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sureties, approved by the constable or by the justice; in a penalty at least twice the value of the property claimed; and conditioned that, in an action upon the bond, to be commenced within three months thereafter, the claimant will establish that he was the goneral owner of the property claimed, at the time of the seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The constable must thereupon deliver the property claimed to the claimant.
[Id., § 33, and part of § 34, amended by confining the provision to property unreclaimed by the defendant; by requiring the bond to be filed with the justice; by allowing the justice to approve of the sureties; by limiting the penalty to twice the value of the property claimed; and also as follows: The word, "general," has been inserted before "owner," in accordance with Pierce v. Kingsmill, 25 Barb., 631; and the word, "claimed," has been substituted for "seized." This section retains the bond required by the former statute, instead of substituting an undertaking therefor, in accordance with the rule, adopted in various similar cases, that, in general, the substitution should not be made, where the object of the security is to lay the foundation of an independent action, by or against a person not a party. A bond avoids various questions relating to the consideration, and to the statute of frauds; and it may sometimes be necessary to bring the action in a jurisdiction, where the decisions of our courts upon those questions will not fully control.]
§ 2913. A judgment for the plaintiff, in an action upon a bond, Action given as prescribed in the last section, must award to him the value bond. of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery. If the amount so recovered exceeds the amount, which the plaintiff recovers, in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess.
[Id., §§ 36 and 37, amended by omitting, as unnecessary, the first clause of § 36.]
§ 2914. If the warrant of attachment is vacated or annulled, the When dedefendant may maintain an action, upon the bond specified in the last two sections, in his own name, in the same manner and with the like effect, as the plaintiff might have done, if the warrant had remained in full force.
[Substituted for id.. § 38, which fails to provide for the case of a recovery of judgment by the defendant. For a definition of "annulled", see § 3343, subd. 12.](*)
TITLE 2. Return of warrant.
vacate or modify warrant,
§ 2915. The constable executing the warrant of attachment must, at the time when and place where it is returnable, make a return thereto, under his hand, stating all his proceedings thereupon. He must deliver to the justice, with the return, each bond or undertaking delivered to him, pursuant to any of the foregoing provisions of this article, and a certified copy of the inventory of the property attached. The return must state the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor, and the name of the person to whom the copy was delivered, unless his name is unknown to the constable; in which case, the return must describe him so as to identify him, as nearly as may be.
[Id.. § 35, and part of § 36 of the act of 1831, consolidated, and amended by requiring the return to show the mode of service, where it was not personal.]
§ 2916. A defendant, whose property has been attached, may, upon the return of the summons, apply to the justice, who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted; or upon proof, by affidavit, on the part of the defendant; or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The justice may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion, if he deems the papers, upon which it was granted, insufficient to authorize it.
[New; but in substantial accordance with similar provisions, relating to attachments in actions brought in courts of record. As the time is so short, between the levy under the attachment and the return of the warrant, it is unnecessary to provide, that the motion may be made upon notice, or by a person acquiring title after the levy. It seems proper to permit a motion to vacate the warrant; for, under the scheme of this article, the action does not fall with the warrant, where the latter is vacated. The last sentence is designed to allow the justice to rectify an error, into which he may have inadvertently been led, in the haste which usually attends the issuing of an attachment.]
§ 2917. Vacating the warrant of attachment does not affect the Effect of jurisdiction of the justice to hear and determine the action, where Vacating the defendant has appeared generally in the action; or where the summons was personally served upon him; or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned, or has thus appeared. In every other case, the justice, who vacates a warrant of attachment against the property of a defendant, must dismiss the action as to him.
[New; inserted in consequence of the amendments, making a warrant of attachment a provisional remedy, instead of the process for the commencement of the action.]
ings where summons
§ 2918. Where the defendant has not appeared, and the sum- Proceedmons has not been personally served upon him, and property of the not pos defendant has been duly attached by virtue of a warrant, which has served. not been vacated, the justice must proceed to hear and determine the action; but, in an action subsequently brought, the judgment is only presumptive evidence of indebtedness, and the defendant is not barred from any counterclaim against the plaintiff. The execution, issued upon a judgment so rendered, must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property.
[L. 1831, ch. 300, § 39 (3 R. S., 5th ed., 463; 4 Edm., 474), amended. See § 2948, subd. 5, post, which however is confined to actions on contract.]
