the judges were of opinion that a writ of replevin could not be maintained in such a case; the other two giving no opinion upon the question. There is less reason for permitting the tenant to make any such defence in this proceeding, as none of his remedies for a wrongful distress are impaired or affected by it. Of course the court would not entertain an application for an enquiry as to the value of the rent, without being satisfied that rent reserved in something other than money had been distrained for: The warrant and return would be sufficient evidence of that fact. If the notice stated the fact with sufficient certainty, and the tenant did not controvert it, the-court, without requiring further evidence, might properly proceed to ascertain the value of the rent, either bj' their own .judgment, or if required by either party, by the verdict of a jurj'. The only function of the jury if required, is to ascertain the value of the rent mentioned in the warrant or the notice. In this case the affidavit, warrant,. *211return and notice were all before the County court; and the tenant elected to have the value of the rent ascertained by a jury which was accordingly done.

Rifilly. I think that the objection to the terms in which the order of sale was made, is invalid. That objection is, that the statute directs only so much of the property distrained, as may be necessary for the satisfaction of the rent and costs, to be sold, and the *residue to be returned to the owner: Whereas the order directs all the property distrained to be sold, and the overplus, after satisfying- the rent, interest and costs, to be paid to the tenant. I think the order conforms to the statute, which directs the court to order a sale ol •‘the property distrained;” not so much of it only as may be sufficient for the satisfaction of the rent and costs. It is true that the statute makes it the duty of the officer, in executing the order of sale, to sell only so much as may be sufficient for that purpose. JBut there is nothing in the order which is in conflict with that duty of the officer; for it expressly requires him to make sale of the property distrained, “as is directed by law.” The direction to pay the overplus, if any there be, remaining from said sale, after satisfying to the landlord his rent, interest and costs, may be referred to an overplus which might exist, if the officer should conform as nearly as he could to the directions of the law; for the officer cannot know how much of the property distrained will sell for precisely the amount of the rent, interest and costs.

Sixthly and lastljc I think the landlord was entitled to interest upon the rent from the time it became due, as mentioned in the order, by virtue of the act of March 2d, 1827, before referred to; the 3d section of which provided, that interest should thereafter be allowed on rent in arrear from the period or periods at which the whole or any portion thereof should become due.

I see no error in the judgment of the Circuit court, and am therefore for affirming it.

The other judges concurred in the opinion of Moncure, J.

Judgment affirmed.