8118. [116.] The qualifications of bail shall be as Oct. 11, 1862, follows: 116. Qualifications 1. Each of them shall be a resident and householder of bail. or freeholder within the state; but no counselor or attorney at law, sheriff, clerk of any court, or other officer of any court, shall be permitted to become bail in any action. 2. Each of them shall be worth the amount specified in the writ of arrest, or the amount to which the same may be reduced, as provided in this title, over and above all debts and liabilities, and exclusive of property exempt from execution; but the judge or clerk on justification. may allow more than two sureties to justify severally in amounts less than that expressed in the writ, if the whole justification be equivalent to that of two sufficient bail. Qualifications of bail. That the common-law disqualifications of bail remain unaffected by the code, see Wheeler v. Wilcox, 7 Abb. 73; Mills V. Clarke, 4 Bosw. 632. One who occupied a portion of a building as an office was deemed a householder for purposes of bail: Somerset Savings Biak v. Huyck, 33 How. 323. One who has title to real estate is a free- $117. § 119. [117.] For the purpose of justification, each of oct. 11, 1862. the bail shall attend before the judge or clerk, at the Justification time and place mentioned in the notice, and may be of bail. examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or clerk in his discretion may think proper. The examination shall be reduced to writing and subscribed by the bail, if required by the plaintiff. Justification of bail. - The sureties must answer fairly, and if from their refusal to answer pertinent and material questions, or otherwise, it appear that they cannot respond in the necessary amounts, they should be rejected: Mokelumne Hill Co. v. The justification need only be made 118. § 120. [118.] If the judge or clerk shall find the bail Oct. 11, 1862, sufficient, he shall annex the examination to the undertaking, indorse his allowance thereon, and cause them bail. to be filed with the clerk of the court in which the action Allowance of Oct. 11, 1862, 118. Allowance of bail. Oct. 11, 1862, $119. Deposit with sheriff. Oct. 11, 1862, ◊ 120. Payment of deposit by sheriff to clerk. Oct. 11, 1862, $121. Bail may be given and deposit refunded. Oct. 11, 1862, 122. Deposit, how disposed of. is pending; and the sheriff shall thereupon be exonerated from liability. Allowance of bail.-Justification of bail is not complete until these requisites are complied with: O'Neil v. Durkee, 12 How. Pr. 94; McKenzie v. Smith, 48 N. Y. 143. It see:ns that rejection of one of bail is a rejection of all: O'Neil v. Durkee, 12 How. Pr. 94. § 121. [119.] The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the writ. Thereupon the sheriff shall give the defendant a certificate of the deposit made, and the defendant shall be discharged out of custody. Anderson, 8 Abb. Pr., N. S., 155; Com'l Warehouse v. Graber, 45 N. Y. 393. Deposit with sheriff. — A deposit under this section is treated as money of the defendant, for the purpose of the execution: Hermann v. § 122. [120.] The sheriff shall, within four days after the deposit, pay the same into court, and take from the clerk receiving the same two certificates of such payment, the one of which he shall deliver to the plaintiff or his attorney, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff to collect the sum deposited, as in other cases of delinquency. § 123. [121.] If money be deposited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in section 111 [109], at any time before judgment, and on the filing of the undertaking and justification with the clerk, the money deposited shall be refunded by such clerk to the defendant. Refunding deposit upon giving of bail. The deposit will be refunded only to defendant, though deposited by others; and then only after giving and justification of bail on notice: Herrman v. Aaronson, 3 Abb. Pr., N. S., 389; Commercial Warehouse v. Graber, 45 N. Y. 393. § 124. [122.] When money shall have been so deposited, if it remain on deposit at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall, under the direction of the court, apply the same in satisfaction thereof, and after satisfying the judgment, shall refund the surplus, if any, to the defend $122. ant. If the judgment be in favor of the defendant, the Oct. 11, 1802, clerk shall refund to him the whole sum deposited and remaining unapplied. Deposit, how disposed of. 123. Liability of § 125. [123.] If, after being arrested, the defendant Oct. 