#### Harris, Administratrix, *v.*M’Faddin.

The warrant of a justice of the peace, issued under the statute of 1824, commanding the constable to distrain for rent,—isa justification to the officer in an action of replevin by the tenant, independently of the landlord’s claim.

If the constable justify under his warrant, and obtain judgment on,a demurrer to his plea, he is entitled to a return of the goods.

If the tenant wish to contest the landlord’s right to distrain,—to rely, for example, on *non tenuit*or *riens in*arrear,—he should institute fiis suit against the landlord.

The defendant, on a dem.urrer to his plea, obtained a judgment, without having joined in demurrer: *Held,*that the plaintiff could not assign t'ne want of the joinder for error.

APPEAL from the *Vigo*Circuit Court.—This was an action of replevin by Harris, administratrix, against *M’Faddin.*The declaration is in the usual form. The defendant pleaded specially, that he took the goods by virtue of a distress warrant, directed to him as a constable of the township, issued by a justice of the peace, commanding him to distrain the goods of the plaintiff for one year’s rent due to *Modisett,*the plaintiff’s landlord. The warrant is set out in the plea. General demurrer to the plea, and judgment for the defendant, not only of *nil capiat per breve,*but also for a return of the goods.

Saturday, *May*12.

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 *72original 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.