ART. 5. the Defendant may re chattel; thereon. § 2925. At any time before the return day of the summons, defendant may, if he does not except to the plaintiff's sureties, serve claim upon the justice a notice that he requires the return of the chattel proceed replevied. With the notice he must deliver to the justice an affidavit and an undertaking, similar, in all respects, to those required to be given by a defendant upon requiring a return of a chattel, as prescribed in sections 1704 and 1712 of this act, omitting the provision in the undertaking, "or if the action abates in consequence of the defendant's death." The sureties in the undertaking must justify before the justice upon the return of the summons. If the plaintiff has stated separately in his affidavit the value of one or more chattels or classes of chattels, as prescribed in section 1697 of this act, the defendant may require a delivery of part of the property replevied, as prescribed in that section.(a) [Id., § 7, amended in conformity to the corresponding provisions of chapter 14 of this act. The principal change consists in requiring an affidavit, and also allowing the defendant to require the return of a part of the chattels replevied, in certain cases.] tion of § 2926. Except as otherwise expressly prescribed in this article Justificathe examination and qualifications of the sureties, and the allowance sureties. of the undertaking, upon a justification pursuant to either of the last two sections, must be the same as upon a justification of bail, as prescribed in sections 579, 580, and 581 of this act, substituting the justice for the judge; but after such allowance, the undertaking must be filed with the justice. The constable is thereupon exonerated from liability.() [Id., § 8, without substantial change. The last sentence, and the provision requiring the undertaking to be filed, are new.] to whom must de liver § 2927. If the defendant neither excepts to the plaintiff's sure- When and ties, nor requires the return of the chattel, within the time pre- constable scribed for that purpose; or if he fails to procure the allowance of chattel. his undertaking; or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking, the constable must, except in the case specified in the next section but one, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking; or if the defendant, after he has (a) Section 1704 is on p. 278; section 1712 on p. 281; section 1697 on p. 275. 37 TITLE 2 required the return of the chattel, procures the allowance of his Penalty for wrong delivery by undertaking, the constable must immediately deliver the chattel to the defendant. [Substituted for the last clause of id., § 7, in conformity to § 1706, ante.](*) § 2928. A constable who delivers to either party, without the Constable. consent of the other, a chattel replevied by him, except as prescribed in the last section, or, by virtue of an execution issued upon a judg ment in the action, forfeits to the party aggrieved the sum of one hundred dollars; and is also liable to him for all damages which he sustains thereby. Claim of title by son. [New. Designed to place the constable under a penalty and liability corresponding, except in amount, to that of the sheriff in a like case in a court of record. ] § 2929. The provisions, regulating the proceedings, where a per third per- son, not a party, claims property which has been replevied, and th rights of such a person, and of the sheriff, as prescribed in section 1709, 1710, 1711, and 1712 of this act, apply to a like case in a action, brought as prescribed in this article, substituting the constabl for the sheriff; except that service of a notice and of a copy of th claimant's affidavit, upon the plaintiff's attorney, as prescribed i section 1709, must be made, either upon the plaintiff personally, apon the attorney who appears for him before the justice; and tha the sum specified in the undertaking, given by the plaintiff to th constable, need not exceed, in any case, three hundred dollars.(1) Defendant may de judgment for return. [Substituted for so much of id., § 9, as applies, Co. Proc., § 216, an action for a chattel in a justice's court.] § 2930. Where a chattel has been replevied, and the defenda mand has not required the return thereof, pending the action, as prescrib in the foregoing sections of this article, he may, in his answer, dema judgment for the return thereof, either with or without damages f the taking, withholding, or detention. "T [Substituted for part of id., § 11, which reads as follows: defendant by answer shall claim a return thereof." The reasons whi induced the commissioners to substitute a notice for a demand the answer, in an action in a court of record, do not apply to a j tice's court.] 38 TITLE 3. ings in the action § 2931. Section 1373, section 1731, excluding subdivision first Proceedthereof, and sections 1722, 1726, 1730, 1732, 1733, 1734, and 1735 action; of this act, substituting the constable for the sheriff, apply to the upon unproceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, except as otherwise specially prescribed in this chapter.