Majority
p. 194Berrien vs. Westervelt, sheriff, &c. June 19.
Headnote
A sheriff or coroner has no power to take the affidavit of a plaintiff in reple-vin, as to the ownership of the property specified in the writ.The defendant in this case moved to set aside a writ of re-plevin, and all proceedings had thereon, on the ground that the affidavit of ownership of property annexed to the writ was not sworn to before a proper officer: it appeared to have been sworn to before the coroner who executed it.
On the part of the plaintiff, it was contended that the coroner had authority to take the affidavit by virtue of the provision contained in 2 R.'S. 552, § 11; and that such power was also fairly inferrible from the seventh section of the chapter relative to the action of replevin, 2 R. S. 523, which authorizes the officer, to whom the writ is directed, to swear and examine the sureties to the replevin bond — but
By the Court,
The coroner had no right to administer the oath to the plaintiff. He is not of the number of those officers-to whom general power is given to admin
p. 195
ister oaths or take affidavits, 2 R. S. 284, § 49; and no special authority is given to him to take an affidavit in any cause depending in court. The section referred to in 2 R. S. 552, § 11, does not contemplate a proceeding in an action depending in court; and although the sureties to a replevin bond may be sworn and examined by the coroner, he is not authorized to take an affidavit to be used in a cause. The affidavit not having been sworn to before a proper officer, was a nullity, and the defect is fatal. The statute forbids the executing of the writ, unless the affidavit be made and sworn to before some proper officer. 2 R. S. 523, § 7. The compliance with the statute is in the nature of a condition precedent.
Motion granted.