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of any person 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 wrong. fully 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 suitas in other suits of intervention, and; Provided, further, That nothing herein shall be construed to prevent any third person in such suits from giving a forthcoming bond and retaining possession of the goods as now provided by law.
Sub Sec. 231. Suits of replevin may be commenced and carried to a conclusion against any incorporated company in this Territory in all cases that may be begun and carried against any ordinary defendants,
Sub-Sec. 232. Before the writ of replevin shall be issued, the plaintiff, or some creditable person in his stead, shall file in the office 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 complaint, that the same was wrongfully taken, or wrongfully detained by the defendant, and that the right of action accrued within one year.
Sub Sec. 233. The plaintiff, or some responsible person for him, shall before the execution of the writ enter into bond with sufficient sureties, 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 that he will without delay make return of the property if a return is adjudged, keep harmless the officer, and pay all costs accrue.
Sub-Sec. 234. 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.
Sub-Sec. 235. Whenever any suit in replevin shall be filed against 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 Sub-Sections 233 and 234 hereof to be filed with him, and the sufficiency of the sureties thereon shall be approved by the clerk.
Sub-Sec. 236. Any person interested in any bond by virtue of the attachment and replevin laws, may maintain suit thereon without any assignment by the officer to whom the same is given.
Sub-Sec. 237. 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 day of the writ, to answer the action of the plaintiff.
Sub-Sec. 238. The defendant sball plead to the complaint as required by Sub Sections 34 and 35 of this Code; and the plaintiff may reply thereto according to the provisions of this Code, or demur, as herein provided.
Sub-Sec. 239. In case the plaintiff fails to prosecute bis 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.
Sub-Sec. 210. 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.
Sub-Sec. 241. Any officer damnified by the execution of a writ of replevin, may maintain an action therefor on the bond by him taken.
Sub-Sec. 242. The defendant may, for any violation of the bond, bring an action thereon in the name of the officer for his use.
Sub-Sec. 243. The sheriff for failing to take bond, or for taking insufficient bond from the plaintiff, shall be responsible on his official bond for all damages sustained thereby, recoverable by action in the name of the party injured.
Sub-Sec. 244. The clerks of the various probate courts in this Territory are hereby authorized to issue writs of replevin for 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.
Sub-Sec. 245. Any person desiring to obtain a writ 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 his possession by any person or persons, shall file in the office of the clerk of the probate court of the county where the goods and chattels are situate, an affidavit and bond in the following form and tenor, towit:
AFFIDAVIT IN REPLEVIN. TERRITORY OF NEW MEXICO, Affidavit.
. County of....
Before me the undersigned clerk of the probate court in and for the county of....
and Territory above mentioned, on this the
day of 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 complained against), and that the right of action originated within one year.
Complainant. Subscribed and sworn to before me this the
day of A. D. 19....
A. D. 19....,
Clerk of the Probate Court.
BOND IN REPLEVIN. 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 to be made 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. 19.... 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), and is against ..
(here the name or names of the person or persons complained against) returnable to the district court in and for the county of.....
..; 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.) Sub-Sec. 246. 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, said bond to have sufficient sureties to be approved by such clerk, issue the writs of replevin applied for by the complainant directed to the sheriff of the court or his deputy commanding him to replevy the property described in the affidavit of the . complainant.
Sub Sec. 217. In suits of 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 matter to the clerk of the district court, on the same day when the same are filed with him, and the clerk of the district court shall docket the cause and thereupon said cause shall proceed as if it had been commenced in said district court before the clerk thereof.
Sub-Sec. 248. 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 affidavit of replevin, conditioned for the delivery of the property to the plaintiff, if such delivery be adjudged, and for payment to him of such sum as may for any cause be recovered against the defendant in the suit.
Sub-Sec. 249. The sheriff shall judge of the sufficiency of the sureties on the bond of the defendant, and shall return the same with the writ of replevin into the district court; and shall be responsible on his official bond on returning any property replevied; but any party interested in the result of
any such cause may move the court on cause shown to require the defendant in such cases to give additional security, when that taken by the sheriff shall be deemed insufficient, or to return the property to the sheriff to be delivered over to the plaintiff, if the plaintiff has given a good and sufficient replevin bond, as required by law.
ARTICLE XIV.-EJECTMENT. Sub-Sec. 250. The action of ejectment may be maintained in all cases where the plaintiff is legally entitled to the possession of the premises.
Sub-Sec. 251. The action of ejectment will lie for the recovery of the possession of a mining claim, as well also of any real estate, where the party suing has been wrongfully ousted from the possession thereof, and the possession wrongfully detained.
Sub-Sec. 252. The action shall be prosecuted in the real names of the parties, and shall be brought against the tenant in possession, or against the person under whom such tenant holds or claims possession. Any person claiming such premises may, on motion, be made a defendant.
Sub-Sec. 253. It shall be sufficient for the plaintiff to declare in his complaint that on some day, in such petition named, he was entitled to the possession of the pren. ises, describing them; and that the defendant, on a day named in the complaint, afterwards entered into such premises, and unlawfully witheld from the plaintiff the possession thereof, to his damage for any sum he may name.
Sub-Sec. 254. The defendant shall plead to the complaint, as required by Sub-Sections 34 and 35 of said Section 2685; and the plaintiff may reply or demuras by this code provided.
Sub-Sec. 255. It shall be sufficient to entitle the plaintiff to recover, to show that at the time of the commencement of the action the defendant was in possession of the premises claimed, and that the plaintiff had a right to the possession thereof.
Sub-Sec. 256. In any action brought by a joint tenant, or tenant in common, against a co-tenant, he shall be required to prove an actual ouster or act equivalent thereto.
Sub-Sec 257. If the plaintiff prevail, he shall recover for damages the value of the rents and profits of such premises to the time of the verdict or the expiration of the plaintiff's title, under these limitations:
I. If the defendant had knowledge of the plaintiff's claim or title, then for the whole time he had such knowledge;
II. If he had no such knowledge, then from the commen cement of the action.