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ment against the property of the plaintiff, or if seized, that it is by statute exempt from such seizure; and
5th. The actual value of the property.
$ 558. The Justice shall order to replevy the property upon receiving an undertaking.
The Justice shall thereupon, by an indorsement in writing upon the affidavit, order the Sheriff or a Constable of the county to take the same from the defendant, and deliver it to the plaintiff, upon receiving the undertaking mentioned in the following section.
$ 559. Undertaking in replevin. The officer shall serve the affidavit, order and undertaking on the defendant.
Upon the receipt of the affidavit and order, with a written undertaking, executed by two or more sufficient sureties, approved by the officer, to the effect that they are bound 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, for any cause, be recovered against the plaintiff, the officer shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. Ile shall also, without delay, serve on the defendant a copy of the affidavit, order and undertaking, by delivering the same to him personally, if he can be found within the county, or to his agent from whose possession the property is taken; or if neither can be found within the county, by leaving them at the usual place of abode of either within the county, with some person of suitable age and discretion; or if neither have any known place of abode within the county, by putting them in the nearest post-office, directed to the defendant.
$ 560. Defendant may except to the sureties. The officer shall be responsible until the sureties justify.
The defendant may, within two days after the service of a copy of the affidavit and undertaking, give notice to the officer that he excepts to the sufficiency of the sureties; if he fails to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice before the Justice; and the officer shall be responsible for the sufficiency of the sureties until the objection to them is either waived, as above provided, or until they justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section.
$ 561. The defendant may within two days require a return of the property.
At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the officer a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may for any cause be recovered against the defendant. If a return of the property be not so required within two days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in this chapter.
$ 562. Defendant's sureties shall justify. Officer to be responsible until such justification.
The defendant's sureties, upon reasonable notice to the plaintiff, shall justify before the Justice; and upon such justification, the officer shall deliver the property to the defendant. The officer shall be responsible for the defendant's sureties until they justify, or until the justification is completed or expressly waived, and may retain the property until that time; but if they or others in their place fail to justify at the time appointed, he shall deliver the property to the plaintiff.
$ 563. If the property be concealed, duty of the officer.
If the property or any part thereof be concealed in a building or inclosure, the officer shall publicly demand its delivery; and if it be not delivered, he shall cause the building or inclosure to be broken open, and take the property into his possession.
$ 564. The officer shall deliver the property to the party entitled thereto.
When the officer shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking and his necessary expenses for keeping the same.
$ 565. Claim of the property by a third party, proceedings upon.
If the property taken be claimed by any other person than the defendant or his agent, and such person make affidavit of his title thereto, or right to the possession thereof, stating the grounds of such title or right, and serve the same upon the officer, the officer shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, indemnify the officer against such claim, by an undertaking, executed by two sufficient sureties, accompanied by their affidavits that they are each worth double the value of the property as specified in the affidavit of the plaintiff, over and above their debts and liabilities, exclusive of property exempt from execution, and are freeholders or householders of the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the officer unless so made.
§ 566. The officer shall return the order and affidavit within five days.
The officer shall return the order and affidavit, with his proceedings thereon, to the Justice, within five days after taking the property mentioned therein.
§ 567. Qualification of sureties in this chapter.
The qualification of sureties on the several undertakings required by this chapter shall be as follows:
1st. Each of them shall be a resident and householder or freeholder within the county ;
2d. Each shall be worth double the amount stated in the undertaking over and above all his debts and liabilities, exclusive of property exempt from execution.
$ 568. Manner of justification of sureties.
For the purpose of justification, each of the sureties shall attend before the Justice at the time mentioned in the notice, and may be examined on oath, on the part of the adverse party, touching his sufficiency, in such manner as the Justice, in his discretion, may think proper. The examination shall be reduced to writing and subscribed by the sureties, if required.
$ 569. Examination to be annered to the undertaking.
If the Justice find the sureties sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and file the same, and the officer shall thereupon be exonerated from liability.
CHAPTER III.—Pleadings and trial.
Sec. 570. Pleadings in Justices' Courts.
571. Pleadings, in what cases to be in writing or oral.
deemed a denial.
will be deemed admitted, unless denied under oath. 578. Demurrer to pleadings in Justices' Courts. 579. Variance between the proof and the allegations in a
pleading. 580. Amendment of pleadings. 581. Title to real estate cannot be questioned before a Jus
tice. Such cases shall be certified to the District
Court. 582. Change of venue in certain cases. Adjournment on
demand of a jury. 583. Adjournment not to exceed ten days. 584. Adjournment not to exceed four months for same 585. No continuance for more than ten days shall be
granted, unless upon filing undertaking. 586. Failure of either party to appear, effect of. 587. Trial by jury. Summoning jury. 588. Empanneling the jury. Number necessary to com
pose a jury. 589. If a sufficient number of jurors do not attend, others
shall be summoned. 590. Challenges to jurors.
$ 570. Pleadings in Justices' Courts. The pleadings in Justices' Courts shall be: 1st. The complaint by the plaintiff, stating the cause of action;
2d. The answer by the defendant, stating the ground of the defense.
1. The rule a penal statute must be declared upon by the party seeking a recovery under it, does not apply to pleadings in Justices' Courts. O’Callaghan v. Booth, 6 Cal. 66; Hart v. Moon, id. 161.
$ 571. Pleadings, in what cases to be in writing or oral.
The pleading shall be in writing, and verified by the oath of the party, his agent or attorney, when the action is:
1st. For the foreclosure of any mortgage, or the enforcement of any lien on personal property ;
2d. For a forcible or unlawful entry upon, or a forcible or unlawful detention of lands, tenements or other possessions ;
3d. To recover possession of a “mining claim.” In other cases the pleading may be oral or in writing.
See Amendments to the Constitution, 1862.
$ 572. Pleadings, manner of presenting, and form of.
When the pleadings are oral, the substance of them shall be entered by the Justice in his docket; when in writing, they shall be filed in his office, and a reference to them made in the docket. Pleadings shall not be required to be in any particular form, but shall be such as to enable a person of common understanding to know what is intended.
1. It is not the policy of the law to confine parties to any nice strictness in pleading, particularly before Justices of the Peace; accordingly, when a party, instead of demurring for informality, goes to trial, it must be considered as cured by the verdict. Cronise v. Caryhill, 4 Cal. 120.