judgment for cuted, must be filed in the office of a clerk of the court; and a notice thereof must be served on the defendant or his attorney within the twenty days after notice of exception above mentioned.27 otherwise If the sureties do not justify, or if the new bond is not exedefendant; cuted and filed, and notice thereof given as above mentioned, unless court allow new given, &c. the court are required, at the next term after such default, to render judgment of discontinuance against the plaintiff, and such other judgment as the state and nature of the case may require, in order to restore to the defendant the property replevied, and to compensate him for his damages.2 28 But the court are authorised to allow the plaintiff to file bond to be the new bond, with new sureties, who must justify in the manner before mentioned, at the term at which application for such judgment is made, on such reasonable terms as the court may impose; and upon such bond being filed, the cause is allowed to proceed.29 Sheriff's liability, if excepted to; If no exceptions have been entered to the sureties in the sureties not bond given by the plaintiff as above mentioned, the sheriff is discharged from all liability for the sufficiency of such sureties; and the bond of the plaintiff is required thenceforth to be held by the sheriff for the security of the defendant, and to be assigned to him or his personal representatives, if judgment is rendered for him in the action.30 or if judgment is given justification. If such exception, however, has been made, and judgment of for want of discontinuance been rendered against the plaintiff for his sureties not justifying, the sheriff is liable to the defendant for the sufficiency of such sureties, as was provided by law at the adoption of the statute which we are considering; and the sheriff is entitled to the same remedy on the bond taken by him as in cases of bonds given on the arrest of a defendant in personal actions; and all the provisions of law respecting actions on such bonds, and respecting the staying of proceed ings against the sheriff, are applicable to actions by the sheriff on such replevin bond, and to actions against him in relation thereto.31 defendant, cial bail to; Bail and exception to defendant's sureties.] We have Sureties for seen under what circumstances in replevin the sheriff is bound become speto arrest the defendant, the bond which the latter must give to entitle him to his discharge from the arrest, and the manner in which the sheriff is required to return the names of the sureties in the bond. If such bail, taken on the arrest of the defendant, are not excepted to by the plaintiff in the manner which will be presently noticed, they are to be deemed special bail to the action, liable in the same manner, and in the same cases, and to the same extent, as such bail in personal actions.$2 excepted to, cepted to, The plaintiff may except to the sufficiency of the sureties in but may be the bond taken by the sheriff, within the same time and in like and how; manner as is provided by law for excepting to bail in personal actions; and he must give the like notice of exception. And and if exgood special bail to the action must be put in within twenty special bail days after the notice of exception; and the bail must justify in the same manner and within the same time as is prescribed by law in personal actions.34 to be put in, and to justi fy. Sheriff's lia bility if bail If bail are are not thus put in, the party making the exception may proceed against the sheriff, in the same manner not put in ; as in cases of arrest in personal actions; and the sheriff has the same rights, and is subject to the same duties and obligations, and may in like manner maintain an action on the bond taken by him. And all such proceedings and actions, are subject to the provisions of law concerning attachments against sheriffs, for not putting in bail in personal actions, and concerning actions by sheriff's upon bonds taken by them, on the arrest of a defendant in personal actions.s 35 and if surehes not ex is discharged, If no exception has been entered, as above described, to the cepted to, he sureties taken by the sheriff on the arrest of the defendant, he is discharged and exonerated from all liability for the sufficiency of such sureties; and the bond is to be thenceforth but is to as held by him for the security of the plaintiff, and to be assigned by him to the plaintiff, or his representatives, upon their request, in the cases prescribed by the statutes.36 sign bond to plainutt. Surrender by bail. Time to de clare, &c. nal actions. Special bail in replevin, whether they are the sureties, taken by the sheriff, and who have become special bail by not being excepted to, or special bail put in after exception, have the same right to surrender their principal, and with the like effect, as in other actions; and all the provisions of law con cerning special bail in other actions, apply to such bail.57 Declaration, and rule to plead.] The plaintiff is required as in perso- to declare within the