Pardee v. Buell & Powers — 2 Hill & Den. 357

Majority

p. 357

Pardee vs. Buell & Powers.

Headnote

The time within which a defendant in replevin may except to the plaintiff’s sureties, is to be computed from the return day of the writ, and not from the day oil which the writ is actually returned.

Replevin. This was a motion in.behalf of the defendants for judgment of discontinuance, on the ground that the plaintiff’s sureties had not justified within twenty days after entry and notice of exception to their sufficiency. It appeared that the writ was returnable on the 3d Monday (19th) of October last, that the exception was entered on the 28th and notice served on the 29th of the same month. The plaintiff’s attorney refused to receive or regard the notice, for the reason that more than twenty days had elapsed since the actual return of the writ.

By the Court,

The return of the writ, though in fact before the return day, did not take effect till that time. The exception and notice were within twenty days of the return day, and so in good season. (2 R. S. 434, 2d ed. § 28.)

Motion granted