Harris v. M'Faddin
Indiana Supreme Court
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.
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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…
1Opinion of the CourtBlackford, 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…
Also in this document: Per curiam.
2Cited by4 opinions
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- Frank v. StateSupreme Court of Alabama · 1866
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- Harris v. BoggsIndiana Supreme Court · 1841