
    Stone v. Hopkins.
    REPLEVIN. Property not returned by officer. Case or detinue. A replevin warrant issued from a Justice of the Peace; the return did not show whether the property was delivered to the plaintiff or not; hut it was not in fact delivered. The case having gone into the Circuit Court, the defendant moved to quash, assigning no cause on record, but the reason being that the warrant issued without the affidavit required by law in replevin. Plaintiff then took the pauper oath, and the court refused to quash. Held: The proceedings were to be treated as a suit in case, and the action of the court was proper.
    PROM ROANE.
    Appeal in error from Circuit Court of Roane county, August Term, 1869. E. T. Hall, J.
    Childress, for plaintiff in error, said:
    Hopkins brought this action of replevin before a justice of the peace for Roane county, on the 23d of October, 1866, and set for trial on the 26th October, 1866, when a judgment- was entered against Hopkins and his securities for the costs. From this judgment Hopkins appealed to the next term of the Circuit Court of Roane county, and filed his affidavit as a pauper, in lieu of giving bond and security, as required by law in actions of replevin.
    In the Circuit Court, Stone, the plaintiff, took his rule to quash the proceeding before the justice, which motion was overruled by the court. The plaintiff in error, Stone, excepted.
    
      And it is now insisted that the Circuit Court erred in refusing to quash the proceeding, because, first, the defendant, Hopkins, filed no affidavit of his title, and giving a description of the horse in question, as required by law.
    The Circuit Court should also have dismissed the appeal, because no bond and security for said appeal, and to indemnify the defendant for wrongfully replevy-ing the horse in question.
    After several continuances, this cause was tried at the 'August Term, 1869, of Roane Circuit Court, and resulted in a verdict for the defendant in error. Plaintiff in error, Stone, moved the court for a new trial, Avhich was refused, and exceptions taken.
    The plaintiff in error, Stone, insists that the Circuit Court of Roane should have quashed the proceeding for the want of the affidavit required by law, before suing out his replevin warrant, and also because no security for cost, and to indemnify the defendant for wrongfully suing out his replevin had been given.
    -, for defendants.
   McFaíhAND, J.,

delivered the opinion of the court.

Hopkins began this action before a justice of the peace against Stone. The warrant is in the ordinary form of a replevin warrant for a bay horse — a bond was taken with security, but not in the form required, and no affidavit appears to have been made, as required by law, for the issuance of a replevin warrant. The officer returned the warrant “executed and returned for trial/’ but does not show that the horse was taken out of the possession of the defendant and delivered to the plaintiff. From the subsequent proceedings it appears that this was not done — though the return oi the officer does not show affirmatively either that this was or was not done. The justice gave judgment for the defendant, and the plaintiff appealed to the Circuit Court, taking and subscribing the pauper’s oath, in lieu of an appeal bond.

In the Circuit Court the defendant entered a motion to quash the proceedings before the justice, which was overruled. Upon the trial a verdict was rendered in favor of the plaintiff, assessing his damages for the detention of the horse at 10 cents for the time that the plaintiff had not had the horse sued for, and assessing the value of the horse, with interest, at $29.50. A new trial was refused and judgment entered. From this judgment the defendant, Stone, had appealed in error.

The error relied upon is, in the refusal of the Court to dismiss or quash the proceedings for want of the affidavit required by the statute. If the suit was then being prosecuted as a replevin suit — the property having been taken out of defendant’s possession and delivered to the plaintiff’s — then a motion to dismiss for want of the affidavit should have prevailed — ■ unless an amendment might have been allowed, which we do not decide. But it is provided that “in the event the officer returns that the property has not been taken, the plaintiffs may elect to proceed in case or detinue — and the canse shall then be conducted as if the leading process had been in one of those forms.”

The return of the officer does not in this case, in terms, show that the property was not found, or any reason why it was not taken and delivered to the plaintiff; but we must take the return, in the light of the subsequent proceedings, to mean, that the property was not delivered to the plaintiff under the writ. The motion in the Circuit Court does not show the ground upon which it was made — it was simply a general motion to quash the proceedings, which was overruled. The proper motion would have been to' dismiss the suit for want of the proper affidavit. Upon the assumption that the plaintiff did not get possession of the property under the warrant, then the case was afterwards presented by him as an action for the value of the horse. This he might do, without an affidavit and under the pauper’s oath. Notwithstanding the warrant was in the first instance improperly issued as a replevin warrant, in the event the property is not delivered to the plaintiff, he may elect to proceed in case> and in that event, it proceeds as if the warrant had. originally issued in that form. In this view, there' was no error in refusing to quash the proceedings.

No other error is assigned, and the judgment will be affirmed.  