(*) [Substituted for id., § 10, as amended by L. 1865, ch. 616 (6 Edm., 559), and the remainder of § 11. The defects of the former statute are well illustrated in Connors v. Joyce, 3 Lans., 315. The sections referred to are those which relate to the rule of damages in a case of depreciation; the verdict, or decision of the court; the judgment; the execution; and an action against the sureties in the undertaking.] dertaking. ings when sonally § 2932. Where the defendant does not appear, and the sum- Proceedmons has not been personally served upon him, and a chattel, or part summons of a chattel, to recover which the action is brought, has been re- served. plevied, and the proceedings thereupon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect, as if the summons had been personally served. [Substituted for § 12 of the same statute.] tion not affected by replevy. failure to § 2933. Where the summons has been personally served upon when acthe defendant, or where he appears, the justice must proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. [New. The act of 1860 was so drawn, as to render it very doubtful whether any recovery could be had, where the property had not been replevied, although the summons was served.] TITLE III. Pleadings; including counterclaims, and proceedings upon answer of title. SC 2934. When issue to be joined. 2935. Pleadings. 2936. Complaint. 2937. What causes of action may be joined. 39 When ssue to be Joined. Pleadings. 2940. General rules of pleading. 2941. Account, or instrument for payment of money. 2942. Court may require items to be exhibited. 2943. Immaterial variance to be disregarded. 2944. Amendment of pleadings. 2945. Counterclaims. 2946. Id.; where executor or trustee is a party. 2947. Consequence of neglect to plead counterclaim. 2949. Judgment upon counterclaim. 2950. Judgment when accounts exceed $400. 2951. Answer of title. 2952. Undertaking thereupon. 2953. In what court new action to be brought. 2954. When action before justice to be discontinued. 2955. Effect of failure to give undertaking. 2956. When title comes in question on plaintiff's own showing. 2957. Pleadings in new action. Undertaking before justice, when applicable. 2958. Answer of title as to one of several causes of action. § 2934. At the place, and within one hour after the time, specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defend ant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made, and issue must be joined. Where both parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. (a) [2 R. S., 233, Part 3, ch. 2, tit. 4, § 47, as amended by L. 1845, ch. 25 (3 R. S., 5th ed., 434; 2 Edm., 249). This section has been made applicable to a case where an order of arrest has been executed.] § 2935. The pleadings in a justice's court are: 2. The defendant's answer. 3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein. 4. The plaintiff's demurrer to one or more counterclaims stated in the answer. [Co. Proc., § 64, subd. 1, amended by the addition of the last two subdivisions, so as to correspond with subd. 6 of the same section, as amended in § 2939, post.] (a) See "An act permitting the verification of pleadings in the justices' court", L. 1881, ch. 414, in appendix, p. 576, post. TITLE 3. § 2936. The complaint must state, in a plain and direct manner, Complaint. the facts constituting the cause of action. [Id., subd. 3, unaltered.] § 2937. The plaintiff may unite, in the same complaint, two or What more causes of action, where they all arise out of 1. The same transaction, or transactions connected with the same subject of action; or 2. Contract, express or implied; or 3. Personal injuries, and injuries to property, or either. But it must appear, upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other; that they require the same judgment; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judg ment. [New. The subject has been heretofore unprovided for, whence considerable confusion has arisen. This section has been modelled upon § 484 of this act, which regulates the joinder of causes of action in courts of record, omitting matters inapplicable to a justice's court, and those which are sufficiently provided for elsewhere in this chapter. The concluding portion of the section varies also from that of § 484 in various particulars, in order to adapt it to a justice's court.] causes of action may be joined. § 2938. The answer may contain a general denial of each allega- Answer. tion of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defences or counterclaims. [Co. Proc., § 64, subd. 4, amended by substituting "general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof," for denial of the complaint or of any part thereof;" and "it may also set forth," for "notice;" by omitting "of " after "manner;" and by substituting "new matter," for any facts," and, "one or more defences or counterclaims," for "a defence or counterclaim."] § 2939. In a case specified in subdivision third or fourth of sec- Demurrez tion 2935 of this act, a party may demur to the pleading of the adverse |