b. Discretion. The power to impose such condition is discretionary, and the order made upon it will not be reviewed on the ground that such condition is oppressive. Thus, where an order was made denying an application to set aside an order of arrest, which, on appeal, was reversed on condition that the

defendant should stipulate not to sue, the defendant refused so to stipulate, and the court held, that the consequent affirmance of the order, denying the original application, was conclusive on a subsequent motion to set aside an execution against the person. Edgerton v. Ford, 11 Abb. 415.

a. Appeals not encouraged.-Where a motion to vacate an order of arrest has been denied, it will not be reversed on appeal unless it is a very clear case, as the attention of the court has already been twice called to the facts, once on granting the order, and again on the motion to vacate. Moers v. Morro, 17 How. 280; S. C. 29 Barb. 361; 8 Abb. 257, sub nom. Moers v. Martens. See Levins v. Noble, 15 id. 475.

b. Appeal from order reducing bail. The reduction of bail, by the justice at chambers, is a matter of discretion with which the court at general term will not, in general, interfere. Hart v. Kennedy, 15 Abb. 290; S. C. 24 How. 425; 39 Barb. 186.

Where there has been a motion to reduce the bail, and such motion has been denied on a subsequent motion before another justice on new affidavits, the application should not be granted unless new facts appear; and although it appear that the defendant, in a criminal action for the same offense, has been held to bail in a much smaller amount, still that is not a sufficient ground for reducing the bail in the civil action. Union Bank v. Mott, 6 Abb. 315.

c. Appeal from order vacating arrest. An appeal will lie directly to the eneral term from an order of a county judge vacating an order of arrest made by such judge. Lancaster v. Boorman, 20 How. 421.

On appeal from an order discharging an arrest, granted on an affidavit which set forth a cause of action, of itself justifying an arrest, the court will presume that the complaint, if not presented with the papers, is consistent with the affidavit in its statement of facts. Levins v. Noble, 15 Abb, 475.

d. From order denying application. After a full hearing of all the parties on an application to vacate an order of arrest, which is denied, the objection on appeal that the original affidavits are mainly on information and belief, will not avail, where the principal allegations in such affidavits are not explained or denied. Union Bank v. Mott, 17 How. 353; S. C. 9 Abb. 106.

Where a party's first motion to vacate an order of arrest was denied, and pending an appeal therefrom, he obtained an order to renew such motion on new affidavits, and from a denial of the second application he also appealed, it was held, on reversing the second order, that the first appeal should be dismissed without costs. Lambert v. Snow, 17 How. 517; S. C. 2 Hilt. 501; 9 Abb. 91.

The fact that judgment has been entered pending the appeal, and the bail charged, does not prejudice the appeal. Pacific Mutual Insurance Co. v. Machado, 16 Abb. 451. See subd. a, supra.

e. Order denying exoneretur.-An order denying a motion that an undertaking, given on arrest, be delivered up, and an econeretur entered, substantially continues the order of arrest, and is appealable under § 349. Columbia Ins. Co. v. Force, 8 How. 353.

f. Appeal from judgment.-On an appeal from a judgment in an action, the court cannot inquire into the validity of an order of arrest. Ross v. West, 2 Bosw. 360.

g. Appeal to court of appeals.-An appeal does not lie to the court of appeals from an order granting or refusing a provisional remedy, nor from an order vacating or refusing to vacate such provisional remedy Genin v. Tompkins, 1 Code R. N. S. 415.

SECTION 206.

208.

212.

a. General.-The former action of replevin is abrogated, and the provisions of this chapter take its place. Roberts v. Randel, 3 Sandf. 707; S. C. 5 How. 327; Nichols v. Michael, 23 N. Y. (9 Smith), 269; Rockwell 7. Saunders, 19 Barb. 481.

b. Former practice.-The former practice may be resorted to, in all cases where no provision is made by the Code. Brockway v. Burnap, 16 Barb. 314; Wilson v. Wheeler, 1 Code R. N. S. 402; S. C. 6 How. 49.

c. City courts.-The sections of this chapter, 206-217, extend in part to the marine and district courts of the city of New York. See Laws of N. Y. 1862, ch. 484, § 17, page 975.

d. Demand.-A demand is necessary, before an action is commenced to recover the possession of personal property which is wrongfully detained. Sluyter v. Williams, 37 How. 109; S. C. 1 Sweeney, 215.

e. Bailment.-The same principles apply to an action in the nature of replevin against a bailee, as to the actions of trover and replevin. Gerber v. Monie, 56 Barb. 652.

f. When the remedy is allo ved.The law requires the sheriff to take the property into his actual possession and custody. The spirit of section 207, subd. 4, must be considered to forbid the use of the provisional remedy for the claim and delivery of personal property which an officer has taken on an attachment in a former action. This is the case even where the attachment upon which the property was taken was not against all the plaintiffs literally, but only against some of them. Smith v. Orser, 43 Barb. 187, See Barry v. Fisher, 8 Abb. N. S. 369,

g. Conversion.-Where a chose in action has been pledged as security for a debt, and payment of the debt has been tendered and a demand made for its return, which is refused, it is a conversion for which an action will lie. Luckey v. Gannon, 37 How. 134; S. C. 6 Abb. Ñ. S. 209.

