Teschner v. Deveron

59 How. Pr. 467

Opinion

McAdam, J.

— A defendant who desires to reclaim chattels replevied must serve upon the sheriff written notice that he requires the return thereof, and must file an affidavit either that he is the owner of the. property,, or' that he is lawfully entitled to the possession thereof, in the form prescribed by section 1704 of the Code of Civil Procedure. These condi* tions are mandatory, and the failure of the defendant to comply with .them renders his counter-bond nugatory. The plaintiff is, therefore, entitled to possession of the chattel pendente lite (Section 1706). The defendant, in consequence of the omission to give the requisite preliminary notice and affidavit, must await the trial of the action before his right to the return can be established.