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A defendant will be released from imprisonment by operation of law, on his discharge as an insolvent under the provisions of title I. chap. V. part II. of the Revised Statutes, particularly of articles 3, 4, 5, 6, and 7 of that title.-V. 2 R. S. p. 1, to 52. The proceedings in relation to a discharge of this nature, are in no wise affected by the Code, and belong entirely to the old practice.

CHAPTER II.

OF CLAIM AND DELIVERY OF PERSONAL PROPERTY.

THE provisions of the Code, in this respect, are clearly intended as a substitute for the provisional relief heretofore obtained, in the action of replevin, under the old practice.-Roberts v. Randall, 3 Sandf. S. C. R. 707; 5 How. 327; 3 C. R. 190; 9 L. O. 144; Wilson v. Wheeler, 6 How. 49; 1 C. R. (N. S.) 402. In the latter case, it was considered that the former practice on replevin was still in force in many respects, in an action of this nature; which seems clearly to be the case, inasmuch as the provisions made by the chapter of the Code now under immediate consideration, are only partial in their operation, and relate to the provisional remedy alone, without in any manner affecting the subsequent proceedings for the decision. of the controversy, as to whether the plaintiff is or is not entitled to the property itself, in respect of which the provisional remedy is sought in the first instance.

The different points in relation to the action of replevin, considered as an action, and apart from the provisional remedy obtainable at the outset, have been heretofore considered under the heads of Pleading, Judgment, Arrest, and elsewhere. A specific equitable lien cannot be enforced in an action for replevin; Otis v. Sill, 8 Barb. S. C. R. 102: that remedy is only applicable to cases where the possession of the property itself is sought, not where a charge is merely claimed upon it. In replevin, the possession of the property may be sought, with or without damages for the withholding, (sec. 167, sub-division 6 ;) and, un

der sec. 277, judgment may be taken, either for the possession of the property, or for its value, in case a delivery cannot be had, with damages for its detention. It would seem from the case of Suydam v. Jenkins, 3 Sandf. S. C. R. 614, that it is competent for the plaintiff to elect to take judgment for the value of the goods claimed, instead of their return, and that he can equally recover damages-that, in such case, the assessable value of the goods will be that at the time of the replevin, and not at that of such election; and that, if such value be an insufficient redress for the injury, the deficiency may be made good in the estimate of daniages; and the law as to the measure of the latter is fully laid down.

Although the claim for the recovery of the property, or judgment for its value, is maintainable in the action of replevin; the provisional remedies now under consideration, cannot be obtained in a proceeding in the nature of an action of trespass "de bonis asportatis," under the old practice, and in which, damages only, and not the return of the property itself, are sought by the complaint. An action of that nature falls under subdivision 2 of sec. 167, and is incompatible with replevin, which falls, on the contrary, within subdivision 6—Spalding v. Spalding, 3 How. 297; 1 C. R. 64; and it was there held that the proceedings could not be amended, under the provisions in relation to amendments, as they stood in the Code of 1848. This latter conclusion was dissented from in Dows v. Green, 3 How. 377, and an amendment was there allowed under similar circumstances; the decision otherwise confirming the authority of Spalding v. Spalding, as to the incompatibility of obtaining the provisional remedies applicable to the action of replevin, in one in which relief for the trespass only is sought, and not the recovery of the property itself.

In Chappel v. Skinner, 6 How. 338, it was similarly held that the remedy of obtaining possession of the goods, by means of replevin, was incompatible with a previous arrest under section 179. See citation of the case in the preceding chapter. The plaintiff cannot have both remedies simultaneously, and must make his election between them. The conclusion come to by the court is thus expressed:

"The plaintiff's course was to have pursued the proceedings pointed out in chapter 2, above referred to,” i. e., that now under consideration," which do not authorize the defendant's ar

rest; and, if the property could not be found, and the case is within the 3d subdivision of sec. 179, to obtain an order, and have the defendant arrested; but, in that case, he cannot afterwards obtain the possession of the property, pending the action. "Having, in this case, elected to have the defendant arrested and held to bail in the first instance, under one of the subdivisions of sec. 179, I think the plaintiff was bound to wait, until he was entitled by the judgment of the court to the possession of the property, before causing it to be delivered to him. I am not able to perceive that the defendant has done anything, by which he waived the right to have the property restored to him."