h. Restoration of the property.-In a case where the defendant makes restoration of the property before the action is actually commenced, and the plaintiff, although he accepts the goods and takes them into his possession, objects to the manner in which they are returned as being injurious to him, and brings an action, he should be nonsuited, or the jury should be directed to find a verdict for the defendant. Christie v. Corbett, 34 How. 19. See, also, Spalding v. Spalding, 3 id. 297; S. C. 1 Code R. 64; Dows v. Green, 3 How. 377.

i. Seizure under ac' of congress.Where property is seized under a warrant regular on its face, for a tax, under an act of congress, it cannot be replevied. O'Reilly v Good, 42 Barb. 521; S. C. 18 Abb. 106.

j. Replevin in the cepit.-An action in the nature of replevin, in the cepit, can only be brought where trespass could be maintained, and that will only lie for an injury to the land when the plaintiff is in possession. Stockwell v. Phelps, 34 N. Y. (7 Tiff.), 364. See, also, Rich v. Baker, 3 Denio, 79; De Mott v. Hagerman, 8 Cow. 220.

k. Offer to restore.-To recover in specie is the object of the action, and if the defendant unconditionally offers to restore the property before the action is commenced, the suit is wholly unnecessary; such offer is

c. Complaint.-A plaintiff cannot so frame his complaint as that, if he should fail to recover the possession, he may have damages for the conversion of the property. Maxwell v. Farnam, 7 How. 236. Where a motion is made to set aside such proceedings, the complaint cannot be amended when no basis is laid for it, even if it would otherwise be proper. Seymour v. Van Curen, 18 How. 94. See, also, Spalding v. Spalding, 3 How. 297. d. Complaint and affidavit may differ.-In an action, the object of which is to recover the possession of personal property, it is not necessary that the complaint should correspond with the affidavit founding the requisition to the sheriff in the matter of the number and value of the articles to be delivered. In this case it was held proper, as the complaint was verified, to describe therein and claim only the property which was in the possession of the defendant at the time of the commencement of the action. Kerrigan v. Ray, 10 How. 213.

e. Necessary averment.-The pleading in this action must allege that the property sought to be recovered is the property of the plaintiff; the averment must be direct and issuable, and allegations of the evidence of such ownership will not answer. The plaintiff alleged that he was entitled to the possession of the property by virtue of an attachment duly issued by a justice of the peace and delivered to the plaintiff, as a constable, to be executed. Held, that the allegation was not sufficient; that it must be distinctly alleged that the property belongs to the plaintiff. Vandenburgh v. Van Valkenburgh, 8 Barb. 218. See, also, Bond v. Mitchell, 3 id. 304; Pattison v. Adams, 7 Hill, 126; Prosser v. Woodward, 21 Wend. 205. f. Common carrier.-A common carrier cannot detain goods for damages arising from the neglect of the consignee to take them away at a given time. Crommelin v. New York and Harlem R. R. Co. 4 Keyes, 90.

g. Conversion of note.-The maker of a negotiable promissory note may maintain an action for its conversion against a party who wrongfully negotiates it to a bona fide holder

for value before it has any legal inception. The plaintiff is entitled to recover the amount of the note as damages for its conversion, and he need not aver or prove that he has paid it; the fact that he is legally liable to pay it is sufficient. Decker v. Mathews, 12 N. Y. (2 Kern.), 313.

h. Goods unlawfully seized.—Where goods have been unlawfully seized under a warrant against another person for the nonpayment of a tax, the owner may take proceedings under this section for such property, notwithstanding 2 R. S. 522, § 4, that replevin shall not lie for goods taken for a tax pursuant to statute. Stockwell v. Vietch, 15 Abb. 412; S. C. 38 Barb. 650.

i. Tax warrant regular.-An action cannot be maintained to recover personal property subject to execution, where the officer who holds it does so under a tax warrant against the plaintiff, issued by the proper authorities and regular upon its face. Hudler v. Golden, 36 N. Y. (9 Tiff.), 446; S. C. 2 Trans. App. 316.

j. Remedy may be waived.-A party who has the right to recover the immediate possession of property claimed under this section (206), has an equal right to waive it and await its recovery, until he obtains judgment. Vogel v. Badcock, 1 Abb. 176.

k. Discharge of defendant.-Where the order of arrest has been improvidently granted in an action in the nature of replevin, and is vacated, the court, on issuing the order to vacate, may require the defendant to stipulate that he will not bring an action for the arrest. Northern Railway Company of France v. Carpentier, 4 Abb. 47. Especially if the

court is satisfied that there was no malice in causing the arrest, and that there was probable cause therefor. Ib.

1. The judgment.-Whenever the defendant is entitled to try the title to the property, and, in case he succeeds, is entitled to a return of the property, he is bound to take a judgment for a return, or the value of the goods; and he cannot forego such remedy, and bring a cross-suit. McKnight v. Dunlop, 4 Barb. 36.