Edgerton a. Ross.

John Cook, for plaintiff.

G. Dean, for defendant.

PIERREPONT, J.-The City Court of Brooklyn, being one of limited jurisdiction, a copy of a judgment of divorce is not of itself evidence that the court had acquired any right to make the decree.

It was necessary to show that all the necessary steps had been taken to acquire jurisdiction. It is no answer to say that the record would have shown that the necessary steps had been taken. The record was not produced. I am compelled to order a new trial.

The order to be settled on notice.

EDGERTON a. ROSS.

New York Common Pleas; Special Term, March, 1858.

CLAIM AND DELIVERY.-CLAIM MADE BY THIRD PERSON.

The sheriff having taken possession of personal property, in proceedings of claim and delivery, instituted in an action brought by R. for recovery of their possession, a third party brought an action against the sheriff, and R., the plaintiff in the first action, to recover possession of the same property, and issued a requisition to the coroner to retake the property. Held, on motion of R., the co-defendant of the sheriff in the second action, that the proceedings of claim and delivery in that action must be set aside as irregular.

There is only one way in which a third party, claiming goods taken by the sheriff in proceedings of claim and delivery, can assert his claim, and that is by affidavit made and served on the sheriff, pursuant to section 216 of the Code.

Order to show cause why proceedings of claim and delivery should not be set aside.

In February, 1858, Andrew Ross, one of the defendants in this action, commenced, in the Supreme Court, an action against Davis and Bassford, to recover the possession of certain personal property. In that action Ross took proceedings of claim and delivery, under section 206, &c., of the Code. Pursuant to a requisition, the sheriff took the chattels in question.

Edgerton a. Ross.

While they were in the custody of the sheriff, one Edgerton, claiming to be the true owner, brought this action in the Common Pleas against Ross, the plaintiff in the first action, and the sheriff, for the possession of the same goods; and in this, Ross commenced similar proceedings of claim and delivery, and issued a requisition to the coroner, requiring him to take the goods from the sheriff.

Upon an affidavit, stating the facts, and that the property in question in the two actions was the same, and alleging, upon information and belief, that the only claim to it made by the sheriff was that arising from his right and duty to hold it by virtue of the proceedings in the first action, the defendant Ross obtained an order to show cause why the affidavit of the plaintiff, upon which his proceedings of claim and delivery were founded, and all those proceedings should not be set aside.

The plaintiff's affidavits, in opposition, showed that the defendants had appeared generally in this action; and also alleged that the property actually taken by the sheriff, and which the plaintiff in this action claimed, was not the goods which he was directed to take by the requisition, but other similar goods which belonged to the plaintiff.

Birdseye, Somers, Johnson, for the motion, urged that the proceedings should be set aside for the reasons:-I. That the affidavit did not sufficiently state the alleged cause of detention; and, II. That the only remedy the plaintiff had was that provided in section 216.

S. B. Noble, in opposition. I. Any irregularity in the affidavit is waived by the general appearance of the defendant (Roberts v. Willard, 1 Code R., 100; Hyde v. Patterson, 1 Abbotts' Pr. R., 248). II. The action has been discontinued as against the sheriff; and though the proceedings should be held not sustainable as against him, they are good against the other defendants.

HILTON, J.-This action is to recover the possession, and also claiming the delivery by the coroner to the plaintiff, of certain personal property in custody of the sheriff, having been taken by him by virtue of proceedings in an action of a nature similar

Salter a. Weiner.

to this, wherein the defendant Ross is plaintiff and Robert Davis, and Edward D. Bassford are defendants.

The sheriff claims no interest in the property; he merely has it in his custody, having taken it from possession of Davis and Bassford, the defendants in the last-named action.

It is a familiar rule, that when a remedy is provided by statute in any case, and the proceeding by which the remedy shall be pursued is distinctly specified, it is a virtual prohibition against proceeding in any other manner, and all other modes are excluded in the cases to which the remedy relates (Miller v. Taylor, 4 Burr., 2305, 2323; Dudley v. Mayhew, 3 Comst., 9; Sedgwick on Stat. and Const. Law, 92).

If the plaintiff desired to claim the property in question, he should have made the affidavit specified in section 216 of the Code, and delivered it to the sheriff, who, unless indemnified against this claim, would restore the property to the parties from whom it had been taken; and it is expressly declared that "no claim to such property by any other person than the defendant" (i. e. the person from whom it has been so taken) "shall be valid against the sheriff, unless made as" in this section prescribed; thus providing against the very case under consideration.

