equivalent to the granting of a provisional remedy, for the purpose of giv. ing jurisdiction to the court, and enabling it to control the subsequent proceedings in the action; and as equivalent to the commencement of the action, for the purpose of determining, whether the plaintiff is entitled to maintain the action, or the defendant is liable thereto.

§ 1694. The plaintiff may, when the summons is issued, or at any time afterwards, and before the service of a copy of the defendant's answer, er, where judgment is taken by default, for want of an appearance or pleading, before the entry of the final judgment, cause the chattel, to recover which the action is brought, to be replevied by the sheriff of the county where it is found. For that purpose, he must deliver to the sheriff an affidavit and a written undertaking, as prescribed in the following sections of this article, with a written requisition, indorsed upon or annexed to the affidavit, and subscribed by his attorney, to the effect, that the sheriff is required to replevy the chattel described therein. The requisition may be directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the chattel is found. It is deemed the mandate of the court.

§ 1695. The affidavit, to be delivered to the sheriff, as prescribed in the last section, must particularly describe the chattel to be replevied; and must contain the following allegations:

1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof, by virtue of a special property therein; the facts with' respect to which must be set forth.

1. That it is wrongfully detained by the defendant

3. The alleged cause of the detention thereof, according to the best knowleged, information, and belief of the person making the affidavit.

4. That it has not been 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; or, if it has been taken under color of such a warrant, either that the taking was unlawful, by reason of defects in the process, or other causes specified, or that the detention is unlawful by reason of facts specified.

5. That it has not been seized by virtue of an execution or warrant of attachment, against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, that it was exempt from the seizure, by reason of facts specified, or that its detention is unlawful, by reason of facts specified which have subsequently occurred.

6. Its actual value.

$1696. But where the affidavit is made after the service of the summons, the allegations, required to be inserted therein by subdivisions first and second of the last section, must be to the effect, that the plaintiff, at the time of the commencement of the action, was the owner of the chattel, or was entitled to the possession thereof by virtue of a special property therein; and that it was then wrongfully detained by the defendant, as prescribed in those subdivisions.

§ 1697. Where the affidavit describes two or more chattels of the same kind, it must state the number thereof, and where it describes a chattel in bulk, it must state the weight, measurement, or other quantity. Where it describes two or more chattels to be replevied, it may, at the election of the plaintiff, state the aggregate value of all; or, separately, the value of any chattel or of any class of chattels, and the aggregate value of the remainder, if any. Where it states separately the value of one or more chattels or

classes of chattels, the defendant may require, as prescribed in the foliow ing provisions of this article, the return of any or all of the chattels of classes of chattels, the value of which is thus stated, or of the portion thereof which has been replevied. If he procures such a return, the re mainder must be delivered to the plaintiff, except as is otherwise prescribed In this article.

§ 1698. The sheriff must replevy a smaller number or a smaller quantity, f the whole of the chattel or chattels described in the affidavit cannot be found. In that case, if the aggregate value only is stated in the affidavit, the value of the entire chattel or class of chattels, as so stated, is to be deemed the value of the part replevied, for the purposes of the proceeding to procure a return thereof to the defendant.

§ 1699. The undertaking to be delivered to the sheriff, with a requisition to replevy a chattel, must be executed by at least two sureties, who must be approved by the sheriff. It must be to the effect, that the sureties are bound in a specified sum, not less than twice the value of the chatte, as stated in the affidavit, for the prosecution of the action; for the return of the chattel to the defendant, if possession thereof is adjudged to him, or if the action abates, or is discontinued, before the chattel is returned to the defendant; and for the payment to the defendant of any sum, which the judgment awards to him against the plaintiff.

§ 1700. If any chattel, described in the affidavit, is found in the posses sion of the defendant, or of his agent, the sheriff, to whom an affidavit, requisition, and undertaking are delivered, as prescribed in the foregoing sections of this article, must forthwith replevy it, by taking it into his possession. He must thereupon, without delay, serve on the defendant a copy of the affidavit, requisition, and undertaking, by delivering the same to him personally, if he can be found within the county; or, if he cannot be so found, to his agent, if any, from whose possession the chattel is taken; or if neither can be found within the county, by leaving the copy at the usual place of abode of either, with a person of suitable age and discretion.

§ 1701. If any chattel, described in the affidavit, is secured or con cealed in a building or inclosure, the sheriff must publicly demand its delivery. If it is not delivered, pursuant to the demand, he must cause the building or inclosure to be broken open, and must take the chattel into his possession.

