EDMUND DAWS, pl'tff in error, vs. HORACE GLASGOW, def't in error, 1 Bur. 8

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: 3d. 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 case, 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.