
    Richard M. Ellis vs. Charles S. Abercrombie, use of Thomas S. Stephens et al.
    It is error to dismiss a trial of the right of property levied on under execution, where the bond has been regularly given, because no affidavit by the claimant of the property of the nature of his claim appears in the case; the statute requires an affidavit to be made, and does not allow the sheriff to take a bond for the trial of the right unless such an affidavit has been made ; but while the statute requires the sheriff to return the bond with the execution into the court, it does not require him to return the affidavit, (H. & H. 634, § SO) ; his omission to do so cannot prejudice the claimant.
    In error from the circuit court of Washington county; Hon. George Coalter, judge.
    On the 19th of November, 1844, Charles S. Abercrombie, for the use of Thomas S. Stephens and John L. Mapman, sued out an execution against William S. Ellis, which was levied on certain slaves and cord wood. Richard M. Ellis executed to the sheriff a claimant’s bond, which recited among other things, “ and whereas said Richard M. Ellis has made claim to said property by affidavit, in order to the trial of the right thereto, in said circuit court.” The sheriff returned on the execution the fact of the levy, and continued, “ whereupon Richard M. Ellis, by his attorney, in fact, Ezra R. Price, claimed the said property to be his own, and having executed to the plaintiff a bond conditioned according to the statute in such case made and provided, with Francis Griffin and William S. Hood as his sureties, upon the 17th day of December, 1844, and the said property was on that day delivered to the said claimant, and the said bond returned with this writ into court.”
    At the April term, 1845, Richard M. Ellis tendered an issue to the country for the trial of his right. At the same time, subsequently, the plaintiff in execution moved to dismiss the case, because there was no affidavit filed by the claimant of his claim to the property levied on. The motion' was sustained, the case dismissed, and this writ of error prosecuted by Ellis.
    
      Sanders and Price, for plaintiff -in error,
    contended,
    1. That the statute did not require the affidavit, but only the bond to be returned with the execution. (H. & H. 634, 635.)
    
      2. That the oath required by the statute was for the benefit of the sheriff, and could not in any way affect the rights of the parties to the suit.
    Counsel for plaintiffs argued at length other points arising on the record, which are not inserted because not passed upon by the court.
    
      D. Mayes, on the same side,
    contended, in addition, that the statute did not even require a written affidavit, and that an oral one would be a sufficient compliance.
    
      Guión, for defendants in error.
    1. The proceeding by which this case was brought before the court below, was a statutory one, and the requisitions of the statute must be complied with ; it enables a person not a party to a judgment to prevent its execution, and obtain possession of the property levied on, and it would be of mischievous tendency to dispense with a single requirement of the statute.
    2. The affidavit is the foundation of the proceeding, and the court is bound to see that the claim is conducted according to law, and has a right to dismiss it, if it be not.
    3. The proceeding is analogous to the writ of attachment and the action of replevin. It will not be pretended, if the affidavit be wanting in either of those cases, the court may not dismiss them; and for the same reason, it properly dismissed this case. They are all remedial statutes, granting peculiar statutory remedies, and in each case, to avail himself of the remedy, the party must comply with the statute.
    
      George S. Yerger, Downs and Baine, on the same side
   Mr. Justice Thacheb.

delivered the opinion of the court.

This is a trial of the' right of property. Upon the trial, the plaintiff in execution moved the circuit court to dismiss the cause, because there was no affidavit of a claim to the property filed by the claimant. This motion was sustained. A claimant’s bond appears in the record, which sets forth that the claimant made claim by affidavit to the property levied on.

A sheriff may not properly take a bond in such a case, unless an affidavit, as required by statute, be first made; but, in cases where the sheriff is not a party, it will be presumed he performed his duty in this particular.

The statute, (H. & H. 634, § 20,) requires the sheriff, or other officer, to return the bond with the execution to the clerk’s office, from which such execution issued, and the court is thereupon directed to cause an issue to be made up between the parties to try the right of property before a jury. The statute is silent as to the disposition of the affidavit. It does not require that it should be made in the circuit,court, or elsewhere particularly. It but requires an affidavit to authorize the sheriff to take a bond, by virtue of which he may suspend the sale under the execution.

The judgment must be reversed, and the cause reinstated in the circuit court for further proceedings.  