Opinion
11-12-1812
Williams v. Howard
Wirt, for the appellants, submitted the case. Call, for the appellee,
A three months' replevy bond was executed, March 23d, 1808, by Powell Williams, Arthur Horner, and James P. Cocke, to Jane Howard, in the penal sum of 3401. 17s. 2d., with a condition that " whereas two Negroes, (naming them,) one yoke of oxen, six head of cattle, and five horses, have been distrained by Thomas Watkins, deputy Sheriff for Horatio Turpin, Sheriff of Powhatan county, to satisfy the sum of 1621. 0s. 6d., with interest from the first day of January last, due to the said Jane Howard for arrears of rent, the cost of which distress amounts to 61. 0s. 5d., which said property has been restored to the said Powell Williams on his entering into bond, with Arthur Horner and James B. Cocke, to pay the said rent and cost of distress, amounting to 1701. 8s. 7d., at the end of three months; now, if the above bound Powell Williams, Arthur Horner, and James P. Cocke, their heirs, & c., shall, at the end of three months, pay to the said Jane Howard, her executors and administrators, or assigns, the sum of 1701. 8s. 7d., with interest from the date hereof, then the above obligation to be void, or else to remain in full force and virtue."
On this bond, judgment was obtained by motion in a summary way. The defendants objected thereto, and prayed the Court to overrule such motion; " as it appeared that the debt due in this case was on a contract executed for the rent of land, and the hire of ten slaves; and which contract specified that the sum for said rent and hire was to be paid on the first day of January last, for the use of said land and slaves during the present year:" but the Court overruled such objections, and granted the judgment and award of execution on the said bond; to which proceeding the defendants excepted, and appealed to this Court.
Wirt, for the appellants, submitted the case.
Call, for the appellee, observed, that the only question was, whether a distress could be made on a contract for the rent of land and hire of slaves blended together? []
Note. See Bradby on Distresses, p. 26, 102, and Newton v. Wilson, 3 Hen. & M. 476.
OPINION
The following was delivered as the opinion of this Court.
" The Court is of opinion that the judgment of the county Court is erroneous, in this, that the same is entered for the amount of the rent distrained for, with interest thereon from a day anterior to that of the distress made and bond taken, and which interest is added to the rent, and, together with the costs, makes a gross sum to bear interest from the date of the bond until paid; which interest, the Court is of opinion, the appellee was not entitled to by law, and ought therefore to have been deducted before entering the judgment; and that the judgment of the district Court, affirming the same, is also erroneous. It is therefore considered, that both judgments be reversed, & c.; and this Court proceeding, & c., it is further considered, that the appellee recover against the appellants the debt in the bond mentioned, & c., to be discharged by the payment of 1681. 1s. 1d., with interest thereon from the 23d day of March, 1808, till paid, and the costs."