#### *E. C. Keckley ads. Thos. H.*Harris, *Adm’r.*

1. Where the agent of a landlord, under his own hand and seal, issued a distress warrant against the goods of tire tenant, and constituted a third party, as bailiff to levy the warrant, it was held competent for the landlord to come in and substitute himself for *9*the agent on the record, and avow forrent*in arrear. '

*'*2. *A*replevin bond, given to the sheriff by a party, to prosecute his action in replevin to judgment, is assignable, and the surety thereto is liable to the same extent that the principal would be.

*Before*Earle, J., *at*Charleston, *May*Term, 1841.

This was an action against the defendant, as surety of a replevin bond. The pleas were *non est*factum, and *nul tiel record.*The declaration set forth a distress *by plaintiff,*of the goods of one David Clayton, that Clayton had replevied on plaint of a wrongful distress *by plaintiff.\*and bond with the usual condition, and defendant as surety, to prosecute his suit with effect *“against Henry D.*Lesesne, agent of Thomas H. Harris, administrator, and John A. Buckheister, (the bailiff,) that plaintiff avowed for rent, obtained judgment and issued execution, and that the goods replevied were levied on and sold under the execution, and brought less money than the rent and costs; whereupon the sheriff assigned the bond *to*plaintiff., and whereby an action accrued to him against defendant, for the residue of the rent and costs. To sustain his declaration, plaintiff produced, 1. An affidavit by Henry D. Lesesne, as his agent, swearing to rent due to plaintiff. 2. A distress warrant, signed and sealed, not by plaintiff, but by Henry D. Lesesne, and he not signing and sealing in the name of his principal, “thus, Thomas H. Harris, seal, per Henry D. Lesesne, agent,” but describing himself as ágent, and putting his own seal, thus, “Henry D. Lesesne, seal, agent of Thos. H. Harris, administrator,” and in the body of the warrant, he as agent, and not in the name of his principal, appointing the bailiff to levy for rent alleged to be due, not to his principal, but to himself as agent. 8. The original replevin writ, sued out by Clayton, which made plaint of an unlawful distress, not by plaintiff, as alleged in the declaration, but by Lesesne, as agent, and Buckheister as bailiff, and was served on them and not on plaintiff. 4. The original declaration in replevin, counting *197on an unlawful distress, not by plaintiff, but by Lesesne and Buckheister. 5. A confession of judgment by Clayton, on the back of *the*declaration, for the rent due and destrain-éd for, with interest and costs, waiving all errors, and consenting to an immediate signing of judgment, and issue of execution. 6. The original replevin bond, conditioned to prosecute the replevin suit, with effect against Lesesne, as agent, and Buckheister, and not against plaintiff, or return the goods, and in default or in case the goods returned should be insufficient to pay the rent and expenses, then to pay the same or the deficiency, as the case might be. 7. An avowry, not by Lesesne, the defendant in replevin, but by plaintiff, who was no party to the replevin suit, on a separate paper, for rent due plaintiff. 8. A judgment entered up on the confession of Clayton, not in favor of Lesesne, the party, but of Harris, a stranger to the suit. 9. A *retorno habendo cumfi. fa.*against Clayton, directing the sheriff to cause return of the goods replevied, not to Lesesne, the destrainer and defendant in replevin, but to plaintiff. 10. The return of the sheriff, that he had levied and sold the goods replevied, and of the proceeds of sale, insufficient to pay the rent. 11. An assignment of the re-plevin bond, not to Lesesne, but to plaintiff. On this evidence plaintiff closed and rested his case, .and defendant’s counsel moved for a non-suit, on the grounds,

1. Of variance between the declaration and the proof.

2. Of incurable irregularity in the proceedings in re-plevin, subsequent to the declaration and confession of judgment.

3. Of incompetency in the present plaintiff to sustain the action, he having been no party to the replevin suit, and the judgment in his favor being, therefore, a nullity, and the assignment of the replevin bond to him illegal.

The motion for a non-suit was over-ruled by the Court, and the case went to the jury. The Court declined to charge the jury, whether the original distress was lawful or unlawful. The jury found for the plaintiff, the amount sued for, with interest and costs.

A motion was made before the Court of Appeals at *198Charleston, for a non-suit, or in arrest of judgment, on the grounds taken at the trial; and for a new trial, on the additional grounds,

1. That his Honor, it is respectfully submitted, should have charged the jury, that the original distress, in this case, was unlawful, having been made by one to whom no rent was due, and who had no power to appoint a bailiff to make the distress.

2. That the verdict was contrary to law and evidence.

Yeadon, for the motion,

said, can an agent of a landlord appoint a bailiff to distrain *'l*

If this action had been commenced against Clayton, the waiver of error, in the confession of judgment, on the declaration, might have been sustained; but this action is against the surety, and must fall.

When the surety entered into the bond, he entered into an obligation to prosecute his suit to effect, <&c.

On the 1st ground. The declaration was not supported by the proof. Can a party, not allowed to sue, come in and enter up judgment and execution *1*Could Harris take an assignment of the replevin bond'? Can a sheriff assign a replevin bond, to a stranger to the record 1

The avowant is the only person to whom the bond can be assigned.

Petigru, contra,

contended that there was no irregularity, but if there was, it could not avail the surety in this action.

It must be taken, that Harris was the landlord, and, consequently, had the right to appoint an agent to act for him.

The agent, then, having the right to distrain, by authority from the landlord, could appoint a bailiff to act for him.

The irregularity complained of, is the difference between the affidavit and the warrant of distress.

If one acts for another, and his acts are afterwards confirmed by the person, it is a good authority; cited *Thomas vs. Yates,*1 McM. 179.

