Milliken v. Selye
New York Supreme Court
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.
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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. Plea, that on the 9th of August, 1843, the property was seized under a writ of replevin in favor of the plaintiff against Kenyon, and was in the custody of the sheriff by virtue of the writ when the defendants took it; alleging that a…
1Opinion of the Court
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 *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.)
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…
2Cases cited1 opinion
- Berrien v. WesterveltNew York Supreme Court · 1834