the property in controversy, the court, or a judge thereof, may, upon the application of the plaintiff, and due proof of the facts by affidavit, grant, without notice or security, an order, restraining him from the commission of any further waste upon or damage to the property. Disobedience to such an order may be punished as a contempt of the court. This section does not affect the plaintiff's right to a permanent or a temporary injunetion in such an action. 2 R. S. 336, §§ 18 and 19 (2 Edm. 347). › § 1682. When order for survey may be made. If the court, in which an action relating to real property is pending, is satisfied that a survey of any of the property, in the possession of either party, or of a boundary line between the parties, or between the property of either of them, and of another person, is necessary or expedient, to enable either party to prepare a pleading, or prepare for trial, or for any other proceeding in the action, it may, upon the application of either party, upon notice to the party in possession, make an order, granting to the applicant leave to enter upon that party's property, to make such a survey. 2 R. S. 341, § 13 (2 Edm. 352), am'd. § 1683. Contents and service of order. An order, made as prescribed in the last section, must specify by a description as definite as may be, the property or boundary line to be surveyed, and the real property of the adverse party, upon which it is necessary to enter for that purpose. A copy thereof must be served on the owner or occupant of that property, before entry thereupon. Id., § 14, am'd. § 1684. Authority of party under order. After serving a copy of the order, as prescribed in the last section, the party obtaining it, his necessary surveyors, servants. and agents, may enter, for the purpose of making the survey upon the real property described in the order, and may there make the survey; but each person so entering is responsible for any unnecessary injury done by him; and the party procuring the order is responsible for such an injury, done by any person so entering. Id., 15, am'd. § 1685. Liability of purchaser, pending an action. If the defendant, in an action of ejectment or an action for dower, aliens the real property in question, after the filing of a notice, as specified in section 1670 of this act, and an execution against him for the plaintiff's damages is returned wholly or partly unsatisfied, an action may be maintained by the plaintiff against any person who has been in possession of the property, under the defendant's conveyance, to recover the unsatisfied portion of the damages, for a time not exceeding that. during which he possessed the property. Id., § 19. See § 1670, ante. § 1686. Infant may maintain, etc., real action in his own name. Any action specified in this title may be maintained by or against an infant in his own name; and article fourth of title second of chapter fifth of this act applies to such an action, except as otherwise prescribed in sections 1535 and 1536 of this act. § 1687. Joinder of real actions with others. Nothing contained in this title is to be construed, as to prevent the plaintiff from uniting in the same complaint two or more causes of action, in any case specified in section 484 of this act. See § 484, ante. 1688. When special proceeding to recover real property not allowed. A special proceeding to recover real property cannot be taken, except in a case specially prescribed by law. 2 R. S. 342, § 24 (2 Edm. 354). 447 TITLE II. Actions relating to chattels Article 1. Action to recover a chattel. 2. Action to foreclose a lien upon a chattel. ARTICLE FIRST.. Action to recover a chattel. Sec. 1689. Joinder of action with others. 1690. When it cannot be maintained. 1691. Id.; after judgment against the plaintiff. 1692. Id.; by an assignee. 1693. Jurisdiction, etc., when a replevin precedes summons. 1694. Plaintiff may require sheriff to replevy. 1695. Affidavit therefor, before commencement of action. 1696. Id.; after commencement of action. 1697. Id.; where several chattels are to be replevied. 1698. Provision where a part only is replevied. 1699. Plaintiff's undertaking for replevin. 1700. How chattel to be replevied. 1701. Id.; how taken from a building, etc. 1702. Replevied chattel; how kept, etc. 1703. When defendant may except to sureties; proceedings thereupon. 1704. When defendant may reclaim chattel; proceedings thereupon. 1705. Sureties; when and how to justify. 1706. When and to whom sheriff must deliver chattel. 1707. Penalty for wrong delivery by sheriff. 1708. Undertaking; to whom delivered. 1709. Claim of title by third person; proceedings thereupon. 1710. Action against sheriff upon such claim. 1711. Indemnity to sheriff against such action. 1712. When agent, etc., may make affidavit for replevin or return. 1713. Second and subsequent replevin; proceedings thereupon. 1714. Replevin, where order of arrest has been granted. 1715. Return, etc., by sheriff. 1716. Id.; how compelled. 1717. Replevin papers to be made part of judgment-roll, etc. 1718. Action not affected by failure to replevy. 1719. When and how plaintiff may abandon his claim as to part. 1721. Taking, etc.; how stated in complaint. 1722. Damages, when chattel injured, etc., by defendant. 1723. Answer of title in third person. 1724. Answer that property was distrained doing damage. 1725. Defendant may demand judgment for return. 1726. Verdict, etc., what to state. 1727. Substitute in certain cases for finding as to value. 1728. Verdict, etc., for part of several chattels; judgment thereupon. 1729. Damages how ascertained on default. 1730. Final judgment; docketing the same. 1731. Execution; contents thereof. 1732. Id.; sheriff's power to take chattel. 1733. Action on undertaking; when maintainable. 1735. Injury, etc., no defence. 