#### EDMUND DAWS, *pl’tff in*error, *vs.*HORACE GLASGOW, *def't in error.*

| *Error to Jefferson county.*

The Supreme Court will not, *under any circumstances,*consider matters assigned as error, which arc *dehors*the record.

Although there is an obvious impropriety in an attorney in a cause, taking, as a judicial officer, the affidavit of'his client, which is tobe the foundation of the action, yet, as there, is no provision of law or rule of court to prohibit his doing so, this court cannot say, that from the fact of his being attorney, ho is not a proper officer before whom the client may make the necessary affidavit and that the proceedings should be therefore dismissed.

Where the writ of replevin is for the caption and unjust detention of property, the declaration should correspond and alledge the caption and detention; a different form would be required under our statute if the detention only was complained of.

Whore a motion for a now trial is made on the ground that the verdict is contrary to the evidence and the instructions of tiio court, and overruled, and the record does not show *whnt*the evidence or instructions were, this court is bound to presume, that the discretion of the District Court was soundly exercised in overruling the motion.

Glasgow brought an action of replevin against Daws in the Jefferson District Court, for the caption and detention of a horse. The writ was issued in the usual form prescribed by the statute for the caption and detention, and the declaration filed corresponded with the writ. It appeared that the affidavit upon which the writ issued, was made before the plaintiff’s attorney as a Supreme Court Commissioner. At the May term 1842 of the Jefferson District Court, Daws, the defendant below, moved to dismiss the suit for want of a sufficient affidavit and bond, which motion was overruled by the court. The defendant then filed a general demurrer to the declaration, which was also overruled; upon which he filed the plea of *non detinet,*or that he did not unjustly detain, &c., upon which issue was joined and a verdict rendered in favor of the plaintiff. The defendant moved for a now trial on the ground that the verdict was contrary to evidence and contrary to the instructions of court, which motion was overruled and judgment rendered upon the verdict. The defendant below has prosecuted this writ of error to reverse tho judgment, and has made the following assignment of errors in the proceedings of the court below:

“ 1st. The court erred in overruling the motion to dismiss for want of a sufficient affidavit and bond:

*92d. In overruling the defendant’s demurrer to the plaintiff’s declaration:

3d. In overruling the defendant’s motion for anew trial:

4th. The court erred in ordering the issue to be made up on the unjust detention only, as the taking was complained of.”

There was no bill of exceptions taken to spread the testimony or the instructions of the court upon the record, and the record does not show any such order as is mentioned in the fourth error assigned.

Noggle for plaintiff in error:

The affidavit, which is the foundation of this action, is not sufficient, and the court below ought to have dismissed the case upon motion. The affidavit was made before Markley, a Supreme Court Commissioner, who was the attorney for the. plaintiff and who brought the suit. He was not a proper officer within the meaning of the statute. See Stats. Wis. pa. 272, sec. 7.

The demurrer to the declaration ought to have been sustained. The declaration is erroneous because it does not comply with the requisitions of the statute. See Stat. Wis, pa. 273, sec. 16; Rev. Stat. N. Y. 435; Yates Plead. 547.

The court below erred in requiring the defendant to plead as to the unjust detention only. It is not such a plea as the statute requires to a declaration in this form. See Stats. Wis. pa. 274, sec. 19. The issue thus made up precluded the defendant below from justifying on the trial his caption of the property in dispute.

The motion for a new trial ought to have prevailed, because the verdict was contrary to law and evidence. Admitting the whole declaration to be proven, it does not establish a case in which the plaintiff can recover. See 10 Wendell 629. Our statute in relation to the action of replevin is the same as that of New York, and the decisions under it ought to be the same as given in that state. 2 N. Y. Stat. 435, sec. 36.

The verdict of the jury was contrary to the instructions of the court, and in such ease a new trial should have been granted. Graham on new trials, 361 to 372.

Botkin, in reply:

The affidavit ought not to be considered insufficient on account of the professional, relation of the officer who administered the oath. He was an officer authorized by law to administer such an oath, and there is no objection to the form of the affidavit.— *10There is no law prohibiting an attorney in a canse from adminis-* tering oaths if he is a qualified officer. He cannot change the effect of a written affidavit by swearing the party to its contents and signing'fhe jurat. It may be conceded, that if the attorney was to make any order or give any decision in a causo, as a civil officer, that might, even by possibility, prejudice the rights of the adverse client, he would not.in such case be a proper officer. But this is not such a case, and neither the law nor reason prohibits the act that has been done.

