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Plaintiff's undertaking to indemnify sheriff.

worth double the value of the property as specified in the affidavit of the plaintiff, and that they are freeholders and householders of the county. Code, § 216. On delivering this undertaking to the sheriff, the plaintiff is entitled to the possession of the replevied property as against the claim of the third party.

Plaintiff's Undertaking to Indemnify Sheriff. (Title of cause).

WHEREAS, The above-named plaintiff claims the possession of the following personal property now in the possession of the sheriff of the county of and taken by him in this action; and whereas, one R. S. claims to own and have the right of possession of said property: Now, therefore, We, M. N. of and O. K. of

, by occupation a by occupation a

undertake to indemnify the said sheriff against the claims of said R. S., if the said property be delivered to the plaintiff.

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M. N. and O. K., being duly sworn, severally say, each for himself, that he is worth (double the value specified in the plaintiff's affidavit), over all his debts and liabilities, and exclusive of property exempt from execution; and that he is a householder and freeholder in the county of

M. N.

(Jurat).

Acknowledgment.

O. K.

STATE OF NEW YORK,

On this

County,

day of

eight hundred and seventy

ss:

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in the year one thousand , before me, the subscriber, personally known to be the same persons described in and who executed the above undertaking, and severally acknowledged that they executed the same.

appeared M. N. and O. K., to me

(Signature of Officer.)

Section 3. Delivery of property to plaintiff.

a. In general. It is the duty of the sheriff to retain the property taken until the expiration of the three days al

Return of proceedings, etc. — Amendments.

lowed the defendant to except to the plaintiff's sureties. If no exception is made within that time, the sheriff should deliver the property to the plaintiff, unless a third party has, by affidavit, interposed a claim as shown in the preceding section. In such case, the delivery should be made to the plaintiff only on the receipt of a proper undertaking. Code, §§ 211, 216; Graham v. Wells, 18 How. 376; M' Cann v. Thompson, 13 id. 380. But the statute does not require the sheriff to deliver the property to either party before he has received his lawful fees for taking, and his necessary expenses for keeping the same. Code, § 215. The fact that the plaintiff's sureties failed to justify will not deprive the plaintiff of his right to the possession of the goods, on the expiration of the time allowed the defendant for exception to such sureties. Manley v. Patterson, 3 Code R. 89. Section 4. Return of proceedings, filing of notices and affidavits, and delivery of undertakings.

a. In general. Within twenty days from the taking of the property in a replevin action, the sheriff must file the notice, affidavit and his return thereon, with the clerk of the court in which the action is pending. Code, § 217. If this return is not made within this time, it may be enforced as in other cases. Rule 10, Supreme Court. The sheriff should state in his return the names, occupations and places of residence of the persons who were sureties in the undertaking, taken by him from the plaintiff. He should set forth at length all his proceedings under the affidavit and notice. If the goods and chattels specified in the affidavit have not been replevied, he should state the cause why they have not; and if the defendant has been arrested and discharged on bail, the sheriff should return the names of the sureties on the undertaking as well as their occupations and places of residence. The undertaking given in these proceedings should be delivered by him to the parties for whose benefit they were taken. Code, § 423.

Section 5. Amendments.

a. In general. On a motion to set aside the proceedings in an action of replevin, on account of a defect in the affidavit, the court may allow additional affidavits to be read in support of the original one, or it may allow an amendment of the affidavit on terms. Depew v. Leal, 2 Abb. 131; Vanderheyden v. Mallary, 3 How. 295. But a general appearance by the defendant in the action will waive all defects in the affidavit. So, where he gives

Sheriff's fees and expenses - Discontinuance Abatement of action.

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an undertaking and obtains a redelivery of the property to himself, he will be deemed to have waived all defects in the prior proceedings. Hyde v. Patterson, 1 Abb. 248; Roberts v. Willard, 1 Code R. 100; Wisconsin Marine and Fire Insurance Co. Bank v. Hobbs, 22 How. 494. The pleadings in the action cannot be amended where the amendments would substantially change the form of the action. Nosser v. Corwin, 36 How. 540. Section 6. Sheriff's fees and expenses.

a. In general. The claim of the sheriff for seizing and holding goods by virtue of replevin process must be limited to the specific fees provided for the service of such process and the necessary expenses for keeping the same. Code, § 215. See as to fees, Laws of 1871, ch. 415; 2 R. S. 664 (645), § 38; 3 R. S. (5th ed.) 924, § 33; as to expenses, White v. Madison, 26 N. Y. (12 Smith) 117; S. C., 26 How. 481.

Section 7. Discontinuance.

a. In general. After issue joined in a replevin action, the action cannot be discontinued by the plaintiff on the mere payment of costs, without returning the property taken. The remedy of the defendant, in cases where the plaintiff seeks to discontinue, and still profit by the provisional remedy, is to notice the cause for trial, where, if he recover, he will obtain a judgment for a return and the costs of the action. Wilson v. Wheeler, 6 How. 49; S. C., 1 Code R. N. S. 402; Schroeder v. Kohlenback, 6 Abb. 66.

Section 8. Abatement of action.

a. In general. An action for the recovery of the possession of specific personal property, against a sole defendant, wholly abates, where the defendant dies before verdict or judgment, and the court has no power in such case to order the action to be continued against the personal representatives of the defendant. Mosely v. Mosely, 11 Abb. 105; Hopkins v. Adams, 5 id. 351; S. C., 6 Duer, 685; Lahey v. Brady, 1 Daly, 443; Potter v. Van Vranken, 36 N. Y. (9 Tiff.) 619, 627; S. C., 2 Trans. App. 73. But in no case will it abate by the death of the plaintiff, after action brought, if the cause of action be such that it might have been prosecuted by the executor or administrator of the party. Goods taken and continuing in specie in the hands of a wrongdoer may be recovered back by the personal representatives of the owner. Ib.

Arrest of defendant.

Section 9. Arrest of defendant.

a. In general. The Code provides that the defendant may be arrested in an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof. Code, § 179, subd. 3.

But an order of arrest cannot be granted where the defendant has in good faith so disposed of the property before the commencement of the action that it is out of his power to deliver it. Sherlock v. Sherlock, 7 Abb. N. S. 22; Merrick v. Suydam, 1 Code R. N. S. 212; Remin v. Nagle, id. 219. In all cases the wrongful intent must clearly appear. Watson v. McGuire, 33 How. 87; S. C., 2 Daly, 219. See ante, pp. Arrest; Election of Remedies.

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