The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-05-23

Il
ton to the condition Of the engine house.
Referred to Special Committee on the Fire
Department.
Return Of Harbor Master for April, 1868,
showing sS1S AZ collected and paid into the
City Treasury. Information.
The Mayor presented the following COM
| munication and report, which was received as
| information:
HEApo,Rs SECOND MILITARY DISTRICT,
CHARLESTON, s. c., May Is, 1868.
Breuet Col. II. CognoeA,
SR: The enclosed report OF the Judge Ad-
vocate Of this district, on the petition OF the
City Council Of Charleston, should have &C ac-
companied my communication to you OF the
18th instant.
Very respectfully,
Your obedient servant.
LOUIS Y. CAZIARC,
A. D. C. and A. A. A. G.
HEkpoR's SECOND MILITARY DISTRICT, :
JUDGE ADVOCATES OFFICE.
CHARLESTON, s. c., May IA, 1858.
To the Assist4nt Adjutant General, Second Military
sm: The petition Of the City Council of
Charleston, s. c., for q modification Of the ex-
isting provisions Of military orders concerning
examination, is respectfully returned with the
following remarkH:
The memorialists, setting forth that former
ly, under the law Of the State, the remedy OF
distress for rent was enjoyed, and that while
that remedy has been abolished By military or
ders, no other for tine purpose has been sub
stituted, represent that ardships thereby re-
suit to land owners, and suggest; some change
''which will enable the landlord, in a reason
able time, to compel the payment Of rent by
the tenant. In other words, the District Com
mander is asked to provide summary process
for the collection Of this species Of demands,
or, in short, to restore the remedy Of distress,
which was abolished by Paragraph TX Of Gen
eral Orders No. 20 (of 1857, from these head
quarters.
A careful and candid consideration Of this
petition leads the Judge Advocate OF the Dis
trict to express the firm conviction, not only
that the abolition Of distress for rent was, at
the time Of the adoption Of that measure, o
wise and benefcent reform, but that the res
toration Of that remedy, now, 6eing called for
by neither justice nor expedlency, would be a
retrograde step in the municipal law OF South
Carolina.
That remedy, derived by the Gothic nations
from the Code of Rome, naturally fourished
among feudal institutions, and was transplant
ed to England as an incident Of that oppressive
system under which the tenant, as well as the
products of his labor was subject to the Will
Of the lord OF the soil. 1t enabled the Latter to
seize for his arrears ofrent whatever property
he might find on the premises, no matter OF
what nature, or to whom belonging. Advanc-
ing civilization has everywhere circumscribed
and relaxed proceeding too harsh and arbl-
rary for enforcement among enlightened peo-
ple. The State OF New York long since abol-
ished it as IAN invidious distinction In favor
of particular class Of creditors, which has
survived similar remedies applicable to other
debts sometimes operating unjustlv towards
other classes Of creditors who are equally en-
titled to protection"
The courts of North Carolina, too, have held
it to be inconsistent with the spirit Of the laws
and government Of tha. commonwealth, and
have declared that it e unknown to her judica-
ture. -, :.
survived and was cherished. BY the law Oh
1903, indeed, the landlord could dlstram !or
double rent where the tenant held over tor
three months after notice to quit. Is McCordr
R. 22.) m
It is true that statesmanlike counsels, urging
it's repeal, were sometimes offered. In lozZ,
the eminent Mr.. Justice Bay, in the case OF
Youngblood against Lowry ct al q McCord, Il.
S9,) in delivering the opinion OF the constltu-
tional court, in which all the judges concurreo'
remarked as follows, concerning distress:
"This authority, allowed by law 70 lano-
| lord to be his own avenger, or OF admlnlsterng
redress to himself, is the relic Of the old feudal
system, and became extremely oppressive to
| the community at large, as no mans Property
was safe ircm the all l-grasping power Of land.
holders. The property OF strangers travelling
through a country calling for hospitality, OF
neighbors visiting or holding frien0ly inter
course with each other, or their cattle straying
or accidently found on the premises N posses.
sion Of another, were oil liable 20 oe dlstIaineo
for rent, although they had Yever made any
contract with the owner cf, the soil, or eveI
knew that any rent was dae from the tenant fol
the use of the lands he occupied. BY mcanf
whereof one mans Toperty was taken away
from him forcibly, hnS without his consent, te
pay The debt of ee1ird person, to whom ht
was never under ehy obligation, which is clear
" inconsistent with every idea OF justice, ano
that security4S property which every cltlzer
oupht to eniGrin q free country. lam very mucf
disposed to think that this whole system OF dis
tress for rent was inappl cable to tho clrcum
stances Originally Of the British colonies, where
the antient feudal system was utterly unknown
and nothing but colonial dependence coule
ever :have permitted it to gain footing II
| America in subservence to British policy; &C.
cbrdingly some Of tie colonies: particularly
i Connecticut land am informed Rhode lsland)
never permitted this law Of distress for rent II
i be introduced Everything in that State de-
pepds upon contract, by which alone maj
oupht t. be made liable for deot, aud his goods
subjected to seizure and sale. And it may on,
day, and that perhaps not o very distant day
become @ question well worthy OF the attention
of the Legislature Of this State, whether the.
will not abolish it in South Carolina, aud place
the contract for rent on the same footing Will
all other contractshetween men"
This State, nevertheless, clung to tn'
remedy, and it was reserved for Genera
Sickles, forty-6ve years after the date OF III
opinion Of Judge Bay, to abolish the odiou'
proceeding forever.
Taylor Landlord and Tenant, p. 411) oo'cr7c'
tina the remedy has been gradually done IVA
with "as giving an uI, ue advantage h'' :
lords over other creditors in the colcctl1n U
their debts.'
This is the true reason for the reform, AM
should prevail to uphold it. For altuo.:'h -;
remedy is Objectionable on the grounl cT i
rigor, and on the ground that it Lab 1t
abuse, to the detriment of third 'ai. e6
through collusion between the landlord a,l. I'll
tenant, and although its restoration ';Dw i.:r
years suspension, would uns :t cx.i /:
relations, and would be of cxtraincl II :,
propriety upon the eve o. !!:o -. ..!r
ment OF civil legislative au' y -. ,,J
after all, the fundamental ad c.. Oh
lection to granting the prayoi oi j. it:oI
Is found in the language OF az s''i oout'
Carolina Judge before ci!cd a...''., tiiat th'
contract for rent should ;cstn. q dine iJot
ing with al other contracts IN wcan men. Ii