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Q. Where goods have been taken from the defendant and delivered to the plaintiff the court has no power to order the return of the goods because the plaintiff's sureties are insufficient or insolvent. Ib.

6. It is not sufficient ground for vacating an order of arrest, to show that an attachment proceeding between the same parties, and for the same cause of action, is pending in another State. Lithauer v. Turner, Code Rep. N. S., 210.

c. If the action is one in which the plaintiff cannot be arrested, and he has given bail, his proper remedy is to move to vacate the order of arrest, and not move for an exoneretur and the discharge of his bail. Holbrook v. Horner, 1 Code Rep. N, S., 406. See note to section 205.

Appeal from Order. d. An order denying a motion that an undertaking given on the arrest of the desendant be delivered up and an exoneretur entered, is an appealable order to the general term. Col. Ins. Co. v. Force, 8 Pr. R., 353.

e. The provision of the code allowing an appeal to the court of appeals from a final order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, does not include an order granting or refusing a provisional remedy, nor an order vacating or refusing to vacate such provisional remedy. The provisional remedies specified in the code are not the special proceedings therein mentioned. Genin v. Tompkins, 1 Code Rep. N. S., 415. [The effect of this decision is, that an order of arrest, or an order denying a motion to vacate an order of arrest, or reduce the amount of bail, is not appealable to the court of appeals.]

§ 205. [180.] Affidavits on motion.

If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits, or other proofs, in addition to those on which the order of arrest was made.

This section is identical with section 180, in the code of 1818.

f. The affidavits which a plaintiff may use on opposing a defendant's motion to vacate an order of arrest founded on " affidavits or other prooss," are such as meet and repel such affidavits or other proof. Martin v. Vanderlip, 1 Code Rep., 41; 3 Pr. R., 265; Adams v. Mills, ib., 219.

g. Where a defendant moves to vacate an order of arrest on the ground of defect in the original affidavit, the sole questiou is, whether the affidavit thus assailed authorized the granting the order of arrest. Ib.

h. The plaintiff cannot introduce supplementary affidavits to supply defects in the affidavit on which the order of arrest was granted. Ib. and Norton v. Barnum, 20 Johns. R., 337.

i. The principle of the former practice as to affidavits to hold to bail, showing causes of action, and counter-affidavits, remains the same under the code as formerly. The former practice was not to receive counter-affidavits, where the indebtedness was sworn to positively. Jordan v. Jordan, 6 Wend., 524 ; Welch v. Hill, 2 J. R. 100.

j. The defendant might show any matter in evidence, as an insolvent's discharge, privilege from arrest, and the like. 2 East., 453 ; 6 Wend., 524.

See note to section 204.

CHAPTER II.

Claim and delivery of personal property.*

Section 206. Delivery of personal property, when it may be claimed.

207. Affidavit and its requisites.
208. Requisition to sheriff, to take and deliver the property.
209. Security on the part of the plaintiff, and justification.
210. Exception to sureties, and proceedings thereon or on failure to except.
211. Defendant, when entitled to redelivery.
212. Justification of defendant's sureties. ,
213. Qualification and justification of sureties.
214. Property, how taken when concealed in building or inclosure.
215. Property, how kept.
216. Claim of property by third person.
217. Notice and affidavit, when and where to be filed.

$ 206. [181.] (Amended 1819.) Delivery of personal property, when it may be claimed.

The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the immediate delivery of such property, as provided in this chapter.

a.

There is no doubt that this chapter is intended as a substitute for the prorisional relief theretofore obtained in the action of replevin.” Per Sandford J., in Roberts v. Randall, 5 Pr. R., 327; 3 Sand., 707 ; and per Welles, J.: “ The action to recover the possession of personal property is one peculiar in its character and object. The code has given it in place of the former action of replevin, and its design is to subserve the same purpose.” Chappel v. Skinner, 6 Pr. R., 339.

b. In Remen v. Nagle (1 Code Rep. N. S., 223 ; 1 Smith, 256), Woodruff, J., said, “ We are called upon to give a construction to a statute which in every im. portant particular is new. In a certain contingency it requires the arrest and imprisonment of the defendant, it may be for life, without any provision for his deliverance, unless he gives the security described in s. 211 for the absolute delivery of the property to the plaintiff if such return be adjudged."

c. The code does not constitute a complete system of practice. In an action to recover possession of personal property the former practice is in force in many respects. Hand., J., in Wilson v. Wheeler (1 Code Rep, N. S., 402; 6 Pr. R. 49).

d. “The provisions of the code are not very full on the practice in an action for the recovery of personal property. They hardly constitute a complete system without resort to the former law.”. Brockway v. Burnap, 16 Barb. 314.

e. In Wilson v. Wheeler, supra, the question arose whether in an action for the recovery of the possession of personal property, where the property bas been delivered to the plaintiff and the defendant has answered, the plaintiff can discontinue on payment of costs merely; and the conclusions at which Hand, J., arrived were, That as a general rule the plaintiff may discontinue his action as of course on payment of costs, but he cannot do so in an action where he has obtained from the defendant the possession of the property claimed. If in such a case the plaintiff a. "This provisional remedy cannot be maintained against a party who has not in fact or in law the possession or control of the property claimed.” Roberts v. Randal, 3 Sand., 716 ; 3 Code Rep., 190; 5 Pr. R., 327; Remen v. Nagle, 1 Code Rep. N. S., 219; i Smith, 256; Brockway v. Burnap, 12 Barb. 347 ; 8 Pr. R., 188.

b. In an action to recover possession of personal property, the plaintiff cannot have the defendant arrested under section 179, and have the property delivered to him before judgment in the action. Chappel v. Skinner, 6 Pr. R., 338. The piaiutiff has his election to proceed under chapter 2, title 7, of the code, to recover possession of the property, or to recover damages for the taking or detention; and having made his election he must abide by it. He cannot have the defendant arrested, and have a delivery of the property, too, pending the litigation. Ib.

c. The plaintiff's course is, to pursue the proceedings pointed out in chapter 2, title 7; and if the property cannot be found, and the case is within section 179, subd. 3, to obtain an order to have the defendant arrested; but in that case, he cannot afterwards obtain possession of the property, pending the action. Ib.

d. 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. And in an action to compel the delivery of a document in writing, the court will not set aside the proceedings upon the ground that the paper, upon its face, has no value, if evidence to prove value may be given upon the trial. The question, whether value can be shown by extrinsic proof, is a question of law, which, when the document is set forth in the complaint, or is annexed, is proper to be raised by a demurrer. Knehue v. Williams, 1 Smith, 597.

