Milliken v. Selye

6 Hill & Den. 623

• Court: New York Supreme Court
• Decided: July 15, 1844
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

The plea is bad for the reason assigned in the special cause of demurrer. The statute forbids the execution of a writ of replevin in any case, unless the requisite affidavit and bond be delivered to the sheriff. A compliance with the statute is in the nature of a condition precedent to the right of serving the writ; and if there he no compliance, the writ is a nullity. (2 R. S. 523, § 7; Berrien v. Westervelt, 12 Wend. 194.)

Independently of this objection, the plea was probably well enough. After the taking by virtue of a writ of» replevin, the property is to be deemed in custodio/m legis, and therefore not liable to distress; (Co. Lit. 476; Willes, 136 ; Comyn's Land. Ten. 377;) and a reasonable time is allowed to remove it. (Gilbert v. Moody, 17 Wend. 358.)

Judgment for the defendants.