« I UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE PRACTICE ACTION OF REPLEVIN WITH A COLLECTION OF PRACTICAL FORMS. BY JAMES JOHN WILKINSON, OF GRAY'S INN, ESQ. LONDON: HENRY BUTTERWORTH, LAW BOOKSELLER AND PUBLISHER, 7, FI.EET-STREET. 1825. teJ-5 LONI>ON : I'RINTF.D BY S. AND R. IW.NTI.EY, nOUSKT-STRliET. IMi E F A C E. The Author was induced by the great importance and difficulty of the Action of Replevin, and the want of a modern treatise on the subject, to collect the authorities, and from time to time arrange them for the benefit of his pupils ; a work which has occupied a considerable share of his attention. Having proceeded thus far, the Author considered he should, in some measure, fulfil a duty to the profession of which he is a member, by submitting to their notice, as he has done in the following pages, a connected view of the present Practice in the Action, from the granting of the Replevin to the end of the proceedings therein, together with the proceed- ings against the sureties and the sheriff, and pro- ceedings in recaption and second deliverance. To the practice is added, on the suggestion of several valualjle friends, a collection of useful IV PRErACE. Forms, many of which have, by the kind permission of the officers of the different courts, been examined with writs and other proceedings in actual prac- tice ; for many others he is indebted to his excellent friend Mr. Tidd ; besides which, several are now for the first time published from the MS. collec- tions of the Author and his friends. There is added, a fuU analytical Index to the Treatise, and another to the Forms. Considerable pains have been taken to render the whole an accurate and usefid guide to the profession. 1, Pump Court, Temple. TABLE OF CONTENTS. CHAP. I. Page. OF REPLEVIN GENERALLY ... 1 CHAP. H. OF GRANTING THE REPLEVIN BY WRIT AND BY PLAINT, AND OF THE PLEDGES AND PROCEEDINGS IN THE COUNTY COURT . 6 CHAP. HI. OF THE REMOVAL TO THE SUPERIOR COURTS 26 CHAP. IV. OF THE DECLARATION, AND OF THE PLAIN- TIFF'S JUDGMENTS BY CONFESSION AND DE- FAULT, &C. ..... 37 ri CHAP. V. Page. OF THE PLEAS TO THE DECLARATION, AND OF THE AVOWRIES AND COGNI7.ANCES . 46 CHAP. VI. OF THE PROCEEDINGS UNDER THE STATUTE 17 CAR. 2. C. 7, AND OF THE DEFEND- ANT'S JUDGMENT BY CONFESSION AND DE- FAULT 62 CHAP. vn. OF THE REPLICATION, AND PLEAS IN BAR, &c 74 CHAP. Yin. OF THE ISSUE, EVIDENCE, AND TRIAL . 79 CHAP. IX. OF THE JUDGMENT GENERALLY, AND AFTER VERDICT 90 CHAP. X. OF THE COSTS ..... 101 CHAP. XI. OF THE EXECUTION . . .109 vu CHAP. XII. Page. OF THE niOCEEDIN(;S AGAINST THE SUllETUiS, AND AGAINST THE SHERIFF . .112 CHAP. XIII. OF SCIRE FACIAS, AND OF ERROR AND FALSE JUDGMENT . . . . .126 CHAP. XIV. OF THE AVKIT OF RECAPTION FOR THE PLAIN- TIFF, AND WRIT OF SECOND DELIVERANCE FOR THE DEFENDANT . . . .131 PRACTICAL FORMS . . . . 143 ERRATA. Page 14, In note 3, lines 7 & 13, for " £\. l6s." read "£l. ]5s." 58. 6, for " Maule," read " Marsh." 1 16. 3, for " 382," read " 82." 224. Index, Tit. Highway, for " lawful," read " unlawful." 233. Trespass, for " for," read " in taking." TABLE OF CASES REFERRED TO. A. Page. 50.81 r.'J S8 15 i.n 121 133 52 139 139 50 118 ArgoU, Lady & Cheny, Palm. 403 . . . .133 Arnold v. Bingham, Dyer, 41 134 Arundell P. Trevill, Sid. 81 5.51 Attorney-General v. Brown, 1 Swanst. Rep. 296 . . 3 Austen r. Howard, 7 Taunt. R. 28. 327. 333.-2 Marsh Rep. 3.32. S.C 14. 15. IIC Abercrombie v. Parkhurst, 2 Bos. & Pul. 480 Absolon V. Knight & Barber, Barnes. 450 Allen r. Millward, Imp. C. P. 553.4 Andrews r. Hancock, 3 Moore Rep. 278 Anonymous, 2 Atk. 237 Sir Williajn Jones's Rep. 378 Latch. 72 2 Mod. 199 Moore. 68 • Owen. QS. 1 Salk. 94 5 Taunt. Rep. 776 B. Baker, assignee, w Horton, Willcs. 460 Baker v. Lade, Carth. 253 . Banks r. Brand & another, 3 Maule & S. 525 Bayley r. Boorne, 1 Str. 392 116 67 44 24 TAKI-E OF CASES. Page Bevan 1. Prothesk, 2 Burr. IIJI .... 29 Bishop V. Viscountess Montague, Cro. Eliz. 824 . . 2 Blackett X-. Crissop, Lord Raym. 279 . • . .11 Blackquierre r. Hawkins, 1 Dougl. 380 ... 24 Boote V. Wilson, 8 East R. 316 58 Boyle Ea-pU: 2 Dow. & Ryl. 14 .... 21 Bradbury r. Wright, 2 Dougl. 625 .... 75 Bradyll Ex. v. Ball, 1 Bro. C. C. 429 ... 10 Brander &: another v. Robson, 6 Term R. 33G . .116 Brandon & another v. Hubbard, 4 Moore Rep. 367, & 2 Brod. & B. 11 8 Brooke v. Willet, 2 H. Black. Rep. 435 ... 106 Brown r. Sayce, 4 Taunt. R. 320 ... 58, 82 Bulpit V. Clarke, 1 Bos. & Pul. 56 .... 58 Burn & Ux. t. Mattaire, Lee's Ca. temp. Hardw. 119 . 5 Butcher r. Porter, 1 Salk. Rep. 94 . . . .81,91 Butt's Case, 7 Rep. 23 52, 3 Butterton t. Furber & others, 4 Moore Rep. 296, & 1 Brod. & B. 517 102 Chamberlain Expte. Mathias, 1 Schoales & L. 320 . 2 Chapman & Another i. Butcher, Carth. 249 . . .113 Clarke v. Davis, 7 Taunt. Rep. 72.-2 Marsh. Rep. 386; S. C 58.74.81 Coan r. Bowles, Carth. 122 74 Cobb r. Bryan. 3 Bos. & Pul. 348 ... 75. 83 Combes r. Cole, Lee's Ca. temp. Hardw. 352 . . 66 Cone r. Bowles, 1 Salk. 205 138 Cook r. Green, 1 Marsh R. 234, 5 Taunt. R. 594. S.C. 106 Cooper J. Sherbrooke, Esq. 2 Wils. 116 . . 67,8.134 Cossey V. Diggins, 2 Barnew. & A. 548 Couchanan v. Lelhbridgc, 2 H. Black. 36 Craven v. Lady Vavasour, .5 Taimt. R. 35 Crosse V. Bilson, 6 Mod. 103, 2 Lord Raym. 1017 Cutficld V. Coney, 2 Wils. 83 . . . 86 124 39 J2.93 49 tabm: or casks, xi D. Page Da Costa r. Clarke, 2 Bos. ^ Piil. 378 . . . • '^ Davies c. James, 1 Term, R. 371 . . . 38, 103 Davis V. Powell & others, Willes. 46 . , , .4 Dennis v. Dennis, 2 Saund. Rep. 33G .... 79 Denny v. Hewson, 2 Fox & S. Irish Rep. 47 . 1()G,7,8 Dewall V. Marshall, 2 Sir Wm. Black. Rep. 921.