11, 1862, escape, or be rescued, or bail be not given, or justified, or a deposit be not made instead thereof, the sheriff sheriff. himself shall be liable as bail; but he may discharge himself from such liability by the giving and justification of bail, as provided in sections 117 [115], 118 [116], 119 [117], and 120 [118], at any time before process against the person of the defendant, to enforce an order or judgment in the action. Liability of sheriff as bail, and his discharge. - The sheriff is liable as bail if he permit the defendant to go at large and escape: Bensel v. Lynch, 44 N. Y. 162; or refusing to arrest him: Cosgrove v. Bowe, 4 N. Y. Law Bull. 7. The sheriff may rearrest defendant as bail, without process: Sarlos v. Mecerques, 9 How. 188; Seaver v. Genner, 10 Abb. Pr. 256; Metcalf v. Stryker, 31 N. Y. 255; and in this way may exonerate himself: Douglass v. Haberstro, 19 Hun, 1. § 124. against sheriff as bail. § 126. [124.] If a judgment be recovered against the oct. 11, 1862, sheriff upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the Judgment same proceedings may be had on his official bond for the recovery of the whole or any deficiency, as in other cases of delinquency. $ 125. § 127. [125.] The bail taken upon the arrest shall, oct. 11, 1862, unless they justify, or other bail be given or justified, be liable to the sheriff by action for any damages which he ble to sheriff. may sustain by reason of such omission. When bail liable to sheriff. N. Y. 104; but see Willett v. Lassalle, The sheriff cannot sue under this section until he himself has sustained damage as bail in consequence of their failure to justify: Clapp v. Schutt, 44 19 Abb. Pr. 272. The judgment When bail lia ◊ 126. Plaintiff liable nance of § 128. [126.] The fees which shall be allowed to the oct. 11, 1862, sheriff for the food and maintenance of any defendant arrested under the provisions of this act shall be as pro- for maintevided by law, and the plaintiff shall be liable in the first defendant. instance for such fees, and if required by the sheriff, shall pay the same weekly, in advance; and such fees so paid shall be added to the disbursements taxed or accruing in the case, and be collected as other disbursements. Oct. 11, 1862, 127. Non-payment of maintenance. Dec. 20, 1865, §3. Motion to § 129. [127.] If the plaintiff shall neglect to pay such fees for three days after a demand of payment, the sheriff may discharge the defendant out of custody. § 130. [128.] A defendant arrested may, at any time before judgment, apply on motion to the court or the vacate writ of judge thereof, in which the action is pending, upon notice to the plaintiff to vacate the writ of arrest, except where the cause of the arrest and the cause of action are the same. arrest. 16 Or. 52. Dec. 20, 1865, $ 4. Proceedings vacate writ of arrest. Vacating writ of arrest. — Giving bail does not operate as a waiver of defendant's right to move to vacate a writ of arrest: Warren v. Wendell, 13 Abb. Pr. 187; Wicker v. Harmon, 12 Id. 476. § 131. [129.] If a motion be made upon affidavits or other proofs on the part of the defendant, but not otheron motion to wise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those upon which the writ was issued. If upon the hearing of such motion, it shall satisfactorily appear that there was not sufficient cause to allow the writ, the same shall be vacated. Oct. 11, 1862, 130. Vacating writ of arrest. — It is said that the writ will be vacated when there is not sufficient ground to allow the writ. What such grounds are is stated in § 402 [406], and the note. TITLE XIV. OF THE RECOVERY OF PERSONAL PROPERTY. § 132. When delivery may be claimed in an action for the possession of per sonal property. § 133. Affidavit therefor, what it must show. § 134. Indorsement thereon, requiring sheriff to take property. § 135. Undertaking to sheriff on the part of the plaintiff. § 136. Exception to sureties by defendant, proceedings thereon. § 137. How and when defendant entitled to redelivery. § 138. Justification of sureties on defendant's undertaking. § 139. Qualification and justification of sureties. § 140. Power of sheriff when property concealed in building or inclosure. § 141. Property how kept, and when delivered to plaintiff. § 142. Proceedings, when property claimed by third persons. § 143. Return of affidavit by sheriff. § 132. [130.] In an action to recover possession of perWhen delivery sonal property, the plaintiff, at any time after the action is tion for deliv- commenced and before judgment, may claim the immediate delivery of such property, as provided in this title. may claimed in ac ery of personal property. 