REPLEVIN.

[Franklin Circuit Court,

January Term, 1893.]

Stewart, Shauck and Shearer, JJ.

#### CHARLES H. HUNT v. GEORGE WILLIAMS ET AL.

1. Property not Keepsakes not to be Returned.

Where property replevined is not a keepsake, heirloom, or similar property, the defendant cannot elect to have the property returned to him at the end of the trial, as allowed by sec. 5820 Rev. Stat. His only remedy to secure the retention of the property is the redelivery bond, under the second part of that section, and injunction against the sale will not be granted.

2. Bond to be Given 24 Hours After Plaintiff’s Right Accrues.

The replevin bond provided for in sec. 5819, Rev. Stat., is not, in every case, to be given within twenty-four hours after the seizure, but is in time if given within that time after the right of plaintiff to receive the property from the officer accrues, which is twenty-four hours after “five days from the time the property is taken.”

Error to the Court of Common Pleas of Franklin county.

SHEARER, J.

On February 8, 1892, Hunt brought an action in the court of common pleas against Williams for the replevin of certain horses of which he claimed to be the owner and entitled) to the immediate possession. At the same time an order of delivery in replevin was issued, which was executed on the ninth by a seizure of the horses, and on the fifteenth of February a bond was taken by the sheriff, and the property delivered to the plaintiff. March 12, 1892, Williams answered, denying the allegations of ownership and right of possession, etc., and electing to have the property returned to him at the termination of the action.

The plaintiff advertised said property for sale on June 11, 1892, and to prevent the sale, Williams, by a supplement to his answer, alleged facts upon which he obtained an injunc*569tion restraining plaintiff from making such sale until the further order of the court. Subsequently this injunction was dissolved, and such action is assigned for error.

It seems to have been assumed that the defendant had the right by mere-election to have the property retained until the final determination of the action. This claim is too broad. If the property be of the character described in the first part of section 5820 Rev. Stat. as amended (88 O. L., 274), the defendant may secuic its retention by the officer until the end of the litigation, by serving notice-upon the officer within ten days after the seizure that he will demand its return» at the end of the case, and that he will at the next term of the court move for an order that the property be retained, subject to the final order of the court.

This is the only way in which the retention of the property can be had. This-method was not resorted to by the plaintiff in error; but if it had been adopted,, the'order might have been rightfully refused upon the evidence. The property is-not brought within the class which may be retained under section 5820.

There remains however a remedy in such ca-es, and in any case, without reference to the character of the property. This is found in the second paragraph: of said section 5820, as amended [88 O. L., 274] to-wit: * * “the defendant» may at any time within five days after the property is taken, execute an undertaking to the plaintiff with one or more sufficient sureties **** conditioned that in case the judgment be against him, he shall then return the property taken,, or pay the value * * at the election of the plaintiff * * * whereupon-the property shall be returned to the defendant to be retained by him until the-determination of the action.”

Recourse was not had to this remedy by the plaintiff in error, but he relied1 for relief upon the alleged failure of the plaintiff below to execute the proper bond within the prescribed time to entitle him to hold the property. The claim is also made that an action on the bond will not afford adequate relief in view of the excess of the value of the property over the penalty of the bond, and that the-property should be held until the determination of the suit.

Section 5819, provides, “except as provided in section .5820, the sheriff shall deliver the-property taken to the plaintiff * * * after the expiration of five days from the seizure, when there is executed * * a written undertaking to defendant * * to the effect that plaintiff shall duly prosecute the action, and in case judgment shall be against him, that lie then return the property taken or pay the value so assessed, at the election of the defendant,” etc.

And it is also provided by said section that the officer shall not be required1 to take possession of said property until the plaintiff executes to the defendant,, to the satisfaction of the officer, an undertaking conditioned that he will duly prosecute the action, and in the event of a decision against him, that he will pay the costs made on the order and the expenses incurred in the management and1 care of the property.

The first undertaking is to secure the return of the property or the payment of its value as the' defendant may elect; the second is to secure defendant against the expense of its care and management pending the litigation.

Section 5822, which has not been amended, provides that: “If the undertaking requhed by section 5819, be not given within twenty-four hours after the property is taken, or after the right first accrues to the plaintiff to receive the property from the officer on» executing the proper undertaking, the officer shall return the property to the defendant.”"

It is to be noted that the undertaking is not in every case to be given within twenty-four hours after the seizure, but it is in time if given within twenty-four hours after the right of plaintiff accrues to receive possession from the officer,, which may not be until five days after the seizure (R. S., 5819). The language of section 5819 is “after five days” * * “when there is executed * * a* written undertaking.” In other words, if the undertalcing is executed within twenty-four hours after “five days from the time the property is taken,” it is ire time. The undertakings were given within six days in this case.

*570S. Hambleton, for plaintiff in error.

Sater & Kinkead, contra.

The judgment below was right, because — (1) the undertakings were giv in time; (2) the property was not within the category of property to be retainl by the officer; and, (S) the plaintiff in error had an adequate remedy at law, pi] vided' by the statute, of which he did not avail himself.

Judgment affirmed.