Cutler v. Rathbone — 1 Hill & Den. 204

Majority

p. 204

Cutler and others vs. Rathbone, sheriff of Cayuga.

Headnote

A writ of replevin, though returnable before “ the justices,” &c. instead of “ our jus» tices,” and mentioning no place of return, is amendable.

A variance between the writ, and summons, as to the nature of the action, the writ being in the detinet, and the summons in the cepit et detinet, is immaterial.

Otherwise, as to a similar variance between the writ and declaration.

The summons is a mere notice; and is sufficient, it seems, if it fairly apprise the defendant of the action being replevin, of the name of the plaintiff and his attorney, of the court whence the writ issued, and the time and place for the defendant to appear.

A mistake in returning a writ to the wrong clerk’s office, is not ground for setting aside the proceedings; the statute on this subject being merely directory.

Though the affidavit of property, &c. in replevin, may be made by a third person in behalf of the plaintiff, he must do it from the facts within his personal knowledge, independent of mere hearsay of the party or others; and when the affidavit was so drawn as to raise the inference of its having been made upon hearsay, it was held insufficient, but amendable upon terms.

In this case, the replevin bond was executed by one surety, and no other person, leaving blanks for the name of the obligee and the person from whom the property was to be replevied; and in that condition it was attested by a witness, but before the writ was executed, the blanks were filled up by authority from the surety, in the attesting witness’ absence. Held, on motion to set aside the proceedings, that the plaintiff might have leave to amend upon terms, by filing a new bond.

Motion to set aside a writ of replevin, the service thereof, and subsequent proceedings. The writ was made returnable before “ the justices,” &c. instead of “ our justices,” &c. and mentioned no place of return. It was in the detinet only; and the summons served by the coroner was in the cepit and detinet. The return itself was correct in form, but was filed in the Utica clerk’s office; whereas it should have been in the clerk’s office at Geneva. The affidavit was made by the attorney for the plaintiffs, and was—“That he has examined into, and is well acquainted with the facts of the case, <fec.; and deponent verily believes, and has no doubt, that the plaintiffs are the owners of the property described in the writ above set forth;” [the affidavit was subjoined

p. 205

to the writ;] “and that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this1 state, nor seized under any execution or attachment against the goods and chattels of the said plaintiff liable to execution. The reason why deponent makes this affidavit is, that the plaintiffs reside in the city of New-York, and the goods are in the county of Cayuga.” The replevin bond was executed by only one person, the attorney, as surety; leaving blanks for the name of the obligee and the person from whom the goods were to be replevied. It was subscribed by an attesting witness, and the bond then sent off, and the blanks afterwards filled up by another, not in the attesting witness’ presence.

W. T. Worden, for the motion.

M. T. Reynolds, contra.

The mistake in the form of the writ is merely clerical, and may be corrected by amendment. (Williams v. Rogers, 5 John. R. 163, 166, 7. Morrell v. Waggoner, id. 233.) The variance between the writ and summons was but formal, and could not well mislead. It informed the defendant of the term when the writ was returnable, and that the action was replevin. The summons is but a notice; and if it apprise the defendant of the proper term when he is to appear, he of course becomes fully informed as to the nature of the action by the declaration. If, on proper inquiry, he finds this to vary from the writ, he may move to set it aside; but we have never extended the same right to a formal slip in the summons. It is enough that the defendant be not misled. The statute, (2 R. S. 431, § 9, 2d ed.) requires only a brief statement, signed, &c. containing the name of the plaintiff and his attorney, the court and the time and place of the return.

Mistaking the proper clerk’s office, is not a ground for setting aside the proceedings. The statute pointing out

p. 206

the place of return is merely directory. (Garlock v. Ontario Bank, 1 Wend. 288 .)

The affidavit may be made by some one in behalf of the plaintiff, (2 R. ¡8. 431, i7, sub. 1, 2d ed. ;).but he must be enabled to speak from facts, independent of the mere information of the party." Here the attorney says, he was well acquainted with the facts; and, from such acquaintance, undertakes to say that the .property belongs to his clients. Such acquaintance may have been, and I infer from the attorney’s further affidavit that it was, derived from the mere statement of the clients, probably in a letter, or, at most, from some one who retained him. Such an affidavit is a mere evasion of the statute. We might as well, and even better, take the certificate of the client, without oath.

We have, however, allowed a good bond to be filed where that given at first was defective. (Hawley v. Bates, 19 Wend. 632 . Whaling v. Shales, 20 id. 673 .) The bond and affidavit are both required by the statute as preliminaries to warrant the service, (2 R. S. 431, § 7, 2d ed.) tire one in terms equally strong with the other; and I perceive nothing, in principle which forbids our allowing an amended affidavit any more than a bond.

The bond is admitted to be defective, there being only, one surety; but this defect, like all the others in the proceedings, is shown to have been a consequence of haste and clerical mistake, the defective attestation inclusive.

The plaintiffs may therefore amend all the defects, upon payment of costs.

Rule accordingly.

Cases cited

Hawley v. Bates 19 Wend. 632 N.Y. Sup. Ct. p. 206