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than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail.

See section 650.

89. For the purpose of justification, each of the bail shall attend before the judge or county clerk at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or county clerk in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff.

90. If the judge or clerk find the bail sufficient, he shall annex the examination to the undertaking, endorse his allowance thereon, and cause them to be filed, and the sheriff shall thereupon be exonerated from liability

91. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff. the amount mentioned in the order. In case the amount of the bail be reduced, as provided in this chapter, the defendant may deposit such amount instead of giving bail. In either case, the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody.

92. The sheriff shall immediately after the deposit pay the same into court, and take from the clerk receiving the same, two certificates of such payment; the one of which he shall deliver or transmit to the plaintiff, or his attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency.

93. If money be deposited, as provided in the last two sections, bail may be given, and may justify upon notice, at any time before judgment; and on the filing of the undertaking and justification with the clerk, the money deposited shall be refunded by such clerk to the defendant.

1. After giving bail, the money was attached before being refunded, and although it was proven to have belonged to a third person, and advanced until bail could be obtained : held, that the money by being deposited became the property of the defendant, and liable to attachment. Salter v. Weiner, 6 Abbott, 191.

94. Where

Where money shall have been deposited, if it remain on deposit at the time of the recovery of a judgment in favor of the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof; and after satisfying the judgment, shall refund the surplus, if any, to the defendant. If the judgment be in favor of the defendant, the clerk shall, under like direction of the court, refund to him the whole sum deposited and remaining unapplied.

95. If, after being arrested, the defendant escape or be rescued, the sheriff shall himself be liable as bail ; but he may discharge himself from such liability, by the giving and justification of bail, at any time before judgment.

1. A sheriff cannot be allowed to allege error either in the judgment or process as an excuse for an escape. Hutchinson v. Brand, 6 How. Pr. 73.

2. Where the bail given for the defendant upon his arrest are excepted to and do not justify, and no other bail are given, nor a deposit made, the sheriff becomes liable as bail. Buckman v. Carnley, 9 How. Pr. 180; Sartos v. Merceques, ib. 188.

3. The sheriff may as bail re-arrest the defendant without process. Ib.

96. If a judgment be recovered against the sheriff, upon his liability as bail, and an execution thereon be returned unsatisfied in whole or in part, the same proceedings may be had on his official bond, for the recovery of the whole or any deficiency, as in other cases of delinquency.

97. A defendant arrested may at any time before the justification of bail, apply to the judge who made the order, or the court in which the action is pending, upon reasonable notice to the plaintiff to vacate the order of arrest, or to reduce the amount of bail. If the application be made upon affidavits, on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made.

1. A person once arrested and discharged cannot be re-arrested in the same action upon the same grounds. McGilvery v. Morehead, 2 Cal. 607.

2. A motion to vacate an order of arrest must be made before the bail have justified, if excepted to, or before the time to except expires. O'Neil v. Durkee, 12 How. Pr. 94; 2 Abbott, 383; Gaffney v. Burton, 12 How. Pr. 516; Bridgewater Paint Manufac

turing Co. v. Messmore, 15 ib. 12; Dale v. Radcliff, ib. 71; Lewis v. Truesdell, 1 Code R., N. S., 106; Barker v. Dillon, ib. 206.

3. On a motion to discharge, if the judge is satisfied of the fraud, he should of course deny the motion. Chapin v. Seeley, 13 How. Pr. 490; Barron v. Sanford, 14 ib. 443.

4. It is not a ground for vacating an order of arrest, that the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient, and disclose a ground of arrest which is consistent with the allegations of the complaint. Stelle v. Palmer, 7 Abbott, 181.

5. Appeals from orders denying motions to vacate orders of arrest after the party is out on bail, are not to be encouraged. Moers v. Martens, 8 ib. 257.

98. If upon such application it shall satisfactorily appear that there was not sufficient cause for the arrest, the order shall be vacated; or if it satisfactorily appear that the bail was fixed too high, the amount shall be reduced.

CHAPTER II.

CLAIMS FOR DELIVERY OF PERSONAL PROPERTY.

99. The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him, as provided in this chapter.

1. For verdict under this provision, see sections 177, 200, 210.

2. Where the original taking of personal property is tortuous, no demand is necessary. Ledley v. Hays, 1 Cal. 160.

3. Where the taking is by an officer upon proper legal authority, a demand is necessary in order to make him liable in damages. Daumiel v. Gorham, 6 Cal. 43; Taylor v. Seymour, ib. 512; Killey v. Scannell, 12 ib. 73.

