seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof with interest. The constable must thereon deliver the property claimed to the plaintiff. [Code, § 2912, without change.] $108. Action on bond.-A judgment for the plaintiff in an action on 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 thereon 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. [Code, § 2913, without change.] § 109. When defendant may prosecute bond.—If the warrant of attachment is vacated or annulled the defendant may maintain an action on 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. [Code, § 2914, without change.] § 110. 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 thereon. 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 de scribe him so as to identify him as nearly as may be. [Code, § 2915, without change.] § 111. Motion to vacate or modify warrant.-A defendant whose property has been attached may on 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 on the papers on which the warrant was granted; or on proof by affidavit on the part of the defendant; or on both. If it is founded on proof on the part of the defendant it may be opposed by new proof by affidavit on the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The justice may, on the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment on his own motion, if he deems the papers on which it was granted insufficient to authorize it. [Code, § 2916, without change.] § 112. 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 on 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. [Code, § 2917, without change.] § 113. Proceedings where summons not personally served.Where the defendant has not appeared and the summons has not been personally served on 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 counterclaim against the plaintiff. The execution issued on 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. [Code, § 2918, without change.] ARTICLE VI. REPLEVIN. Section 120. When action for a chattel may be brought. 121. When it cannot be maintained. 122. After judgment against the plaintiff. 123. By an assignee. 124. Joinder of action with others. 125. Plaintiff may procure replevin; affidavit and under taking. 126. Affidavit. 127. Where several chattels are to be replevied. 128. Plaintiff's undertaking for replevin.. 129. Requisition. 130. How chattel to be replevied. 131. Chattel; how taken from a building. 132. Service of papers on defendant. 133. Replevied chattel; how kept. 134. Return of constable. 135. Defendant may except to sureties; proceedings thereon. 136. Defendant thereon. may reclaim chattel; proceedings 137. Claim of title by third person; proceedings thereon. 138. Action against constable on such claim. 139. Indemnity to constable against such action. Section 140. When agent may make affidavit for replevin or re turn. 141. Justification of sureties. 142. Damages when chattel injured by defendant. 143. When and to whom constable must deliver chattel. 144. Penalty for wrong delivery by constable. 145. Defendant may demand judgment for return. 146. Verdict, what to state. 147. Substitute in certain cases for finding as to value. 148. Final judgment; docketing the same. 149. Execution; contents thereof. 150. Constable's power to take chattel. 151. Action on undertaking; when maintainable. 152. Constable's return evidence therein. 153. Injury, no defense. 154. Proceedings when summons not personally served. 155. When action not affected by failure to replevy. PRELIMINARY NOTE. This article is intended to include all the provisions relating to replevin in Justices' Courts. The article in the Code of Civil Procedure on this subject refers to the Supreme Court practice for many provisions, so that a large part of the practice in the higher court is made applicable to the Justices' Court. Many of those sections have been repeated here substantially without change, and a few have been rewritten in order to make the procedure complete. Many minor changes in these transferred sections have been necessary in view of the use of terms, and the different officers charged with the duties in the different courts. Section 120. 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, may 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 this article. [Code, § 2919, without change, § 121. When it cannot be maintained.—An action to recover a chattel cannot be maintained in either of the following cases: 1. Where the chattel was taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine, issued in pursuance of a statute of the state or of the United States; unless the taking was, or the detention is, unlawful, as specified in section 126. 2. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiff, unless it was legally exempt from such seizure, or is unlawfully detained, as specified in section 126. 3. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiff, and at the time of the commencement of the action the plaintiff had not the right to reduce it into his possession. [Code, § 1690, without change, except in the reference to sections.] . § 122. After judgment against the plaintiff.-Where a chattel is replevied, in an action to recover the same, and a final judg ment awarding the possession thereof to the defendant is rendered, a subsequent action to recover the same chattel cannot be maintained by the plaintiff, for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages for taking or detaining the same or any other chattel, unless it was rendered against him upon the merits. [Code, § 1691, without change.] § 123. By an assignee.-An action to recover a chattel, the title to which has been transferred to the plaintiff since the wrongful taking, or during the wrongful detention thereof, with or without the damages sustained by the taking, withholding, or detention, may be maintained in any case, where, except for the transfer, such an action might be maintained by the person from or through whom the plaintiff derives title; but not otherwise. [Code, § 1692, without change.] |