The counsel for the plaintiff in error has assumed matters as error that do not appear on the record, and which of course cannot be settled here. The record does not show (hat the court below in any way controlled the plaintiff in error as to the form or substance of his plea; nor does it show any thing that will enable this court to determine that the verdict of the jury was either against evidence or the instructions of the court.

The declaration substantially complies with the statute, and with the soundest principles of practice, in every particular; and after verdict, every thing necessary to sustain it, is to be presumed where the contrary does not appear.

Noggle, in conclusion:

Although the statute does not expressly prohihit an attorney from acting asa civd officer in a cause in which he is employed, still reason and sound policy require that the administration of oaths and every other official act necessary to be done in the progress of the case, should be performed by some indifferent person.

The plea in this case only denies the unjust detention. If the plainfiffbelow accepted the plea and took issue upon it, he abandoned the caption charged in the writ and declaration, and of course the whole action, as the detention is only laid as a consequence of the caption.

Chief Justice Dunn

delivered the opinion of the court:

This case was tried in the District Court of Jefferson county at the May term thereof, 1842; verdict and judgment thereon rendered in favor of defendant Daws as plaintiff below, to reverse which judgment, writ of error is prosecuted in this court. The errors assigned by the plaintiff are:

1st. The court erred in overruling the motion to dismiss for want of sufficient affidavit and bond:

2d. In overruling demurrer to plaintiff’s declaration:

*113d. In overruling defendant’s motion for a new trial:

4th. The court erred in ordering the issue to be made upon the unjust detention only, as the taking was complained of.

Before proceeding to examine the errors which are based upon the record, the court will premise, that they cannot consent, under any circumstances, to consider or entertain matters dehors, as the fourth error assigned evidently is, from an inspection of the record.

First then; did the District Court err in overruling the motion to dismiss for want of a sufficient affidavit and bond? In discussing this error, the counsel for the plaintiff took no exception to the bond, indeed it does not appear to be obnoxious to any, but confined his objections entirely to the' affidavit; and assumed the ground, “that the attorney for the plaintiff, although a Supreme Court Commissioner of the county of Jefferson, is not a *proper officer*in the meaning of the law, before whom the affidavit in re-plevin may be made.” Although there is an obvious impropriety in the practice, and this courtis much disposed to discountenance it, yet there is no rule of law, or of court under authority of law, against the exercise of such a power by the attorney in the case, by virtue of his office of Supreme Court Commissioner of Jefferson county. Tho possibility of the abuse of a power delegated by law, when exercised in a particular relation, is not a sufficient argument against the exercise of the power in such relation, unless so specially provided in the law granting the general power: And we aie of opinion that the District Court decided correctly in overruling the motion to dismiss.

The decision of the District Court in overruling the demurrer to the plaintiff’s declaration, is also, in the opinion of this court, free from error. The declaration is good, according to the most approved practice, as a declaration in replevin, for taking and unjustly detaining properly. If it had been a declaration on a writ of replevin, for the unjust detention only, then, according to the provisions of the 16th section of our “act concerning replevin,” the form of declaring should have been varied to meet the requirements of that section. The authority in 10th Wendell, Lloyd Nichols vs. Charles Nichols, 629, is recognized by this court, it being a decision by the Supreme Court of New York on a statute of that state *pari materia*with our own “act concerning replevin.” But the principle there decided is not brought in question in this *12case, where the declaration contains all the material allegations to support the writ of replevin, and entitle the plaintiff to recover for the taking and unjust detention of his property, if sustained by. proof. Upon the record the decision of the District Court on the demurrer was correct.

David Noggle for plt’ff in error.

Field and Botkin for def’t in error.

It is insisted in the 3d error assigned, that the Distridt Court erred in overruling the defendant’s motion for a new trial. The motion, with the reasons upon which it is based, are matters of record. Tire reasons in the motion are — 1st. That the verdict was contrary to the evidence given in said case: 2d. That said verdict was contrary to the instructions of the court.

It no where appears in the record, what this evidence and instructions of the court were. There is nothing to inform this court whether or not the District Court exercised a sound legal discretion in overruling the motion for a new trial; but we are bound to presume that the discretion was properly and soundly exercised, in the absence of matter, apparent on the record to *tho contrary.*

We are therefore of opinion, that all the errors assigned are untenable, and that the judgment of the District Court of Jefferson county be affirmed with costs.