See note to subdivision 3 of section 179.
$ 207. [182.] Affidavit and its requisites.

Where a delivery is claimed, an affidavit must be made by the plaintiff, or 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 posses

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neglects to proceed before issue, the defendant may, under section 274, have judgment for a dismissal of the complaint, for his costs and a return of the goods; or, if the neglect to proceed is after issue, the defendant may notice the cause for trial under section 258, and have a dismissal, verdict, or judgment, as the case may require. Or if the plaintiff serves notice of discontinuance at any stage of the action, the defendant may accept it, and sue on the undertaking given by the plaiutiff on procuring the delivery of the property to him.

e. The actions for injuries by force to property, and claims to recover the possession of personal property, are under section 167, and, substantially, different causes of action. Those actions are what were formerly known by the respective names of trespass de bonis asportatis and replevin; and these actions under the present as well as the former practice, are concurrent actions, the same state of facts sustaining the actiou in either form ;—it is the judgment demanded which determiues to which class it belongs ; and where the complaint asks for damages and not for the possession or return of the property, the action comes within the class which was formerly denominated trespass (sect. 167, sub. 6) and not replevin (sect. 167, sub. 3); and therefore the plaintiff in such a case is not entitled to the benefit of the proceedings provided by this chapter, to obtain the immediate delivery of the property. Spalding v. Spalding, 1 Code Rep., 64; 3 Pr. R., 297 ; and see Dows v. Green, 3 Pr. R., 377.

f. ' In Roberts v. Randal, 3 Sand., 707; 3 Code Rep., 190; 5 Pr. R., it was held, overruling dicta to the contrary in Cary v. Hotaling, and Olmstead v. Hotaling, 1 Hill 311, 317, that replevin never was in all cases a concurrent remedy with trespass de bonis asportatis. In a subsequent case, Brockway v. Burnap (16 Barb. 113), the dicta in Cary v. Hotaling and Olmstead v. Hotaling were mentioned, approved, and followed.

327;

sion thereof, by virtue of a special property therein, the facts in respect to which shall be set forth ;

2. That the property is wrongfully detained by the defendaut;

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.

a. Where an affidavit stated that the property in dispute was taken in execution by the sheriff of Niagara county, under an execution against the property of the plaintiff, and stated further that, “the property was exempt from seizure on such, execution,” but no facts were stated bringing it within any statutory exemption, on motion to set aside the proceedings, the court, Sill, J., said, The affidavit does not conform to the requirements of the statute. Under the former practice, the plaintiff or some one on his behalf was required to make an affidavit, “ stating," among other things, that the property had not been seized under any execution against the plaintiff. The code requires, if the property has been seized under an execution, an affidavit, “showing" "that it is exempt from such seizure.” The words "state" and "show" have a different legal signification. Stating a case to be within the purview of a statute is simply alleging that it is; while showing it to be so, consists of a disclosure of the facts which bring it within the statute. The effect of the code is to bring affidavits of this kind within the rules which prescribe the mode in which facts must be stated in an affidavit of cause of action, rather than those applicable to affidavits heretofore used in replevin suits. Spalding v. Spalding, 3, Pr. R., 297–301; 1 Code Rep., 64. As to amending the affidavit, see section 173, and note.

6. Gridley, J., in a subsequent case said he differed from Mr. Justice Sill in thinking that by the substitution of the word "showing” for “stating,” the legislature intended to change the law; and referred to 2 Caines' Cases in Error, 143; 2 Hill, 380, and 24 Wend., 46; and held, that 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. And 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. Ib.

c. A defendant by appearing in the action waives any irregularity in an affidarit made pursuant to this section. Ib; Hyde v. Patterson, 1 Abbott, 248.

d. The court of common pleas for the city and county of New York held, that in an action respecting the right of personal property, in which the plaintiff claims to have the property delivered to him, an affidavit by him 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, Vandenburg v. Valkenburg, 8 Barb. 217.

$ 208. [183.] Requisition to sheriff to take and deliver the property.

The plaintiff may, thereupon, by an endorsement 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.

$ 209. [184.] (Amended 1849.) Security on the part of the plaintiff, and justification.

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 forth with 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.

2. The sheriff must indorse his approval on the undertaking. Burns v. Robbins, 1 Code Rep., 62.

b. The undertaking cannot be altered, unless with the consent of the surety first obtained. 16.

c. On sufficient cause being shown, further time may be allowed for the sureties to justify. 16.

d. 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 Bureties, the name of another surety might be added. Ib.

e. 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., 581.

f. The court would allow a new replevin bond to be filed nunc pro tunc, when the one given on the execution of the writ was defective. Newland v. Willetts, 1 Barb., 20; 2 R. S. 556, ss. 33, 34; from which it is inferred that the court will allow a new undertaking to be given nunc pro tunc, when the one given in the first instarce is defective.

See note to section 210.

$ 210. [185.] Ecception to sureties, and proceedings thereon or on failure to except.

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.

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