PRELIMINARY NOTE.- In this article, as in the third and fourth articles, an effort has been made to assimilate the proceedings in justices' courts to those in the principal courts of record, as nearly as the jurisdiction of the former, and the general mode of procedure therein rendered it practicable so to do. The alterations in the former statutes, which have been made, are not, however, so important as to call for any special notice here, except the one relating to the time within which a requisition to replevy must be executed. There is an obscurity, and perhaps an inconsistency in the provision relating to this subject, contained in L. 1860, ch. 131 (printed generally, but erroneously, as part of § 53 of the Code of Procedure). Section 4 of that act provided that
tion for a chattel may be brought.
the summons might be returnable at any time within twelve days; but no specific time was pointed out, within which the property was to be replevied. Hence it might have been plausibly argued, that a summons might be returnable on the day when it was issued, and of course that the property might be replevied on the same day; or, if the summons had twelve days to run, on the last day. On the other hand, 6 provided that the defendant might, within two days before the return day of the summons, except to the sureties in the undertaking and § 7 allowed him to reclaim the property at any time before the return day. Apparently these provisions implied that the property must have been replevied at least two days before the return day; but the true construction is doubtful. Even if two days must have elapsed before the return day, it frequently would have been impossible for a defendant, although residing in the county, to be seasonably informed of the proceeding against his property. It is evident, therefore, that, under the most favorable construction of the former statute, there was room for much abuse; especially as § 12 allowed a judgment to be taken in a certain ease, without service of process on anybody.
After careful consideration, the commissioners concluded, that the best mode of removing this defect in the statute was to limit the time, within which the requisition must be executed, to six days before the return of the summons. This divides the usual lifetime of the summons equally between the plaintiff and the defendant, and will generally give the latter sufficient time to protect his rights. It has also the advantage of corresponding with the time, within which a warrant of attachment must be executed, in which respect, this Code leaves the law, as it has remained in force for upwards of sixty years.
SEC. 2919. When action for a chattel may be brought.
2920. Plaintiff may procure replevin ; affidavit and undertaking.
2922. Id.; how executed. Service of summons, etc.
2923. Return of constable.
2924. Defendant may except to sureties; proceedings thereon.
2925. Defendant may reclaim chattel; proceedings thereon.
2927. When and to whom constable must deliver chattel.
2928. Penalty for wrong delivery by constable.
2930. Defendant may demand judgment for return.
2931. Proceedings in the action; action upon undertaking.
§ 2919. An action to recover a chattel, with or without damages for the wrongful taking, withholding, or detention thereof, can be brought before a justice of the peace of the county in which the
chattel is found, in a case, and subject to the qualifications, specified in sections 1689, 1690, 1691, and 1692, and subdivision seventh of section 2862 of this act.(^)
[Substituted for that part of Co. Proc., § 53, subd. 10, as controlled by L. 1860, ch. 131, § 4, relating to the place of trial, which is not included in section 2862, ante. The reference to §§ 1689-1692, dispenses with the necessity of repeating here the provisions of those sections.]
may procure re
§ 2920. The plaintiff may, at the time when the summons is is- Plaintiff sued, but not afterwards, require the chattel to be replevied, as pre- plevin scribed in this article. For that purpose, he must deliver to the justice an affidavit and an undertaking, similar, in all respects, to the affidavit and undertaking required to be delivered to a sheriff, as prescribed in sections 1695, 1697, 1699, and 1712 of this act; except that the sureties in the undertaking must be approved by the justice.(")
[L. 1860, ch. 131, §§ 2 and 3, and a part of § 4 (2 Edm., 235; 5 id., 134), amended, by substituting a reference to the provisions of chapter 14 of this act, relating to the undertaking and affidavit in a court of record, in place of the provisions specially regulating the same papers in a justice's court. Sections 728-730 and 810-816, relating to affidavits and undertakings, apply to justices' courts. § 3347, subd. 6. See, also, § 2957, post, last sentence.](*)
§ 2921. Upon receiving the affidavit and undertaking, the jus- Requisitice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the constable, to whom the summons is delivered, to replevy the property described in the affidavit, on or before a day specified in the requisition, which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable, with the summons.
[Id., the remainder of § 4, amended by adding the clause, "on or before a day specified in the requisition, which must be," etc., for the reason mentioned in the note to § 2907, ante; by requiring the requisition to be executed by the officer who serves the summons; by substituting the ordinary summons for the anomalous one, prescribed in the former statute; and by requiring the requisition to be attached to the affidavit.]
Id.; how a summons,
executed. Service of
§ 2922. The constable must execute the requisition, as a sheriff is required to execute a requisition, in an action brought to recover chattel, as prescribed in sections 1700, 1701, and 1702 of this act
(a) The sections referred to, not in this chapter, are on pp. 272, 273.
(c) The sections referred to, not in this chapter, are on pp. 208, 209; 211-213; 360.