summons, at the time when the summons is issued; and it must be indorsed thereupon, or annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attachment. It must require the constable, to whom the summons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the sum mons, and safely to keep, as much of the defendant's goods and chattels, within his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice, at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. Id., 30, amended. Mattison v. Baucus, Hill & Denio's Supp. 321. 2908. Undertaking. Before granting the warrant, the justice must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertak ing, which must be at least two hundred dollars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. Id., 29, amended. Dunning v. Humphrey, 24 Wend. 31: Bennett m Brown, 31 Barb, 158; 20 N. Y. 99; Fenuo v. Dickinson, 4. Den. 84; Ball v. Gardner, 21 Wend. 270; Comfort v. Gillespie, 13 id. 404; Williams r. Barnaman, 19 Abb. 69; Groat v. Gillespie, 25 Wend, 333; Winsor e. Or cutt, 11 Paige, 578; Bascom v. Smith, 31 N. Y. 595; Earl e. Spooner, 3 Denio, 246. 2909. Warrant; how executed. The constable, to whom the warrant of attachment is delivered, must execute it at least six days before the return day of the summons, by levying upon and taking into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank-notes, which he finds within his county, as will satisfy the plaintiff's demand, with the costs and expenses. He must safely keep the property attached, to be disposed of as prescribed in this article, and must immediately make an inventory thereof, stating therein the estimated value of each item or article. Id., 31, amended; L. 1831, ch. 300, ? 36 (4 Edm. 473), Earl v. Spooner 3 Den. 246; Bennett v. Brown, 31 Barb. 158; Van Loan r. Kline, 10 Johns, 129: Sterling v. Welcome, 20 Wend. 238; Ray v. Harcourt, 19 id. 495; Dubois v. Harcourt, 20 id. 41. 2910. Service of summons and warrant upon defendant. The constable must, immediately after making the inventory, and at least six days before the return day of the summons, serve the summons, together with the warrant of attachment and inventory, upon 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 a person cannot be found there, by posting it on the outer door, and also depositing another copy in the nearest postoffice, 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 attached is found. Id.. 31, amended as in 32909, ante. Egbert v. Watson, 21 How. 429 Rosenfeld v. Howard, 15 Barb. 546. 2911. Undertaking by defendant; re-delivery to him. The defendant, or his attorney or agent in his behalf may, at any time before judgment is rendered in the action, execute and deliver to the constable an undertaking to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory; with one or more sureties, approved by the constable, or by the justice who issued the warrant; and to the effect that, if judgment is rendered against the defendant, and an execution is issued thereupon, within six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must re-deliver the property to the defendant. Id., 8 32, 34, amended. $ 2912. Claim by third person; bond and delivery thereupon.-If a person, not a party to the action, claims any property attached, which is not reclaimed by the defendant, as prescribed in the last section, he may, at any time after the seizure, and before execution is issued upon a judgment rendered in the action, execute, and file with the justice, a bond to the plaintiff, with one or more sureties, approved by the constable or by the justice; in a penalty at least twice the value of the property claimed; and conditioned that, in an action upon the bond, to be commenced within three months thereafter, the claimant will establish that he was the general owner of the property claimed, at the time of the seizure; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with interest. The consta ble must thereupon deliver the property claimed to the claimant. Id., part of 33, 34, amended. Kamena v. Wanner, 6 Abb. 193; 6 Duer, 698. 2913. Action upon bond. A judgment for the plaintiff, in an action upon a bond given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery. If the amount so recovered exceeds the amount, which the plaintiff recovers, in the action in which the warrant of attachment was issued, he is liable to the defendant in that action for the excess. Id., part of 36 and 37. $2914. When defendant may prosecute bond. — If the warrant of attachment is vacated or annulled, the defendant may maintain an action, upon the bond specified in the last two sections, in his own name, in the same manner and with the like effect, as the plaintiff might have done, if the warrant had remained in full force. Id., 38, amended. Homan r. Brinkerhoff, 1 Denio, 184; Kamena e. Wanner, 6 Abb. 193; 6 Duer, 698. 2915. Return of warrant. The constable execnting the warrant of attachment must, at the time when and place where it is returnable, make a return thereto, under his hand, stating all his proceedings thereupon. He must deliver to the justice, with the return, each bond or undertaking delivered to him, pursuant to any of the foregoing provisions of this article, and a certified copy of the inventory of the property attached. The return must state the manner in which the warrant and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the defendant personally, the reason therefor, and the name of the person to whom the copy was 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. Williams v. 28 How. 59; Johnson v. Id., 35, as amended; L. 1831, ch 300, 36 (4 Edm. 473). Barnaman, 19 Abb. 69; Barnaman v. Williams, 18 id. 158; Bascom . Smith, 31 N. Y. 595; McDoel . Cook, 2 id. 110; Moss, 20 Wend. 145; Van Kerk v. Wilds, 11 Barb. 520; Hillard v. Sperry, 16 Johns. 121. 2916. Motion to vacate or modify warrant, etc.A defendant whose property has been attached, may, upon the return of the summons, apply to the justice, who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted; or upon proof, by affi davit, on the part of the defendant; or upon both. If it is founded upon proof on the part of the defendant, it may be opposed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attachment, recited in the warrant, but no other. The justice may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion, if he deems the papers, upon which it was granted, insufficient to authorize it. New. 2917. Effect of vacating warrant. Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action; or where the summons was personally served upon him; or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned, or has thus appeared. In every other case, the justice, who vacates a warrant of attachment against the property of a defendant, must dismiss the action as to him. New. § 2918. Proceedings where summons not personally served. Where the defendant has not appeared, and the summons has not been personally served upon him, and property of the defendant has been duly attached by virtue of a warrant, which has not been vacated, the justice must proceed to hear and determine the action; but, in an action subsequently brought, the judgment is only presumptive evidence of indebtedness, and the defendant is not barred from any counterclaim against the plaintiff. The execution, issued upon a judgment so rendered, must require the constable to satisfy it out of the property so attached, without containing a direction to satisfy it out of any other property. L. 1831, ch. 300, 39 (4 Edm. 474). ARTICLE FIFTH. REPLEVIN. SEC. 2919. When action for a chattel may be brought. 2920. Plaintiff may procure replevín; atidavit and undertaking. 2921. Requisition. 2922. Id. how executed. Service of summons, etc. 2923. Return of constable. 2924. Defendant may except to sureties; proceedings thereon. 2926. Justification of sureties. 2927. When and to whom constable must deliver chattel. 2928. Penalty for wrong delivery by constable. 2929. Claim of title by third person. 2930. Defendant may demand judgment for return. 2931. Proceedings in the action; action upon undertaking. 2919. When action for a chattel may be brought.— An action to recover a chattel, with or without damages for the wrongful taking, withholding, or detention thereof, can be brought before a justice of the peace of the county in which the chattel is found, in a case, and subject to the qualifications, specified in sections 1689, 1690, 1691, and 1692, and subdivision seventh of section 2862 of this act. Substituted for Code of Proc., 53, subd. 10, amended; L. 1860, ch. 131. 4. Hodge v. Adee, 2 Lans. 314. 2920. Plaintiff may procure replevin; affidavit and undertaking. The plaintiff may, at the same time when the summons is issued, but not afterwards, require the chattel to be replevied, as prescribed in this |