The plaintiff's affidavit and all subsequent proceedings to obtain possession of the property being irregular, and unauthorized by law, the motion to vacate the same is granted.

SALTER a. WEINER.

Supreme Court, First District; At Chambers, April, 1858. DEPOSIT OF MONEY IN LIEU OF BAIL.

The defendant, having been arrested and held to bail in the sum of five hundred dollars, deposited that amount with the sheriff, and afterwards, having given bail, obtained an order that the deposit be repaid to him. Before the deposit had been repaid, the plaintiff commenced a second action against the same defendant, and issued a warrant of attachment, which he levied upon the deposit. A third party, upon affidavits stating that the money was his money, not that of the defendant, and advanced by him for the deposit until bail could be found, applied, by the defendant's attorney, for an order that the money be paid over to the defendant's attorney for him.

Salter a. Weiner.

Held, That the money, by being deposited, became the property of the defendant and was liable to the attachment, and that the application must be denied.

Application for an order for the repayment of a deposit made in lieu of bail.

There were two actions brought by Salter against Weiner. In the first action, the defendant was arrested by the sheriff of Niagara, under an order of arrest granted by Mr. Justice Clerke, requiring the sheriff to take bail in five hundred dollars. The defendant could not find bail, and, instead thereof, deposited five hundred dollars in gold with the sheriff, who remitted the same to the county clerk of New York, the action being triable there. Subsequently the defendant obtained bail, who justified. The judge who made the order for allowance of the bail, ordered the five hundred dollars to be refunded to the defendant, in compliance with section 199 of the Code. Before the bail, justified, the plaintiff obtained, in the second action, a warrant of attachment from the county judge of Niagara county, and caused the same to be served upon the county clerk of New York, with a notice that it was intended to attach the five hundred dollars. This was a motion that this five hundred dollars be paid to the defendant's attorney, for one Emanuel Meyer. The affidavit, upon which the motion was founded, set forth that the money deposited was the money of Emanuel Meyer, and not the defendant; and was deposited with the sheriff by Meyer in order to keep Weiner out of jail, and upon his promise to refund the money to Meyer, when bail should be put in.

Anthony R. Dyett, for the motion.

Wm. Henry Forman, opposed.

CLERKE, J. (orally).—Even if this money was Meyer's at the time of being deposited with the sheriff, by such deposit it became the money of Weiner. It is loaned money, and loaned money is the property of the loanee. The motion is denied, with $5 costs.

Kamena a. Wanner.

KAMENA a. WANNER.

New York Superior Court; General Term, March, 1858.

DELIVERY OF PROPERTY ATTACHED.-BOND OF CLAIMANT.

The provisions of the Revised Statutes respecting attachments in justices' courts (2 Rev. Stats, 432, §§ 31, 32)—which direct that if a third person claim goods attached by any constable, he may require a delivery to him by executing a bond to the plaintiff in double the value of the property attached,—are for the benefit of the real owner as well as that of the plaintiff; and a bond for less than double the value of the property, though it be more than double the amount of the debt for which the attachment was issued, is insufficient.* Of the proper form, and the requisites of a complaint against a constable for refusing to receive such a bond and deliver the goods.

Appeal from order overruling demurrer to complaint.

The amended complaint in this action stated for a first cause of action-"That on February 5, 1857, and for a long time previous thereto, the plaintiff was the lawful and sole owner, and in the custody and possession at his store, 13 South William-street, in the city of New York, of the following personal property;" describing the goods.

"That while in the peaceful ownership and possession of the property, and on the 5th of February, 1857, at the city of New York, William Thompson, a constable, and one of the defendants above named, by virtue of an attachment issued by A. K. Maynard, one of the justices of the Marine Court of the city of New York, in an action in which one John J. Wanner, the other defendant, was plaintiff, and Waltje Kamena was defendant, to recover the sum of $421 and interest from November 10, 1856, and at the instigation, under the instructions, and in the presence of the said defendant Wanner, attached the property above described, entered and removed the same from No. 13 South William-street aforesaid, and converted the same to the use of said defendant."

And for a second cause of action :

"That afterwards, and on or about February 12, 1857, the said plaintiff, in order to obtain said property and as claimant * Reversing Kamena a. Warner, 15 How. Pr. R., 5. VOL VI.-13