Whenever a party may recover against the agent, he may also recover against the principal, cited 2 McC. 164, *199*Talvand vs. Crips.*Replevin only -lies in case of a taking for rent. It is not concurrent with, trespass or any other action. Clayton, by confessing judgment, has waived all right to complain.

Harris is the real vowant, and the party cannot prevent him from coming in..

The sheriff had the right to assign his bond, as he did.

Yeadon, in reply, said he represented the surety in this case, and not Clayton.

He denied that Clayton had forfeited his bond, and consequently, that the surety is not liable. If the bond has not been forfeited, how can the party recover, to whom the bond was assigned *1*The case of *Talvand vs.*Crips, cited by the opposite counsel, was not a case in point. Mr, Yeadon pointed out the difference between this and the case cited; referred to the case of *Steadman vs. Givens & JVathans,*Mass. Rep.

Caria, *per*

Butler, J.,

It must be conceded in this case, that the only parties that were liable to be sued in replevin, after the proceedings in distress had been commenced, were Lesesne and Buekheister. The one assumed the position of landlord, and by warrant under his own seal, constituted the other his bailiff. Harris may or may not have authorized the distress warrant to be issued, or might or might not have adopted the acts of the parties under it. This is not, however, conclusive of the question in the case. After the action of replevin had been commenced, the rights and relation of the parties underwent material changes ; Harris, the true landlord, came in and adopted and confirmed all the acts of his representative and agents. It might not have been in the power of Lesesne to avow for rent due his principal, as he did not perform the office of the actual bailiff. As against Lesesne, the tenant Clayton might have been able to maintain his right to the property replevied — no rent being due to Lesesne himself, and he not having any of the rights of the actual landlord. But where the distress has been made for rent due the landlord, it is in his power to come in and sanction the distress, and thereby to enable the bailiff to justify the taking, for rent in arrear, in the name of the landlord. The case of *200*Steadman vs. Givins*& Nathans, decided in 1834, was in some particulars like the one under consideration. Givins, acting as the agent of Mrs. Wigfall, appointed Nathans his bailiff, to execute a distress warrant for rent alledged to be due Mrs. Wigfall. It was held, that Givins had no right to issue such a warrant in his own name — nor could he avow for rent due to another. But Judge Harper, who delivered the judgment of the Appeal Court, confirming the Circuit decision made by myself, concludes thus; “ Subsequent assent amounts to authority, (Saund. 347, n. 4.) If Givens had any actual share in making the distress, and they had authority from Mrs. Wigfall, or she was willing to adopt their act, both should have justified as bailiffs. Or perhaps, if Givins was not actually present at the taking of the distress, but had authority from Mrs. Wigfall to employ Nathans as bailiff, he might have pleaded *non cepit.*In that case, the authority of Nathans would have been direct from Mrs. Wigfall; he should have justified as her bailiff, while Givens being merely regarded as the medium through which the authority was conveyed, would not have been considered as a party to the taking.” In this case,'it cannot be doubted that Mr. Lesesne had full authority from Harris to collect the rent, and to employ all necessary and legal means to effect the end. The bailiff, Buckheister, was accordingly employed to make the distress, for his act was adopted by the subsequent assent of the landlord. All the acts that had been done, were under a derivative authority from Harris. He was the party interested ; and was it not competent for him to assume his position on the record, as the rightful avowant'? The tenant’s own acknowledgement of his landlord’s right to the property destrained, as established by the confession of judgment, precluded him from making any objection to the regularity and propriety of the proceeding. The great object of the action of replevin is to settle the controversy about rent; with this view, the landlord’s rights should always be regarded; in such cases there can be no valid objection, why he should not take the place of his mere representative and bailiff. In the case of *Talvande*and *Cripps, 2*McCord, 165, Judge Nott remarks, *after*speaking of the nature of the action of replevin, “The.pro*201ceedings, therefore, ought to he so modelled as to preserve the relative rights of the parties. The plaintiff has a right to make the landlord, (or the party destrain-ing) a party to the action, as well as the officer executing the warrant. So, on the other hand, the landlord may come in and be made a party, and. defend his bailiff against the action; in the same manner as a landlord may come in and be substituted in the place of his tenant, in an action of trespass to try title.” This view of the law in that case was carried out, by allowing the heirs to come in and maintain the avowry that had been put in by the original party on the record, after his death. The distress had been made by an administrator, the goods distrained by him were replevied by the tenant; but the action was not allowed to abate by the death of the avow-ant ; but those who claimed under him were allowed to establish their right to the rent. The bond was no doubt given by the plaintiff with security, to return the goods again, if he should fail to establish the wrongful taking. That bond must always inure to the benefit of the true party in interest; and where he is regularly let in on the record, he has all the rights of the original avowant; and when he cannot have his goods returned by a *retorno ha-bendo,*he is entitled to have the bond assigned to him to go against the surety; for without such bond, he would never have been deprived of the benefit of the distress. It is true, that but few of the British statutes on the subject of replevin, have been made of force in this State, by express enactment, *but they have*been adopted in practice; and under this practice, replevin bonds are assignable to the avowant on the record. -When the writ of execution fails to give indemnity for the injury which the landlord has sustained by the replevin of the goods, the surety to such a bond subjects himself to all tlie liabilities of his principal ; and when the principal fails to return the goods detained, and *nulla bona*returned on *the ji. fa.,*the surety is then to become answerable. He must abide the acts and become liable by the default of the principal. At any rate, he cannot make a better defence than the principal could have made; nor take exceptions which the principal could not have taken. At no part of the proceedings in this case, *202could the present defendant have interfered to exonerate Clayton from liability to pay rent to the plaintiff; and why should lie now be permitted to relieve himself from liability!

We concur in the circuit decision, and dismiss the motion.

Richardson, Q’Neall and Evans, JJ., concurred.