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Return of constable.
may except to sureties; proceedings
except that he must serve the summons, affidavit, and requisition, within the time and in the manner prescribed, by section 2910 of this act, for the service of a summons, warrant of attachment, and inventory.(*)
[The first sentence applies to constables, the provisions of chapter 14, ante, prescribing the duty of a sheriff, with regard to the property replevied. The remainder of the section consists of a part of § 5 of the act of 1860, relating to the time and mode of service, with amendments, which are fully explained in the note to § 2910, ante, and the preliminary note to this article.]
§ 2923. The constable must, on or before the return day of the summons, make a return to the requisition, under his hand, stating all his proceedings thereupon; and file it, with the affidavit and requisition, with the justice. The return must state the manner in which the summons, affidavit, and requisition were served; and, if they were served otherwise than by delivering the requisite copies to the defendant personally, the reason therefor, and the name of the person to whom the copies were 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.
[L. 1860, ch. 131, last clause of § 5, amended by prescribing more in detail the contents of the return, in accordance with § 2915, ante.]
§ 2924. At any time after the chattel has been replevied, and at least two days before the return day of the summons, the defendant, unless he requires a return of the chattel, may serve upon the plaintiff, or upon the constable, a written notice that he excepts to the plaintiff's sureties; otherwise he is deemed to have waived all objections to them. If such a notice is served, the sureties must justify upon the return of the summons; or the plaintiff must then give a new undertaking, to the same effect as the original undertaking, with other sureties, who must then appear and justify before the justice.
[Id., § 6, amended and also by omitting, at the end, the clause, "or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements". The first branch of this clause is covered by the provisions of § 2927, post; and, with respect to the second, no good reason exists why the action should not proceed, although the plaintiff's sureties have failed to justify. See the note to § 2896, ante, as to undertakings.]
§ 2925. At any time before the return day of the summons, the Defendant 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 proceedreplevied. 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.(*)
[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.]
§ 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.]
§ 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.
TITLE 2. required the return of the chattel, procures the allowance of his undertaking, the constable must immediately deliver the chattel to the defendant.
Penalty for wrong
[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 judgment 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
[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 perthird person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections 1709, 1710, 1711, and 1712 of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as prescribed in section 1709, must be made, either upon the plaintiff personally, or apon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable, need not exceed, in any case, three hundred dollars.(*)
Defendant may de
[Substituted for so much of id., § 9, as applies, Co. Proc., § 216, to an action for a chattel in a justice's court.]
§ 2930. Where a chattel has been replevied, and the defendant mand has not required the return thereof, pending the action, as prescribed for return. in the foregoing sections of this article, he may, in his answer, demand judgment for the return thereof, either with or without damages for the taking, withholding, or detention.
[Substituted for part of id., § 11, which reads as follows: "The defendant by answer shall claim a return thereof." The reasons which induced the commissioners to substitute a notice for a demand in the answer, in an action in a court of record, do not apply to a justice's court.]
ings in the
§ 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 un proceedings 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 suretics in the undertaking.]
§ 2932. Where the defendant does not appear, and the sum- Proceedmons has not been personally served upon him, and a chattel, or part summon 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.]
§ 2933. Where the summons has been personally served upon when acthe defendant, or where he appears, the justice must proceed to hear affected by and determine the action, although the plaintiff has not required the replevy. 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.]
Pleadings; including counterclaims, and proceedings upon answer of title.
issue to be Joined.
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.
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 defendant 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.
[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.]