— 2 Wils. 442 89 Dias V. Freeman, 5 Term R. 195 . . . .115 Dodd i>. Joddrell, 2 Term R. 235 . . • lOG. 108 Dorrington I'. Edwin, 3 Mod. 56 . . . .120 Duberley V. Page, 2 Term Rep. 394 . . .106.108 Dwyer v. Peacock, 2 Fox & S. Irish Rep. 34 . . 76,7 E. Eaton V. Southby, Willes Rep. 134 . . . . 1 Edwards J). Dunch, 11 East Rep. 183 .... 38 Elworthy v. Cowell & others, 6 Moore's R. 495 71.118 Evans v, Brander, 2 H. Black. Rep. 550 , 11. 14, 15. 41 F. Farnell v. , 2 Rolle's Rep. 434 Fletcher v. Wilkins, 6 East Rep. 286 . Forty *'. Imber, 6 East Rep. 434 .... Franklyn v. Reeves, Lee's Ca. temp. Hardw. 118. — 2 Str 1023. S. C Furneaux v. Fotherby & Clarke, 4 Campb. Rep. 136.7 137 6 83 41 58 G. Gamon v. Jones & another, 4 Term R. 509 . 25. 69. 99. 131 Griffith t;.Crockford, 6 Moore Rep. 51 ... 80 Griffiths?'. Stephens, 1 Chitt.R. 196 .... 9 Golding V. Dias, (inError), 10 East 2 . . . 138,9 V. Nias, 5 Esp. N. P. C. 272 . . . . 82 xu TABLE OF CASES. Goodman )\ Aylin, Yelv. 148 Gurney r. BuUer, 1 Rarncw. & A. 670 Gwyllim ;■. Scholey & another, 6 Esp. N. P. C. 100 Page. 52,S 104 123 H. Hallett r. Mountstephen, 2 Dow, & Ryl. 343 Harrison r. Barnby, o Term Rep. 248 Harvey r. Stokes, Willes 6 ... Hawkins r. Eccles & others, 2 Bos. & Piil. 359 Heffbrd r. Algar, 1 Taunt. R. 218 Hegan t. Johnson, 2 Taunt. R. 148 Herbert v. Waters, 1 Salk. 205.— Garth. 362, S. C Hill r. Bunning, 1 Sid. 20 . V. Wright, 2 Esp. N. P. C. 669 Hislop r. Chaphn, Cro. Ehz. 330 Hodgkinson v. Snibson, 3 Bos. & Pul. 603 Hool V. Bell, 1 Lord Raym. 173 Hopkins v. Shrole, 1 Bos. & Pul. 382 Horn r. Lewin, 2 Salk. 583 Hunt r. Cope, Cowp. 242 .118,19 . 75.83 . 110 . 74 114.119 82 . 88,9 . 41 83 . 102 43. 52 55 44 . 75 . 75 I. J. Jacob T'. King, 1 Marsh. Rep. 135,6 James v. Moody, 1 H. Black. R. 281 Jewell r. Hill, 1 Str. 499 Johnson v. Adams & others, 5 Mod. 77 V. Mason, 1 Esp. N. P. C. 91 Jones V. Davis, 1 Barnew. & A. 143 r. Kitchen, 1 Bos. & Pul. 76 14 37 24 89 82 35 75 K. Kinaston r. The Mayor, &c. of Shrewsbury, Lee's Ca. temp. Hardw. 297 88 King, The, r. The Bishop of Ely, Andr. 183,4 . . 24 I'. Lewis, 2 'I'trm. Rep. 617 . . .15 TABLE OF CASES. Xlll L. Page Lanyon r. Carne &: another, 2 Sauntl. Rep. 1G8 (?«) . 58 Lawndey r. Clarke, Barnes. 222 .... 31 Lindon v. Hooper, Cowp. 414 . . . . . 3 Lingham r. Warren & another, 4 Moore Rep. 409. — 2 Brod. & B. 36. S. C 75 Long V. Buckeridge, 1 Str. 112 45 Lord V. Hoiistown, 1 1 East 62 22 Lloyd, Esq. r. Winton, 2 Wils. 28 . . . .58 M. Martin v. Burton, 1 Brod. & B. 279.-3 Moore Rep. 608. S.C. 56 Matthews v. Carey, Carth. 74 . . . . .53 Mattravers t'. Fosset & others, 3 Wils. 295 . . .50.81 Medley v. Smith, 6 Moore Rep. 56 .... 86 Mellish & another v. Petherick, 8 Term. R. 450 . .116 Merriton v. Gilbee, 2 Moore Rep. 48 . ... 55.6 Middleton v. Bryan, 3 Maule & S. 156 . 13. 115. 119 T. Sandford, 4 Campb. N. P. C. 36 . . 115 Moore v. Bowmaker, 6 Taunt. 379. — 7 Taunt. 97. — 2 Marsh. Rep. 82. 392. S. C. . . 116. 118. 19 Morgan i. Griffith, 7 Mod. Rep. 380 . . . 15.113 Monnson v. Redshaw, 1 Saund. Rep. 194 (?«) 66.68. 116. 133. 4. 120,2,3 Moyser x.Gray, Cro. Car. 446,— Sir Wm. Jones, 378 . 121 N. Newman v. Anderton, 2 Bos. & Pul. 224 ... 58 O. Ormond, Duke of, v. Bierly, Carth. 519.— 12 Mod. 380 — 1 Salk. 99. S. C 113.116 P. Page V. Sir J. Earner, Kt. & another, 1 Bos. & Pul. 379 115,16. 122 Palmer & others v. Gooch, 2 Stark. N. P. C. 428 . . 2 XiV TABLE OV CASES. Page Palmer t. Mellor, 1 Lord Raym. 217 . - . . 95 Parry r. House, 1 Holt. N. P. C. 489 .... 83 Pearson t. Roberts & Groom, Willes. C68 ... Penson r. Lee, 2 Bos. & Pul. 335 . • . .106 Peploc t. Galliers, 4 Moore Rep. 163 . . . 71.137 Peppin i. Cooper, 2 Baniew. & A. 440 . . .14 Phillips r. Price, 3 Maule & S. 183 . . . .115 Pickering r. Trust & Another, 7 Term Rep. 53 . .44 Pimm r. Greville, 6 Esp. N. P. C. 95 . . .75 Playters r. Sheering, Ventr. 64 . . . .134 Poole V. Longueville, 2 Saund. Rep. 284 {?i) 54,5,6. 68. 75,6 42 41.50 . 133 . 116 Pope V. Tillman & another, 1 Moore Rep. 386. 7 Taunt. Rep. 642. S. C. Potter)). North, 1 Saund. Rep. 347 (") Pratt V. Rutlidge, 1 Salk. 95 ... Prendergrast v. Davis Si King, 8 Term. Rep. 85 R. Read t. llavvke. Hob. 16. . . V. How, 1 Brownl. Rep. 176 Rees V. Morgan (in Error), 3 Term Rep. 350 Reynolds v. Thorpe, 2 Str. 796 Richards r. Acton, 2 Sir Wm. Blackst. Rep. 1220 Rogers r. Pitcher, 1 Marsh Rep. 541 Roulston t . Clarke iS; another, 2 H. Black. 5G3 388- . 41 . 41 66. G7. 71 89 . 55 15, 16 . 74 58 S. Samuell t. Hoder, Cro. Jac. 520 . . . . .102 Sapsford v. Fletcher, 4 Term. Rep. 511 . .75 Seal, Assignee, &c. r. Philhps and Others, 3 Price Exch. Rep. 17 22. 45 Serres and W'iie i. Dodd, 2 New Rep. 405 . . 41. 61 Selby t'. Crutchley, 4 Moore Rep. 280. ... 45 Shannon v. Shannon, 1 Schoales and L. 324 ... 2 Sheape v. Culpepper, 1 Lev. 255, 1 Sid. 380, S. C. . 88 TABLE OF t'ASFS. Shortridge v. Hiern, 5 Term Rep. 400 . Silly V. Dally, 1 Lord Raym. 331—2 Salk. jG;2— Carth 444, S. C Smith V. Mullor, 3 Term Rep. G24 . V. VValgrave, 1 Com. Rep. 122 . V. Walker & Nias, 2 Lord Raym. 788 Stone V. Forsyth, Dougl. 708,9 Stork X'. Herbert & Eyton, 1 Wils. 242 Stubbs V. Parsons, 2 Barnew. & A. 516 . Syllivan v. Stradling, 2 Wils. 208 . XV Pag, 80 . 40 102, 132 . 102 . 105 40 . 15 76. 83 T. Tessyman r. Gilbert, 1 New Rep. 292 Thompson v. Jordan, 2 Bos. & Pul. 138 Thornton v. Adams & others, 5 Maule & S. 38 Topping V. Fuge, 5 Taunt. Rep. 772 Trevannion's Case, 11 Mod. Rep. 32 Trevihan v. Pyne, 1 Salk. 107 Trevors r. Michelbourne, Hutt. 77 Turner v. Galilee, Hard. 152 . Turnor v. Turner, 4 Moore Rep. 606, S. C Twells V. Colville, Willes, 375 16. 22 27. 31,2 r S. 38 59 40 8 53 120 102 Brod. &B . 107, . ( 7. 