
    Milliken vs. Selye and Lunt.
    In replevin, the affidavit and bond required by 2 JR. S'. 523, § 7, are essential to the sheriff’s right of executing the writ.
    To an avowry that the goods in question were taken by way of distress for rent ^hile on the demised premises, the plaintiff pleaded a prior seizure under a writ of replevin issued in his favor against the tenant, and that the defendant took the goods before a reasonable time had elapsed for their removal; but the plea did not show that any affidavit or bond was ever delivered to the officer by whom the writ was executed. Meld, that the plea was bad.
    After the seizure of property on demised premises by virtue of a writ of replevin, it is to be deemed in custodiara legio, and is therefore not liable to distress for rent until a reasonable time for its removal shall have elapsed. Semble.
    
    The plaintiff declared in replevin for taking three engine lathes, and some other articles, on the 10th of August, 1843, from certain premises in the city of Rochester. Avowry and cognizance by the defendants respectively, that the taking was by virtue of a distress warrant, for rent due the defendant Selye, from one Kenyon, to whom the premises were demised. Plea, that on the 9th of August, 1843, the property was seized under a writ of replevin in favor of the plaintiff against Kenyon, and was in the custody of the sheriff by virtue of the writ when the defendants took it; alleging that a reasonable time for removing the property had not elapsed before the taking complained of. Demurrer, assigning for cause that the plea did not show the making and delivery to the sheriff of the affidavit and bond required by 2 5. /S'. 523, § 7. Joinder.
    
      E. Mather, for the plaintiff.
    
      J. C. Campbell, for the defendant.
   By the Court, Nelson, Ch. J.

The plea is bad for the reason assigned in the special cause of demurrer. The statute forbids the execution of a writ of replevin in any case, unless the requisite affidavit and bond be delivered to the sheriff. A compliance with the statute is in the nature of a condition precedent to the right of serving the writ; and if there he no compliance, the writ is a nullity. (2 R. S. 523, § 7; Berrien v. Westervelt, 12 Wend. 194.)

Independently of this objection, the plea was probably well enough. After the taking by virtue of a writ of» replevin, the property is to be deemed in custodio/m legis, and therefore not liable to distress; (Co. Lit. 476; Willes, 136 ; Comyn's Land. Ten. 377;) and a reasonable time is allowed to remove it. (Gilbert v. Moody, 17 Wend. 358.)

Judgment for the defendants.  