
    William Stacy agt. Le Roy Farnham.
    Where an under sheriff executes an attachment and takes property into his custody upon it, and a writ of replevin is afterwards issued against the under sheriff to replevy the property; such writ of 'replevin may be directed to and executed by the sheriff, of which the defendant is under sheriff. The suit is neither brought by or against the sheriff. (2 B. S. 533, § 61.)
    An affidavit made by the plaintiff of ownership, &c., annexed to a writ of replevin ; should not he entitled.
    
    
      December Term, 1845.
    Motion by defendant to set aside writ of replevin and proceedings for irregularity.
    This motion was made on two grounds; 1st, because the writ should have been directed to and executed by the coroner ; and 2d, on the ground that the affidavit annexed to the writ should not have been entitled. It appeared in this case that the writ of replevin was directed to the sheriff of ®Erie county, and served by one of his deputies on the defendant, who was under sheriff of Erie. The defendant as under sheriff had previously received a warrant of attachment issued to the sheriff of Erie, and had attached the property mentioned in the writ of replevin and held it under the attachment, until it was replevied from him, as stated. The affidavit attached to the writ of replevin was entitled in the suit, being a printed form, and the 'common affidavit of ownership, &c.
    Geo. W. Houghton, defendant's counsel and attorney.
    
    Geo. L. Marvin, plaintiff's counsel and attorney.
    
   Jewett, Justice.

This suit is neither brought by or against the sheriff of Brie, (2 R. S. 533, *§ 67,) therefore the writ of replevin was properly ^directed to and executed by him. The affidavit of ownership of property, &c., annexed to the writ should not have been entitled; for the reason it is informal and defective, but it maybe amended. (Cutler agt. Bathbone, sheriff, 1 Hill, 204, and cases there cited.) The plaintiff may, therefore, amend the defect in the affidavit by making and filing a new affidavit annexed to the writ without costs. {Rule 61.)

Buie accordingly.  