Milliken v. Selye

Decided July 15, 1844

New York Supreme Court · decided 1844-07-15

The plaintiff declared in replevin for taking three engine lathes, and some other articles, on the 10th of August, 1843, from certain premises in the city of Rochester. Avowry and cognizance by the defendants respectively, that the taking was by virtue of a distress warrant, for rent due the defendant Selye, from one Kenyon, to whom the premises were demised.

Relies on Gilbert v. Moody · Berrien v. Westervelt

Decided 1844-07-15

By the Court, Nelson, Ch. J.

¶1The 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 *624to 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.)

¶2Independently 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.)

¶3Judgment for the defendants.