109 118 15 U. V. Valentine v. Fawcett, 2 Str. 1021, Lee's Ca. temp. Hardw. 138, S.C 89 Vaughan v. Norris, Lee's Ca. temp. Hardw. 187 114 Vernon (W.) r. Wynne, Bart. 1 H. Black. Rep. 24 . .44 W. Walton V. Kersop & another, 2 Wils. 355 . . 40. 50. 81 Ward (Widow) v. Creasey& another, 2 Moore Rep. 642 . 27,8 V. Lakin, Moore 678 37,8,9 V. Lavile, Cro. Eliz. 896 41 Weston V. Carter, 1 Sid. 9, 10 41 XVI TABLE OF CASES. Wildman v. North, 2 Lev. 92 . . V. Norton, 1 Ventr. 249 . Wilson t'. Ames, 1 Marsh Rep. 74 & another v. Hobday, 4 Maule & S. 120 Woodcraft i;. Kinaston, 2 Atk. 317 Wootton V. the Bailiff of Sir A. Cooke, 3 Dyer 280 Page. 61 91 75 117 3S 93 Wright V. Horton, 1 Stark R. 400—2 Chitt. Rep. 25, S. C 80 Y. Yea (Bart.) v. Lethbridge, 4 Terra Rep. 435 15. 124 Zinck V. Langton, Dougl. 743, 51 . 35 THE PRACTICE ACTION OF REPLEVIN. CHAP. I. OF REPLEVIN GENERALLY. Replevin, which is a personal action ( I ), has been so long used to try the legaUty of a distress (2), that it has been defined to be, the remedy given to a party to controvert the legality of a distress, in order to bring back the pledge to the proprietor, in case such distress were unlawfully taken, and without just cause. This is the definition given by Chief Baron (1) Willes Rep. 134. and under orders and con- (2) Distresses are for rents, victions of justices, .^'C. — See rent-charges, damage feasant, Bradby on Distresses, 1, &c. tolls, port duties, canal duties, B 2 PRACTICE IN THE (ri/bert{\); and 'Mr. Justice Blacksto?ie says (2), to replevy {rcplegiarc, to take back the pledge) is when a jRTson distrained iii)oii, applies to the sheriff or his officers, and has the distress returned into his possession, upon giving good security to try the right of taking it in a suit at law, and, if that lie determined against him, to return the cattle or goods once more into the hands of the distrainor. There are, however, many authorities to shew tlie action of replevin is not confined to distresses. Replevin lies for all goods and chattels unlawfull} taken (3): if a trespasser take cattle, replevin lies of this taking at the election of the party (4) : Re- plevin may be brought, in any case, where a man lias liad his goods taken from him by another(5) : a man may have detinue or replevin for goods taken Ijv a trespass(6); and it is said to be the constant i)ractice in Irdaml to issue writs of re- jil( vin in all cases where there has been a wrongful taking (7). (1) Gilb. Rcplev. 85; the (5) Bull N. P. 52. references are to the edition of (6) Cro. Eliz. 824. 1 79 1 by Mr. /////)/. (7) i Schoales and L. 320, 4. (2) 3 Hlack. Comm. 13. I Ball and B. 328. and note. (3) Com. Dig. tit. Ri- 2Stark. N. P.C. 428. Iftres- plcvin. Com. Dig. tit. Abate- pass, why not replevin? per ment, //. 24. liilliams Scrj. 2 Moore R. (V) 2 Roll. Abr. 130. -too. ACTION oi (tr.i'i.i:viN. 3 It is certainly against tlic extension of the action in this country, that it takes the goods out of the possession of the person, who has 2l prima facie title to thern, without even the oath of the plaintiff, and in some cases, it may be, without secunty : there are no words in the statute of Markbridgc 52 Hen. 3. c. 21. giving the remedy by plaint, which confines that remedy only to distresses; but it would be found upon prosecuting replevins upon general illegal takings of goods, that the action would have in a great measure to proceed on the old common law, most of the statutes applying only to distresses. Replevin lies for cattle and goods wrongfully taken at the suit of the person, who has an absolute or quali- fied property ( 1 ). It is said to be a rule, but liable to many exceptions, that whatever may be distrained upon, may be replevied (2), (considering replevin as the proper remedy at common law to try the legality of a distress) ; and as tenants-fixtures may be distrained, so they maybe replevied (3). The statute 2 William and Mary, c. 5, enacts, " Tliat sheaves or cocks of " corn, loose or in the straw, or hay in any barn or (1) Gilb. Rcplev. 151. (3) Cowp. 414. (2) 1 Svvanst. R. 29<5. 4 PRACTICE IN THE " granary, or in any hovel, stack, or rick, or other- " wise in any part of the land, may be seised or " secured for rent, and detained until the same be " replevied." Since that statute a replevin has always been allowed of such corn and hay; and, subsequently, by the statute 11 Geo. 2. c. 19, ^ 8, a distress being permitted on corn, grass, hops, roots, fruits, })ulse, or other produce growing, though such distress was of things annexed to the freehold, and though no words expressly authorize a replevin, yet it is the constant practice to try the legality of such distresses in an action of replevin. This action is also maintainable for beasts fer(£ naturce when reclaimed ; and as it has been held that deer kept in an inclosed ground may be dis- trained for rent ( I ), it seems replevin will lie for such deer to try the legality of such distress. Several persons cannot join in one replevin for several goods where the property is several (2). If the goods of a feme sole be taken, and she marries, her husband alone may sue the replevin, for the pro)K'rty being personal is transferred by the mar- riage, and vested absolutely in the husband (3), or (1) Willcs, 4C. Plac. 315. Co. Lit. 145. (2)Gilb. Replov. 15;}. Bm. (3) Gilb. Replev. 