§§ 2900-2904. defendant is brought before the justice; otherwise judgment of nonsuit must be rendered against him.

§ 2900. Constable to keep defendant in custody. The constable executing the order, or another conɛtable, by direction of the justice, must keep the defendant in custody, until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in any case, exceed twelve hours from the time when the defendant is brought before the justice; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant.

§ 2901. Motion to discharge from arrest. A defendant, arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judgment, upon two days' notice given personally to the plaintiff, or to his agent or attorney who appeared for him before the justice, apply to the justice for an order, discharging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2894 and 2895 of this act.. The justice must also, upon the defendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out, from the justice, an execution upon a judgment in his favor, before the expiration of one hour after he is entitled thereto.

$ 2902. Effect of discharging defendant. The discharge of the defendant from arrest, before judgment, as prescribed in the last section, or in section 2963 of this act, does not affect the jurisdiction of the justice over the action, which must proceed, as if it had been commenced in the ordinary manner. His discharge from arrest, after judgment, as prescribed in the last section, does not affect the execution.

§ 2903. When plaintiff must prove extrinsic facts. Where an order of arrest has been granted and executed, in a case specified in subdivision third of section 2895 of this act, the plaintiff cannot recover upon a default, and the defendant is entitled to judgment upon a trial, unless the plaintiff establishes all the matters of fact, which are required, by that subdivision, to entitle him to an order of arrest.

§ 2904. Privilege from arrest. This article does not abridge or otherwise affect a privilege from arrest given by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest, by the order of the justice before whom he is brought, upon proof, by affidavit, of the facts entitling him to a discharge; or he may apply for and obtain an order for his discharge, as prescribed in section 564 of this act

ARTICLE FOURTH.

ATTACHMENT OF PROPERTY.

SECTION 2905. In what actions, warrant of attachment may be granted. 2906. What must be shown to procure a warrant.

2907. Warrant; form and contents thereof.

2908. Undertaking.

2909. Warrant; how executed.

2910. Service of summons and warrant upon defendant.

2911. Undertaking by defendant; re-delivery to him.

SECTION 2912. Claim by third person; bond and delivery thereupon.

2913. Action upon bond.

2914. When defendant may prosecute bond.

2915. Return of warrant.

2916. Motion to vacate or modify warrant, etc.

2917. Effect of vacating warrant.

2918. Proceedings where summons not personally served.

§ 2905. In what actions, warrant of attachment may be granted. In an action brought before a justice of the peace a warrant of attachment against the property of one or more defendants must be granted, upon the application of the plaintiff, as prescribed in this article, where the action is brought upon a judgment, or to recover for one or more of the following

causes:

1. Breach of a contract, express or implied.

2. Wrongful conversion of personal property.

3. Any other injury to personal property, in consequence of negligence, fraud, or other misconduct.

2906. What must be shown to procure a warrant. To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the justice as follows:

1. That a sufficient cause of action exists against the defendant, to recover damages for one or more of the causes specified in the last section. If the action is upon a judgment, or to recover for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him.

2. That the defendant is either a foreign corporation; or not a resident of the State; or, if the defendant is a natural person, and a resident of the State, that he has departed, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed, with the like intent; or if the defendant is a natural person, or a domestic corporation, that he or it has removed, or is about to remove, property from the county where the defendant being a natural person last resided, or, being a corporation, last kept its principal office, or from the county in which the action is brought, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property, with the like intent; or that the defendant, being a natural person of full age, and a resident of the State, has been continuously without the United States for the space of six months or more, immediately before the application, and either that he has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section 430 of this act, or that service upon the person so designated cannot be made, with due diligence, in the county where the person making the designation resides.

The affidavit must be filed with the justice, when the warrant is granted. § 2007. Warrant; form and contents thereof. The warrant must be granted by the justice who issues the summons, at the time when the summons is issued; and it must be indorsed thereupon, or annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attachment. It must require the constable, to whom the summons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the summons, and safely to keep, as much of the defendant's goods and chattels, within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice, at the time when the summons is return

able. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit.

§ 2908. Undertaking. Before granting the warrant, the justice must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which must be at least two hundred dollars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon.

2909. Warrant; how executed. The constable, to whom the warrant of attachment is delivered, must execute it at least six days before the return day of the summons, by levying upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be disposed of as prescribed in this article, and must immediately make an inventory thereof, stating therein the estimated value of each item or article.

$2910. Service of summons and warrant upon defendant. The constable must, immediately after making the inventory, and at least six days before the return day of the summons, serve the summons, together with the warrant of attachment and inventory, upon the defendant, by delivering to him personally a copy of each, if he can, with reasonable diligence, be found within the county; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion; or, if such a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest post-office, inclosed in a sealed post-paid wrapper, directed to the defendant at his residence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property attached is found.

§ 2911. Undertaking by defendant; re-delivery to him. The defendant, or his attorney or agent in his behalf, may, at any time before judg ment is rendered in the action, execute and deliver to the constable an undertaking, to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory; with one or more sureties, approved by the constable, or by the justice who issued the warrant; and to the effect that, if judgment is rendered against the defendant, and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must re-deliver the property to the defendant.

§ 2912. Claim by third person; bond and delivery thereupon. If a person, not a party to the action, claims any property attached, which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute and file with the justice, a bond to the plaintiff, with one or more 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 general 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.

§ 2913. Action upon bond. A judgment for the plaintiff, in an action upon a bond, given as prescribed in the last section, must award to him the value 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.

§ 2914. When defendant may prosecute bond. If the warrant of attachment is vacated or annulled, the defendant 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.

§ 2915. Return of warrant. 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.

§ 2916. Motion to vacate or modify warrant, etc. 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.

§ 2917. Effect of vacating warrant. Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where 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.

$2918. Proceedings where summons not personally served. Where the defendant has not appeared, and the summons has not been personally

served upon him, and property of the defendant has been duly attached by virtue of a warrant, which has 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 counter-claim against the plaintiff. The execu tion, 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.

ARTICLE FIFTH.

REPLEVIN.

SECTION 2919. When action for a chattel may be brought.

2920. Plaintiff may procure replevin; affidavit and undertaking.
2921. Requisition.

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.
2926. Justification of sureties.

2927. When and to whom constable must deliver chattel.

2928. Penalty for wrong delivery by constable.
2929. Claim of title by third person.

2930. Defendant may demand judgment for return.

2931. Proceedings in the action; action upon undertaking.
2932. Proceedings when summons not personally served.
2933. When action not affected by failure to replevy.

§ 2919. When action for a chattel may be brought. 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.

§ 2920. Plaintiff may procure replevin; affidavit and undertaking. The plaintiff may, at the time when the summons is issued, but not afterwards, require the chattel to be replevied, as prescribed 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.

§ 2921. Requisition. Upon receiving the affidavit and undertaking, the justice 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.

§ 2922. Id.; how executed. Service of summons, etc. The constable must execute the requisition, as a sheriff is required to execute a requisition, in an action brought to recover a chattel, as prescribed in sections 1700, 1701, and 1702 of this act; except that he must serve the summons, affidavit, and requisition, within the time and in the manner prescribed, by