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Kennedy, 15 Abb. 290), nor because the debt is barred by the statute of limitations, no such defense being set up in the answer (Arthurton v. Dalley, 20 How. 311), nor because the plaintiff has not served a complaint in the action (Skinner v. Noyes, 7 Rob. 228), nor because the first names of the plaintiffs are omitted in the summons and order of arrest (Ballouhey v. Cudot, 3 Abb. N. S. 122), nor because there is a defect of parties defendant (Clark v. Pinckney, 50 Barb. 226), nor in an action for converting chattels, on the ground that the defendant has a demand against plaintiff exceeding the amount claimed in the action (Huelet v. Rogers, 1 Abb. N. S. 27). But the defendant will be discharged from arrest when it appears that the arrest was effected by enticing him by false representations, within the bailiwick of the sheriff holding the process (Goupil v. Simonson, 3 Abb. 474; Stein v. Valkenhauser, 27 Law Jour. N. S. Q. B. 236).

a. Where the amount of the defendant's indebtedness is verified in the affidavit on which the arrest is founded, the order will not be modified merely because the affidavits submitted by the defendant on a motion to vacate the order, contain some evidence that the claim is overstated (Noble v. Prescott, 4 E. D. Smith, 139).

b. Condition upon vacating order.-Upon vacating an order of arrest, the court assumes the power, in some cases, to make the order conditionally on the defendant's stipulating not to bring any action for false imprisonment, or for damages by reason of his arrest (Northern Railway Comp. V. Carpentier, 4 Abb. 47; Alden v. Sarson, id. 102; Croden v. Drew, 3 Duer, 655; Merchant's Bank v. Dwight, 13 How. 371; and see Decker v. Judson, 16 N. Y. 446; Williams v. Riel, 5 Duer, 603; Gould v. Spencer, 5 Paige, 541; Rigney v. Tallmadge, 17 How. 558; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Lee v. Averill, 2 Sand. 622; Aldridge v. Barry, 3 Dowl. Pr. Cas. 450; Dominick v. Eacker, 3 Barb. 19).

c. The discretion exercised by the court at general term, in imposing such a stipulation, is not to be reviewed at a subsequent general term, nor by the court at special term (Edgerton v. Ford, 11 Abb. 415).

d. Where, on appeal from an order denying defendant's motion to vacate an order for arrest, the order was to be reversed on defendant stipulating not to sue, or in default of such stipulation, the order was to be affirmed, the defendant declined so to stipulate,-held that the order was conclusive on defendant, on his motion to set aside an execution against his person, and the court would not review the order on the ground that the condition was oppressive (id.)

e. Renewing motion.—A motion to vacate an order of arrest, cannot be renewed in any case without leave of the court (Lovell v. Martin, 21 How. 238). After a defendant has moved upon plaintiff's affidavits to vacate the order of arrest, and his motion has been denied, he should not have leave to renew it on affidavits contradicting those of the plaintiff (Lovell v. Martin, 12 Abb. 178).

f. Appeal from order.—An order denying a motion that an undertaking given on the arrest of the defendant be delivered up and an exoneratur entered is an appealable order to the general term (Col. Ins. Co. v. Force, 8 How. 353), but not to the court of appeals (Genin v. Tompkins, 1 Code Rep. N. S. 415).

g. Where the defendant has been arrested, and his motion to reduce the bail been denied by the justice who granted the order, another justice, before whom a motion to vacate the order or reduce the bail is made, founded upon new affidavits, should not reduce the bail unless new facts are presented bearing on that question; and the fact that, since the denial of the first motion, the defendant has been held to bail in a much smaller amount in a criminal proceeding on the same facts, is not a reason for reducing the amount of bail in the action (Union B'k v. Mott, 6 Abb. 316).

h. An appeal from an order of a county judge vacating an order of arrest, may be taken to the general term of the supreme court (Lancaster v. Boorman, 20 How. 421).

a. An appeal from an order denying a motion to vacate an order of arrest, is not prejudiced by the entry of judgment against the defendant, and the bail becoming charged pending the appeal (Pacific Mut. Ins. Co. v. Machado, 16 Abb. 451).

b. An order reducing the amount of bail, will not, under ordinary circumstances be reviewed on appeal (Hart v. Kennedy, 15 Abb. 290).

c. On an appeal from an order vacating an order of arrest, the court will, on the absence of the complaint, presume that the complaint is consistent with the affidavit on which the order was granted (Levins v. Noble, 15 Abb. 475).

d. The defendant moved to vacate the order of arrest; his motion was denied, and he appealed to the general term. Pending the appeal he obtained leave to move again on new facts, and that motion being denied he appealed to the general term,-held, on reversing the order on the second motion and vacating the order of arrest, that the first order should be dismissed with costs (Lambert v. Snow, 9 Abb. 92).

e. Appeals from orders denying motions to vacate orders of arrest after defendant has given bail, are not to be encouraged (Moers v. Morro & Martin, 17 How. 280; 18 Abb. 257; 29 Barb. 261).

f. On an appeal from an order denying a motion to vacate an order of arrest, the objection that the affidavit on which the order of arrest was granted was made on information and belief, can have but little weight with the appellate court, where the principal allegations in such affidavit are not explained or denied (Union B’k v. Mott, 9 Abb. 106; 17 How. 354).

