Harris v. M'Faddin

Blackford, J. In this case, if the defendant be viewed as a bailiff making cognizance,, the plea is defective for not averring the right of the landlord. We conceive, however, that this plea is to be tested by a different principle from that which governs a cognizance. The statute of 1824, p. 160, has changed the practice. The landlord cannot' in person, or by his bailiff, take the goods. He must go before a justice of the peace of the township, and, on complaint under oath, obtain a warrant commanding the' constable, to whom it is directed, to make the distress. This warrant, issued by a competent authority, is obligatory on the officer, and must be a justification to him independently of the landlord’s claim. Roberts et al. v. Tennell, 4 Littell’s R. 286. The judgment of the Circuit Court, therefore, upon the demurrer, that the plaintiff take nothing by his writ, was correct. We are also of opinion, that no objection can be made to the award of a return of the goods. The plea shows that the [72] original taking by the defendant was lawful, and nothing apof record inconsistent with the continuance of his right to the possession. Judah, for the appellant. H the plaintiff wished to contest the right of the landlord to distrain,—to rely, for example, on n¡on tmuit, or riens in ar-¡ rear,—lie should have instituted his suit against the landlord. It is against him or his bailiff not against the officer of Me law, that in cases of distress for rent, the person distrained on, when he replevies, gives bond for the due prosecution of his suit. The want of a joinder in demurrer is assigned for error. There is nothing in this objection. The plaintiff had a right to rule the defendant to join, orto add the joinder himself, and cannot now for the first time object to the omissipn. Per Curiam. The judgmentis affirmed.with costs.