In reference to the circumstances under which an action of this description can or cannot be maintained, when the defendant has parted with the possession of the property, see the last chapter, and the cases of Roberts v. Randall, Van Neste v. Conover, Merrick v. Suydam, and Remin v. Nagle, there cited.

The conclusion from these cases, and particularly from the first and last, appears to be, that replevin is not maintainable against a person who has, bonâ fide, parted with the possession of the property claimed, before the suit for its recovery has been commenced; but otherwise, in cases where such property has been removed, in expectation of a proceeding for its recovery, and in fraud of that proceeding.

The questions in relation to the action of replevin, generally considered, having thus been adverted to, we now approach the subject of the provisional remedy, immediately under consideration.

This remedy may, under sec. 206, be obtained in an action of this nature, "at the time of issuing the summons, or at any time before answer." It is therefore only applicable to the outset of the action, and, if delayed until after the service of the complaint, may be frustrated, by an answer being put in by the defendant.

It is obvious, that the proper course will be to draw the summons and complaint, and the necessary papers for the application for the provisional remedy, at the same time; to apply to the court thereupon; and then, to serve the summons and lodge the affidavit with the sheriff, concurrently.

In order to the obtaining of the provisional remedy, an affi

davit must be prepared as follows, in the manner prescribed by section 207:

§ 207. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing,

1. That the plaintiff is the owner of the property claimed, (particularly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth.

2. That the property is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief.

4. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is, by statute, exempt from such seizure; and,

5. The actual value of the property.

A form of this affidavit is given in the Appendix. The property must, of course, be correctly and fully described.

An allegation by the plaintiff that he is "owner" of the property, is sufficient, under subdivision 1. The facts as to his right need only be set forth, when he claims, in the words of the section, "a special property therein."--Burns v. Robbins, 1 C. R. 62. The same doctrine is maintained in Vandenburgh v. Van Valkenburgh, 8 Barb. S. C. R. 217, (reported on another point, 1 C. R. (N. S.) 169,) before cited under the head of Pleading.

Where, however, a special property is claimed, the facts as to that special property must be clearly set out, as concisely as practicable, but, at the same time, with sufficient fulness. To give a general precedent would of course be impracticable, as the statement will necessarily be one of fact, applicable to the particular case only. The same remark may be made, as to that of the alleged cause of detention by the defendant.

The questions as to the extent to which property is exempt from seizure, have been before considered in part, and the statutory provisions cited, under the head of Execution.

That as to the form of affidavit "showing" such exemption, has given rise to two decisions directly contradictory to each other. In Spalding v. Spalding, 3 How. 297, 1 C. R. 64, the court held, that, to conform to the requirements of this section,

the affidavit must show that the property claimed to be exempt from seizure, is so exempt, by a detailed statement of the facts. By Roberts v. Willard, 1 C. R. 100, the above decision was overruled in terms, the learned judge saying he doubted not that the fact of exemption might be shown, by a statement of that fact upon the advice of counsel, after a full statement of all the facts of the case to such counsel, before such advice was given; and, perhaps, by a naked allegation of the party in his affidavit that the property was so exempt, provided that allegation be made positively. A statement upon mere belief will be insufficient under any circumstances, (same case,) and a short allegation of the facts, will evidently be the more expedient course in all instances. See in relation to the subject of exemption in general, Cole v. Stevens, 9 Barb. S. C. R. 676.

The affidavit in these cases will be irregular, if sworn before the plaintiff's attorney.-Anon., 4 How. 290. Any irregularity in that part of the proceedings will, however, be waived by the subsequent unconditional appearance of the defendant.-Roberts v. Willard, 1 C. R. 100, above cited.

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An action of this nature will not lie, as between the owner of goods, and a constable, for property in the latter's hands, by virtue of an attachment, unless such property be such as is exempted from attachment. Replevin will not lie for property in the custody of the law."-Keyser v. Waterbury, 3 C. R. 233. In Spalding v. Spalding, above cited, it was held that the original affidavits, if defective, may be amended by subsequent ones, on a motion to set aside the proceedings.

The affidavit being prepared, an endorsement must be made upon it by or on behalf of the plaintiff, as directed by sec. 208, in the following terms:

§ 280. The plaintiff may, thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant, and deliver it to the plaintiff.

The signature of the plaintiff's attorney to this requisition, though not expressly prescribed, will doubtless be held sufficient.

The affidavit and notice endorsed, must then be delivered to the sheriff, accompanied by an undertaking, as thus prescribed by sec. 209:

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