156. Abr. tit. I'aplev. pi. 1'2. Doc- ACTION OF JtEl'LKVIX. O the husband and wife may johi(l). Executors* inay have replevin for the goods of the testator taken in his lifetime ; for the general proi)erty is in the executors, and the possession ought to follow, and, therefore, the executor may recover the possession by this action (2). If goods are taken by A. by the command of B. tlie replevin may be against both or either (3). If cattle be taken in one county and carried into another, the i)laintiff may have his re- plevin in either county, for it is a caption in every county where they are taken by the defendant (4). Replevin lies for the young of animals distrained born since the distress (5). (1) Lee's Ca. temp. Hardw. (3) Gilb. Rcplcv. 152. 2 119; Selw. N. P. tit. Re- Roll. Abr. 431. plevin. (1) Gilb. Roplev. 157. V. (2) Gilb. Rcplev. 150. Bro. N. B. CS). Doc. IMac. J15. Abr. tit. Replcv.pl. 56. Sid. 80. (5) Gilb. Rcplev. 156. Sid. 82. (6) CHAP. II. OF GRANTING THE REPLEVIN BY WRIT AND BY PLAINT, AND OF THE PLEDGES, AND PRO- CEEDINGS IN THE COUNTY COURT. Replevin is either by original writ(i), or by plaint : Loi'd C. J. Wilks in one case (2) distinguished between replevin where damages are only to be re- covered, and replevin to have the goods again ; but Lord Koiifon C. J. in a subsequent case (3) observed ,t Prac. Forms, III. § 6. ACTION OK REVT.r.VlN. CI to plead several jjleas in bar to each avowry or cog-- nizance ; a circumstance which occasions great pro- hxity of pleading in tliis action, for, thougli tlie declaration be simple in its nature, tlie liberty of pleading several avowries, and of pleading several pleas in bar to each avowry, frequently occasions numerous issues. The demurrer to the declaration is not usual in practice, except where the place is omitted in the declaration. In the cases of Serres and his WiJ'e v. Dodd(\), the defendant demvuTed te the declaration, without adding any suggestion in tlie nature of an avowry, or praying a return ; and the plaintiff signed judgment, for want of an avowry ; and on a rule to set aside the judgment, it was contended that the demurrer, not being accompanied with an avowry, was a discontinuance ; that when the de- fendant pleads any plea which takes away the plaintiff's right to the goods, he need not avow (2), but that in other cases he must, or it is a discontinu- ance, for such plea did not lead to a termination of the suit, but the court said " the only question was, "whether the demurrer was frivolous; and not *' thinking it was so, they would not hold it to l)e " a discontinuance." (1)2 New Rep. 4.05. {2) 2 Lev. 92. ( 62 ) CHAP. VI. OF THE PROCEEDINGS UNDER THE STATUTE 17 CAR. II. C. 7, AND THE DEFENDANT'S JUDG- MENTS BY CONFESSION AND DEFAULT, &C. The defendant having pleaded either in abate- ment, or in bar, or having justified, avowed, or made cognizance, it is then the plaintiff's turn to proceed, and he either confesses judgment on the avowry or cognizance, suffers judgment by defaiUt, or pleads, or demurs. The defendant's judgment is so materially affected by the statute 17 Car. 2. c. 7.(1), that it seems ad- visable in this place, first, to detail the provision of that highly important statute ; and secondly, to give a commentary upon it, introductory to the proceed- ings upon this statute, in this and the succeeding cha])ters. This act recites " that the ordinary remedy for (1) Called in some of tlie books the Oxford Act. ACTION OF l{i:i'l.KVI\. (JJ " arrearages of rents, is by distress upon the lands " chargeable therewith ; but by reason of the intri- ** cate and dilatory proceedings upon replevins, th;it " remedy was become ineffectual ;" and it then enacts *' that whensoever any plaintiff in replevin sliall be " nonsuit before issue joined, in any suit of replevin " by plaint, or writ lawfully returned, removetl, or " depending in any of the king's courts at West- " minster; the defendant making a suggestion in " nature of an avowry or cognizance for such rent, " to ascertain the court of the cause of distress, the " court, upon his prayer, shall award a writ to tlic " sheriff of the county, where the distress was taken, " to inquire by the oaths of twelve good and lawful " men of his bailiwick, touching the sum in arrear " at the time of such distress taken, and the value " of the goods or cattle distrained : And thereupon " notice of fifteen days shall be given to the plaintifl' " or his attorney in com-t, of the sitting of such in- " quiry ; and thereupon the sheriff shall inquire of " the truth of the matters contained in sucli writ, " by the oaths of twelve good and lawful men of " his county : And upon the return of such in(iui- " sition, the defendant shall have judgiiieiit to " recover against the plaintiff the arrearages of " such rent, in case the goods, or cattle (lis- 64 PRACTICE IN THE " trained, shall amount unto that value ; and in " case they shall not amount to that value, then " so much as the value of the said goods and " cattle so distrained shall amount unto, together *' with his full costs of suit ; and shall have execu- " tion thereupon hy fieri facias, or elegit, or other- " wise, as the law shall require : And in case such " plaintiff shall be nonsuit after cognizance or avowry " made, and issue joined ; or if the verdict shall l)e " given against such plaintiff, then the jurors that " are impannelled, or returned to inquire of such *' issue, shall, at the prayer of the defendant, inquire " concerning the sum of the arrears, and the value " of the goods or cattle distrained : And thereupon " the avowant, or he that makes cognizance, shall " have judgment for such arrearages, or so much " thereof as the goods or cattle distrained amount " unto, together with his fuU costs, and shall " have execution for the same by fei^i facias, or " elegit, or otherwise, as the law shall require (1). " And that if judgment in any of the courts afore- " said be given upon demurrer for the avowant, or " him that maketh cognizance for any rent, the (1) ACTION OF REPLEVIN. 