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such affidavit, and an undertaking, in writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property as stated in said affidavit for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may for any cause be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same to be disposed of according to law; and the said justice shall at the same time issue a summons directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the possession of the property described in said affidavit, with the costs and disbursements of said action. (8 5.) The constable to whom said affidavit, indorsement and summons shall be delivered, shall forthwith take the property described in said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if lie can be found in said county ; if not found, to the agent of the defendant in whose possession said property shall be found ; if neither can be found, by leaving such copies
at the last or usual place of abode of the defendant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings there on, and the manner of serving the same, to the justice who issued the said summons. (8 6.] The defendant may at any time after such service, and at least two days before the return day of said summons, serve upon plaintiff or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking; and if he fail to do so, all objection thereto shall be waived. If such notice be served, the sureties shall justify, or the plaintiff give new sureties on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disbursements [$ 7.) At any time before the return day of said summons, the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property as stated in plaintiff's affidavit for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against said defendant; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff. [$ 8.] The qualification of sureties, and their justification under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the code, in respect to bail on arrest
in the supreme court. [$ 9.] Sections two hundred and fourteen, two hundred and fifteen and two hundred and sixteen. of the code, shall apply to proceedings and actions brought under this act, substituting the word constable for the word sheriff whenever it occurs in either of said sections. [$ 10.] The actions so commenced shall be tried in all respects as other actions are tried in justices' courts. The judgment for the plaintiff may be for the possession, or for the recovery of the possession, or the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same. An execution shall be issued thereon, and if the judgment be for the delivery of the possession of personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officer to satisfy any costs or damages recovered by the same judgment out of the personal property of the party against whom it was rendered, to be specified therein, if a delivery thereof cannot be had. The execution shall be returnable within sixty days after its receipt by the officer, to the justice who issued the same. [$ 11.) In all actions for the recovery of the possession of personal property, as herein provided, if the property shall not have been delivered to plaintiff, or the defendant by answer shall claim a return thereof, the justice or jury shall assess the value thereof, and the injury sustained by the prevailing party by reason of the taking or detention thereof, and the justice shall render judgment accordingly, with costs and disbursements. 1$ 12.) If it shall appear by the return of a constable that he had taken the property described in the plaintiff's affidavit, and that defendant cannot be found, and has no last place of abode in said county, or that no agent of defendant could be found on whom service could be made, the justice may proceed with the cause in the same manner as though there had been a personal service. [$ 13.) For the indorsement on said affidavit, the justice shall receive an additional fee of twenty-five cents, which shall be included in the costs of the suit.
$ 54. But no justice of the peace shall have cognizance of a civil action,
1. In which the people of this state are a party, excepting for penalties not exceeding one hundred dollars;
2. Nor where the title to real property shall come in question, as provided by sections 55 to 62, both inclusive ;
3. Nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecution criminal conversation, or seduction ;
4. Nor of a matter of account, where the sum total of the accounts of both parties, proved to the satisfaction of the justice, shall exceed four hundred dollars ;
5. Nor of an action against an executor or adminis. trator, as such,
$ 55. In every action brought in a court of justice of the peace where the title to real property shall come in question, the defendant may, either with or without other matter of defence, set forth in his answer,
any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and delivered to the justice. The justice shall thereupon countersign the same, and deliver it to the plaintiff.
$ 56. At the time of answering, the defendant shall deliver to the justice a written undertaking, executed by at least one sufficient surety, and approved by the justice, to the effect, that if the plaintiff shall within twenty days thereafter deposit with the justice a summons and complaint in an action in the supreme court for the same cause, the defendant will, within twenty days after such deposit, give an admission in writing of the service thereof.
Where the defendant was arrested in the action before the justice, the undertaking shall further provide, that he will at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceeding one hundred dollars.
$ 57. Upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs. The costs so paid by either party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the supreme court. If no such action be brought within thirty days after the delivery of the undertaking, the defendant's costs before the justice may be recovered of the plaintiff.
$ 58. If the undertaking be not delivered to the jus.