er--it is only the moral obligation by which the legislature is bound, to use this power discreetly and justly. But this obligation is imperfect, and cannot be enforced by this or any other Court. If the words in the Constitutions of the United States and Massachusetts, are to be taken as a limitation of the power, and not a recognition of the moral obligations not to abuse it, it is very clear they cannot be construed into a grant of the power, but a limitation upon a power already possessed. The words are-"nor shall private property be taken for public use, without just compensation." In no part of the Constitution is this power expressly given. This, then, is a limitation on an implied existing power.

In most of the State Constitutions this power is recognized, and in many limited, as in that of New Hampshire. "But no part of a man's property shall be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people." There are no words in our Constitution limiting or granting this power. Does it not therefore exist? From the continued use of the power-from the constitutional construction of the Constitution of the United States-from the almost universal recognition of it, by all the States, as well as from the necessity of such a power, I must conclude that it exists in our legislature also.

But it is contended that this power is not only not given in the Constitution, but is expressly negatived in the 2nd Section of the 9th Article-"No freeman shall be deprived of his life, liberty, or property, but by the judgment of his Peers or by the law of the land." An act of the legislature of yesterday, it is said, is not a "law of the land," within the meaning of this clause. What is meant in the Constitution by "law of the land," has never been well explained. Learned commentators and learned Judges, have differed in their

definitions of this term. I shall not attempt to recount them: it is enough to decide in this case, that the act in question is the law of the land, as much so, as a militia act, or road act, or any other act, which the legislature of the country has always been in the habit of passing. Acts like the one in question have been passed, not only ever since the adoption of the Constitution, but ever since the first establishment of provincial legislatures in this country, and indeed by the parliament of Great Britain, as far back as the memory of man reaches. What has been so long existing is under any of the definitions a law of the land. The legislature then was authorized by the law of the land, to pass this act, and consequently the relators have not been deprived of their property, without the law of the land. The motion is refused.

WM. S. PRICE VS. ROBERT LIMEHOUSE.

Where a tenant had leased premises for six years, and gave his bond for the payment of the rent in gross, it was held that the landlord might, notwithstanding, distrain for the rent; the bond not having been paid.

It is not necessary to support a distress that rent should be reserved eo nomine, if it appear really to be due.

This was an action of Replevin brought by Wm. S. Price against Robert Limehouse. The defendant was owner of a house and lot in King-street, Charleston, which, on the 1st September, 1821, he leased to the plaintiff for six years and a half, commencing from that date. In consideration of the lease, the plaintiff agreed to pay to the defendant the sum of $804 in cash, and to execute a bond in the penal sum of $2113, conditioned to pay $1056 50 ets. in two equal instalments, the first payable on the 13th April, 1823, and the second, in two years from that date, with interest on the whole sum, payable annually, from

18th April, 1821. The plaintiff having complied with this agreement, by paying the cash part and executing the bond for the remainder, continued in peaceable possession of the premises, under the lease, from the date thereof, until on or about the 5th of August, 1824, when the defendant issued a distress warrant and levied upon certain articles of furniture belonging to the plaintiff, for the sum of $711, being part of the bond remaining unpaid as alledged. The plaintiff replevied.-The defendant pleaded the common avowry and cognizance for rent; to which the plaintiff replied in bar (craving oyer of the said demise and setting it forth in the plea) that he had executed the bond required by the demise, and that the defendant had no remedy by distress for default of payment, but should have resorted to his action upon the bond. To this plea the defendant demurred generally, and the plaintiff having joined in demurrer the case came on to be argued before his honour, Judge RICHARDSON, who sustained the demurrer. Whereupon the defendant took a verdict for the amount of principal and interest due on the bond.

A Motion was now made to set aside the verdict, and to reverse the decision upon the demurrer.

Moise, for the motion. The defendant, by taking a bond for the rent of the premises relinquished, ipso facto, his right to the remedy by distress, and must seek redress in the usual form by action on the bond. There was no rent reversed in the demise which is necessary to the support of the remedy by distress.-1 Bay, 315; Ib. 443; 2 Const. R. Tread. Ed. 637. Even if there were such reservation of rent in the demise, it extended to the whole term for which the lease stipulated to run, to wit, for six and a half years, and therefore any distress prior to the expiration of the term was premature and illegal. To entitle the defendant to distrain, the rent, if it could be claimed as such, should have been payable annually-Co.

o o

Lit. 144. This distress was for interest on the bond also, which was illegal-6 Johnson, 43. The bond was a common money bond, and if any distress could have been made to enforce its payment, it should have been made for the penalty, and not for any of the instalments.

Henry Grimke, contra. The leading question is, whether rent has been reserved. If it has been, the right to distrain follows of course. The parties by their contract may fix the time whenever they please, that the rent should become due-2 D. & E. 600; Gilbert on Distress, 32. Taking a bond or note will not extinguish the right to distrain-3 M'Cord, 484.

T. S. Grimke, same side, cited Brady on Distres, 102; 2 Bin. 146; Van Leon vs. Smith.

H. A. De Saussure, in reply, cited Parker vs. Harris, 1 Salk. 262.

CURIA per NOTT, J. The Court coneur in opinion with the Judge below.

I will avail myself of this opportunity to correct an expression which I made use of in the case of Marshall & Giles-2 Const. R. Tread. Ed. 637-that a distress will not be allowed except where "rent is reserved eo nomine." It is not necessary that it should be reserved by the name of rent.-It is sufficient if it shall appear to be for the use and occupation of lands or houses, though not denominated rent. The motion is therefore refused.

Judgment affirmed.

SOMERALL VS. GIBBES.

An action on the case lies against a Master or Commissioner in Chancery for neglecting to take good security on a guardianship bond.

But the amount due by the guardian must be ascertained by a decree of the Court of Chancery, before suit can be brought against the Master; as otherwise the amount of damage cannot be ascertained.

This was a special action on the case against defendant, late Master in Chancery for the District of Charleston, for taking an insolvent person as surety on a guardianship bond of one Rhodes, who was appointed guardian to the plaintiff by the Court of Chancery, and the defendant was ordered to take the security.

The case was tried before the Recorder of Charleston, before whom a nonsuit was moved for, on the ground that by the act of 1791, the Master was bound to give bond for the faithful performance of his duties, which the plaintiff should have sued on. And that the plaintiff should have obtained a decree against the guardian on a bill to account before the amount of damages could be ascertained; and until he did so, he could not bring this suit against the Master.

THE RECORDER refused the motion, and the jury found a verdict for the plaintiff.

The defendant now moved for a new trial, on the ground that the act was a judicial and not a ministerial one, for which the officer was not liable, and that a decree should have been obtained against the guardian and the amount due by him ascertained, before the suit could be maintained. A nonsuit was also moved for on the grounds taken before the Recorder.

Toomer, for the appeal.

Peronneau & Finley, contra.

CURIA per JOHNSON, J. There are only two general propositions growing out of the grounds of this motion.