of the property; 24 in which case plaintiff can receive the property free of the rule of lis pendens, and if his alleged interest is full title, may, as against defendant, lawfully sell the thing if he choose; 25 or: (2) defendant may demand a return of the property from the sheriff, offering in turn security on his part.

In either case the sheriff is protected against third persons; but, as between the parties, is liable until sureties, if duly excepted to, justify.20

But a third person claiming as against defendant may interpose, and then the sheriff may require indemnity.27

2. Value.] In some States the adequacy of the security to be given is secured by directing the sheriff to have an appraisal made which shall fix the amount of the bond. The New York statute provides for it by allowing and requiring the plaintiff to swear to his own valuation, in his affidavit, and the court has no power to inquire into the accuracy of such valuation, or compel an additional undertaking.28 The plaintiff may state the value of each of several articles, or the aggregate value of all, or the aggregate value of a part and the separate values of the others.

The defendant can act on this valuation by compelling a return of the goods, or of the part taken by the sheriff, on giving security at the same valuation.29

If the plaintiff's affidavit names only an aggregate value, and the sheriff seizes only part of the goods, it seems logical that the defendant should be allowed to tender an undertaking in a sum duly proportioned.30 If the description of the goods affords the means as where so many bushels of grain or pieces of cloth are stated to be of a specified aggregate value the security to be given for a part is a mere matter of arithmetical computation.

24 S. P., Second Nat. Bank of Oswego v. Dunn, 63 How. Pr. 434, 2 Civ. Pro. (Browne) 259; Eastman v. Barnes (Vt. 1885), 1 New Engl. Rep. 347.

25 Stewart v. Wolfe (Pa. 1886), 5 Cent. Rep. 681, 7 Atl. Rep. 165, holding that a replevin bond given by plaintiff suing as absolute owner is a substitute for the property delivered to him upon it, and a purchaser from him acquires a good title to the property replevied.

For contrary authorities in other States, see Id.; and Wells on Repl. 259, § 470.

26 An officer is not required, before serving a writ of replevin, to have the sureties approved. He is, however, bound to exercise a reasonable discretion in deciding upon their sufficiency. Stone v. Jenks, 142 Mass. 519, 7 East. Rep. 642, and cases cited.

27 See paragraph 9, post.

28 U. S. Land Co. v. Bussey, 53 Hun, 516, 6 N. Y. Supp. 416, 17 Civ. Pro. 164. 29 U. S. Land Co. v. Bussey, supra.

30 See Webber v. Manne, 22 Abb. N. C. 151, 11 Civ. Pro. 64.

In other cases the sufficiency of the sum could be readily determined by the court on exceptions to the undertaking.

The plaintiff cannot, by merely stating the aggregate instead of the separate value of the articles named, compel the giving of an undertaking conditioned for the delivery to him of all such articles, no matter how small a portion thereof may have been actually taken by the sheriff.31

32

II. REPLEVYING BY PLAINTIFF.

3. The practice; complaint and affidavit.] — The complaint need not describe the property with the same particularity as the affidavit, and need not (as must the affidavit) negative the existence of any of the exceptions contained in § 1690. At the time of issuing the summons, or at any time thereafter, and before defendant has answered, or, in case of default for want of appearance or answer, before entry of final judgment, an affidavit of the facts which entitle plaintiff to possession, must be made by plaintiff or one of several plaintiffs, or (if plaintiff is absent, or all the material facts are personally known) by plaintiff's agent or attorney. If not made by plaintiff, the affidavit must, under the New York statute, indicate what allegations are made on information and belief, and set forth the grounds of belief as to matters not alleged upon his knowledge, and the reason why the affidavit is not made by the plaintiff.34 In the absence of such a statute an affidavit by an agent, " to the best of his knowledge, information and belief." is enough, and even in New York is probably enough upon the alleged cause of the detention of the chattel.36 But it is the better practice in all cases where the plaintiff does not make the affidavit, to state the reason, and indicate what is alleged on knowledge, and the grounds of belief as to the other allegations.

35

The affidavit is a proceeding in the action, and is to be so entitled.37 The alleged cause of detention need only be stated upon the "best knowledge, information and belief of the person making the affidavit."38

31 Weber r. Manne, 11 Civ. Pro. R. (Browne) 64, 22 Abb. N. C. 151.

32 Clemmons r. Brinn, 36 Misc. 157, 72 N. Y. Supp. 1066.

33 Hoffman v. Markham, 88 Hun, 18, 34 N. Y. Sunn. 408.

34 N. Y. Code Civ. Pro., § 1712;

Misc. 451, 55 N. Y. Sund. 558.

