delivered the opinion of the Court:
This was an action of replevin brought in the Circuit- Court of Hancock county by Matthew McClaughry against Andrew M. Cratzenberg.
The affidavit, on suing out the writ of replevin, stated that affiant was the owner of one sorrel mare, one bay mare and one male colt, worth three hundred dollars, and that the same were taken out of his possession by the defendant and detained by him ; that the property had not been taken for any assessment or fine levied by virtue of any law of this State, nor seized under any execution or attachment against the goods and chattels of affiant; “ and further, that the same has not been taken for any legal tax, as this affiant is.informed and believes.” A writ was duly issued on the 27th of June, 1865, the day the affidavit was made, and a declaration filed in proper time.
At the October Term, 1865, of the court-, the defendant entered a motion to quash the writ for want of a sufficient affidavit, he insisting the same was defective in omitting to state that the property was not taken for any tax levied by virtue of any law of this State; that the affidavit contained a negative pregnant, and. in grammatical and legal effect, admits that the property was taken by the defendant, by virtue and under color of an actual tax levied; and that the plaintiff did not swear positively, but only as to his belief.
Whereupon, the plaintiff entered a cross motion for leave to amend the affidavit, and presented to the court an amended affidavit, stating therein that the property was not taken for any tax, assessment or fine, levied by virtue of any law of this State, nor seized under any execution or attachment against the goods and chattels of affiant.
These several motions coming on to be heard at the same time, the court denied the cross motion to amend the affidavit, and allowed the motion to quash the writ and rendered judgment for the defendant for a return of the propertyand for costs, to all which the plaintiff excepted.
The cause is brought here by writ of error, and these rulings assigned as error.
In the outset, it may be stated, the court, adjudging the affidavit defective, and refusing leave to file an amended affidavit, could do no less than dismiss the suit and order a return of the property. No other judgment could be rendered as the case stood. The only questions, therefore, before us, are : First, as to the sufficiency of the affidavit; second, as to the refusal of the court to permit the amended affidavit to be filed.
To test the first question, reference must be had to the statute relating to the action of replevin. With its provisions all are familiar. The party seeking the writ must, by himself or agent, make oath, among other matters, that the property has not been taken “ for any tax, assessment or fine, levied by virtue of any law of this State,” etc. Scates’ Comp. 226.
The departure from the requirement of this statute, in the affidavit originally made, is very palpable. The statute requires the affidavit shall state, in positive terms, that the property was not taken “ for any tax, assessment or fine, levied by virtue of any law of this State.” The affidavit states that the property was not taken for any assessment or fine, levied by virtue of any law of this State, nor seized under any execution, etc.; and, in conclusion, states “ that the same has not been taken for any legal tax, as. affiant is informed and believes.” The effect of the affidavit, or, rather, the implication from it, is, unquestionably, that the property of affiant had been taken for a tax of some description, and some person had informed him, and he believed the information, that the tax, by virtue of which it was taken, was not a legal tax. The affidavit means nothing else but this, and brings up a question, which the policy of the very law whose aid affiant seeks declares shall not be raised by the action of replevin. It . is the policy of the State that the execution of its revenue laws shall not be stayed by this writ. Disastrous, indeed, would be the consequences to the public was it allowed to every taxable inhabitant, who may have conceived the notion that a law of general application, imposing taxes, is void, and, therefore, he shall be permitted to arrest its operation, and thus break down the financial system of the State. If one may do it, a whole community may, and ruin and disgrace would inevitably follow the extinction of our State credit thus brought about. The law forbids the consideration of the question of the legality of a tax, assessment or fine, levied under any law standing on the statute book of the State, 'by means of the action of replevin, and for the reasons we have given.
Tire affidavit not being positive in its terms, and containing no averment that the property was not taken for “ any tax, assessment or fine levied by virtue of any law of this State,” was so defective as to justify the court in quashing the writ which issued on it.
As to the refusal of the court to allow the amended affidavit to be filed, there can he no doubt about that question, from what we have already said.
The court was informed by the original affidavit, of the design of affiant, which was to test the constitutionality of a certain act of the general assembly authorizing the levy of a town tax for a special purpose. The amended affidavit, if filed, and a trial had, would have presented the same question, so that if the original affidavit had strictly complied with the statute, the effort would have been vain and fruitless, for the court would have been compelled to dismiss the suit the very moment it was shown a question of taxation was involved, and the constitutionality of the law imposing the tax was the hinge on which the ease turned. It was therefore wholly immaterial, what disposition the court made of the motion to file the amended affidavit; the question sought to be raised in the action could not under any circumstances be entertained, and, moreover, it was a motion addressed to the discretion of the court.
But the plaintiff is by no means remediless. Though, from motives of public policy, he is inhibited from raising the question of the validity of a law imposing a tax by a resort to the action of replevin, he yet has a remedy by action of trespass, in which, under a proper state of pleading, the question can be fully presented, and, if an unconstitutional law has been enforced against him, depriving him of his property, the most ample redress may be found in that action.
On the question sought to be raised we have formed no opinion, nor shall we until a proper case is presented.
We are entirely satisfied, the Circuit Court decided correctly in refusing to allow the amended affidavit, and in quashing the writ for the insufficiency of the original affidavit, and accordingly affirm the judgment.
Judgment affirmed.