The comet. [volume] (Jackson, Miss.) 1877-1882, 1881-12-10
SUPREME COURT DECISIONS
aeportad weekly by 10bevt Rhet-
well. AttDrncy.at-g.aw.

OF. DUDLEY, @s
| vs..
MRS. j. HARVEY
Appeal from the Circuit Court Of sharkey
county, Hon. b. +, Trimble, Judge.
On the 9th day Of January, 1880, Dudley
rented from Mrs. Harvey certain tract Of
land for which she was entitled on the 18th
Of November, 1880, $500, less supplies &C.,
| 10 DO furnished TO her that year. On the
18th day of November, 1880, two days be-
fore the rent was due, Mrs. Harvey made
oath before j. p. in Sharkey Cor
"That o. Il. Dudley will be indelod a
her, $500 for rent In arrear on LAND sits1|
atcd in said county and occupied bysaid
o. F. Dudley the year 1880 by virtue of a
lease thereof by afliant for a term CON-
mcncing on the 9Th day Of January, and
ending on the 9th day OF January 1881, fol-
the said sum Of money. payable on or be.
fore the 10Th day Of November $780," A
writ of attachment thereupon issued and
was levied OH l6b-c belonging to Dud-
ley. Dudley replevied and retained pos
session. At the next term Of the Circuit
Court Dudley filed his declaration in re-
plevin. On the following day Mrs. Harvey
filed her avowry in replevin, to which Dud-
ley demurred. The demurred was sustain
cd and leave given to file an amended
avowry. The amended avowry was ne
cordingly filed wherein Mrs. Harvey be-
sides seeking justification of the distress
under the affidavit on which:the writ of at
tacliment issued further ayerred shat
said cotton had been removed by him with
out paying said rent within thirty days
next previous to the making said affidavit,
and defedant further AYERS that at the time
of making said affidavit for rent then not
due she had just cause to suspect and did
verify believe that said Dudley would re-
move his effects from the leased premises
to some other place within or without the
county, before the said rent would fall due,
so that no distress could be made therefor,
wherefnre, &C." To.this amended avowry
Dudley dcmurred on the ground that while
the avo1ry contained the averments neces-
sary for the justification of the distress, tic
aSfdapH upon which the attachment was
founded did not contain them. This de-
murrer was overruled and Dudley then
filed his replication. The jury found for
Mrs. Harvey, defendant in replevin land
plaintiff in ayowry.)
Lowry a. McLaurin for appellants.
Nngent ~ Melville contra.
CAMPBELL, j.,
Held
The Statute (213O4 Code OF 's0) entities the
landlord 10 nm attachment for rent. "before
1t will fall DUE" on his making the pre-
quired. Making oath and giving bond rs
required, are conditions precedent to
VIII '"S Which it wi win be- Illegal
and will not be a justification for TAX |
ing the goods Of the tenants. In defence |
Of replevin by the tenant of the goods |
seized, tho landlord can justify the seizure
ed according to law, and, il he fails to do |
this, the plaintiffin the repleyin will be en-
titled to u judgment. The landlord must |
not only have 4 right to an attachment for |
rent, but he must proceed according to |
law In the employment OF tho summary |
and extraordinary remedies provided for |
the enforcement OF his right. IL is not |
enough that the conditions exist which
entitle him 10 the attachment, but he must |
10 what the law exacts as the foundation for |
ts issuance. 1t IL not allowable to obtain |
The process without the required oath, and
IN answer to the declaration in replevin by
Inc tenant to justify the taking ofthe goods,
not by virtue Of III process, but by the facts
existing when the attachment was issued
md on which, IL oath had been then made
,f them, n valid attachment might have
been obtained. Nothing but a rightful
seizure under q lawfully issued attachment
IAN Withstand the complaint Of the tenant
hat his goods have been wrongfully taken
by the landlord.
The demurrer to the amended avowry
'hould have been sustained.
Judgment reversed.
fro DIX REPoRrED.l