65 " court shall, at the prayer of the defendant, award " a writ to inquire of the value of such distress, " and upon the return thereof, judgment siiall he " given for the avowant, or him that makes cogni- " zance as aforesaid, for the arrears alleged t(j be " behind in such avowry or cognizance, if the goods " or cattle so distrained shall amount to that value ; " and in case they shall not amount to that value, " then for so much as the said goods or cattle so " distrained amount unto, together with his full " costs of suit, and shall have like execution as " aforesaid (1) : And that in all cases aforesaid, " where the value of the cattle distrained as afore- " said, shall not be found to be of the full value of " the arrears distrained for, that the party to whom " such arrears were due, his executors or adminis- " trators, may from time to time distrain again for •' the residue of the said arrears (2)." This statute 1 7 Car. 2. c. 7, has been extended ]>y the statute 19 Car. 2. c. 5, to the courts of Great Sessions in Wales, and to the sui)erior courts of the Counties Palatine. At the time of passing {\\v statute 17 Car. 2. c. 7, in all cases where the aid common law judgment was given in replevin for the (1) § a. (^) § 4- 66 PRACTICE IN THE avowant or person making cognizance, (except upon verdict where no writ of inquiry is awarded), the forni was to award a return of the cattle or goods distrained ; and if the distress had been either for rents, customs, services, or for damage feasant, an inquiry of damages and costs was also awarded pursuant to the statutes 7 Hen. 8. c. 4, and 21 Hen. 8. c. 19. {3(1). It is at the defendant's election, whether he will proceed upon the statute 17 Car. 2. c. 7, or not (2); but having this election either to pursue the remedy given by the statute 17 Ca7\ 2. c. 7, or to take the ancient remedy ; it was held by Lord Hardwicke C. J. " that the defendant having proceeded on the " statute, the Court of King's Bench would not " compel the sheriff to deliver up the replevin bond, " to enable the avowant to sue the sureties," and he added, " he did not remember one instance of that " being done (3) :" and it seems since to have been a very general opinion, that if the defendant in re- plevin proceed upon the statute, for the arrearages of rent and costs, he cannot have a writ de retorno kahendo, nor proceed against the pledges : but in a (\) 1 W'ms. Saund. Rep (3) Rep. temp. Hardukke, 194- "• 352. Com. Dig. tit. Pleader, (2) .'J Term Rep. 3.50. 3 K. 31. ACTION OF REPLEVIN. 07 late case of Tumor v. Turnor{ 1 ), which was an action on a replevin bond, and the plaintiff in tlic original suit in replevin, after removing the plaint into the Common Pleas, had become nonsuit ; to which ac- tion on the replevin bond, the defendant pleaded tlie writ of inquiry, and judgment to recover the arrears of rent under the statute, and the plaintiff denmrr- ed : It was held, that this plea was no bar to the action on the bond, it not shewing that any execu- tion had issued on the judgment, or that the sum recovered had been paid before action brought. This statute only applies to distresses for rent (2), but to all replevins, whether by plaint, or by writ returned, removed, or depending ; it applies to all the courts at Westminster, the court of great sessions in Wales, and the superior courts in the Counties Palatine but the remedy is not yet extended to any of the inferior courts. It was very early decided that the avowant, or person making cognizance, must enter up the judg- ment de retorno habendo, as at common law, in all cases (3) ; for it is said, that the statute 17 Car. 2. (1) 1 Moore Rep. 606. '2 Lord Harduic/a'. Brod. & B. 107- C.'>) Carth. 2.W. 2 Wils. Wi. (2) 2 Strange, 1221, per F 2 68 PUACTICE IN THE c. 7, hath not altered the judgment at common law, but only given a further remedy (1). The statute applies to four cases. 1st, When the plaintiff shall be nonsuit before issue joined. 2dly, A\Tien the plaintiff shall be nonsuit after cognizance or avowry, and issue joined. 3dly, When there shall be a verdict against the plaintiff ; and 4thly, When there shall be judgment on de- murrer against the plaintiff. 1st. Where the plaintiff in replevin shall be nonsuit before issue joined, the statute in all cases, except where the non pros is after avowry or cogni- zance (2), requires a suggestion in the nature of an avowry or cognizance ; the statute is silent as to whether the suggestion should be made before or after judgment, it is usual to insert the suggestion after judgment (3). After such judgment and sug- gestion, a writ of inquiry issues, to inquire of the sum in arrear at the time of distress, and of the value of the goods or cattle distrained (4) ; and after the writ of inquiry is executed, the defendant is entitled to a final judgment, to recover the arrear- (1) 2 Wils. 117, per Ba- (3) Po^^ Prac. Forms, thur^t, J. (4) 1 W'ms. Saund. Rep. {'1) 2 W'ms. Saund. Rep. 195, h. 2 W'ms. Saund. Rep. 2«G. V. 286, n. ACTION Ol RKl'l.EVlN. 69 tiges of such rent, if the goods or cattk' he ol that value, or to the vahie of the goods or cattle, if less than the rent. 2dly. When the plaintiff shall be nonsuit after cognizance or avowry, and issue joined. 