same time as in personal actions; and in case he neglects to do so, is liable to the like judgment of discontinuance as in those actions; and upon filing a declaration, he is entitled to the like rule to plead, and notice thereof must be given as in personal actions. Rule to plead. Venne. Allegations of delaraHop. Whenever the action is brought for the recovery of goods or chattels, distrained for any cause, it must be laid in the county in which the distress was made, and not elsewhere; i ; in other cases the action is to be laid and tried in like manner as actions of trespass for injuries to personal property.59 Where the original taking of the goods is not complained of, but the action is founded on their wrongful detention, the declaration must be conformed to the writ, and must allege, with requisite certainty of time, place, and value, that the 36 Ib. s. 27. There appears to be no provision in the statutes prescribing these cases; but see rule of supreme court, 70. 37 Ib. s. 26. 38 2 R. St. 528. s. 35. defendant received the property described in the writ, from the plaintiff, or from some other person, (naming him,) to be delivered to the plaintiff, when thereunto afterwards requested; and that the defendant, although requested so to do, has not delivered the same to the plaintiff, but refuses so to do, and detains the same property to the damage of the plaintiff. And where the action is founded upon the wrongful taking and detention of the property, but such property, for any reason, has not been replevied and delivered to the plaintiff, the declaration must not only allege such wrongful taking, but must also allege that the defendant continues to detain such property.40 quo. It is not necessary for the plaintiff to state in his declara- Locus in tion, a place certain within the town or village as that where the property was taken, except where the action is brought for the recovery of goods or chattels distrained.41 defendant If the Judgment as reason may elect, either for a goods, and damages, to be assessed, &c. Judgment of discontinuance for not declaring.] defendant is entitled to judgment of discontinuance, by of the plaintiff's default in not declaring, and the property return of the specified in the writ has been delivered to the plaintiff, the judgment is, that the defendant have return of the goods and chattels replevied, unless he elects to waive such return pursuant to the provisions of the statute; and also that he recover the damages sustained by him by reason of the detention of such goods and chattels, which damages must be assessed by a writ of inquiry.42 value of the be assessed But the statutes provide that the defendant, whenever he is or for the entitled to a return of the property replevied, instead of taking property to judgment for such return as above mentioned, may take judg- &c. ment for the value of the property replevied; in which case except in cathe value must, on judgment of discontinuance be assessed, by tress. ses of dis 40 Ib. 528. s. 36. 41 Ib. s. 37. 42 2 R. St. 531, s. 53. Notice of ex ecuting writ writ of inquiry. But this last provision, as to the defendant's election to take judgment for the value of the property, does not apply to cases where the property replevied has been distrained; a particular provision being made in this respect for those cases, which will be found in its proper place.101 Whenever a writ of inquiry is issued in replevin, the party of inquiry. suing out the writ must give the adverse party, in case he has appeared in the cause, in person, or by attorney, the same notice of the time and place at which the writ will be executed, as is required by law, and the practice of the court, in the execution of writs of inquiry in personal actions.** Judgment is for costs only has not been delivered. On judgment of discontinuance, a writ of inquiry is not if property necessary, except where the property specified in the writ has been delivered to the plaintiff; as the defendant, in all cases, unless the property has been so delivered, is entitled to judgment for his costs merely, including the fees of the sheriff and jury, upon a claim of property, if one was interposed.45 Damages assessed by quiry; Judgment for plaintiff upon default or demurrer.] Li writ of in judgment passes for the plaintiff by default, or upon demurrer, a writ of inquiry must be awarded to the sheriff of the proper county, to ascertain the damages which he has sustained by the unjust taking or detention of the property replevied ; and the jury must also assess the value of the goods and chattels specified in the declaration.47 notice of executing it. Pleas. In bar, in abatement; The same notice of executing the writ of inquiry is necessary as in personal actions, as we have seen under the head of judgment of discontinuance. Plea and notice, and rule to reply.] The revised statutes declare, that "the defendant shall be entitled to the same pleas in abatement and in bar, as heretofore, and with the like 43 Ib. s. 55. 101 Post. 45 2 R. St. 532. s. 60. 12 R. St. 532. s. 59. 47 Ib. s. 48. |