fendant arrested, and have a delivery of the property too, pending the litigation. The plaintiff's course is, to pursue the proceedings pointed out in this chapter; and if the property cannot be found, and the case is within section 179, sub. 3, to obtain an order of arrest; but in that case he cannot afterwards obtain possession of the property, pending the action (Chappel v. Skinner, 6 How. 338).

a. A warehouse entry, if evidence of the title of its possessor to the goods which it describes, is as properly the subject of an action for its delivery, as a certificate of stock or bill of exchange (Knehue v. Williams, 1 Duer, 597); and so an action lies for conversion of an insurance policy (Luckey v. Cannon, 6 Abb. N. S. 209; 37 How. 134).

See note to subdivision 3 of section 179.

§ 207. Affidavit and its requisites.

Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing,

1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth;

ant;

2. That the property is wrongfully detained by the defend

3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief;

4. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or if so seized, that it is, by statute, exempt from such seizure; and

5. The actual value of the property.

6. Where property has been seized under an execution, the affidavit must "show" that the property is by statute exempt from such seizure (Roberts V. Willard, 1 Code Rep. 100). The fact of such exemption is sufficiently "shown" by "an allegation" that the property is so exempt; but an allegation of the party that "he believes" the property is so exempt, is insufficient, unless it be added that such belief is founded on a knowledge of the law or the advice of counsel cognizant of all the facts of the case (id.; see Smith v. Orser, 43 Barb, 193). An affidavit by the plaintiff that he is the "owner" of the property is sufficient, without setting out the facts proving such ownership (Burns v. Robbins, 1 Code Rep. 62; see also Vanderburg v. Valkenburg, 8 Barb. 217). Where the substance of the affidavit was that the plaintiff was entitled, as against his co-partner, to the exclusive possession of the property claimed by virtue of the articles of co-partnership between the plaintiff and defendant,-held insufficient (Depu v. Leal, 2 Abb. 136). On a motion to set aside the proceedings, the court may give the plaintiff leave to amend his affidavit, or introduce new affidavits (id.) An appearance in the action or obtaining a redelivery waives any irregularity in the affidavit (id.; Hyde v. Patterson, 1 Abb. 248; Wisconsin Ins. Co. Bank v. Hobbs, 22 How. 494).

§ 208. Requisition to sheriff to take and deliver the property.

The plaintiff may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant and deliver it to the plaintiff.

Upon the receipt of the affidavit and notice, with a written undertaking executed by one or more sufficient sureties approved by the sheriff, to the effect that they are bound in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; or, if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion.

a. Undertaking.-The sheriff must indorse his approval on the undertaking (Burns v. Robbins, 1 Code Rep. 62). The undertaking can be altered, with the consent of the surety (b.) On sufficient cause being shown, further time may be allowed for the sureties to justify (b.) Where the undertaking was signed by one Graham, who was described in the body thereof as the surety, and also by the plaintiff, whose name was not mentioned in the body of the undertaking, held, that the sheriff might erase the plaintiff's name, and if he originally required two sureties, the name of another surety might be added (ib). If an undertaking be not executed and delivered to the sheriff, the proceedings will be irregular. It is not in the power of the sheriff to dispense with the undertaking (18 Wend. 521). The Code does not provide for any other undertaking than that taken and approved by the sheriff, however inadequate the amount for which it is given (De Reguie v. Lewis, 3 Rob. 708). If the sheriff has taken sham security, and on that the property has been delivered to the plaintiff, or for want of that the defendant has been arrested and held to bail, the plaintiff is entirely without remedy, except the responsibility of the sheriff (Manley v. Patterson, 3 Code Rep. 89).

b. Where a foreign corporation is plaintiff, the undertaking pursuant to this section dispenses with the security required by the revised statutes (Wisconsin Ins. Co. B'k v. Hobbs, 22 How. 494); and where an infant is plaintiff his guardian may be surety (Anon. 2 Hill, 417).

c. Where a third person on behalf of the plaintiff executes an undertaking pursuant to this section, and the defendants subsequently obtain a judgment against the plaintiff for costs, and on appeal that judgment is affirmed with

costs, the two bills of cost are within the undertaking, and the obligor is liable therefor (Tibbles v. O'Connor, 28 Barb. 538).

a. An error in the recital in an undertaking as to the date on which the affidavit was made,-held not to vitiate the undertaking (Hyde v. Patterson, 1 Abb. 248); and semble, the court will allow a new undertaking to be given nunc pro tunc, when the one given in the first instance is defective (Newland v. Willets, 1 Barb. 20; 2 R. S., 556).

b. Ás to disposition of undertaking, see § 428, post.

c. Seizure. The sheriff can only take the property described in the affidavit of the plaintiff when the property is found in the possession of the defendant himself or of his agent (King v. Orser, 4 Duer, 431). Where the sheriff took possession of property claimed by a third party, and such third party commenced an action against the sheriff and the plaintiff in the first action for such taking, to recover possession of the same property, and issued a requisition to the coroner to retake the property,-held, that the proceedings of claim and delivery in that action were irregular, and that there is only one way in which a third party, claiming goods taken by the sheriff, in proceedings of claim and delivery, can assert his claim, and that is pursuant to section 216 (Edgerton v. Ross, 6 Abb. 189; see Stimpson v. Reynolds, 14 Barb. 506; Haskins v. Kelly, 1 Rob. 160).

d. Assignment by a defendant who prevails in an action of claim and delivery, of the judgment and all moneys to be obtained by means thereof. vests in the assignee the defendant's rights upon the undertaking on the part of the plaintiff (Bowdoin v. Coleman, 3 Abb. 431).

