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purpose of determining the value of the property at the place of detention, and where also delivery should have been made, evidence is admissible of its value at the place of market, the cost of transportation thither, and the usual expenses of sale.12 But where a delivery of the property can not be had, it is error to award the plaintiff interest on the value, in addition to damages in a gross sum.13 In replevin, evidence may be admitted of the highest market value of the property between the time of conversion and the trial.14 In an action to recover the materials which before their removal composed a structure which was a part of the realty, the measure of damages is the value of the materials after their removal, and not the value of the structure as it stood before the removal.15 In a proper case the recovery of damages for detention is as much a primary object of the action as the recovery of the property in specie.1

§ 4183. Affidavit on claim and delivery of personal property. Form No. 1008.

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A. B., being duly sworn, deposes and says:

I. I am the plaintiff in the above-entitled action.

II. I am the owner of, and am lawfully entitled to the possession of, the following-described personal property, to-wit [describe property].

III. That the said property is in the possession of and is wrongfully detained by the defendant in the said action.

IV. That the alleged cause of the detention of the said property, according to my knowledge, information, and belief, is the following, to-wit [or if he knows cause of detention from personal knowledge, allege it].

V. That neither the said property, nor any part thereof, has been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or an attachment against my property [or that said property was seized and is held under an execution (or attachment) against my property, but that the same is exempt by law from such seizure, alleging exemption as in No.

12 Hisler v. Carr, 34 Cal. 641.

18 Freeborn v. Norcross, 49 Cal. 313.

14 Tully v. Harloe, 35 Cal. 302; 95 Am. Dec. 102.

15 Pennybecker v. McDougal, 48 Cal. 160.

16 Buckley v. Buckley, 12 Nev. 423.

1010], and that the actual value of the said property is

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I. I am the owner and am entitled to the immediate possession of the following-described property.

[Or, I. The following goods me by their owner for

worth

....

....

....

were stored with months, which storage is dollars; and they have been taken from me without my consent, and without payment of said storage; or other facts, showing right to the possession, avoiding legal conclusions.]

II. That said property is wrongfully detained by C. D., at

III. The alleged cause of such detention, according to my best knowledge, information, and belief, is [state it particularly]. Or, I have no knowledge, or information, or belief of any cause alleged for such detention.

IV. The said property has not been taken for a tax, assessment, or fine, pursuant to any statute.

V. It has not been seized under any execution or attachment against my property [or if so seized, show exemption as below].

[Or, V. That it was seized under an execution, but was part of my necessary household furniture, and as such is exempt from execution under the California Code of Civil Procedure, section 690, and I am a householder supporting a family.]

VI. The said property is worth

dollars.

VII. I am the plaintiff in the above-entitled action, and said action was commenced on the ........ day of .... 18.., and no answer has been filed therein.

[JURAT.]

A. B.

4185. Affidavit and its requisites. The California statute prescribes as follows: Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing: 1. That the plaintiff is the owner of the property claimed [particularly describing it], or is entitled to the pos

session thereof; 2. That the property is wrongfully detained by the defendant; 3. The alleged cause of the detention thereof, according to his best knowledge, information, and belief; 4. That it 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; 5. The actual value of the property.17 For the purpose of replevying goods which have been attached, the writ of attachment, coupled with proof of the debt, is inadmissible in proof, without introducing the affidavit and other requisites to the issuing of the writ.18

4186. Allegation of exemption from execution.

Form No. 1010.

I am a music teacher by occupation, and the said piano is actually used by me in giving instructions. [Or, I am a physician, and said horse and buggy is used by me in the legitimate practice of my profession, and is necessary to enable me to carry on the practice of my profession.]19

4187. Facts stated. It is proper that an affidavit, claiming that property taken is exempt from execution, should show such exemption by stating the facts which constitute the exemption.20 § 4188. Alleged cause of detention fraud.

