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 except to the sureties, he cannot reclaim the property, as provided in the next section.

a. In a case where the plaintiff had claimed the immediate delivery of property, and served the affidavit, notice, and undertaking, required by sections 207, 208, and 209, the defendant excepted to the sureties; and, they omitting to justify, the defendant moved to have the action discontinued; the motion was denied. Manley v. Pat terson, 3 Code Rep., 89.

b. What are the consequences of the plaintiff's omitting to have his sureties justify when excepted to? "The code has provided for the omission of the defendant's sureties to justify when he demands a return of the property. In such case, by section 211, the property shall be delivered to the plaintiff. But the code is entirely silent as to what is to be done in the event of such an omission, except that it provides that the sheriff shall be responsible for the sufficiency of the sureties until they do justify. Is that all the remedy for the defendant in such case? or may he have a return of the property to him, or a discontinuance of the suit? He cannot have a discontinuance of the suit, because the proceedings of the plaintiff to obtain possession of the property are not now, as they formerly were, a part of the ma chinery of commencing the suit. An action of replevin, as it may yet be called, may be commenced and carried on to judgment without the plaintiff's ever demanding the possession of the property; as under section 206 he need not demand the delivery of the property at the time of issuing the summons; and under section 277, the final judgment may be for the value of the property, if the plaintiff please to waive a return, so that the suit may go on without the plaintiff entitling himself to the immediate possession of the property; and it would clearly not be proper to order it to be discontinued because of his omission to do so. So, too, it would be improper, while the property is in the sheriff's hands, and before he delivered it over to either of the parties, to stay it there, or order it delivered over to the defendant by reason of any such omission; because, under section 211, if the defendant does not within three days demand a return of the property to him as therein provided, the sheriff is bound to deliver it to the plaintiff, without any reference to the fact whether his sureties justify or not. And after it has been thus delivered, I can discover no power in the court to order it re-delivered to the defendant, except on final judgment, nor any mode in which an order for its re-delivery prior to judgment can be enforced; so that it would seem that when the property has been delivered to the plaintiff, even when his sureties are utterly worthless, the statute has provided no remedy, except the sheriff's responsibility, for the plaintiff's omission to justify his sureties; though it has provided, in case the defendant omits to justify his sureties, for two remedies, viz., the sheriff's responsibility, and an order for its delivery to the plaintiff. When the property has not been delivered to the plaintiff, though its immediate possession has been claimed, it would seem that the court is equally unable to afford a remedy. When the sheriff has returned that the property is eloigned so that it cannot be replevied, the plaintiff may apply for an order to arrest the defendant, and hold him to bail. To that order the plaintiff has an absolute right, when it shall appear to the judge that a sufficient cause of action exists, and that the property has been eloigned; and I do not see that the judge has any right to refuse the order of arrest, even if he is fully aware that the plaintiff has put in sham security; and if for that cause he cannot in the first instance refuse the order, the court could hardly for that cause afterwards set it aside. So that it appears to me, that in every aspect of the law, 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, he

is entirely without remedy except the responsibility of the sheriff."-Per Edmonds, J., Manley v. Patterson, supra.

§ 211. [186.] (Amended 1849.) Defendant, when entitled to re-delivery.

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 service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216.

a. There is no provision in the code, nor in any other statute, for the restitution of the property to the plaintiff after its redelivery to the defendant under this section. No further change in the possession seems to be contemplated before judgment. Hunt v. Mootry, 10 Pr. R., 478.

$212. [187.] (Amended 1849.) Justification of defe

ant's sureties.

BL

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 completed 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.

§ 213. [188.] (Amended 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. [189.] Property, how taken when concealed in building or inclosure.

If the property or any part thereof be concealed in a build

E

ing 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. [190.] 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.

Fees of Sheriff.

Sheriffs' fees are prescribed by 2 R. S., 3d ed., 735; and laws of 1850, p. 404, cap. 225. The provisions of the revised statutes are as follows:

For serving a capias ad respondendum, writ of replevin, summons, or any other process, by which a suit shall be commenced in a court of law, citation, scire facias, or declaration, when there shall have been no process previous thereto,

50 cents.

Travelling, 6 cents a mile, for going only, to be computed in all cases from the court-house of the county; and if there be two or more court-houses, to be computed from that which shall be nearest to the place where the service is to be made; except in the county of Oneida, where the travel is to be computed from the courthouse in Whitestown.

For taking a bond of a plaintiff in replevin, or taking a bond on the arrest of a defendant, or taking his endorsement of appearance, or for taking a bond in any other case where he is authorized to take the same for which no fee is herein allowed, 37 cents.

For a certified copy of such bond, 25 cents.

For a note of every capias delivered to any defendant on request, 6 cents.

For a copy of every summons, scire facias, or declaration, served by him, when made by the sheriff, the same fees as are allowed to attorneys in the court in which the action is pending, for making such copy.

For a copy of every other writ, when demanded, or required by law, 19 cents. Returning a writ 124 cents.

For serving an attachment for the payment of money, or an execution for the collection of money, or a warrant for the same purpose issued by the comptroller, or by any county treasurer, for collecting the sum of $250 or less, two cents and five mills per dollar; and for every dollar collected more than $250, one cent and 2} mills.

Advertising goods or chattels, lands or tenements, for sale on any execution, $2; and if the execution be stayed or settled after advertising and before sale, $1.