See note to §§ 210, 216, 423.

$ 210. Exception to sureties.

The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice, in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived, as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant excpet to the sureties, he cannot reclaim the property, as provided in the next section.

e. The sureties failing to justify does not warrant a motion to dismiss the complaint (Manley v. Patterson, 3 Code Rep. 89).

$211. (Am'd 1849.)

Defendant, when entitled to redelivery. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the

payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within three days after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216.

a. Return.-At any time before the plaintiff is entitled to the deliverythat is, at any time within the three days-the defendant may require the return, &c. (M'Cann v. Thompson, 13 How. 380).

6. Undertaking.-An undertaking, under this section, is not invalid because taken in the name of the plaintiff in the action (Slack v. Heath, 4 E. D. Smith, 95; 1 Abb. 331; and see Decker v. Judson, 16 N. Y. 443).

c. Where the defendant claims a redelivery, and gives an undertaking under this section, which undertaking states that he, defendant, requires a return of the property, such undertaking is competent evidence to go to the jury to disprove an allegation in the answer that the defendant does not detain the property. It is for the jury to say to how much weight such an undertaking is entitled (Black v. Foster, 28 Barb. 387).

d. Possession of property.-During the three days in which the defendant may elect whether or not he will demand a return of the property, the sheriff is required to retain the property in his possession. If the defendant elect to demand a return the sheriff is still to retain possession until the defendant's sureties justify, unless he, the sheriff, is willing to take the risk of such justification. The effect of the defendant's demand of the property within three days is, not to entitle the defendant to the property, but to prevent a delivery to the plaintiff (Graham v. Wells, 18 How. 376).

e. Action on undertaking.—It is no defense to an action against the sureties that having been excepted to they failed to justify. The bringing suit on the undertaking is a waiver of the exception. Where the undertaking is to the party, he may sue on it, without any assignment thereof to him (Decker v. Anderson, 39 Barb. 346; see ante, p. 154, b, c).

f. Restitution.-There is no provision for the restitution of the property to the plaintiff after its redelivery to the defendant under this section (Hunt v. Mootrey, 10 How. 478).

§ 212. (Am'd 1849.) Justification of defendant's sureties.

The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant's sureties, until they justify, or until justification is completely or expressly waived, and may retain the property until that time: but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.

g. Justification of sureties.-The time within which defendant's sureties are to justify, is not limited (18 How. 376). When more than two sureties justify, the whole justification must be equivalent to two sufficient sureties (id.) Where three sureties justify to the required amount, the sheriff cannot withhold a redelivery to defendant, because with the undertaking was delivered to the sheriff an affidavit of the sureties, in which they deposed to being

worth a less sum than the amount required, and less than that in which they afterwards justified. The affidavit was unnecessary (Grant v. Booth, 21 How. 354).

a. Where, in an action for the delivery of personal property, the defendant has been arrested under an order pursuant to subd. 3 of § 179, and has given the undertaking with sureties provided by § 211 for delivery of the property to the plaintiff, and been thereupon liberated from arrest, and the process returned, but his sureties on being excepted to fail to justify,-held, that in such case, the sheriff himself, by such omission, became liable as bail (McKenzie v. Smith, 27 How. 20).

b. The judgment in replevin having been for damages only, and not for the delivery of the property, the sheriff is not liable for such damages by reason of the failure to justify of sureties who, on the arrest of the defendant in replevin, had given an undertaking for the delivery of the property if adjudged, and for the payment of such sum as for any other cause might be recovered against such defendant. To render him liable, there must be a judgment under the execution on which the property might be sought and delivered (Gallarati v. Orser, 27 N. Y. 324).

§ 213. (Am'd 1849.) Qualifications and justification of sureties.

The qualifications of sureties, and their justification, shall be as are prescribed by sections 194 and 195, in respect to bail upon an order of arrest.

§ 214. Property, how taken when concealed in building or inclosure.

If the property or any part thereof be concealed in a building or inclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession; and, if necessary, he may call to his aid the power of his county.

$215. Property, how kept.

When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same.

c. The sheriff is required to use more than ordinary diligence in taking care of the property (Moore v. Westervelt, 21 N. Y. 103; 27 N. Y. 234).

§ 216. Claim of property by third person.

If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or