Sheriff's liability to third parties. of the defendant, leaving the officer free to determine what property is the defendant's, and what he may safely seize under his process. The law allows him also to protect himself from the claims of third persons, by demanding indemnity from the plaintiff. The process in replevin, however, does not command the sheriff to take the property of the defendant, but to take the specific chattels described in the plaintiff's affidavit. Neither can the sheriff, as in case of an execution, demand indemnity. On the other hand, he is liable to an indictment, and also to a civil action if he refuse to execute the process. To this double liability, the law does not add a liability to a third party whose property shall have been taken in pursuance of a valid process requiring the taking of that identical property. It is a familiar principle, that the law will not hold an officer liable for doing what that law expressly commands him to do, but will hold him protected by his process so far as he acts within its directions. Ib. Prior to the Code, it was held that an officer executing a replevin process was protected thereby in taking the property described therein from the possession of a stranger to the action. Shipman v. Clark, 4 Denio, 446. This protection was not, however, extended to the party who sued out the writ. Ib. But under the Code, the rule is changed; and an officer is not protected by a replevin process in taking the goods of a stranger from the possession of any person other than the defendant or his agent. King v. Orser, 4 Duer, 431; State v. Jennings, 14 Ohio St. 73. See Willard v. Kimball, 92 Mass. (10 Allen) 211, 213. This change in the law regulating the liability of the sheriff in executing replevin process is due to the change in the requirements of the process itself. Under the old practice, the writ of replevin, not indeed by express words, but by necessary implication, authorized the sheriff to take the goods described therein, whenever they might be found within his county. 2 R. S. 523 (540), § 6. Under the Code, the sheriff is authorized to take the property described in the affidavit of the plaintiff, when it is found in the possession of the defendant or his agent. Code, § 209. If the property is in the possession of any person other than the defendant, the sheriff, in taking it, acts at his peril, and can free himself from liability as a trespasser only by showing that this person was in reality no more than an agent of the As a bailee-Qualifications of sureties - Proceedings on taking property. defendant, and in this capacity alone held the possession. King v. Orser, 4 Duer, 431. d. As a bailee. In the preceding portions of this section the liability of the sheriff has been considered in reference to the taking of property in an action of replevin, and the damages resulting therefrom. These damages arise from the wrongful act of the officer. But the property in the hands of the sheriff may be totally destroyed and lost to the owner without the knowledge or agency of the officer, as by fire, water, or theft. The law requires the sheriff to take the goods from the defendant in an action of replevin, and retain them in his possession until the right to the possession has been determined by the courts, or until one of the parties to the action becomes entitled to their custody, in accordance with the provisions of the statutes. While the sheriff so retains the property he acts as a bailee of the goods for the benefit of the parties interested, and is liable only when guilty of more than ordinary neglect. It is only when there is such an absence of that care which a man of ordinary intelligence would take of his own property, that the sheriff can be made liable to the owner. Moore v. Westervelt, 27 N. Y. (13 Smith) 234; S. C., 21 id. (7 id.) 103; 9 Bosw. 558; 25 How. 277. no case is the sheriff the insurer of the property replevied. Ib. Section 16. Qualifications of sureties. In a. In general. The sureties to an undertaking in an action of replevin must possess the same qualifications as are prescribed in section 194 of the Code, in respect to bail upon an order of arrest. Code, § 213. See ante, 646. ARTICLE IV. PROCEEDINGS ON TAKING PROPERTY. Section 1. Mode of taking property. a. In general. Upon the receipt of the affidavit, notice and undertaking, it becomes the duty of the sheriff to forthwith take the property described in the plaintiff's affidavit, if it can be found in the possession of the defendant or his agent, but not otherwise. Code, § 209; King v. Orser, 4 Duer, 431. If the property to be replevied, or any part thereof, is concealed in a building or inclosure, the sheriff should first publicly demand its delivery, and, on a failure to comply therewith, Second order-Proceedings after taking the property. should proceed to take the property into his possession by breaking open the building or inclosure. If necessary, he may call to his aid the power of the county. Code, § 214. Section 2. Second order. a. In general. Where the sheriff has succeeded in obtaining only a part of the goods described in the affidavit, the plaintiff may proceed in his suit, or, on a return that the residue cannot be found, he may deliver to the sheriff a second requisition to take the remainder of the goods. But, where a second or third order issues, there should be no unnecessary delay in its delivery to the sheriff, or in its execution. Snow v. Roy, 22 Wend. 602. ARTICLE V. PROCEEDINGS AFTER TAKING THE PROPERTY. Section 1. Property, how kept. a. In general. When the sheriff has taken the property into his possession, he is required to keep it in a secure place, and deliver it to the party entitled