¶1 B)t force of the “Landlord and Tenant Act,” (Bat. Rev. cii. 64, § 13) as amended by the act of 1874-’75, ch. 209, the cotton, which is the subject of the controversy, was bound for the payment of the “rent note” as'.it is aptly termed in the statement of the case.
¶2 When the plaintiff, no matter under what pretext, took the two bales of cotton, it was an application thereof inpayment ■of the “rent note,” and His Honor erred in allowing the jury to give to the remarks of the defendant, evidentty made in passion, the effect of a waiver of this application. The fact of making it, the application, is the only justification that the plaintiff can offer for taking the cotton; so the most favorable point of view in which it can be put for him, is, that he had the two bales of cotton hauled to his storehouse, in payment of the “rent note,” And wre are of opinion that the legal effect of this act was not waived by the words after-wards used by the defendant.
¶3 Error.
¶4 Per Curiam. Venire de novo.