1736. Abatement and revival of action. § 1689. Joinder of action with others. Nothing in this title is to be so construed, as to prevent the plaintiff from uniting, in the same complaint. two or mor causes of action, in any case specified in section 484 of this act. See § 1687, ante. § 1690. [Am'd, 1894.] When it cannot be maintained. An action to recover a chattel cannot be maintained in either of the following cases: 1. Where the chattel was taken by virtue of a warrant, against e plaintiff, for the collection of a tax, assessment or fine, issued pursuance of a statute of the State or of the United States; less the taking was, or the detention is, unlawful, as specified section sixteen hundred and ninety-five of this act. 2. Where it was seized by virtue of an execution, or a warnt of attachment, against the property of the plaintiff, unless was legally exempt from such seizure, or is unlawfully deined, as specified in section sixteen hundred and ninety-five this act. 3. Where is* was seized by virtue of an execution, or a warnt of attachment, against the property of a person other than e plaintiff, and at the time of the commencement of the action e plaintiff had not the right to reduce it into his possession. 1894, ch. 305; 2 R. S. 522, §§ 4 and 5 (2 R. S. 540), am'd. 1691. Id.; after judgment against the plaintiff. Where a chattel is replevied, in an action to recover the me, and a final judgment awarding the possession thereof to e defendant is rendered, a subsequent action to recover the me chattel cannot be maintained by the plaintiff, for the me cause of action. But the judgment does not affect his ht to maintain an action to recover damages, for taking or taining the same or any other chattel, unless it was rendered ainst him upon the merits. L., § 62. 1692. Id.; by an assignee. An action to recover a chattel, the title to which has been nsferred to the plaintiff, since the wrongful taking, or during wrongful detention thereof, with or without the damages stained by the taking, withholding, or detention, may be intained in any case, where, except for the transfer, such an ion might be maintained, by the person from or through whom plaintiff derives title; but not otherwise. 1693. Jurisdiction, etc., when replevin precedes sum ons. Where a chattel is replevied before the service of the sumns, as prescribed in this article, the seizure thereof by the riff is regarded as equivalent to the granting of a provisional nedy, for the purpose of giving jurisdiction to the court, and abling it to control the subsequent proceedings in the action; d as equivalent to the commencement of the action, for the rpose of determining, whether the plaintiff is entitled to mainn the action, or the defendant is liable thereto. ee § 416, ante. 1694. Plaintiff may require sheriff to replevy. The plaintiff may, when the summons is issued, or at any e afterwards, and before the service of a copy of the defendt's answer, or, where judgment is taken by default for want an appearance or pleading, before the entry of the final gment, cause the chattel, to recover which the action is ought, to be replevied by the sheriff of the county where * So in the original. it is found. For that purpose, he must deliver to the sherif an affidavit and a written undertaking, as prescribed in the following sections of this article, with a written requisition indorsed upon or annexed to the affidavit, and subscribed by h attorney, to the effect, that the sheriff is required to repler the chattel described therein. The requisition may be directes to the sheriff of a particular county, or, generally, to the sher of any county where the chattel is found. It is deemed the mandate of the court. Co. Proc., §§ 206 and 209, am'd and consolidated. § 1695. action. Affidavit therefor, before commencement The affidavit, to be delivered to the sheriff, as prescribed i the last section, must particularly describe the chattel to replevied; and must contain the following allegations: 1. That the plaintiff is the owner of the chattel, or is entit to the possession thereof, by virtue of a special property there the facts with respect to which must be set forth. 2. That it is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according the best knowledge, information, and belief of the person makia the affidavit. 4. That it has not been taken by virtue of a warrant, agains the plaintiff, for the collection of a tax, assessment, or fine, issue in pursuance of a statute of the State, or of the United State or, if it has been taken under color of such a warrant, eithe that the taking was unlawful, by reason of defects in the pre cess, or other causes specified, or that the detention is unlawf by reason of facts specified, which have subsequently occurred 5. That it has not been seized by virtue of an execution warrant of attachment, against the property of the plaint or of any person from or through whom the plaintiff has deriv title to the chattel, since the seizure thereof; or, if it has b so seized, that it was exempt from the seizure, by reason of faca specified, or that its detention is unlawful, by reason of f specified which have subsequently occurred. 6. Its actual value. See Co. Proc., § 207. § 1696. Id.; after commencement of action. But where the affidavit is made after the service of the sm mons, the allegations, required to be inserted therein by sh visions first and second of the last section, must be to the ef that the plaintiff, at the time of the commencement of action, was the owner of the chattel, or was entitled to possession thereof by virtue of a special property therein: that it was then wrongfully detained by the defendant, as scribed in those subdivisions. § 1697. Id.; where several chattels are to be replevied. Where the affidavit describes two or more chattels of same kind, it must state the number thereof, and where describes a chattel in bulk. it must state the weight, meas ment, or other quantity. Where it describes two or more cha to be replevied, it may, at the election of the plaintiff, state aggregate value of all; or, separately, the value of any cha |