Taylor v. Dobson

[361] Judgment affirmed. Upon the hearing of the motion appeared the original declaration seeking to recover a certain mule from Pevee, and the process attached thereto; also, the copy affidavit attached to the declaration, to the effect that plaintiff* was about to institute an action of trover against Pevee, returnable to the May term, 1886, of the superior court, to recover the mule, describing it and stating its value; that said mule was then in the possession, custody and control of Pevee, and she had reason to apprehend that it would be eloigned and moved away and would not be forthcoming to answer the judgment that might be had in said action of trover; that she claimed for the hire of the mule from the 25th of January, 1886, to this date the sum of $30 ; and that she verily and bona fide claimed the property above described. This copy affidavit had no signature and no attestation, though in the body it purported to be made by Maria Dobson before one Taylor,- a justice of the peace. The return of the sheriff stated that he had served a copy “ of the within process ” by handing it to Pevee in person, and taken bond for the forthcoming of the property “ or condemnation money for the May term, superior court, 1886.” The verdict and judgment also appeared. The original affidavit to hold to bail was similar to the copy affidavit above mentioned, except that it was signed by Maria Dobson with her mark, and attested by Taylor as justice of the peace, and except that the mule in the copy affidavit was partly described as a bay or mouse colored horse-mule, and in the original as a mouse colored horse-mule. By consent of both parties, the clerk of the court stated that there was not of record in his office any bond in the case; that he had searched for but could not find a bond; that he had seen a bond some time, but could not say when ; that Taylor’s and Pevee’s names were on the bond, but he did not know the contents of it; that he was quite positive there had been a bond in the office before judgment, but could not say that it was in office at the time of the judgment; that he was not certain that he had seen it since judgment was rendered ; and that he had never read it and could not say what were its conditions. The respondent offered no evidence. J. G-. & D. Ií. Clark, for plaintiff in error. A. C. Wright, contra.