Pate v. Shannon

Cooper, J., delivered the opinion of the court. There is no error in the action of the court below, either in refusing the defendant leave to amend the affidavit upon which the distress warrant was sued out, or in quashing the warrant upon motion of the plaintiff. A distress for rent is not a judicial proceeding, for it is returnable to no court in a pending suit, and serves only as authority to the officer to do what the landlord at common law could do for himself. Its legality rests upon conformity tó the statute by the landlord in making the required affidavit and bond. If, upon property being seized, the tenant, or a third person, impetrates a suit for the possession of the thing seized, the ■warrant, if legal, supports the avowry of the landlord of his right to the possession of the property. It is no more, within the power of the court to permit an amendment to the affidavit upon which the validity of. the writ depends than it would be to direct an amendment to a defective deed or power of attorney, relied on by a party plaintiff or defendant as a link in his chain of title. The making of the affidavit, as required by the statute, is a condition precedent to the issuance of the warrant; and if the condition is not performed, the warrant is illegal. The affidavit in this case was for rent due on lands in Yalobusha county; the warrant was issued by a justice in Calhoun county, directed to an officer in that 'county, and commanding him to seize the goods of the tenant for.rent due and in arrear, on lands in that county. The affidavit, confessedly, does not support the warrant issued, and it was properly quashed. Dudley v. Harvey, 59 Miss., 34. There is nothing in Hollingsworth v. Willis, 64 Miss., 152, or in Payne v. Stovall, 67 Ib., 514, at all in conflict [375] with the decision in Dudley v. Harvey. In the first of these cases the affidavit was sufficient, but contained an allegation wholly superflous and unmeaning. This the court permitted to be struck out, and, since it would not have been of any effect if it had remained, it was held immaterial that it was struck out. In Payne v. Stovall the objections were properly characterized as frivolous. The judgment is affirmed.