§ 124. Joiner of action with others.-Nothing in this article is to be so construed as to prevent the plaintiff from uniting in the same complaint two or more causes of action in any case specified in section 170. [Code, § 1689, without change.] § 125. Plaintiff may procure replevin; affidavit and undertaking. The plaintiff may, at the time when the summons is issued, but not afterwards, require the chattel to be replevied as prescribed in this article. For that purpose he must deliver to the justice an affidavit and an undertaking as herein prescribed. [Code, § 2920, omitting last four lines containing reference.] § 126. Affidavit.-The affidavit, to be delivered to the justice, as prescribed in the last section must particularly describe the chattel to be replevied; and must contain the following allegations: 1. That the plaintiff is the owner of the chattel, or is entitled to the possession thereof, by virtue of a special property therein, 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 to the best knowledge, information and belief of the person making the affidavit. 4. That it has not been taken by virtue of a warrant against the plaintiff for the collection of a tax, assessment or fine, issued in pursuance of a statute of the state, or of the United States; or, if it has been taken under color of such a warrant, either that the taking was unlawful by reason of defects in the process, or other causes specified, or that the detention is unlawful by reason of facts specified, which have subsequently occurred. 5. That it has not been seized by virtue of an execution or warrant of attachment against the property of the plaintiff, or of any person from or through whom the plaintiff has derived title to the chattel, since the seizure thereof; or, if it has been so seized, that it was exempt from the seizure by reason of facts specified, or that its detention is unlawful by reason of facts specified which have subsequently occurred. 6. Its actual value. [Code, § 1695, changing "sheriff" to "justice."] § 127. Where several chattels are to be replevied.—Where the affidavit describes two or more chattels of the same kind it must state the number thereof, and where it describes a chattel in bulk it must state the weight, measurement or other quantity. Where it describes two or more chattels to be replevied, it may at the election of the plaintiff state the aggregate value of all; or, separately, the value of any chattel or of any class of chattels, and the aggregate value of the remainder, if any. Where it states separately the value of one or more chattels or classes of chattels, the defendant may require, as prescribed in the following provisions of this article, the return of any or all of the chattels or classes of chattels, the value of which is thus stated, or of the portion thereof which has been replevied. If he procures such a return, the remainder must be delivered to the plaintiff, except as is otherwise prescribed in this article. [Code, § 1697, without change.] § 128. Plaintiff's undertaking for replevin.-The undertaking to be delivered to the justice, must be executed by at least two sureties. It must be to the effect that the sureties are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit, for the prosecution of the action; for the return of the chattel to the defendant, if possession thereof is adjudged to him, or if the action abates, or is discontinued before the chattel is returned to the defendant; and for the payment to the defendant of any sum which the judgment awards to him against the plaintiff. [Code, § 1699, substituting "justice" for "sheriff" and omitting reference to requisition. The provision requiring approval by the justice is omitted, because included in a general section relating to this subject. See § 539.] § 129. Requisition.-On receiving the affidavit and undertaking the justice must indorse upon or attach 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 affidavit 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 and undertaking must be delivered to the constable with the summons. [Code, § 2921, without change.] § 130. How chattel to be replevied.-If any chattel described in the affidavit is found in the possession of the defendant, or of his agent, the constable to whom the affidavit, requisition, and summons are delivered as prescribed in this article, must forthwith replevy it by taking it into his possession. [Code, § 1700, omitting last sentence.] § 131. Chattel, how taken from a building.-If any chattel described in the affidavit is secured or concealed in a building or inclosure, the constable must publicly demand its delivery. If it is not delivered pursuant to the demand he must cause the building or inclosure to be broken open, and must take the chattel into his possession. [Code, § 1701, without change.] § 132. Service of papers on defendant.-The constable must immediately after he replevies the property, and at least six days before the return day of the summons, serve the summons, affidavit, requisition and undertaking on the defendant by delivering to him personally a copy of each, if he can with reasonable diligence be found within the county; or if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion; or if such person cannot be found there, by posting it on the outer door; and also depositing another copy in the nearest post-office inclosed in a sealed post-paid wrapper directed to the defendant at his residence; or if the defendant has no place of residence in the county, by delivering it to the person in whose possession the property replevied is found. [Based on Code, § 2910. See § 2922.] § 133. Replevied chattel; how kept.-A constable who has replevied a chattel must retain it in his possession, keeping it in a secure place until the person who is entitled to the possession thereof is ascertained as prescribed in this article. He must then deliver it to that person on request and payment of his lawful fees and necessary expenses for taking and keeping it, as taxed by the justice on such a notice as he deems proper. [Code, § 1702, omitting reference to supreme court officers.] § 134. 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 thereon; and file it with the affidavit and requisition with the justice. The return must state the manner in which the summons, affidavit and requisition were served; and if they were served otherwise 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. [Code, § 2923, without change.] § 135. 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 on the plaintiff or on 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 on 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. [Code, § 2924, without change.] § 136. Defendant may reclaim chattel; proceedings thereón.At any time before the return day of the summons the defendant may, if he does not except to the plaintiff's sureties, serve on the justice a notice that he requires the return of the chattel replevied. With the notice he must deliver to the justice the following papers: 1. An affidavit containing an allegation either that the defendant is the owner of the chattel, or that he is lawfully entitled to the possession thereof by virtue of a special property therein, the facts with respect to which must be set forth. 2. An undertaking executed by at least two sureties to the effect that they are bound in a specified sum, not less than twice the value of the chattel as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff if delivery thereof is adjudged, and for the payment to him of any sum which the judgment awards against the defendant. The sureties in the undertaking must justify before the justice on 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 127, the defendant may require a delivery of part of the property replevied, as prescribed in that section. [Code, § 1704, 2925, in part, combined, omitting provisions not applicable to justices' courts.] § 137. Claim of title by third person; proceedings thereon.-At any time before a chattel which has been replevied is actually delivered to either party, if a person not a party to the action |