#### Partridge *vs.*McMartin.

An *action for the penally*given by the statute for the neglect of an officer making *distress for . rent,*to *file*the warrant of distress and the accompanying affidavit within the time limited by the statute, can be maintained *only by the tenant*against whom the warrant issued; a *third person*cannot maintain the action, although his property, happening to be upon the demised premises, is levied upon and sold.

Error from the Fulton 0. P. This was an action brought by Partridge *500against McMartin in a justice’s court to recover the penalty of *fifty dollars*given by statute against an officer who does not *within ten days*after goods distrained for rent *shall have been sold,*or after such goods *shall*[ *656 ] **have been replevied,*file in the office of the town clerk the original warrant of distress with the original affidavit of the landlord, his agent or receiver, delivered with such warrant. The penalty is given *to the person whose property shall have been distrained,*2 *R. S.*412, § 9. The defendant pleaded the general issue ; the cause was tried, and the justice rendered judgment for the plaintiff for $50, with costs. The defendant appealed to the Fulton common pleas, and on the trial in that court, the following facts appeared : A *distress warrant*was issued by the agent of Alfred Clark against the property of one *Palmer Edmonds*for $44. 05, rent, by virtue of which the defendant, as sheriff of the county of Fulton, on the 27th April, 1839, distrained *on the premises demised to Edmonds,*two steers, one heifer, and a few pieces of lumber, and gave notice of the distress to Edmonds. The *steers*and *heifer*were the *property*of Partridge who lived on an adjoining farm, and who within two or three days after the distress forcibly took from the sheriff the two steers. The heifer and lumber remained in the possession of the sheriff and was sold by him on the *seventh day of May, for*$14.25. In July the sheriff sued Partridge for taking the steers, and on the ninth day of September, 1839, recovered judgment for' $30 damages, besides costs. *On the tenth day of September,*and not before, the distress warrant and accompanying affidavit were filed in the town clerk’s office. The court charged the jury that the defendant was entitled to their verdict, and the jury found accordingly; upon which verdict, judgment was entered. The plaintiff having excepted to the charge, and taken various exceptions to the decisions of the court, sued out a writ of error.

*A. McFarlan,*for the plaintiff in error.

D. *Cady,*for the defendant in error.

*By the Court,*

Nelson, C. J.

As I am of opinion that the plaintiff cannot maintain the action under any circumstances within the true construction of the statute, no other question raised in the case need be examined.

By the 2 *R. S.*412, § 8 and 9, it is provided, that the officer [ *657 ] into whose hands the warrant of distress is placed, shall *not make the distress unless there shall bo delivered with the warrant an affidavit made by the landlord, or, &c., specifying the amount of rent due, and the time for which it accrued; and that within ten days after the *501goods distrained shall have been sold, or shall have been replevied, the officer shall file in the office of the town clerk, the warrant of distress together with the affidavit, and that any officer violating such provision shall forfeit fifty dollars to *the person whose property shall have been distrained.*The question presented is, who is the person here intended ?

On the part of the plaintiff in error it is insisted that any person may sue for the penalty whose property has been taken upon the warrant; while the defendant contends that the tenant against whom the distress warrant issued, can alone maintain the action. The latter position I think the soundest, and best comports with the object the legislature had in view, which was to afford the tenant an opportunity to examine the amount of the rent claimed, and the time for which it is alleged to have accrued. He is the person directly interested in the proceeding, and especially in the facts stated in the affidavit, and is presumed to be the most prejudiced by a non-compliance with the statute.

The penalty is given to *the person whose property shall have been dis-trained.*Now by the previous section of the statute, the legislature had in view the property of the tenant in directing and providing for the remedy by distress; it was his property that was to be distrained, and the distress might be made either upon goods *on*the demised premises, or after they had been removed; and when in the 9th section the penalty is given to the person whose property is distrained, it appears to me that the legislature still had in contemplation the property of the tenant. This view is strengthened by another consideration. But one penalty can be recovered for the neglect; and it may frequently happen, as has happened in this very case, that the property of the tenant and of third persons may be distrained at the same time. Which shall be entitled to the action ? Clearly, but one can prosecute; and he, I think, is the tenant.

Judgment affirmed.