The opinion of the court was delivered by A master in chancery of this state has authority to take the acknowledgment and proof of deeds outside of this state for lands lying in this state where the parties reside out of this state and execute the deed out of this state. The power is expressly conferred by statute.Gen. Stat., p. 853, § 7. The revision of the Conveyancing act of 1898 contains the same *Page 95 power. Pamph. L., p. 679, § 23. Our statute also declares that any affidavit required or authorized to be taken for any lawful purpose whatever, when taken out of the state, may be taken before any officer who may be authorized by the laws of this state to take the acknowledgment of deeds in such state. That statute confers authority upon a master in chancery to take an affidavit out of this state for use in this state. Gen. Stat., p. 2334, § 37. The objection to the affidavit to the chattel mortgage in this case is therefore without substance.
There is no error in the record to sustain any of the other reasons assigned for reversal. The suit was one in replevin, and there was a waiver of the taking of the property under the writ, as is authorized by the District Court act. Pamph. L. 1898, p. 610, § 143. The judgment record before us expressly certifies "that the plaintiff in the above case did not require a delivery of the property set forth and described in said writ to him," which brings the case within section 143 of the District Court act.
The only contention in this regard against the judgment is that the record does not show that the non-requirement of the delivery of the property was "directed in writing by the plaintiff or his attorney," as required by the statute. That is not a matter which the defendant can raise. He cannot object to the fact that the plaintiff did not take his property under the writ. The writ was served and returned, and the case tried as other causes, and a judgment was entered awarding the possession of the property in question to the plaintiff, and an order was made, as a part of the judgment, to take the property and deliver it to the plaintiff. The defendant appeared in the action and defended the suit. The judgment was in strict conformity to the statute.
Objection is also made to the allowance of an attorney fee of $10 as not authorized by law. This is expressly provided for in replevin cases.Pamph. L. 1898, p. 636.
There is no error in the record, and the judgment of the District Court is affirmed.
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