§ 1702. A sheriff, who has replevied a chattel, must retain it in his pos session, keeping it in a secure place, until the person, who is entitled to the possession thereof, is ascertained, as prescribed in this article. He must then deliver it to that person, upon request and payment of his lawful fees, and necessary expenses for taking and keeping it, as taxed by a judge of the court, or the county judge of the county where the chattel was replevied, upon such a notice as the judge deems proper.

§ 1703. Within three days after the chattel is replevied, and a copy of the affidavit, requisition, and undertaking is served, the defendant, unless he requires a return of the chattel replevied, or of one or more of them where two or more chattels are replevied, may serve upon the sheriff a notice, that he excepts to the plaintiff's sureties; otherwise he is deemed to have waived all objections to them. Where the defendant has not appeared, the notice must be subscribed either by him, or by his agent or attorney. The person so subscribing the notice must add to his signature his office address, as prescribed by law, with respect to a notice of appear

ance. Within ten days after service of such a notice, the plaintiff's attorney must serve upon the defendant's attorney, or, if the defendant has not appeared, upon the sheriff, notice of the justification of the sureties. If the notice of justification is served upon the sheriff, he must immediately serve it upon the person, whose name is subscribed to the notice of exception, in the mode prescribed by law, for service of a paper upon an attorney in

an action.

§ 1704. The defendant, if he does not except to the plaintiff's sureties, as prescribed in the last section, may, within the time allowed to him for such an exception, serve upon the sheriff, a notice that he requires a return of the chattel replevied. With the notice, he must deliver to the sheriff the following papers:

1. An affidavit, containing an allegation, either that the defendant is the owner of the chattel, or that he is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts with respect to which must be set forth.

2. An undertaking, executed by at least two sureties, to the effect that they are bound, in a specified sum, not less that twice the value of the chaitel, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if delivery thereof is adjudged, or if the action abates in consequence of the defendant's death; and for the payment to him of any sum, which the judgment awards against the defendant.

Within three days after serving a notice, requiring a return of the chattel, as prescribed in this section, the defendant must serve upon the plaintiff's attorney, notice of the justification of the sureties to the undertaking.

§ 1705. The justification of sureties, as prescribed in either of the last two sections, must take place, either in the county where the chattel was replevied, or in the county where one of the sureties resides. The provisions, regulating the justification of bail, contained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article, with respect to the notice of justification of the sureties; the officer before whom they must justify; the substitution of new sureties or a new undertaking; the examination and qualifications of the sureties; and the allowance of the undertaking. But after the allowance, the undertaking and examination must be delivered to the sheriff.

§ 1706. If the defendant neither excepts to the plaintiff's sureties, nor requires the return of the chattel, within the time prescribed for that purpose; or if he makes default in serving notice of the justification of his Bureties, or in procuring the allowance of his undertaking; or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking; the sheriff must, except in the case specified in section one thousand seven hundred and nine of this act, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, makes default in serving notice of justification, or in procuring the allowance of his undertaking; or if the defendant, after he has required the return of the chattel, duly procures the allowance of his undertaking; the sheriff must immediately deliver the chattel to the defendant. When the chattel is delivered by the sheriff to either party, as prescribed in this section, the sheriff ceases to be responsible for the sufficiency of the sureties of either party; until then, he is responsible for the sufficiency of the sureties of the plaintiff or of the defendant, as the case may be.

§ 1707. A sheriff, who delivers to either party, without the consent of the other, a chattel repevied 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, two hundred and fifty dollars; and is also liable to him for all damages which he sustains thereby.

§ 1708. Where the sheriff duly delivers a chattel to either party, as prescribed in the last section but one, he must, at the same time, deliver, to the adverse party, the undertaking, received by him from the party to whom the chattel is delivered, together with the examination of the sureties, and the judge's allowance, if any.

1709. At any time before a chattel, which has been replevied, is actually delivered to either party, if a person, not a party to the action, claims, as against the defendant, a right to the possession thereof, existing at the time when it was replevied, an affidavit may be made and delivered to the sheriff, in his behalf, stating that he makes such a claim; specifying the chattel or chattels to which it relates, if two or more chattels have been replevied, and the claim relates only to part of them; and setting forth the facts upon which his right of possession depends. In that case, the sheriff may, in his discretion, before he delivers the chattel to the plaintiff, serve upon the plaintiff's attorney a copy of the affidavit, with a notice that he requires indemnity against the claim. If the indemnity is not furnished, within a reasonable time after the plaintiff becomes entitled to the delivery of the chattel, the sheriff may, in his discretion, deliver it to the claimant, without incurring any liability to the plaintiff, by reason of so doing.