Sloan v. Implement Dealers' Mfg. Co., 25

(So holding of a public officer.)

5 U. S. r. Bryant, 111 U. S. 499. 36 See Sloan v. Implement Dealers' Mfg. Co., 25 Misc. 451, 55 N. Y. Supp. 558. 37 Otherwise at common law.

38 Code Civ. Pro, § 1695; Sloan v. Implement Dealers' Mfg. Co. (supra).

4. plaintiff's title.] If plaintiff claims as owner, a general allegation that he is the owner is sufficient without alleging evidence of ownership.39

If he claims by a special title, not as owner, or shows by his allegations a right of possession in another, the affidavit should go on to state the facts entitling the plaintiff to immediate possession.*

40

If he relies on a writing as evidence of his special property or right of possession, a copy of the writing should be given in or annexed to the affidavit; or if not practicable, excuse must be stated.

5. describing the articles.] -The description of the articles should be sufficient to enable the officer to identify them.** For this purpose it is usual, after particularly designating them, to add particulars as to where they are situated, when this is necessary to enable the officer to act. An allegation which would be sufficient in the complaint is not necessarily enough in an affidavit for replevin.43 If the property is not sufficiently described so that it can be identified, the requisition will be set aside; but plaintiff will be allowed to amend to cure the defect.*

45

39 Depew v. Leal, 2 Abb. Pr. 131; Burns v. Robbins, 1 Code Rep. 62; Roberts v. Willard, Id. 100.

40 Depew . Leal, 2 Abb. Pr. 131; Donald v. Rockwell, 19 Wkly. Dig. 192 (holding that a legatee suing a stranger for the thing bequeathed, and alleging that it had been in the executor's possession, must allege a delivery by the executor; saying that he had absconded was not enough).

41 Depew v. Leal, 2 Abb. Pr. 131.

42 See McCarthy v. Ackerman, 154 N. Y. 565 (entire stock of country store); Sloan r. Implement Dealers' Mfg. Co., 25 Misc. 451, 55 N. Y. Supp. 558 (lumber); Waldron v. Leach, 9 R. I. 588; Fordice . Rinehart, Îl Oreg. 208, 8 Pac. Rep. 285; Litchman v. Potter, 116 Mass. 371.

66

43 Clemmons . Brinn, 36 Misc. 157, 72 N. Y. Supp. 1066. Thus an allegation that defendant took and detains a bay horse, worth," etc., might be enough in pleading, but in the affidavit there should be added description of marks, or of place where to be found, or both, otherwise the sheriff might not be liable for refusing to act.

So if the form of the property has been changed since the wrongful taking as where corn was made into whiskey- the pleading may allege the wrongful taking of corn, but the affidavit must describe and identify the whiskey which is the thing the sheriff is to look for. Silsbury v. McCoon, 3 N. Y. 379; Wingate r. Smith, 20 Me. 287.

For numerous authorities on the sufficiency of the description, see Wells on Replev. 54, etc., § 168, etc.

44 Shweitering v. Rothschild, 26 App. Div. 614, 50 N. Y. Supp. 206; Devoe v. Sellig, 25 Misc. 411, 54 N. Y. Supp. 941. A description is insufficient which consists of unexplained abbreviations, letters and figures, which are not descriptive, and as to which no meaning is given. Nat. Enameling, ete., Co. v. Kaplan, 53 App. Div. 96, 65 N. Y. Supp. 732.

45 Van Dyke r. N. Y. State Banking Co., 18 Misc. 661, 43 N. Y. Supp. 735; Thorn v. Lazarus, 39 App. Div. 508, 57 N. Y. Supp. 279.

46

What is a reasonably definite description of chattels in any case must be determined somewhat by the possibility of giving and stating distinguishing characteristics and marks of the property. If the requisition and the affidavit are regular and sufficient, any difficulty resulting from a confusion of goods will be relegated to the trial, and will not be considered on a motion to set aside the process and proceedings.

If the proper article is taken under a misdescription the court have power to amend the description.

6. denying legal custody.] - The denial required, of the property having been taken for tax or on execution, etc., must be direct and full. The plaintiff cannot evade the restrictions of the statute by alleging that the property was not taken for any "legal tax," 49 or on any "valid judgment."

