Clerk to receive inter

pal, &c., and re-invest;

clerk of the court, or to the known owners whose shares were thus invested.50

The statutes afterwards provide, that where any security directed to be taken by the court, or any investment to be made, or where any security has been taken by commissioners on the sale of any real estate as before directed, except where provision is made for taking the same in the name of a known owner, the bonds, mortgages, or other evidences thereof, shall be taken in the name of the clerk of the court, and his successor in office, who shall hold the same by virtue of their respective offices, and shall deliver them to their successors.

51

It is the duty of such clerks to receive the interest or prinest, princi- cipal of any sums as they become due, and to apply or re-invest the same, according to the circumstances of the case, as the court may direct; and, once in every year, to render to the court an account in writing, and on oath, of all monies received by them, and of the application thereof; and upon any neglect to render such account, and upon any misapplication of any monies received, the court are required to suspend such clerk from exercising the duties of his office, and immediately to report his delinquency to the governor, to the end that he may be removed by the governor and senate.52

and in what funds, &c.

Securities how prosecuted.

All investments and re-investments under the provisions of the statute, must be made in the public stocks of the United States, or of this state, or on bond and mortgage upon unincumbered real estate, of at least double the value of such investment; and no such security, bond, mortgage, or other evidence of such investment can be discharged, transferred, or impaired, by any act of the clerk, without the order of the court, entered in the minutes thereof.53

Any person interested in such investments or securities, with the leave of the court, prosecute the same in the

may,

name of the existing clerk; and it is declared that no suit shall abate by the death, removal from office, or resignation of the clerk to whom such evidences were executed, or of any of his successors.54

SECTION IV.

OF PROCEEDINGS IN ERROR.

Upon any final judgment rendered, that partition be made, or confirming a partition, or for the sale of any premises, or confirming such sale, a writ of error may be brought by any of the parties to such judgment, jointly or separately, and without the consent of any co-plaintiff or co-defendant, within the same time, and under the like restrictions, as in cases of personal actions.5 And it is declared that it shall not be necessary for a plaintiff or defendant bringing such writ, to summon and sever any co-plaintiff, or co-defendant.56

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Error may be assigned upon such writ, for any erroneous adjudication upon the rights of any of the respective defendants or respective plaintiffs, and the court are required to direct the person, whose interest is affected by such adjudica tion, to plead to such assignment of errors, and to appear in such cause as a defendant in error.5 57

The court are authorised to give judgment either for affirmance or reversal, in part or in whole, with costs to be paid by either of the parties, or by any one or more defendant or plaintiff, to his co-defendant or co-plaintiff.58

CHAPTER VI.

OF THE PRACTICE IN THE ACTION OF REPLEVIN.

Present practice.

Replevin originally used for a wrongful distress,

The proceedings in this action are now so almost entirely regulated by statute, that, in treating of its practice, we shall, with very few exceptions, only refer to those regulations, without noticing any former rules or decisions.

The action of replevin was originally used as a remedy in cases of a wrongful distress; and so seldom was it resorted to in other cases of unlawful taking, that Sir William Blackstone, in his Commentaries, speaks of it as a remedy in cases of distress only; but it is well settled that it lay at common law for any unlawful taking. A taking, however, until the Jawful late revision of our statutes, was essential to support the action, and now hes an unlawful detention not being sufficient. But it lies now

but

lay at common law,

for any in

taking;

for an un

tention

also.

2

lawful de- for an unlawful detention as well as taking, and may be considered as a substitute for the action of detinue, which is aboTished, and a collateral remedy with trespass and trover.

Cases in which it lies:

Replevin may be brought whenever goods or chattels have been wrongfully distrained, or otherwise wrongfully taken, of are wrongfully detained, for their recovery, and for the recovery of the damages sustained thereby. But it will not lie for property taken by virtue of a warrant for the collection of

13 Bl. Com. 146.

1 Scoal. & Lef. Rep. 327.

32 R. St. 522. s. 1.

a tax, assessment, or fine, in pursuance of any statute of the state; nor will it lie at the suit of a defendant in an execution or attachment to recover goods or chattels seised by virtue thereof, unless such goods and chattels are exempted by law from such execution or attachment; and it will not lie for such goods and chattels at the suit of any other person, unless he has, at the time, a right to reduce into his possession the goods taken.5

Whenever, by statute, executors or other persons, suing in the right of another, are authorised to maintain actions of trespass for any personal property, wrongfully taken, they are allowed to maintain replevin also.6

ges.

Although replevin was formerly in use only in cases of Its advanta wrongful distress, its advantages as a remedy over other actions, on account of its arresting and holding the specific property claimed, has latterly caused it to be resorted to frequently in other cases, and will no doubt hereafter, under the improvements made by statute, render it a favourite remedy in ordinary cases, and much better known as such than in cases of distress.

ranged.

The proceedings in the action, whether in cases of distress, Subject ar or in other cases, are generally the same, and may be the same almost without any variation. But there are many proceedings which may occur in cases of distress, which are wholly foreign to the practice in other cases, and which, if treated of at the same time, would serve to confuse the subject. They will, therefore, be considered separately, and under the following heads: 1. The proceedings in ordinary cases: 2. The proceedings peculiar to cases of distress.

But it is necessary, here, to give the reader notice, that it is not our purpose to treat of all the proceedings in cases of

4

4.

Ib. s. " Jb. s. 5.

2 R. St. 522. s. 2.

distress, under the second of the above heads; but only of such as are peculiar to those cases. The proceedings generally in such cases will be found under the first head only.

SECTION I.

OF THE PROCEEDINGS IN REPLEVIN IN ORDINARY CASES.

Commenced

by writ.

Its form.

Writ, and plaintiff's affidavit and bond.] Actions of replevin are required hereafter to be commenced, in all cases, by writ, which must be issued out of the court in which it is made returnable, and be substantially in the following form: "The People, &c., To the Sheriff, &c.

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"Whereas A B complains that C D has taken, and does unjustly detain, (or, does unjustly detain,' as the case may be,) one horse, one cow, and five sheep, (or, one silver tankard, one mahogany table, and six chairs,' &c., particularly describing the goods and chattels to be replevied,) therefore, we command you, that if the said A B shall give you security, as required by law, to prosecute his said complaint, and to return the aforesaid goods and chattels, if return thereof shall be adjudged, and to pay all such sums of money as may be recovered against him hereupon, that you cause the same goods and chattels to be replevied and delivered to the said A B without delay; and also that you summon the said C D to appear before our justices of the supreme court of judicature, at the capitol in the city of Albany, (or before the judges of the court of common pleas, &c.') on the day of next, (some day on which writs in personal actions may be made returnable,) to answer the said A B in the premises. And in case you cannot find the aforesaid goods and chattels, within your county, so as to replevy the

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