Clinton v. King

3 How. Pr. 55

• Court: New York Supreme Court
• Decided: July 28, 1847
• Status: Published

Opinion

Harris, Justice.

The sheriff having proceeded so far in the execution of the writ of replevin, as to take the property and deliver it to the Plaintiffs, the Defendant was not bound to wait until he should be served with a summons before he should appear in the suit. He had a right at once to give notice of his appearance, in order that he might, if entitled thereto, procure a return of the property. It is no answer to the default of the Plaintiffs for not having their sureties justify or giving a new bond within the time allowed for that purpose, after notice of exception, that the sheriff had omitted to serve the Defendant with a summons at the commencement of the suit. The Defendant himself, after having appeared in the cause, would have no right to take the objection.

The motion is granted, unless within twenty days the Plaintiffs cause their sureties to justify or file a new bond, as provided by law in such cases, and pay the costs of this motion.