Smith v. Sheriff of Charleston District

unanimously, (all the judges present.) No distress for rent can be made, unless a specific sum be reserved, either by some lease, deed, agreement in writing, or by parol, though assumpsit will lie for the use and occupation ; in which case, the quantum, or sum, must be found by a jury. This point has been determined in the case of Smith v. Jacks, ante. And as it does not appear, in this case, that any sum has been reserved by deed or by parol, the distress was irregular, and being irregular, all the proceedings under it were void, and consequently no title could *445be derived from it. This cannot be compared to a rent-charge, which is generally an annuity issuing out of lands, with a clause of distress for non-payment. And it is called a rent-charge because the lands are charged with distress by the express grant or provision of the parties, (4 Bac. 336.") which by no means appears in the present case. And as to the recital in the bill of sale made by the city sheriff, it is no proof whatever of the existence of a lease, or of any agreement by which this sum of 130/. was reserved.

Motion discharged.