#### Josephena Kruse v. Elizabeth Kruse.

Distress eor rent—error to render judgment. In a distress for rent, it is error to render judgment on the finding, and award a special execution. The court should ascertain if the relation of landlord and tenant existed, and if so, find the amount of rent due, and have it certified *189to the bailiff making' the levy, which certificate constitutes his warrant for selling the property and applying the proceeds to the payment of the rent found due.

Appeal from the Circuit Court of Monroe county; the Hon. Silas L. Bryan, Judge, presiding.

Mr. Wm. H. Underwood, for fÉe appellant.

Mr. Wm. Winkelman, for the appellee.

Mr. Justice Walker

delivered the opinion of the Court:

This was a proceeding by distress for the collection of rent, brought by appellee against appellant. The landlord's warrant was levied upon a quantity of wheat, and return was made to a justice of the peace, where the trial resulted in favor of the tenant. Plaintiff appealed to the circuit court of Monroe county, where the case was again tried by the court, without a jury, by consent of parties. The court found that a tenancy existed, and that the tenant owed the landlord §160 for rent, in arrear, and, after overruling a motion for a new trial, rendered judgment for that amount, and awarded a special execution for the sale of the property distrained.

In the cases of Alwood v. Mansfield, 33 Ill. 452, and Storing v. Onley, 44 Ill. 123, it was held that in case of distress for rent the court can only ascertain whether the relation of landlord and tenant exists, and find the amount of rent due, and have it certified to the bailiff who levied upon the property—which certificate constituted his warrant for selling it and applying the proceeds to the payment of the rent thus found to be due. In those cases it was also held to be error for the court to render judgment on the finding, and to award special execution. In that respect this case is like those, and must be governed by them.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.