to its possession on the receipt of his lawful fees and the necessary expenses of keeping it. Code, § 215. The manner of keeping the property taken is dependent upon the nature of the goods, and the security given to the officer. Until sureties have been given and justified, or until all exceptions to them have been waived, the sheriff is entitled to retain possession of the goods. Graham v. Wells, 18 How. 376. During this time the sheriff is a simple bailee, and it is his duty to take such steps to secure the safety of the property in his charge as any prudent man of good sense might reasonably be expected to take if the property were his own. Moore v. Westervelt, 27 N. Y. (13 Smith) 234; S. C., 21 id. (7 id.) 103; 9 Bosw. 558; 25 How. 277. While the property is in his hands the sheriff may remove it to any safe place; or, where the removal would be attended with great expense compared with the value of the goods, he may, in the absence of objection from either party, leave them where found, and in the charge of a deputy. While holding the goods in his possession he has such a property in them as will justify him in covering them with a reasonable insurance. White v. Madison, 26 How. 481; S. C., 26 N. Y. (12 Smith) 117. Where the defendants in an action of replevin are common Claim of property by third persons. carriers, and the only right to the possession of the goods claimed by them is that the goods were left with them for transportation, and where other claimants, representing distinct interests, have been interpleaded the sheriff may, with the consent of the parties, permit the goods to be carried to their original destination, and the proceeds brought back and deposited in court. The money so deposited will be a valid protection to the sheriff for the sale of the goods. Schuyler v. Hargous, 28 How. 245; S. C., 3 Rob. 673. Section 2. Claim of property by third persons. a. Claim, how made. The only way in which a third party can assert his claim to goods taken by the sheriff, in an action of replevin, is by making an affidavit of his title thereto, and of his right to the possession, stating the grounds of such right and title, and serving the same on the sheriff. Code, § 216; Edger ton v. Ross, 6 Abb. 189. But this course need be pursued only when the property claimed has been taken by the sheriff in the proper discharge of his duty. Where the property taken was not that described in the affidavit of the plaintiff, or where the property was taken from the possession of a person other than the defendant or his agent, the true owner may resort to an action of trespass, trover, or replevin to maintain his rights. He is not limited to the procedure indicated in section 216. King v. Orser, 4 Duer, 431. Affidavit of Claim by third person. (Title of cause.) (Venue.) R. S., of in said county, being duly sworn, says, that he is the (sole) owner of certain personal property taken by the sheriff of the said county of in this action, which property is described as follows: (describe the property). That this deponent purchased the said property of the defendant, on the day of 187, paying therefor the sum of dollars. That deponent has not sold or disposed of the said property or any part thereof. To (Jurat.) (Signature.) Notice to the Sheriff of Claim by third person. , Sheriff of the county of SIR: Please take notice that I claim the personal property mentioned in the annexed affidavit, and that you are required to deliver the same to me. (Date.) (Signature.) Proceedings by the sheriff on claim of property. b. Proceedings by the sheriff. Where a third party has served the proper affidavit of title, the sheriff is not bound to keep the property, or to deliver it to the plaintiff, unless fully indemnified against the claim of such third party, by a proper undertaking. Code, § 216. In the absence of any statutory provisions in regard to the disposal of the property, where such claim has been made and no indemnity given, the sheriff should simply cease to act. The provisions of section 216 of the Code were intended simply for the protection of the sheriff, in case he should deliver property seized in an action of claim and delivery to a plaintiff therein, and not to sanction its delivery to a defend ant. A failure by the plaintiff to give the proper indemnity, upon a claim by a third party, does not authorize the sheriff to deliver the replevied property to such third party. He can only permit the original defendants, from whose possession the property was taken, to resume it, by relinquishing it himself. The former practice justified an officer in delivering property to a plaintiff in an action of replevin, after a sheriff's jury had found the right to the property to be in the plaintiff. The 216th section of the Code dispenses with the necessity of any such trial. Haskins v. Kelley, 1 Rob. 160; S. C., 1 Abb. N. S. 63. Before relinquishing the property seized, however, the sheriff should demand indemnity, and allow the plaintiff a reasonable time to prepare the undertaking and obtain sureties qualified to make the requisite affidavit. Code, § 216. Sheriff's Notice of Third Person's Claims. (Title of cause.) SIR: Please take notice that R. S. claims the property taken by me in this action, and that, unless the plaintiff indemnifies me against such claims, I shall not keep the property or deliver it to the plaintiff. Yours, etc., J. K., c. Undertaking by plaintiff. If the plaintiff still desires to obtain the possession of the property, notwithstanding the claim of the third party thereto, he should proceed at once to indemnify the sheriff, by an undertaking executed by two sufficient sureties, accompanied by their affidavits, that they are each |