3dly. When there shall be a verdict against the plaintiff, the jury impannelled to try the issue, and they only, at the prayer of the defendant, may in this and the preceding case, where the nonsuit is at the trial, inquire of the arrears of rent, and the amount of goods, and find the same by their ver- dict (1): the judgment is in both cases for the arrears of rent, or so much thereof as the goods or cattle distrained shall amount to. 4thly. When there shall be judgment on demm-rer against the plaintiff, there must be a writ of inquiry ; but the inquiry need not be of the arrears of rent, but of the goods only, for the statute directs the writ of inquiry to be awarded to inquire only of the value of the distress ; the judgment in such case is to recover the arrears of rent, if the goods or cattle amount to that value, if not, the amount of the goods or cattle distrained. (1) -3 Term. Rep. ^50. 1 Term Kci). 50!». 70 PRACTICE IN THE The costs in all these cases are stated in the statute to be full costs of suit. The statute gives execution upon the judgments by Jieri facias or elegit^ " or otherwise, as the law " should require." I incline to think that a capias ad satisfaciendum is not included under these words ; for, first, the old execution did not extend to the person ; and, secondly, the legislature would not have omitted to mention the highest writ of execution, if it had been intended to give that remedy. In conclusion the statute provides, that where the value of the cattle distrained, shall not be found to be of the full value of the arrears distrained for, a further distress is allowed for the residue of the arrears. It is not usual in practice, for the plaintiff to give a cognovit in replevin ; but there appears no objec- tion to the proceeding, after the defendant has first avowed, or made cognizance: it seems, that in the cognovit, the plaintiff should confess the matters stated in the avowry or cognizance, and consent to a judgment de retorno hahendo at common law, and either agree to a judgment for damages and costs under the statutes of Hen. 8. or admit the amount of the rent, and that the goods were of that value to ACTION Ol REPLEVIN, 71 entitle the defendant to a judgment under tlie statute J7 Car. 2. c. 7(1). Previous to the judgment of nun pros, tlie de- fendant should call upon the plaintiff by a rule, to reply, or plead in bar, as the case may ha, at the expiration of which rule, tlie defendant may sign judgment of non pros (2) ; which is either the judg- ment de retorn& habendo at common law, and a wiit of inquuy of damages under the statutes of Hen. 8. (3), or, more frequently, judgment de retorno habendo at common law, with a writ of in- quiry under the statute 17 Car. 2. c. 7 (4); indeed, after the judgment for a return, there appears to be no necessity for damages under the statutes of Hen. 8 : except to entitle the defendant to costs, and therefore a remittitur may be entered for the damages under those statutes, and the defendant may have judgment for the costs. (1) A late instance of a §14; after demurrer to avow- judgment by confession in re- ries, § 15. plevin occurs in 4 Moore Rep. (3) 3 Term Rep. 34'J. Post 163, and another in 6 Moore Prac. Forms, V. § 3; the like Rep. 495. after demmrer to the avowry (2) Post Prac. Forms, IV. V. § 6 ; notice of in inquiry, § 7, 8 ; and on demurrer to a § 7. plea in bar, § 9; woMp/o*, under {^) Post Prac Forms, V. the statute 17 Car. 2. c. 7. IV. ^ 8. 72 PRACTICE IN THE The first of these judgments is, that the plamtiff take nothing by his writ, but that he and his pledges to prosecute be in mercy, and that the defendant have a return of the cattle, goods, and chattels. There is then a further judgment, which is interlocu- tory, that the defendant recover his damages on occasion of the premises according to the form of the statutes of Hen. 8, followed by an award of a writ: \&i. deretorno haboido; and, 2dly, to inquire of the damages ; or the defendant may enter a remittitur damna for the damages, and by the final judgment on those statutes claim his costs only. The other of these judgments which is usual in practice, is similar to the last in the judgment de retorno habendo ; and it then, without any judgment to recover the damages, proceeds to pray the writ, under the statute 17 Car. 2. c. 7, to inquire of the sum in arrear of the rent, and of the value of the cattle, goods, and chattels ; after which follows an award of the writ of inquiry, without including the writ de retorno hahendo. After signing judgment of non pros, fifteen days notice, should be given of executing the writ of in- quiry, under the statute 17 Car. 2. c. 7.; and the defendant should be prepared, where the inquiry is uTidci that statute, to give evidence of the amount ACTION OF IIEI'LEVIN. 73 of rent in arrcar, and of" tlie value ol' Uk- ^oods. The plaintiff appears to have admitted the tenaney as stated in the avowry, the amount of rent in arrear, and therefore little evidence will be necessary, besides proof of the plaintiff being in possession during the time for which the rent is claimed, and it seems to rest with the plaintiff to prove that any part of the rent has been paid. The defendant must also prove the value of the goods : an inquisition ( 1 ) is made of the proceedings at the inquiry ; and on the retura of the writ of inquiry, the plaintiff will sign final judg- ment to recover the rent, if the goods are of that amount, — if not, the amount of the goods. (1) Post Prac. Forms, V. § 8. ( 74 ) CHAPTER VII. OF THE REPLICATION, AND OF THE PLEAS IN BAR, &C. The plaintiff, after the defendant has pleaded, repUes to the plea in abatement, to the plea in bar, or justification, or he pleads to the avowry, or cogni- zance, which being in the nature of a declaration, the pleas may be either in abatement or in bar: the plea in abatement (1) of an avowry, is unheard of in modem practice ; but, should it occur, judg- ment of abatement may be entered. Pleas in bar, traverse, some allegations in the avowry, or cognizance, or allege new matter. Pleas in bar to an avowry or cognizance, for rent and damage feasant^ will only here be considered. As to the first, (for rent,) pleas in bar either deny that the defendant was bailiff, or deny the demise by pleading non-tenuit, (2) or non-dhnisit, (3) oi- (1) Carth. 