| N.Y. Sup. Ct. | May 15, 1840
By the Court,
At common law, if the sheriff returned to the pluries writ of replevin, that the cattle were eloigned, a capias in withernam issued to take other beasts of the defendant in lieu of those withheld; or the plaintiff might proceed, and recover damages for the value and detention. Gilbert on Rep. 79, 125, 6. Wilk. on Rep. 20. Watson on Sheriff, 215. Our statute, 2 R. S. 439, § 64, has abolished this writ, and substituted therefor the taking of the body of the defendant as on a capias ad respondendum, p. 432, § 11, and a clause to this effect is now inserted in the writ of replevin. In the case before us, part of the property is taken on the writ and part not'
According to the old mode of proceeding, where a return was made that part of the goods were eloigned, the plaintiff, I apprehend, might either take out the eapias in with ernam for other cattle, or proceed for damages for the part not found. This is agreeable to the forms as given in the books, and consistent with the general course of proceeding in the suit. Since we have dispensed with this writ, the latter is the only remedy left, and no difficulty is perceived in making it effectual. I admit the statute authorizing the arrest of the defendant does not apply, as that obviously com-templates the case where no part of the property is found, 2 R. S. 432, § 11, 12, and consequently the proceeding is left as at common law. This is also still the practice, where, on a claim of property, the jury find against the plaintiff. Id. 433, § 19. If some of the goods are taken, the defendant is already duly summoned to appear and defend. The declaration in the usual form is for unjustly taking or detaining, as the case may be, the whole of the property which is specified therein. No change in this respect is necessary. The only variation from the ordinary mode of proceeding would be at the trial, and in the form of the record. If the plaintiff recover, he is entitled, in addition to damages for unjustly taking or detaining the part replevied, to an assessment of the value of the property not found, § 47—49; if the defendant succeed, he is entitled to a return only of the articles replevied, or an assessment of the value thereof, together with damages for the detention. § 33—55. In this way, the whole cause of action is disposed of in a single suit, consistently with the usual course of proceeding therein, and with perfect justice between the parties. If the plaintiff cannot find the whole of the property, he is not bound to take any part of it, "except at his election, bu,t may proceed and take the body.
The default and execution of the writ of inquiry were therefore regular; but, as the practice has been somewhat new and unsettled in the particular case, we will open it and set aside all subsequent proceedings on terms. The
Where a pari of the property is taken on the first writ, an alias or pluries should not be required as essential to the regularity of the proceedings; if the plaintiff, to avoid delay, chooses to go on upon the return that the residue cannot be found, I perceive no objection to the practice. The defendant cannot complain, as no injury can thereby result to him. Still the plaintiff is entitled to these several writs to obtain the possession of the whole of the goods, if practicable, but there should be no unnecessary delay ; and should it intervene, the court will take measures to hasten the plaintiff. Default and all subsequent proceedings set aside. Costs to abide event, on plaintiffs’ declarings in twenty days after service of copy of this rule.