4. The measure of damages for property converted is the value thereof, with legal interest from the time of conversion, and when the value is fluctuating, the plaintiff may recover the highest value at the time of the conversion or at any time afterwards. Nickerson v. Chatterton, 7 Cal. 568; Douglass v. Kraft, 9 ib. 562; Phelps v. Owens, 11 ib. 22; Andrews v. Durant, 18 N. Y. 496.

5. The bailee of an officer who has the property in the custody of the law, and who has receipted for the same to the sheriff, agreeing to deliver it on demand, cannot afterwards set up title to the property in himself. Bleven v. Freer, 10 Cal. 173.

6. In an action by W. it appeared that the property sued for belonged to W. & F., and the jury returned a general verdict for defendants, and the court gave judgment accordingly: held, there was no error in the judgment. Waldman v. Broder, ib. 378. 7. In trover the plaintiff must either have the possession or the immediate right to

the possession of the property to enable him to recover. Middlesworth y. Sedgwick, 10 Cal. 392.

8. A judgment in replevin does not constitute a bar to an action in trover, the judgment not having been satisfied. Nickerson v. California Stage Co., ib. 520.

9. The defendant may plead property in himself or in a stranger, or in any person other than plaintiff. Pattison v. Adams, Lalor's Supp. 426.

10. Forwarding merchants who have made advances for prior charges on goods consigned to them for transportation, have such an interest in the goods as entitles them to maintain this action against a third person to whom the goods were wrongfully delivered. Fitzhugh v. Wiman, 5 Seld. 559.

11. A right of action for the wrongful taking, and conversion of personal property, is assignable. McKee v. Judd, 2 Kern. 622; Foy v. Troy and Boston R. R. Co., 24 Barb. 382.

12. One tenant in common of personal property, cannot maintain replevin against the other, to acquire possession. Russell v. Allen, 3 Kern, 173.

13. A party was in possession of a chattel without any title, when a crcditor upon whose execution the sheriff had levied upon the chattel, and also after notice of the claim of the owner, indemnifies the sheriff against responsibility for a sale, and the sheriff thereupon sells the property, this creditor is liable in an action by the owner for its value, although the execution in his favor was satisfied by a sale of other property previous to the sale of the chattel. Herring v. Hoppock, 15 New York, 409.

14. This provisional remedy cannot be maintained against a party who has not in fact or in law the possession or control of the property claimed. Roberts v. Randel, 3 Sand. 707; 5 How. Pr. 327; Brockaway v. Burnap, 12 Barb. 347; Drake v. Wakefield, 11 How. Pr. 106.

15. The plaintiff must prove the legal title to be in himself, or a special property with a right to possession. Dodworth v. Jones, 4 Duer, 201.

16. The defendant may answer by general denial, and set up a justification also. Hackley v. Ogman, 10 How. Pr. 44.

17. This action is in the nature of the old writ of replevin. Savage v. Perkins, 11 ib. 17.

18. In an action where the defendant merely detains the property, a demand and refusal must be averred. Fuller v. Lewis, 13 How. Pr. 219; 3 Abbott, 383.

19. This action abates if the defendant dies before verdict or judgment. Hopkins V. Adams, 5 Abbott, 351.

100. Where a delivery is claimed, an affidavit shall be made by the plaintiff, or by some one in his behalf, showing:

1st. That the plaintiff is the owner of the property claimed (particularly describing it) or is lawfully entitled to the possession thereof;

2d. That the property is wrongfully detained by the defendant;

3d. The alleged cause of the detention thereof, according to his best knowledge, information and belief;

4th. That the same has not been taken for a tax, assessment or fine, pursuant to a statute; or seized under an execution, or an attachment against the property of the plaintiff; or if so seized, that it is by statute exempt from such seizure; and,

5th. The actual value of the property.

1. The plaintiff having shown possession, it was competent under any rule of evidence, to cross-examine the witness, for the purpose of establishing the nature and character of the plaintiff's possession; to draw from him, if possible, the fact whether such possession was a mere cover to hide the defendant's property, and also, for the purpose of testing the witness's means of knowledge and information on this subject. Thornburgh v. Hand, 7 Cal. 554.

2. It is not necessary that the complaint should correspond with the affidavit as to the number and value of the articles claimed to be delivered. Kerrigan v. Ray, 10 How. Pr: 213.

3. A general appearance by defendants is a waiver of any irregularity in the affidavits on which the requisition is founded. Hyde v. Patterson, 1 Abbott, 248.

101. (1854.*] The plaintiff or his attorney may thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant.

1. The sheriff will, however, be liable to the owner, who has his legal remedy against any one for the taking, unless it be by virtue of legal process against him. Rhodes v. Patterson, 3 Cal. 469.

102. [1854.*] Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, approved by the sheriff, to the effect that they are bound to the defendant in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, the sheriff shall forth with take the property described in the affidavit, if it be in possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession

Statutes of 1854 84.

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