Form No. 1011.

possession obtained by

That the alleged cause of such detention, according to my best knowledge, information, and belief, is as follows: That the defendant claims to have purchased the same from me, but

17 Cal. Code Civ. Pro., § 510; N. Y. Code, § 207. The affidavit prescribed by the statutes is the foundation of jurisdiction to order an immediate delivery of the property. Carlon v. Dixon, 12 Oreg. 144. Such affidavit is no part of the pleadings. Moser v. Jenkins, 5 id. 447.

18 Thornburgh v. Hand, 7 Cal. 554. Action of claim and delivery will lie at the suit of the defendant in attachment to recover property seized under a writ of attachment, when it is stated in the affidavit that such property was exempt from such seizure. Wagner v. Olson, 3 N. Dak. 69.

19 As to what property is exempt from execution and who may claim it as such, see Cal. Code Civ. Pro., § 690. The status of the claimant and facts showing that the property may be lawfully claimed as exempt by him should be shown.

20 Spalding v. Spalding, 3 How. Pr. 297; S. C., 1 Code R. 64; see Roberts v. Willard, id. 100.

said pretended purchase was procured by fraud on the part of said defendant, in representing himself to be solvent and worth dollars, when in fact he was insolvent, and wholly unable to pay his debts, and well knew the fact so to be, and made such representations of his solvency to me with intent to deceive and defraud me; and relying on said representations, I parted with possession of said goods.

4189. Right of possession under special agreement.

Form No. 1012.

That I am lawfully entitled to the immediate possession of the property hereinafter mentioned, by virtue of an agreement between me and the above-named C. D., of which the following is a copy [here set out the agreement, or in any other manner show title, by stating facts]; and that I claim possession, as aforesaid, of the following property, to-wit [describe property].

§ 4190. Averment of right of possession as pledgee.

Form No. 1013.

The goods hereafter mentioned were delivered to me by the said defendant, as a security for the payment of dollars; and the said defendant, unknown to me, took away said property from my possession against my will, and now refuses to return the same, while the said sum of money is still due and unpaid, and the said goods and chattels are my only security therefor; and I am entitled to and claim immediate possession thereof. Said goods are described as follows [description of goods].

4191. Allegation of right of possession as lessee.

Form No. 1014.

That I hired the goods hereinafter mentioned, of the said defendant, for the term of ....

therefor the sum of

months, and paid him dollars; and that said time

has not yet expired, and the said defendant unlawfully got possession of said goods, and now wrongfully detains them from my possession. Said goods are described as follows [description of goods].21

21 The averment of wrongful detention in the words of the statute seems to be sufficient. Hoffm. Prov. Rem. 113.

4192. Requisition to take property indorsed on the affidavit Form No. 1015.

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You are hereby ordered and required to take from the defendant, C. D., the property within described.22

[DATE.]

E. F.,

Attorney for Plaintiff.

4193. Liability of sheriff. If he takes property belonging to any person other than the defendant, 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.23

§ 4194. Requisition to sheriff. The plaintiff or his attorney may thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be to take the same from the defendant.24

4195. Undertaking on claim and delivery of personal property.

[TITLE.]

Form No. 1016.

Whereas it is alleged by the plaintiff in the above-entitled action that the defendant in the said action has in his possession and unjustly detains certain personal property belonging to the said plaintiff, to the said possession of which the said plaintiff is lawfully entitled, of the value of ....

dollars.

.....

And whereas the said plaintiff, being desirous of having the said personal property delivered to and by indorsement in writing upon the affidavit has required the sheriff of the said county of .. to take the said property from the said defendant.

Now, therefore, we, the undersigned, residents of the said county, in consideration of the premises, and of

22 In a Justice's Court the requisition may be directed to the sheriff or any constable.

23 Rhodes v. Patterson, 3 Cal. 469. Action of claim and delivery against sheriff — justification. See Taylor v. Rice, 1 N. Dak. 72. 24 Cal. Code Civ. Pro., § 511.

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