122. non est factum may he ])\eaded. (2) 2 Bos. & Pul. 265. 1 5 Moore C. P. 475. Marsh. 54L 6 Taunt. 209. (3) Pleas in bar of 1. non Where an indenture of demise tetuiit, 2. ricns in arrear. Post is specially stated in the avowry, Prac. Forms, III. § 8. ACTION OF REPLKVIN. 75 allege that the demise was bad in law by reason of the coverture( I ), or infancy (2), of tlie plaintiff; or, if good, that the defendant evicted the plaintiff (3); or, if the said rent became due, that it was tendered (4); or that the defendant had been satisfied by a former distress(5); or that nothing is in arrear(6). A set off under the statute 2 Geo. 2. c. 22, is not pleadable to an avowry for rent (7), but the plaintiff may plead in bar, that he hath paid a sum for ground-rent (8), or for landlord's taxes, or rates (9). The plaintiff is not allowed to deny the whole of the avowry generally, by pleading de injuria (10), or to deny the defendant's title by pleading nil liabuit (1) But where to an avowry for rent, the plaintiff pleaded in bar *' that before, and at the time of the supposed demise,and when the supposed rent became due, she was married to C," it was held, "that, whether it were to be presumed, that the cover- ture continued up to the time when the distress was taken, or not, the plea was no answer to the avowry." 2 Marsh. 286. 7 Taunt. 72. (2) 1 Marsh. 74. (3) Gilb. Replev. 200. Cowp. 242. (4) Gilb. Replev. 200. 6 Esp. N. P. C. 95. Bull. N. P. CO. (5) 4 Moore 409. 2 Brod. &B. 36, 602. (6) 2 Salk. 583. and see 5 T. R. 248. 3 Bos. & Pul. 348. (7) Barnes 450. (8) 4T. R. 511. (9) 3 Barn. & A. 516. 3 Moore 278. 2 Dougl. G25. (10) 2 W'ms. Saund. Rep. 284. n. 1 Heath Max. 127. 1 Bos. & Pul. 76. 76 PRACTICE IN THE in te7iementis{\)\ the plea in bar of the abuse of the distress, to make the defendant a trespasser ab initio, is taken away by the statute 11 Geo. 2. c. 19, ^ 19, by which " any irregularity or unlawful act, done by " the party distraining for rent justly due, or his " agent, shall not make the distress unlawful, or " the party a trespasser ab initio^ but the party " aggrieved, may recover full satisfaction, for the " special damage thereby sustained and no more, in " an action of trespass, or on the case." There is not any statute in Ireland similar to the statute 11 Geo. 2. c. 19, ^19, to prevent the land- lord from being a trespasser ab initio, by reason of subsequent in'egularity in the conduct of a distress. The judges in the King's Bench in Ireland lately held, that where the tenant consented to the post- ponement of the sale of a distress, he waived an ir- regularity, arising from the notice of sale not having been posted up in the next market-town as directed by the Irish statute, 25 Geo. 2. c. 13, and, there- fore, the landlord was not a trespasser ab initio (2). By the new Bankrupt act, 5 Geo. 4. c. 98, f 72, which is to take effect on the 1st May 1825, a dis- (1) Gilb. Replev. 109. 2 (2) 2 Fox & Smith. Irish Marsh. 220. 2 Wils. 208. 2 Rep. 34. W'ms. Saund. Rep, 284. n. ACTION OI KEI'LEVIX. 77 tress for rent, on the goods and effects of any bank- nipt, before, or after the commission, shall only hv available, for two years' rent accruing ])rior to tlic date of the commission. By the new Highway act, 3 Geo. 4. c. 12G, f 144, no distress under that or any other turnpike act shall be unlawful, or the party distraining a trespasser ab initio, on account of any irrcgvUarity ; but the party aggrieved, may recover damages in an action on the case ; and a similar provision exists in other statutes. To the avowry or cognizance for damage feasant, the plaintiff may reply, by denying the defendant's title, his seisin in fee, or the demise stated in tlie avowry or cognizance, or that the plaintiff is seised in fee, of other premises in respect of which, he is entitled to a right of common upon the locus in quo(\), or that the cattle escaped, by reason of the defect of fences, which the defendant is under an obUgation to repair : The plaintiff may also reply, that the distress was abused, whereby the defendant became a trespasser ab initio, the statute 1 1 Geo. 2. c. 19, § 19, applying only to distresses for rent (2), (1) See Woolrych on rights (2) See 2 Fox &• Smitli of common, 254, &c. Irish Hep. 34. 78 ACTION OF REPLEVIN. or that the plaintiff tendered amends in due time ; this subject need not here be pursued further. The plaintiff in replevin, is allowed by the statute 4 AnnCy c. 16, f 4, in any court of record, with leave of the court, to plead as many matters thereto as he shall think necessary for his defence : under this statute he is allowed to plead several matters to any avowry or cognizance, being in the nature of a decla- ration, but not to pleas in bar, or justifications. ( 79 ) CHAPTER VIII. OF THE ISSUE, EVIDENCE, AND TRIAL AT NISI PRIUS. When the cause is at issue, the issue is made u}) as in common cases, with this difference, that as in replevin both parties are actors, either the plaintiff or defendant (who is commonly more interested in obtaining a speedy trial) may make up the issue (1), or paper-book, for it is settled that the defendant in replevin, may take down the record immediately after issue joined, and not wait until the plaintiff has been guilty of a default, which every defendant must do, if he proceed by proviso. The defendant in reple- vin, therefore proceeds to trial without a proviso (2), and for that reason, the defendant cannot have judg- ment against the plaintiff, as in case of nonsuit on the statute 14 Geo. 2, c. 17(3). In a late case. (1) Pod Prac. Forms, III. (2) 2 Wins. Saiincl. Hop. § 9. "^'i(^- "■ (3) 5 Term. Rop. 100. 