III. DEFENDANT'S COURSE.

50

7. Election.] - Defendant, unless he moves to set aside the proceedings as void or irregular, must elect whether he will look to the security in place of the property, and let the property be delivered to the plaintiff, or whether he will reclaim the property. And this election he must make within three days.

If within that time (without giving security to get a return) he does not except to plaintiff's sureties, he waives his objections to them. If within that time he does except, he manifests his election to let the property be delivered to plaintiff, and to lock to the security, if it be approved, or to the liability of the sheriff, if it be not approved.51

If he does not except to the sureties he may within the same three days serve a counter affidavit, undertaking and requisition. for a return of the property, or such part thereof as has been

46 Marshall . Friend, 33 Misc. 443, 68 N. Y. Supp. 502; aff'd, 59 App. Div.

628.

47 Marshall t. Friend, supra.

48 McCourt r. Bond, 64 Wis. 596, 25 N. W. Rep. 532, holding thus of the description in a writ of replevin.

49 McClaughry r. Cratzenberg, 39 Ill. 117, 123; s. p., Norris t. Jones, 81 Hun, 304, 30 N. Y. Supp. 1134.

50 Under a statute requiring an allegation that the property was “not taken in execution on any order or judgment," the omission of the words order or, do not vitiate. Auld r. Kimberlin, 7 Kans. 601.

It is not enough to allege that the goods were taken on execution against him on a void judgment. Plaintiff cannot question the validity of the judg ment in that manner. Wilson t. Macklin, 7 Nebr. 50.

51 Cullen v. Miller, 5 Abb. N. C. 282; Hofheimer v. Campbell, 59 N. Y. 269.

52

actually replevied. The mode of fixing the amount of the undertaking has been already stated. The fact that a trial on the merits and judgment has been had meanwhile, does not alone preclude such a demand for a return. His demand prevents delivery to the plaintiff;53 and the justification of his sureties, or the omission of plaintiff to except to them, perfects his right to a return of the property.

54

Giving the undertaking to obtain a return, containing a recital that plaintiff has caused the chattels to be taken from his possession, estops the defendant from denying that the property was in his possession at the commencement of the action, and from showing that it was different or other property.5

55

8. Re-surrender.] - If, after obtaining a return of the property, defendant wishes to surrender it, a mere offer to do so, unaccepted, is unavailing. He must offer to allow judgment.5

57

IV. INTERVENTION OF THIRD PERSON.

56

9. Statutory right of claim.]-A stranger to the action who claims as against the defendant a right to possession existing at the time the property was replevied from the defendant or his agent, may, at any time before its actual delivery to either party, claim it of the sheriff by proper affidavit and notice proceeding from himself or his attorney or agent:58 and the sheriff, if the plaintiff on request does not indemnify him, may surrender the property to the claimant without thereby incurring any liability to the plaintiff.59

52 Corn Exch. Bank r. Blye, 102 N. Y. 305, 9 Civ. Pro. 416.

53 Graham r. Wells, 18 How. Pr. 376.

54 See Grant v. Booth, 21 How. Pr. 354; Manley r. Patterson, 3 Code Rep. 89. 55 Diossy v. Morgan, 74 N. Y. 11; Martin v. Gilbert, 119 id. 298. The court may allow such a recital, if inadvertently made, to be superseded by the cancelling of the undertaking and the giving of a new one. Dale v. Gilbert, 128 N. Y. 625.

56 Brewster v. Silliman, 38 N. Y. 423.

57 Einstein v. Dunn, 61 App. Div. 195, 70 N. Y. Supp. 520; aff'd on opinion below, 171 N. Y. 648.

58 Bishop v. Baxter, 3 Daly, 176.

59 N. Y. Code Civ. Pro., § 1709. No action will lie against the sheriff, acting under a valid requisition, except as provided in section 1710. McCarthy v. Ockerman, 154 N. Y. 565; Hastings v. Nagel, 83 Hun, 205, 31 N. Y. Supp. 598. For the history of the remedy of a third claimant, see Manning v. Keenan,

73 N. Y. 45.

A withdrawal of the claim to allow the sheriff to deliver, held not to waive the right of action against the sheriff. Haskins v. Kelly, 1 Abb. Pr. (N. S.) 63, 1 Robt. 160.

In Bishop . Baxter, 3 Daly, 176, the court refused to try the question of agency or claim, on affidavits.