Morris v. De Witt

5 Wend. 71 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The law has provided guards against abuses in practice under the writ of replevin. By the revised statutes, not only a bond, with sufficient sureties must be given, but the plaintiff must make affidavit of his t¡t)e to property replevied. The defendant, however, may have the question of property tried before the officer making replevin ; and even after a verdict against him, the plaintiff may still claim deliverance of the property by giving further security. Now all this is a very useless proceeding, if the defendant in replevin has a right to turn round and bring his action of replevin, and thus regain possession of the property which has been legally taken from him. If such a proceeding were permitted, there would be no end to suits, and the benefit of this action could never be realized. The title to the property in question must be tried upon an issue regularly joined, and until such trial, the party from whom the property has been taken by due process of law, must remain out of possession, unless it is restored to him upon his claim of property.

The plaintiff has given security for the return of the property, and pajunent of damages and costs, if return be adjudged. He has sworn that the property is his; if he has sworn falsely he may be punished for perjury. The title to the property cannot be tried upon affidavit; nor can the defendant in replevin obtain possession of it again but in the mode pointed out by the statute. He may make his claim of property before the sheriff; if he does not succeed in that, he must await a trial upon the merits. The writs, however, cannot be set aside as irregularly issued, for they are not returned ; but they may be superseded; and a. rule for that purpose is granted, with costs.