
    Henry B. Jaques vs. Charles Sanderson.
    A motion to dismiss an action of replevin, on the ground that the writ was served by a constable, or that there was no appraisal of the goods, must be made at the first term; otherwise the objection will be considered as waived.
    A writ of replevin may be amended by adding, to the description of the property sued for, the words “ of the value of twenty-five dollars.”
    This was an action of replevin commenced on the 30th of October, 1849, and returnable at the December term, 1849, of the court of common pleas. The goods sued for were described in the writ as “ nine moulded pine doors, belonging to Henry B. Jaques aforesaid.” The writ was served without any previous appraisal of the goods by a constable of Charles-town, who took a bond in twice the amount of the damages .aid in the writ, which amount was twenty dollars.
    The cause came on for trial before Merrick, J., at the December term, 1850, and the defendant then, before issue was joined, moved to dismiss the action, un the following grounds: 1st. Because the damages therein demanded did not exceed the sum of twenty dollars; 2d. Because it did not appear that the value of the goods therein alleged to have been unlawfully taken and detained was more than twenty dollars; 3d. Because there was no appraisal of the goods previous to the service of the writ; and 4th. Because the writ was served by a constable.
    The plaintiff thereupon moved to amend his writ by adding to the description of the goods sued for the words “ of the value of twenty-five dollars.” The defendant objected to the allowance of the amendment on the ground that the court had no jurisdiction: but the presiding judge overruled the objection and allowed the amendment. The motion to dismiss was then overruled, and the case proceeded to trial. The defendant pleaded the general issue, which was joined, and the plaintiff obtained a verdict.
    The defendant thereupon alleged exceptions, which he reduced to writing, in substance as above, and presented to the presiding judge for allowance, before the adjournment of the court without day. The plaintiff objected to their allowance, because they were not presented within three days after the verdict, as prescribed by the rules of court; and the judge rejected them on that ground, although he found them to be conformable to the truth of the case.
    And to this refusal of the judge to allow this bill of exceptions, the plaintiff alleged exceptions, which were allowed and signed by the judge.
    
      J. Q. A. Griffin, for the defendant.
    1. The judge erred in refusing to allow the original bill of exceptions. By Rev. Sts. c. 82, § 37, the court of common pleas has authority to make rales for regulating its practice, only “in all cases, .not expressly provided for by law.” Section 12th of the same chapter provides, that exceptions “ being presented to the court. before the adjournment thereof without day, and being found conformable to the truth, shall be allowed and signed by the judge.” The rule of that court, requiring exceptions to be presented to the court for allowance within three days after the verdict, is inoperative,' because it is repugnant to law, and because it reaches a case “ expressly provided for by law.”
    2. The court of common pleas had no jurisdiction of the action, until the fact that the property was of the value of more than twenty dollars was stated on the record. Rev. Sts. c. 113, § 27. The decree of the court, therefore, allowing the amendment, was an exercise of jurisdiction where none existed.
    
      E. Buttrick, for the plaintiff,
    submitted the case without argument.
   Bigelow, J.

We have not thought it necessary to consider the question presented by the refusal of the court to allow the original exceptions, because, if allowed, it is apparent that they could not have availed the defendant. He is not, therefore, aggrieved by the refusal of the court to allow them.

The motion to dismiss the action, because the writ was served by a constable, and for the want of an appraisement of the goods replevied, not having been made at the first term, was rightly overruled. These objections, not having been raised seasonably, must be considered as waived. Simonds v. Parker, 1 Met. 508; Wolcott v. Mead, 12 Met. 516; Smith v. Robinson, 13 Met. 165.

. The amendment of the writ, if necessary at all, was clearly within the power of the court under Rev. Sts. c. 100, § 22, which authorizes amendments to be allowed either “ in form or substance.” The court in this-case had jurisdiction of the parties and of the subject-matter of the suit. The value of the property, as alleged in the amendment, is not disputed by the defendant. The amendment introduced no new element of jurisdiction, which did not exist before. It only made it apparent on the face of the writ, that the case was within the jurisdiction of the court. It was, therefore, rather an amend ment in form than in substance, and as such, could not well have been refused by the court. Cragin v. Warfield, 13 Met. 215. Exceptions overruled.  