5 Mich. 532 | Mich. | 1858
The objections of the plaintiff in error to the questions put to the witness Buck, were properly overruled by the justice. The object of the inquiries was to show that the property in question was exempt by law from seizure and sale upon execution, and the objections were not to the form, but to the purport, of the questions. Under the pleadings in this case we think this inquiry might be properly gone into.. It is not necessary in the declaration in replevin to describe specifically the character of the property, as that it is exempt from sale upon execution, any more than it,, is in an action of trespass or trover. It is sufficient to follow the
The defense interposed in this case is, that the property was seized and held under an execution issued by a justice of the peace upon a judgment in favor of Elliott, and against Whitmore, and that the goods were the property of Whit-more, and lawfully liable to be taken upon such execution; and upon the issue .thus tendered the question of the liability of the property to such seizure is raised.
Under the Exemption Law, all wearing apparel of every person or family, and to each householder, all household goods, furniture, and utensils, not exceeding in value $250, are exempt from levy and sale upon execution (Comp. L. §4465) ; and when property thus exempted is seized upon execution, replevin will lie at the instance of the judgment debtor (Ibid. §§5009, 5011). The exemption of wearing apparel is absolute — that of household goods is limited to an amount not exceeding $250 in value; and if the officer holding the execution would protect himself against the consequences of
As, therefore, under the statutory form of declaration the question of the exemption of the property from seizure and sale upon execution can be properly raised, no argument can be drawn from such form against the plaintiff’s right of recovery. Whether the goods be unlawfully taken, or wrongfully detained, the declaration is in the same form, and under it every question can be tried that is triable in the action of replevin; and, as already remarked, in the present case the notice accompanying the plea of the general issue distinctly tendered the issue of exemption or non - exemption. The defendant certainly can not insist upon having a declaration specially framed to enable the plaintiff to maintain this right of exemption, any more than to maintain any other special right to the possession of property.
There is nothing that we perceive in the affidavit accompanying the writ, inconsistent with the plaintiff’s claim. This is in the usual and prescribed form, and whether it be true or false, consistent or inconsistent with the plaintiff’s claim upon trial, it can not affect the issue or the judgment. The office of the affidavit is to confer jurisdiction ; and it can only be looked into to ascertain that fact, not made to operate as a defense upon the trial upon the merits. .It is only througlNproper pleadings that questions of - this character can be raised, when they can be raised at all.
It is also assigned as error that the verdict and judgment are contrary to the law and the evidence. With the correctness of the judgment, so far as it is dependent upon
Judgment affirmed.