5 Or. 418. Claim and delivery, generally. -The common-law action of replevin is abolished, and the provisions of this chapter take its place: De Thomas v. Witherby, 61 Cal. 97; Roberts v. Randel, 3 Sand. 707; S. C., 5 How. 327; Nichols v. Michael, 23 N. Y. 269; Rockwell v. Saunders, 19 Barb. 481; but many of the rules applicable to replevin apply to this proceeding: Moser v. Jenkins, 5 Or. 447. For what property it lies. "Claim and delivery "lies for personal property, as did replevin, and the decisions in replevin suits, as to what is personal property within this sense, apply. It lies for chattels of every description, and includes all species of animate and inanimate movable tangible property: Eddy v. Davis, 35 Vt. 248; Graff v. Shannon, 7 Iowa, 508. Title to land cannot be tried in this proceeding: Snyder v. Vaux, 2 Rawle, 427. Money. It is the proper remedy to recover specific money which can be identified. Thus one may recover a package of gold coin sealed up in a leather bag: Skidmore v. Taylor, 29 Cal. 619; Sharon v. Nunan, 11 Pac. C. L. J. 162. A safe in the possession of McC., belonging to W., F., & Co., for whom, as also for plaintiff, he was agent, contained six thousand dollars in coin. Of this sum, four hundred dollars belonged to W., F., & Co., the balance to plaintiff. The sheriff, under a writ against McC., seized one thousand eight hundred dollars of the money in the safe as his property, and put it in a bag. Plaintiff then claimed the money as his, McC. being present and not objecting. It was held that this amounted to a segregation of one thousand eight hundred dollars from the mass of coin in the safe, so as to sustain the action by plaintiff: Griffith v. Bogardus, 14 Cal. 410. Fixtures.- Personal property attached to and becoming part of the realty cannot be recovered in this proceeding: Fryatt v. Sullivan Co., 5 Hill, 117; Ricketts v. Dorrel, 55 Ind. 470. But fixtures wrongfully severed from the premises become personal property, and may be recovered in this action: Sands v. Pfeiffer, 10 Cal. 258; Brown v. Caldwell, 10 Serg. & R. 118; Heaton v. Findlay, 12 Pa. St. 304. Growing crops and growing trees. Growing trees are part of the realty, but when severed may be recovered under this statute: Cresson v. Stout, Oct. 11, 1862, 17 Johns. 116; Harlan v. Harlan, 15 $130. Pa. St. 514. So grass cut from the freehold has been held personal and recoverable: Johnson v. Barber, 5 Gilm. 426; and so of other crops: Bull v. Griswold, 19 Ill. 632; Langdon v. Paul, 22 Vt. 205. But replevin for hay cut on public lands cannot be maintained by a prior possessor against one who was in adverse possession, claiming a pre-emption right entered, when he cut the hay: Page v. Fowler, 28 Cal. 605; S. C., 37 Id. 100. And while the owner may recover for use and occupation, he can in no case be held to be the owner of the crops grown and actually harvested on the land by the defendant while in possession: S. C., 39 Id. 412. So also Pennybecker v. McDougal, 46 Id. 661. In Martin v. Thompson, 62 Id. 618, affirmed in Martin v. Dunand, 62 Id. 622, the court reviewed the earlier cases, and came to the conclusion that the action could not be maintained for the recovery of grain sown and harvested by the defendant on lands of which he claimed adverse possession. Personal effects cannot generally be taken from one's person on replevin: Maxham v. Day, 16 Gray, 214; S. C., 77 Am. Dec. 409. Plaintiff must have right to immediate and exclusive possession. The plaintiff must have the right to the immediate and exclusive possession of the property: Middlesworth v. Sedgwick, 10 Cal. 392; Reese v. Harris, 27 Ala. 306; McIsaacs v. Hobbs, 8 Dana, 268; Hil ger v. Edwards, 5 Nev. 84; Forth v. Pursley, 82 Ill. 152; Barry v. O'Brien, 103 Mass. 531; Russell v. Minor, 22 Wend. 659; and no other title is ordinarily necessary to sustain the proceeding: Crocker v. Mann, 3 Mo. 472; Prater v. Frazier, 1 Ark. 249; and this whether the claimant has ever had possession or not: Lazard v. Wheeler, 22 Cal. 139. In any case where the ownership is in one, and the right of possession in another, the latter is entitled to recover possession under this section: Child's v. Childs, 13 Wis. 20; McLaughlin v. Patti, 27 Cal. 452; as in the case of a bailee: Bowen v. Fenner, 40 Barb. 385; Summons v. Austin, 36 Mo. 308; and this though he is only entitled to the immediate possession for a special purpose: McLaughlin v. Patti, 27 Cal. |