Feb. 24. ty. Additional securi C. 63, L. 87, § 1: § 2728. Any person, plaintiff or defendant, in any attachment or replevin suits pending in any court in this territory, may, at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such principal in such bond, and if, on such motion, the court is satisfied that any surety on such bond has removed from the territory, or that for any other reason such bond is not sufficient security for the amount thereof, it may direct a new and sufficient bond to be given within a reasonable time, to be fixed by the court, and in default thereof, may make such order disposing of the property, the possession of which is held by virtue of such bond as the failure to give such additional security may require, and such orders may be made in vacation, as well as in term time. Suit on bond may be brought without § 2729. Any person interested in any bond by virtue of assignment to off the attachment and replevin laws, may maintain suit thereon without any assignment by the officer to whom the same is given. cer. Id. § 3. Capias; when. C. L. 1865, chap. 29, § 5: Jan. 12, 1852. Capias by justices: when. Id. § 6. Capias; service of. Discharge; when. Id. § 7. Denial allowed: how. Id. § 8. Trial; when. § 2730. Any creditor whose demand amounts to fifty dollars or more may sue out a writ of capias in the district court by filing an affidavit stating that the defendant is justly indebted to him after allowing all off-sets, in a sum specified in the affidavit, and on what account; that the affiant has reason to believe and does believe, that the defendant is about to abscond from the territory, so as to endanger the collection of his debt, and by also filing a bond as is required in attachments. § 2731. Creditors whose demands amount to less than fifty dollars may sue their debtors before justices of the peace, by writ of capias, subject to the same rules as are prescribed in the preceding section concerning such writs. § 2732. A writ of capias shall be served by taking the body of the defendant and retaining the same in custody until discharged by due course of law, but the defendant shall be discharged at any time by giving bond and security to the sheriff or constable that he will render himself in custody to abide the judgment, order or decree of the court. § 2733. The defendant may, at the return term of the writ, deny the truth of the affidavit by answer without oath, and the same proceeding shall be had thereon as in case of attachments. § 2734. If the petition and writ shall be served ten days before the first day of the next term of said court, the deExceptions: filing fendant shall, on or before the second day of said term, file his legal exceptions to said petition, if any he have, which exceptions shall be determined by the judge in a summary and determination. Id. § 9. Answer to be filed; when. Id. § 10. Answer; when no exceptions. Id. § 11. manner. § 2735. If the exceptions be overruled, the defendant shall forthwith file his answer under oath, fully admitting or denying or confessing or avoiding every material part of said petition. § 2736. If no such exceptions be filed, the defendant shall file such answer on or before the second day of said term. § 2737. All subsequent pleadings shall be filed under oath, and in such time as the court shall prescribe. C. L. 1865. chap. 29, 12: Jan. 12. 1852. Pleadings; subse quent. Action; who may bring. § 2738. Any person having a right to the immediate possession of any goods or chattels, wrongfully taken or wrongfully detained, may bring an action of replevin for the recovery thereof and for damages sustained by reason of the un- $1; Dec. 1847. just caption or detention thereof. Ruhe vs. Abreu, vol. 1, page 247, N. M. Rep. Ward vs. Broadwell, vol. 1, page 75, N. M. Rep. C. L. 1865, chap. 35, Cross replevin un 2739. No cross replevin or replevin for property in the lawful. hands of an officer shall be brought. § 2740. That hereafter in this territory, whenever the goods or chattels of any person or persons not a party to the record, are wrongfully seized by any officer under or by virtue of any writ of execution, mesne or other process from any court, except under a writ of replevin, such person or persons may maintain a suit in replevin for the possession of the same against such officer, by proceeding in the usual manner as now provided by law for bringing suits in replevin and making an additional affidavit that such goods and chattels have not been seized under any process, execution or attachment against the property of the plaintiff, and that the defendant or defendants in the original process by virtue of which the same were so wrongfully seized by the officer, have no interest, right or title and had no interest, right or title