#### *Givens & Nathans ads. T. Steedman.*

*Before*Butler, J., *at*Charleston, *February*Term, 1834.

The following is the report of the presiding Judge.

The facts of this case are tírese: A warrant of distress was levied on the goods and chattels of the plaintiff, signed by Givens, agent of Sarah Wigfall. But the warrant recites that it was issued for rent due by plaintiff to defendant, Givens, as his landlord. Upon reading the warrant, it would appear, that the relation of landlord and tenant existed between Givens and Steedman. It is true, Givens signs himself; *agent of Sarah Wigfall,*but that does not make him so.

In his avowry, Givens endeavours to protect himself, for the distress made under his authority, by alleging that rent was due one Sarah Wigfall. If he issued Iris warrant upon his personal responsibility, as I think he did, he cannot protect himself by avowing that rent was due to another. At any rate, he cannot do so without shewing his authority, either to enter or to authorize a bailiff. No such authority is shewn or averred. He commenced the proceedings on his own responsibility, and oughtnot to protect hinrself, by avowing that another person was entitled to the rent. One may malee lrinr-self the tenant of the agent of another, and in that case, the agent could destrain, because the relation of landlord and tenant, would exist between them. The tenant ought not to claim against the terms of the demise under which he holds the premises. He maybe tenant to another by a steward, but he consents to it.

I doubt whether the landlord can delegate his authority, to enter and destrain, except to a bailiff, duly authorized for the purpose. Can a landlord delegate to an agent, the authority to make a bailiff"? If he can, the authority of the agent should be of as high a character as that required for the bailiff. And when such agent avows for rent, he should shew his authority.

A tenant may be willing to 'subject himself to a landlord, from whom he leases, but not to an agent with whom he is not acquainted, and who might exercise his delegated authority capriciously. The remedy by distress is summary, and ought to be watched with jealousy; at least, it should not be unnecessarily extended.

It is a rule of law, that rent must be reserved to him from whom the land proceeded, orto his lawful representative, and cannot be reserved to a stranger, Kent Com. *3*vol. 370. The relation of landlord and tenant is somewhat personal, and none but tiróse who own the land shall have rent reserved or have the power to collect it by distress. The Iandloril may enter himself or by his agent, but it should be an agent expressly *203with authority to enter. In this case, Givens did not enter, but authorized a bailiff to enter, without even showing authority.

The demurrer was sustained.

GROUNDS OP APPEAL.

1. That the landlord has the power to appoint an agent to sign a distress warrant, and create a bailiff to destrain.

2. That the agency of John Givens, was sufficiently averred on the record.

3. That tlie plaintiff by the pleadings recognized and admitted the agency.

4. That the power vested in Givens as agent, was legally executed. If not, the plaintiff could not take exception to it, nor could the Court know it, as nothing in relation to the mode of execution, appeared by the pleadings.

5. That the avowry need not be by the landlord, but may be by an agent.

6. That the decision sustaining the demurrer, is, in other respects, contrary to law.

*Thos. iS. <$• JET. Grim/ce,*for the motion.

*Yeadon,*contra.

*Owria, per*

Harper, J.

We think the avowry defective, and the motion must be refused. It is said, that the terms ‘making cognizance’ or ‘well acknowledges,’ imports a justification in the right of another. 2 Chit. Pl. 557, N. C. ‘Avow’ in like manner, imports a justifying in one’s own right; and in the same place we are told, that if one avows and the other acknowledges, without saying, as bailiff to the first, it will be error. The defendant, Givens, avows the taking, thus importing a justification in his own right, and shews the rent due to Mrs. Wigfall; and Nathans acknowledges, as bailiff of Givens, whom the avowry shews not to have been the landlord. Any agent to make a distress, is termed a bailiff. “If a man takes cattle for services due to the lord, if the lord afterwards agree to the talcing, he shall be adjudged his bailiff, though he was not his bailiff in any place before.” 1 Bac. Ab. Tit. Bailiff, 6. Subsequent assent amounts to authority, 1 Saun. 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 Givens was not actually present at the talcing of the distress, but had authority from Mrs. Wigfall to employ Nathans as bailiff, he might have pleaded *non cepib.*In that case, the authority of Nathans would have been direct from Mrs. Wigfall, and he should have justified as herbaiiiff; while Givens, being merely regarded as the medium through which the authority was conveyed, could not have been considered as a party to the talcing.

The motion is dismissed.

I concur. David Johnson.