9. The court at general term, on appeal from a judgment, cannot consider whether an order of arrest in the action was properly granted (Ross v. West, 2 Bosw. 360).

CHAPTER II.

Claim and Delivery of Personal Property.

SECTION 206. Claim of delivery of personal property.

207. Affidavit and its requisites.

208. Requisition to sheriff to take and deliver the property. 209. Security by plaintiff.

210. Exception to sureties.

211. Defendant, when entitled to delivery.

212.

Justification of defendant's sureties.

213. Qualification and justification of sureties.

214. Property, how taken when concealed in building or en

closure.

215. Property, how kept.

216. Claim of property by third person.

217. Notice and affidavit, when and where to be filed.

§ 206. (Am'd 1849.) Delivery of personal property.

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. The provisions of this chapter are a substitute for the former action of replevin (Roberts v. Randall, 3 Sand. 707; Rockwell v. Saunders, 19 Barb. 481; Chappel v. Skinner, 6 How. 339; B'k of France v. Carpenter, 4 Abb. 51; Nichols v. Michael, 23 N. Y. 269). And in contingencies not provided for, the former practice in the action of replevin must be resorted to (Brockway v. Burnap, 16 Barb. 314; Wilson v. Wheeler, 6 How. 49). As to verdict and judgment, see §§ 261, 277.

b. The object of the proceeding under this chapter is the recovery of the property in specie; and if, before action brought, the defendant unconditionally offers to restore the property, the object is already attained, and the proceeding under this chapter is unnecessary. Such an offer is equivalent to a tender before action brought (Savage v. Perkins, 11 How. 17). And where, after delivery of a requisition, &c, to the sheriff, before the defendant was served with the summons in the action, the property in suit was restored to plaintiff, held the plaintiff could not recover in the action (Nosser v. Corwin, 36 How. 540; Christie v. Corbit, 34 How. 19).

c. In an action for the recovery of the possession of personal property, where the property has been delivered to the plaintiff, and the defendant has answered, the plaintiff cannot discontinue on payment of costs merely (Wilson v. Wheeler, 6 How. 49). If in such a case the plaintiff 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 he neglect to proceed after issue, defendant may notice the cause for trial under section 258, and have a dismissal, verdict, or judgment, as the case may require (Schroeder v. Kohlenback, 6 Abb. 66). An order that the complaint be dismissed unless the plaintiff bring the cause to trial within a specified time, is improper in such a case (id.) 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 plaintiff on procuring the delivery of the property to him.

d. The actions for injuries by force to property, and claims to recover the possession of personal property, are different causes of action; and these actions, are concurrent actions, the same state of facts sustaining the action in either form,-it is the judgment demanded which determines to which class it belongs (Spalding v. Spalding, 3 How. 297; and see Dows v. Green, 3 How. 377).

e. The remedy given by this chapter is applicable to every case in which the action of replevin, as given by the Revised Statutes, would lie. The remedy may be had notwithstanding the defendant has wrongfully parted with the possession of the property before the action was commenced (Ross v. Cassidy, 27 How. 416; Knapp v. Smith, 27 N. Y. 277; Nichols v. Michael, 22 N. Y. 269; Ellis v. Lersner, 48 Barb. 539).

f. Semble, the spirit of section 207, subd. 4 of the Code, seems to forbid a resort to the remedy provided by this chapter against a sheriff who has taken goods upon an attachment (Smith v. Orser, 43 Barb. 187).

g. Property taken from the owner for a tax assessed on him under a law of the United States cannot be replevied by him (O'Reilly v. Good, 42 Barb. 521; 18 Abb. 106). But the owner of goods unlawfully seized, under a warrant against another person for nonpayment of a State or city tax, may take proceedings of "claim and delivery" for such goods (Stockwell v. Vietch, 15 Ább. 412).

h. A requisition in proceedings of claim and delivery, against one who purchased the property at a wrongful sale, justifies the sheriff in taking it, although the defendant acted merely as agent in making the purchase, if the papers are served and the seizure made while the goods remain in his actual possession (Haskins v. Kelly, 1 Abb. N. S. 63).

i. A plaintiff has his election to proceed under this chapter 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 de

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;

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

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.

b. Where property has been seized under an execution, the affidavit must แ 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.

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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 (b). 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

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