in the said chattels at the time of such wrongful seizure and that said plaintiff is entitled to the possession thereof or is the owner of the same: Provided, That in any action of replevin, any third person claiming an interest in property replevied or the right to the possession of the same may intervene in such suit as in other suits of intervention: And, prorided further, That nothing herein shall be construed to prevent any third person in such suits from giving a forthcom Id. § 2. Replevin may be brought; when, Feb. 5. Replevin against corporations. - C. 21. L. 89, § 1: ing bond and retaining possession of the goods as now provided by law. § 2741. Suits of replevin may be commenced and carried to a conclusion against any incorporated company in this ter ritory in all cases that may be begun and carried against any L. 1870. chap. 52. ordinary defendants. 2: Feb. 3. Tr. Affidavit required. § 2742. Before the writ of replevin be issued, the plaintiff, or some creditable person in his stead, shall file in the of fice of the clerk of the district court an affidavit alleging that the plaintiff is lawfully entitled to the possession of the property mentioned in the declaration, that the same was wrongfully taken, or wrongfully detained by the defendant, and that C. L. 1865, chap. 35. the right of action accrued within one year. $3: Dec. 1847. of. ty. Bond: conditions Id. § 4. Additional securi C. 63. L. 87, § 1: Feb. 24. Clerk: to designate person. Id. § 2. Suit on bond can be brought without an Martinez vs. Martinez, vol. 2, page 464. N. M. Rep. 2743. The plaintiff, or some responsible person shall, before the execution of the writ, enter into bond with sufficient securities, to the officer to whom the writ is directed, in double the value of the property, conditioned for the prosecution of the suit with effect, and without delay make return of the property, if a return is adjudged, keep harmless the officer and pay all costs that may accrue. § 2744. Any person, plaintiff or defendant in any attachment or replevin suits pending in any court in this territory, may, at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such principal in such bond, and if, on such motion, the court is satisfied that any surety on such bond has removed from the territory, or that for any other reason such bond is not sufficient security for the amount thereof, it may direct a new and sufficient bond to be given within a reasonable time, to be fixed by the court, and in default thereof may make such order disposing of the property, the possession of which is held by virtue of such bond, as the failure to give such additional security may require, and such orders may be made in vacation as well as in term time. § 2745. Whenever any suit in replevin shall be filed agaist the sheriff of any county in this territory, the clerk of the district court shall designate some person to serve the process on the defendant, but before issuing such process the clerk shall require the bond provided for by section two thousand seven hundred and forty-three, to be filed with him, and the sufficiency of the sureties thereon shall be approved by the clerk. § 2746. Any person interested in any bond by virtue of assignment by the attachment and replevin laws, may maintain suit thereon without any assignment by the officer to whom the same is given. officer. Id. § 3. Service. § 2747. The writ shall be executed by delivering the goods and chattels in the declaration mentioned, to the plaintiff, and by summoning the defendant to appear on the return C.L. 1865. C. 35. § 5: of the writ, to answer the action of the plaintiff. Dec. 1847. C. L. 1865. chap. 35, Plea of defendant. $ 2748. The defendant may plead that he is not guilty of the premises charged against him, and this plea will put in $6 Dec. 1847. issue, not only the rightful ownership of the property mentioned in the declaration, but also the wrongful taking and detention thereof. § 2749. In case the plaintiff fails to prosecute his suit with effect and without delay, judgment shall be given for the defendant and shall be entered against the plaintiff and his securities for the value of the property taken, and double damages for the use of the same from the time of delivery, and it shall be in the option of the defendant to take back such property or the assessed value thereof. § 2750. If such property be not returned and accepted within thirty days after the judgment, the sheriff shall collect the assessed value thereof from the plaintiff and his securities as on other executions. $2751. Any officer damnified by the execution of a writ of replevin, may maintain an action therefor on the bond by him taken. of. Judgment: effect Id. § 7. Value, collectible from plaintiff: when. Id. § 8. Injury; action