Campbell v. Head

Caton, J. The affidavit in this case, after setting forth the plaintiff’s right to the property, states, “ that the said property has not been taken in execution for any tax, assessment, or fine levied by virtue of any law of this State,” &c. This does not conform to the requirements of the statute. The plaintiff has here sworn that the property had not been taken by virtue of a particular process for any tax, &c., leaving us uninformed as to whether it may not have been distrained for taxes assessed against the defendant without an execution, which may be done under our laws. It might be true that the property had been distrained for taxes or assessments, and the plaintiff not liable to be prosecuted for perjury for swearing to this affidavit. The defendant entered a motion to quash the writ for the insufficiency of the affidavit, which motion the court sustained, and quashed the writ, “ whereupon the said plaintiff moved to amend by filing the following affidavit,” &e.. This application the court denied, and it is this decision which is assigned for error. Had the plaintiff desired to amend his affidavit, he should have applied to the court for leave to do so before the decision was made, and the judgment of the court given upon the defendant’s motion to quash the writ. Strictly speaking, the suit was no longer pending in court, except for the purpose of assessing the damages and for final judgment. It may be, that while the record was still within the control of the court, it might within its discretion have allowed the amendment and set aside the order quashing the wilt, but certainly it was not bound to do so. In the decision of the court refusing leave to amend, there was not error. Upon the assessment of the damages, the plaintiff offered to prove, in mitigation of damages, that the horse was his; relying upon the Act of the first of March, 1847, entitled “ An Act concerning Practice.” That act duly applies to a case where a suit is brought on the replevin bond, and has no reference whatever to the assessment of damages in the action of replevin. The language of the statute is explicit and unequivocal, and admits of no construction. The damages had to be assessed under the 6th section of the 88th chapter of Revised Statutes, which gives to the defendant “ damages for the use of the property from the time it was taken until return thereof shall be made.” It was also objected, that the damages should have been assessed by a jury, instead of the court. This objection is also disposed of by the same section last referred to, which provides, that “ if the plaintiff shall not prosecute his suit, or if judgment shall in any manner be given for the defendant without a trial, the damages in such case may be assessed by the court on hearing such testimony as may be offered on the subject.” This was one of those cases in which the court was authorized to assess the damages. Nor is this any violation of the right of trial by jury, which is secured by the Constitution. Here was no trial, for there was no issue between the parties to be tried. The right of the defendant to recover his damages was already adjudged to him, and it was merely an inquiry as to the extent of those damages. It was competent for the legislature to provide that these should be ascertained without the intervention of a jury. The judgment of the Circuit Court is affirmed. Judgment affirmed,