The fees allowed by law, and paid by such sheriff to any printer for publishing an advertisement of the sale of real estate for not more than six weeks, and for continuing such advertisement more than six weeks, or for publishing the postponement of any such sale, the expense of such continuance or postponement shall be paid by the party requiring the same. The fees herein allowed for the service of an execution, and for advertising thereon, shall be collected by virtue of such execution in the same manner as the sum therein directed to be levied.

But when there shall be several executions against the defendant at the time of advertising his property, in the hands of the same sheriff, there shall be but one advertising fee charged on the whole, and the sheriff shall elect on which execution he will receive the same.

For every certificate on the sale of real estate, the same fees for drawing and for two copies thereof, as are allowed for drafts and copies to attorneys in the court from

which the execution is issued, together with the clerk's fee for filing one of such cer. tificates, to be collected as other fees on execution.

For drawing and executing a deed, pursuant to a sale of real estate, $1 to be paid by the grantee in such deed.

Serving a writ of possession or of restitution, putting any person entitled into the possession of premises, and removing the tenant, $1 25; and the same compensation for travelling to serve the same as is herein allowed on the service of a capias ad respondendum.

Taking a bond for the liberties of the jail, 374 cents.

For summoning the jury to attend any court, 50 cents in each cause noticed for trial in such court, or placed on the calender thereof for trial.

Summoning a jury upon a writ of inquiry, or in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inquisition, $1 50.

Summoning a foreign or special jury, pursuant to a venire, for that purpose, and returning the panel, $1 123.

Summoning a jury pursuant to any precept or summons of any officer in any special proceeding, $1; and for attending such jury when required, 50 cents.

Bringing up a prisoner upon a habeas corpus to testify or answer in any court, $1 50; and for travelling each mile from the jail, 12 cents. For attending any court with such prisoner, $1 per day besides actual necessary expenses.

Bringing up a prisoner upon any habeas corpus with the cause of his arrest and detention, $1 50; and for travelling, 12 cents for each mile from the jail.

Attending before any officer with a prisoner for the purpose of having him surrendered in exoneration of his bail, or attending to receive a prisoner so surrendered, who was not committed at the time, and receiving any such prisoner into his custody, in either case, $1.

Attending a view, $1 871 per day, going; and returning, $1 25 per day.

For serving an attachinent against the property of a debtor, under the provisions of cap. 5. of part 2., or against a ship or vessel, under the provisions of the 8th title of cap. 8. of part 3., 50 cents, with such additional compensation, for his trouble and expenses in taking possession of and preserving the property attached, as the officer issuing the warrant shall certify to be reasonable; and where the property so attached shall afterwards be sold by the sheriff, he shall be entitled to the same poundage on the sum collected as if the sale had been made under an execution.

For making and returning an inventory and appraisal, such compensation to the appraisers, not exceeding $1 to each per day for each day actually employed, as the officer issuing the attachment shall allow; and the same compensation for drafting and copying the inventory as is allowed for drafts and copies to attorneys in the supreme court.

For selling any property so attached, and for advertising such sale, the same allowance as for sales on executions.

For executing a warrant to remove any person from lands belonging to the people of this State or to Indians, such sum as the comptroller shall audit and certify to be a reasonable compensation.

For any services which may be rendered by a constable, the same fees as are allowed by law for such services to a constable.

For any person committed to prison, and every person discharged from prison, in civil cases, 25 cents for receiving, and 25 cents for discharging, to be paid by the plaintiff in the process.

For summoning constables to attend the supreme court or any other court, 50 cents for each constable.

For attending the supreme court, $2 per day.

For mileage on every execution, 6 cents per mile, for going only, to be computed from the court-house.

The provisions of the act of 1850, are as follows:

1. In addition to the fees now allowed to sheriffs on executions against property in civil actions, they shall be entitled to demand and receive on such executions,

the sum of 50 cents for receiving and entering the same in their books, searching for property, and paying the postage on the return of the said execution, if such return be made by mail, as hereafter provided; which sum shall be a charge against, and to be collected of, the person by whom the said execution was issued, except when he is a county clerk, or of the person in whose favor the judgment was rendered, except as is otherwise provided in section 2 of this act.

§ 2. The said sum of 50 cents, in the case of judgments hereafter recovered, shall be one of the disbursements to be included in the bill of costs fixed in favor of the party entitled thereto. In cases when judgment has been already obtained, the said sum shall be collected by the sheriff from the defendant in the execution, in the same manner as his other fees are now collected.

§ 3. Sheriffs, under-sheriffs, and deputy-sheriffs, may return all process in civil actions by mail, where the officer making such returu resides in a different place from that in which the clerk's office to which the return is to be made is located, and between which places there is a regular communication by mail; but such return to be valid shall be made as follows: the said process enclosed in an envelope and properly directed, shall be deposited in the post-office nearest or most convenient to the said officer, and the postage thereon prepaid by the sheriff so returning the

same.

§ 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 his agent shall indemnify the sheriff against such claim, by an undertaking, executed by two sufficient sureties, accompanied by their affidavits, that they are each worth double the value of the property as specified in the affidavit of the plaintiff, and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent, shall be valid against the sheriff unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.

§ 217. Notice and affidavit, when and where to be filed. The sheriff shall file the notice and affidavit, with his proceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein.