the competency of a witness or the relevancy or competency of a question put to him or the answer given by him, as if the witness were personally examined, and without being noted upon the deposition. 1688d. Application to take deposition and to perpetuate testimony. Where a person has been, or he and those under whom he claims have been, for one year in possession of real property or of an undivided interest therein, claiming it in fee or for life or for a term of years, not less than ten, he may apply to the supreme court, by petition, to take the deposition of any person or persons and to perpetuate such testimony to be received in evidence pursuant to the provisions of this article. 1688e. Petition, what to contain. The person desiring to take a deposition and to perpetuate testimony as prescribed in this article may present to a justice of the supreme court a petition duly verified, setting forth as follows: First. A description of the real property in relation to which the petitioner desires testimony taken and perpetuated, the estate of the petitioner therein, whether in fee or for life, or for a term of years, and whether he holds as heir, devisee or purchaser, or ts trustee of an express trust. Second. That the property at the date of the petition is and for one year next preceding has been in his possession or the possession of himself and those from whom he derives title, either as sole owner or as joint tenant or as tenant in common. Third. A general statement of the facts as to which testimony is to be taken and the circumstances which render it necessary for the protection of the petitioner's rights that the proposed estimony should be perpetuated. Fourth. The names and residences of the persons to be exaxined. Fifth. The names and residences of persons having interests which may be adversely affected by the testimony sought to be taken, so far as such names and residences are within the knowl edge of the petitioner; or, where such names and residences cannot be ascertained, a statement of the class of persons having interests which may be so adversely affected. Sixth. Any other fact necessary to show that the case comes within the provisions of this article. 16881. Appointment of referee; notice to appear. Upon the presentation of the petition, the judge shall make an order containing directions as to the persons to whom, and the manner in which, notice shall be given of the time and place at which such application will be heard; and at the time fixed in said notice for that purpose, if it shall be shown to the satisfaction of the court that the case comes within the provisions of this article, the court shall make an order appointing a referee to take such testimony and prescribing the manner in which and the persons to whom notice shall be given of the time and place at which the testimony will be taken before said referee. § 1688g. Referee to take deposition. Before proceeding with the testimony, the referee shall require proof that due notice of the hearing has been given in accordance with the directions in said order contained, and thereupon the referee must proceed to take the depositions of the persons proposed to be examined, as stated in the petition, at the time and place mentioned in the notice, and may from time to time adjourn the examination to another day and another place within the same county. All the provisions of sections eight hundred and fifty-four, eight hundred and fifty-five, eight hundred and fifty-six, eight hundred and fifty-seven and eight hundred and fifty-eight of the code of civil procedure apply to the examination of a person taken as prescribed in this article. § 1688h. Examination; deposition to be signed and certifled. The referee upon every examination taken as prescribed in this article must insert therein every answer or declaration of the person examined, which any party to the said proceeding requires to be inserted. If upon the examination before the referee the person examined refuses to answer any question, the referee must report the fact to the court or a judge thereof, who must determine whether the witness is bound to answer the question. The deposition when completed must be read and subscribed by the persons examined, certified to by the referee, and within ten days thereafter must, together with the petition and order under which it was taken, and proof of service of all the notices required by this article, be filed in the office of the clerk of the county in which it was taken, and the said deposition or a certified copy thereof must be recorded in the office of the register (or clerk where there is no register) of the county in which the real estate is situated. § 1688i. Depositions as evidence. Subject to the provisions of this article, the depositions or a certified copy thereof may be read in evidence by any party to an action er proceeding, which shall involve the title to such real property, as against the person on whose petition said depositions were taken, each person to whom notice of the taking of such depositions was given as directed in the order appointing the referee, and all persons claiming from, through or under them or any of them. L 1901, ch. 303, In effect Sept. 1, 1901. 447d TITLE II. Actions relating to chattels. Article 1. Action to recover a chattel. 2. Action to foreclose a lien upon a chattel. ARTICLE FIRST. Action to recover a chattel. Sec. 1689. Joinder of action with others. 1690. When it cannot be maintained. 1691. Id.; after judgment against the plaintiff. 1692. Id.; by an assignee. 1693. Jurisdiction, etc., when a replevin precedes summons. 1695. Affidavit therefor, before commencement of action. 1696. Id.; after commencement of action. 1697. Id.; where several chattels are to be replevied. 1698. Provision where a part only is replevied. 1699. Plaintiff's undertaking for replevin. 1700. How chattel to be replevied. 1701. Id.; how taken from a building, etc. 1702. Replevied chattel; how kept, etc. 1703. When defendant may except to sureties; proceedings thereupon. 1704. When defendant may reclaim chattel; proceedings thereupon. 1705. Sureties; when and how to justify. 1706. When and to whom sheriff must deliver chattel. 1707. Penalty for wrong delivery by sheriff. 1708. Undertaking; to whom delivered. 1709. Claim of title by third person; proceedings thereupon. 1710. Action against sheriff upon such claim. 1711. Indemnity to sheriff against such action. 1712. When agent, etc., may make affidavit for replevin or return. 1713. Second and subsequent replevin; proceedings thereupon. 1714. Replevin, where order of arrest has been granted. 1715. Return, etc., by sheriff. 1716. Id.; how compelled. 1717. Replevin papers to be made part of judgment-roll, etc. 1718. Action not affected by failure to replevy. 1719. When and how plaintiff may abandon his claim as to part. 1721. Taking, etc.; how stated in complaint. 1722. Damages, when chattel injured, etc., by defendant. 1723. Answer of title in third person. 1724. Answer that property was distrained doing damage. 1725. Defendant may demand judgment for return. 1726. Verdict, etc., what to state. 1727. Substitute in certain cases for finding as to value. 1728. Verdict, etc., for part of several chattels; judgment thereupon. 1729. Damages how ascertained on default. 1730. Final judgment; docketing the same. 1731. Execution: contents thereof. 1732. Id.; sheriff's power to take chattel. 1733. Action on undertaking: when maintainable. 1735. Injury, etc., no defence. 1736. Abatement and revival of action. § 1689. Joinder of action with others. Nothing in this title 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 484 of this act. See § 1687, ante. § 1690. [Am'd, 1894.] When it cannot be maintained. An action to recover a chattel cannot be maintained in either of the following cases: 1. Where the chattel was 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; unless the taking was, or the detention is, unlawful, as specified in section sixteen hundred and ninety-five of this act. 2. Where it was seized by virtue of an execution, or a warrant of attachment, against the property of the plaintiff, unless it was legally exempt from such seizure, or is unlawfully detained, as specified in section sixteen hundred and ninety-five of this act. 3. Where is* was seized by virtue of an execution, or a warrant of attachment, against the property of a person other than the plaintiff, and at the time of the commencement of the action the plaintiff had not the right to reduce it into his possession. L. 1894, ch. 305; 2 R. S. 522, §§ 4 and 5 (2 R. S. 540), am'd. ¡ 1691. Id.; after judgment against the plaintiff. Where a chattel is replevied, in an action to recover the same, and a final judgment awarding the possession thereof to the defendant is rendered, a subsequent action to recover the same chattel cannot be maintained by the plaintiff, for the same cause of action. But the judgment does not affect his right to maintain an action to recover damages, for taking or detaining the same or any other chattel, unless it was rendered against him upon the merits. Id., § 62. 1692. Id.; by an assignee. An action to recover a chattel, the title to which has been transferred to the plaintiff, since the wrongful taking, or during the wrongful detention thereof, with or without the damages sustained by the taking, withholding, or detention, may be maintained in any case, where, except for the transfer, such an action might be maintained, by the person from or through whom the plaintiff derives title; but not otherwise. 1693. Jurisdiction, etc., when replevin precedes summons. Where a chattel is replevied before the service of the summons, as prescribed in this article, the seizure thereof by the sheriff is regarded as equivalent to the granting of a provisional remedy, for the purpose of giving jurisdiction to the court, and enabling it to control the subsequent proceedings in the action; and as equivalent to the commencement of the action, for the purpose of determining, whether the plaintiff is entitled to maintain the action, or the defendant is liable thereto. See 416, ante. 1694. Plaintiff may require sheriff to replevy. The plaintiff may, when the summons is issued, or at any time afterwards, and before the service of a copy of the defendant's answer, or, where judgment is taken by default for want of an appearance or pleading. before the entry of the final judgment, cause the chattel, to recover which the action is brought, to be replevied by the sheriff of the county where So in the original. |