§ 1710. A person, not a party to the action, who has served an affidavit, as prescribed in the last section, may maintain an action against the sheriff, who has delivered the chattel to the plaintiff, to recover his damages, by reason of the taking, detention, or delivery of the chattel. But the summons in such an action must be issued, within three months after the deliv ery of the chattel to the plaintiff, and must be served, within three months after it is issued. An action cannot be maintained against a sheriff, by a person so entitled to make a claim, except as prescribed in this section.

§ 1711. The indemnity, to be furnished to the sheriff by the plaintiff, as prescribed in the last section but one, must consist of a written undertaking to him, executed by at least two sureties, to the effect that they will in demnify him against any liability for damages, costs, or expenses, to be incurred in an action brought against him, by the claimant, or a person deriving title from or through the claimant, by reason of the taking or detention of the chattel, or its delivery to the plaintiff, not exceeding a sum to be specified in the undertaking, which must be at least five hundred dol lars, and not less than the actual value of the chattel claimed, and two hun dred and fifty dollars in addition thereto. Each of the sureties, besides possessing the other qualifications required by law, must be a freeholder or a householder of the sheriff's county. The sheriff, before delivering the chattel, may require the persons offered as sureties to submit to an examination, before the officer who takes the acknowledgment of the undertak ing, as where persons are offered to him as bail upon an arrest. The sureties are entitled to be substituted as defendants in an action, brought as prescribed in the last section, as if the chattel had been levied upon by virtue of an execution.

1712 The affidavit, to be delivered to the sheriff in behalf of the plaintiff, with a requisition to replevy a chattel, may be made by the plaint

iff's agent or attorney, if the material facts are within his personal knowl edge; or if the plaintiff is not within the county where the attorney resides, or has his office, or is not capable of making the affidavit. The affidavit, to be delivered to the sheriff, either in behalf of the defendant, with a notice that be requires the return of the chattel, or in behalf of a person, not a party, who makes a claim as prescribed in section one thousand seven hundred and nine of this act, may be made by an agent or attorney, if the material facts are within his personal knowledge, or if the defendant or claimant, as the case may be, is not within the county where the property was replevied, and capable of making the affidavit. Where the affidavit is made by an attorney or agent, he must state therein what allegations, if any, are made upon his information and belief; and he must set forth therein the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why the affidavit is not made by the party or the claimant.

§ 1713. Where the sheriff has replevied a part only of a chattel, or of two or more chattels, described in the plaintiff's affidavit, and has served upon the defendant the papers required upon such a replevin, the plaintiff may, at any time before the service of a copy of the defendant's answer, or before judgment by default, for want of an appearance or pleading, require the same or any other sheriff, to replevy any other part thereof. For that purpose, he must deliver to the sheriff an affidavit, containing the same allegations, and a requisition and undertaking, with respect to the part yet to be replevied, as if the action was brought to recover that part only. Where a second or subsequent replevin is made, as prescribed in this section, the. proceedings are the same, as if a former replevin had not been made.

8

§1714. Where an order of arrest is granted, as prescribed in title first of chapter seventh of this act, the plaintiff's right to a replevin is subject to the following regulations:

1. If the defendant has been arrested, pursuant to the order, a subsequent replevin cannot be made of a chattel, with respect to which the order was granted.

2. If the defendant has not been arrested, a subsequent replevin of a chattel, with respect to which the order was granted, supersedes the order. § 1715. The sheriff must, within twenty days after he has delivered a chattel replevied by him, to the party entitled to the possession thereof, or to a third person, as prescribed in this article, file with the clerk the plaintiff's affidavit, and the accompanying requisition, with a return, stating in what manner he has executed the latter. If he has omitted to replevy a part of the chattel, or of two or more chattels, described in the affidavit, the return must state the cause of the omission.

§ 1716. If the sheriff fails to comply with the last section, either party may require him so to do, within ten days after service of a notice to that. effect, or to show cause, at a tern of the court designated in the notice, why he should not be punished for & contempt of the court. The notice may be served at any time before final judgment, except that it cannot be Berved on the part of the defendant, before answer. An omission to comply with such a notice is punishable as a contempt of the court.

§ 1717. The plaintiff's affidavit, with the accompanying requisition, and the return of the sheriff, must be made a part of the judgment-roll in the action; and a copy of each of them must be furnished to the court, or the referee, upon the trial of an issue of fact, with a copy of the summons and of the pleadings.