Baker v. Dubois

Pbb Cueiast : Baker, being sued by Dubois in replevin, pleaded to the merits, and a jury being sworn to try the issue, he moyed for a non-suit and that the cause be dismissed, and assigned for cause, that the court had no jurisdiction, for the reason that the affidavit “upon which,” in the language of the motion, “the writ was issued was an insufficient affidavit, and gaye no authority whatever to this court to issue the writ; that said affidavit was not in accordance with the requirements of the statute.” The court held that the defendant’s pleading the general issue to the declaration was a waiver of the informality of the affidavit, and overruled the motion. This ruling is the only thing objected to, and we think the court decided correctly. The jurisdiction to issue the writ of replevin in the circuit court does not depend upon the affidavit. The statute contemplates the issuing of the writ before any affidavit is made, but provides that it shall not be executed until the plaintiff in the action, or some other person having a knowledge of the facts, shall 93 make and annex to the writ an affidavit stating that the-plaintiff in such action is then lawfully entitled to the possession of the property described in the writ; that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this state, nor seized under any execution or attachment against the goods and chattels of such plaintiff liable to execution, and that such goods and chattels are unlawfully detained by the defendant in such writ.— § 6732, G. L. The affidavit here was made by the plaintiff’s attorney, and he stated that he made it in behalf of the plaintiff. But in that portion of it intended to show that the property was liable to be seized in replevin it set forth “that the' same” had “not been taken for any tax,” etc., “nor seized under execution in attachment against tho goods and chattels of this deponent liable to execution,” etc. The word “in” was used after the word “execution” instead of “or;”, and the words “this deponent” were used instead of words describing the plaintiff, as should have been done, inasmuch as the deponent was not the plaintiff. But these defects were merely clerical, and were undoubtedly waived, as suggested by the court. The judgment should be affirmed, with costs.