Cusick v. Cohen — 3 Denio 267

Majority

p. 267

Cusick vs. Cohen and another.

Headnote

A defendant in replevin who excepts to the sureties taken by the sheriff need not enter the exception on the bond or on the writ, but may file it in the clerk’s office.

P. Cagger, for the defendants,

moved for judgment, of discontinuance in replevin, because the plaintiff’s sureties taken by the sheriff on the receipt of the writ had not justified. The defendants filed an exception to the sureties with the clerk of the. court, and gave due notice.

J. Percy, for the plaintiff,

objected that the exception was not sufficient. It should have been entered on the bond taken by the sheriff, or on the writ of replevin.

The bond remains with the sheriff, and I do not- think the defendant is obliged to seek him in order to make an exception to the sureties; and I see no reason for requiring the exception to be endorsed on the writ. It is enough that it be filed with the clerk of the court. The defendants are regular, but the plaintiff may be relieved on terms.

Ordered accordingly.