for on bond. Id. § 9. Bond; defendant may bring action. Id. § 10. when. $2752. The defendant may, for any violation of the bond, bring an action thereon in the name of the officer for his use. § 2753. The sheriff for failing to take bond, or for taking Sheriff responsible; insufficient bond from the plaintiff, shall be responsible on his official bond for all damages sustained thereby, recoverable by action of debt in the name of the party injured. Archibeque vs. Miera, vol. 1, page 419, N. M. Rep. Id. § 11. Replevin: probate clerks may issue $2754. The clerks of the various probate courts in this territory are hereby authorized to issue writs of replevin for writs. the recovery of any goods or chattels unlawfully seized or held by any person or persons, subject to the same rules and restrictions as the clerks of the district courts in this territory. Holzman vs. Martinez, vol. 2, page 271, N. M. Rep. $2755. Any person desiring to bring an action of replevin before the clerk of the probate court of any county in this territory, for the recovery of any goods or chattels unlawfully detained or taken from their possession by any person. or persons, shall file in the office of the clerk of the probate court of the county in which the action of replevin is brought, an affidavit and bond in the following form and tenor, to-wit: Affidavit. Before me, the undersigned, clerk of the probate court in and for the County of- -, and territory above mentioned, on this the- -day of-A. D. 18, personally appeared A. B. (here the name of the person applying for the writ), who being duly sworn, declares and says, that he has the legal right to the possession of (here the property to be replevied is described); that the said property is unlawfully withheld from him (or was illegally seized, as the case may be) by C. D. (here the name or names of the person or persons com L. 1868, chap. 16. § 1: Jan. 29. Tr. Affidavit and bond to be filed. Forms. L. 1868. chap. 16, plained against), and that the right of action originated with 2: Jan. 29. Tr. Writs to issue: when. Id. § 3. Replevin, writs of: filing and docketing. Know all men by these presents, That we, A. B., as principal, and as his sureties, are held and firmly bound unto C. D. (here the name of the officer to whom the writ is directed), in the sum of dollars, for the payment of which sum well and truly we hold ourselves and our heirs, executors and administrators firmly by these presents, signed with our hands and seals and dated this, the day of, A. D. 18- -. The condition of the above obligation is such that whereas the above mentioned A. B. has applied for a writ of replevin from the clerk of the probate court of the County of which writ is directed to (here the name of the officer to whom the writ is directed), returnable to the next term of the district court to be begun and held at the Town of -——, in and for the County of --, the (here the day on which the term of the district court commences). Now if the said A. B. shall prosecute his said action without delay and with effect, and shall deliver the property replevied to C. D. in the event of the restitution being so adjudged by the said court, shall keep harmless the said (here the name of the officer), and shall pay all the costs which may arise from the said replevin, then this obligation shall be null and of no value, otherwise the same shall remain in full force and effect. (Here the principal and his sureties sign). § 2756. The clerks of the probate court shall, upon the filing in their offices of the affidavit and bond in conformity with the forms prescribed in the foregoing section, issue writs of replevin applied for by the complainant directed to the sheriff of the county or his deputy, commanding him to replevy the property described in the affidavit of the complainant. § 2757. Hereafter in suits in replevin, when the writ shall be issued by a clerk of a probate court, it shall not be necessary or requisite for the defendant to file any protest; but the clerk issuing the writ shall forward all the papers filed with him in the cause to the clerk of the district court at the next regular term of the district court within or for the county, who shall docket the cause, and thereupon said cause shall proceed as if it had been commenced in said district court beL. 1880, chap. 9. §1; fore the clerk thereof. Feb. 13. Replevied property, return of: when. 2758. The defendant, either in person or by his agent or attorney, at any time within five days after the service of a writ of replevin on him, and the replevin of the property thereunder, may require the return of the property replevied upon giving to the sheriff a bond with two or more sufficient sureties in double the value of the property as sworn to in the |