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 sure. ties in the undertaking must be approved by the jus tice. L. 1831, ch. 300, 2, 3 and 4 (2 Edm. 235, 5 id. 134). Dennis v. Crit tenden, 42 N. Y. 512; Letson v. Dodge, 61 Barb. 125. § 2921. Requisition.— Upon receiving the affidavit and undertaking, the justice must indorse upon or at tach 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 affi davit, 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 mus be delivered to the constable, with the summons. Id., part of 4, amended. § 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 section 2910 of this act, for the service of a summons, warrant of attachment, and inventory. Id., part of 5. § 2923. Return of constable. The constable must, on or before the return day of the summons, make a return to the requisition, under his hand, stating all his proceedings thereupon; and file it, with the affidavit and requisition, with the justice. The return must state the manner in which the summons, affidavit, and re. quisition were served; and, if they were served other wise than by delivering the requisite copies to the defendant personally, the reason therefor, and the name of the person to whom the copies were 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. Id., part of § 5. § 2924. Defendant may except to sureties; proceedings thereon. At any time after the chattel has been replevied, and at least two days before the return day of the summons, the defendant, unless he requires a return of the chattel, may serve upon the plaintiff, or upon the constable, a written notice that he excepts to the plaintiff's sureties; otherwise he is deemed to have waived all objections to them. If such a notice is served, the sureties must justify upon the return of the summons; or the plaintiff must then give a new undertaking, to the same effect as the original undertaking, with other sureties, who must then appear and justify before the justice. Id., 6, amended. § 2925. Defendant may reclaim chattel; proceedings thereon. At any time before the return day of the summons, the defendant may, if he does not except to the plaintiff's sureties, serve upon the justice a notice that he requires the return of the chattel replevied. With the notice he must deliver to the justice an affi davit and undertaking, similar, in all respects, to those required to be given by a defendant upon requiring a return of a chattel, as prescribed in sections 1704 and 1712 of this act, omitting the provision in the undertak ing, or if the action abates in consequence of the defendant's death." The sureties in the undertaking must justify before the justice upon the return of the summons. If the plaintiff has stated separately in his affidavit the value of one or more chattels or classes of chattels, as prescribed in section 1697 of this act, the defendant may require a delivery of part of the prop. erty replevied, as prescribed in that section. Id.. 7. Letson v. Dodge, 61 Barb. 125. § 2926. Justification of sureties. Except as otherwise expressly prescribed in this article, the examination and qualifications of the sureties, and the allowance of the undertaking, upon a justification pursuant to either of the last two sections, must be the same as upon a justification of bail, as prescribed in sections 579, 580, and 581 of this act, substituting the justice for the judge; but after such allowance, the undertaking musi be filed with the justice. The constable is th exonerated from liability. Id., 28. § 2927. When and to whom constable must deliver chattel. If the defendant neither excepts to the plaintiff's sureties, nor requires the return of a chattel, within the time prescribed for that purpose; or if he fails to procure 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 constable must, except in the case specified in the next section but one, immediately deliver the chattel to the plaintiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertaking; or if the defendant, after he has required the return of the chattel, procures the allowance of his undertaking, the constable must immediately deliver the chattel to the defendant, Substituted for id., part of 27. . § 2928. Penalty for wrong delivery by constable.A constable who delivers to either party, without the consent of the other, a chattel replevied 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 the sum of one hundred dollars; and is also liable to him for all damages which he sustains thereby. New. § 2929. Claim of title by third person. The provisions, regulating the proceedings, where a person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections 1709, 1710, 1711, and 1712 of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as prescribed in section 1709, must be made, either upon the plaintiff personally, or upon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable need not exceed, in any case, three hundr turn.- Where a chattel has been replevied, and the defendant has not required the return thereof, pending the action, as prescribed in the foregoing sections of this article, he may in his answer, demand judgment for the return thereof, either with or without damages for the taking, withholding, or detention. Section 11, L. 1831. 2931. Proceedings in the action; action upon un dertaking.-Section 1373, section 1731, excluding subdivision first thereof, and sections 1722, 1726, 1730, 1732, 1733, 1734, and 1735 of this act, substituting the constable for the sheriff, apply to the proceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, except as otherwise specially prescribed in this chapter. Substituted for id., 10. 2932. Proceedings when summons not personally served. Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied, and the proceedings thereupon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel; or, if the action is brought to recover two or more chattels, with respect to those which have been replevied; in like manner and with like effect, as if the summons had been personally served. Id., 12, amended. 2933. When action not affected by failure to replevy. Where the summons has been personally served upon the defendant, or where he appears, the justice must proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to re plevy it. New. TITLE III. Pleadings; including counterclaims, and proceedings upon answer of title. 2937. What causes of action may be joined 2938. Answer. 2939. Demurrer. 2940. General rules of pleading. 2941. Account, or instrument for payment of money. 2942. Court may require items to be exhibited. 2943. Immaterial variance to be disregarded. 2944. Amendment of pleadings. 2945. Counterclaims. 2946. Id.; where executor or trustee is a party. 2947. Consequence of neglect to plead counterclaim. 2949. Judgment upon counterclaim. 2950. Judgment when accounts exceed $400. 2951. Answer of title. 2952. Undertaking thereupon. 2953. In what court new action to be brought. 2954. When action before justice to be discontinued. 2955. Effect of failure to give undertaking. 2956. When title comes in question on plaintiff's own showing. 2957. Pleadings in new action. Undertaking before justice, when applicable. 2958. Answer of title as to one of several causes of action. 2934. When issue to be joined.-At the place, and within one hour after the time, specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made, and issue must be joined. Where both parties appear upon the return of the summons, an issue must be joined before an adjourn. ment is had, except when the defendant refuses or neglects to plead. P 2 R. S. 233, 47. amended'; L. 1845, ch. 25 (2 Edm. 249). Stoddard v. Holmes, 1 Cow. 245; Gosling v. Broach, 1 Hill, 49; Miln v. Russell, 3 E D. Smith, 303; Ingersoll v. Gillies, id. 119; Aldrich v. Ketcham, id. 577; Malone v. Clark, 2 Hill, 657; Wood v. Randall, 5 id. 264; Wheeler v. Lampman, 14 Johns. 480; Sammis v. Brice, 4 Den. 576; Pickert v. Dex. 12 Wend. 150; Mead v. Danagh, 1 Hilt. 395; Heilner v. Barras, 17; Hogan v. Baker, 2 E. D. S. 22; Bray v. Andreas, 1 id. 387 Phillips, id. 416; Agreda v. Faulberg, 3 id. 178; Stevens Lans. 156; 39 How. 13; Wheeler v. N. Y. & H. R. R. Co |