80 PRACTICE IN THE where the avowant carried down the cause to trial, \\^ithout having the similiter to the plea in bar, the Court of Common Pleas set aside the verdict for irregidarity, but without costs (1). The issue may- be entered of record by either party, and as both parties are actors, there is no rule to enter the issue, nor, as it seems, can there be judgment for not entering the issue ; the record and jury process (2), and other proceedings before trial, are as in common cases (3). The evidence (4) in replevin may be divided into two parts: 1st. as it relates to the points raised by the issue ; and 2dly, as to the damages : the most common issues in replevin are, 1st. Upon the pleas of non cepit, and cepit in alio loco; and 2dly, on pleas in bar to avowries and cognizances for rent, of non-tenuity riens in arrears and on pleas in bar to cognizances, denying that (1) 6 Moore Rep. C. P. 51, that both parties enter the but see 1 Stark. N. P. C. 400. cause for trial, so as to make a 2 Chit. Rep. 25, where the re- double entry , this occurred at cord was amended, in a penal the Hertford Sumyner Assizes action after verdict by insert- 1824, in two instances. ing a simUiter. (4) As to interrogatories, (2) Post Prac. Forms. III. see Willis on biterrogatories, §10. ],&c. (3) It sometime s happen s ACTION OF ur.I'LKVlN. 81 the defendant is bailiff, and on pleas in bar to avow- ries and cognizances for damage feasant. By the plea of non cepit, the caption and detention is only put in issue, and not the property, which is admitted (I) ; the simple point in issue, to which the evidence must apply, is therefore, whether the de- fendant took the goods or not (2). Under the plea of cepit in alio loco, the ])laintiff must prove, either that the cattle were taken in the place mentioned in the declaration, or that they were in the defendant's possession in that place ; for, as the defendant took them wrongfully at first, the wrong is continued in every place where he afterwards detains them (3). If the issue be found in favour of the defendant, it seems he should also be prepared to prove the facts stated in the suggestion in the nature of an avowry, to entitle him to a return ; for, though such avowry is held not to be traversable (4), yet it is necessary, under the statutes 7 Hen. 8, c. 4, & 21 Hen. 8, c. 19, to entitle the defendant to damages (5). Under the plea in bar of non tenuil, the defendant (1) See 7 Taunt 76. contra. (4) Sed. Q. 1 W'ms. Sauml. (2) Gilb. Rcplev. 165. Rep. 347. >i. (3) 2 Wils. 354. 3 Wils. (5) Id. 1 Salk. 94. 295. Bull. N. P. 54. 2 Bos. & Pul. 480. G 82 PEACTTCE IN THE must prove that the tenant mentioned in the avowry lield the premises of the landlord at the precise rent mentioned ; for where the avowry stated the demise to be for 110/. and a demise was proved for fifteen shillings an acre, amounting to 111/, this was held to be a fatal variance ; but the court allowed the avowant to amend and have a new trial (1\ Evidence should be adduced of the taking, and of the lease, or agree- ment; or ?i prima facie case may be made by proving the receipts for rent (2) : notice to produce which should be given to the landlord, though a mere trustee is not a competent witness to prove the title or demise for the person making cognizance (3). If, under an agreement for a lease at a certain rent, the plaintiff is let into possession before the lease is executed, occu- pation by him under the agreement is not of itself evidence of a tenancy, neither can the landlord distrain for the first rent (4). It will not be compe- tent for the plaintiff to shew that his landlord had (1) 4 Taunt. 320. demise by the husband only. (2) 1 Esp. N. P. C. 91. A 3 Taunt. R 180. See a case cognizance as bailiff, for rent of variance on mm est factum, due on a demise by husband where an indenture was spe- and wife, is not proved by a cially pleaded. 5 Moore Rep. bill of exchange drawn by the C. P. 475. husband only on the tenant for (3) 5 Esp. N. P. C. 272. former rent, that implying a (4) 2 Taunt. R. 148. ACTION OF REPI.EA'^IN. 83 110 title (1), though he may have obtained the posses- sion by fraud and the real title is in another per- son (2). It may be proved that rent is due for a less time than is stated in the avowry (3). Under the plea of riens in arrear, the plaintiff should prove that the rent has been paid; but he will not be allowed to prove payment of the rent to a person who has a superior title ; that and other cases of set-off allowed to be taken advantage of in replevin, should be specially pleaded ; if any part be in arrear, the defendant is entitled to a verdict (4). The plaintiff will not be allowed, under this plea, to controvert the holding stated in the avowry, even though the defendant may have mistaken the days of payment of rent ; for the plea of riens in arrear admits the title of the defendant, as stated in the avowry (5). To prove that the defendant is bailiff, he must shew either an authority previous to the distress, or that the landlord afterwards assented to it; and such subsequent authority will be also sufficient in the case of an avowry for damage feasant. (1) 2 Wils. 208. Holt. N.P. (3) 6 East 434. C. 489. See a note on this (4) 5 Term. Rep. 2)8. 3 subject by Mr. Holt. Holt. Bos. & Pul. 348. N. P. C, 492. (-5) 2 Esp. N. P. C. G69. (2) Holt. N. P. C. 489. q2 84 PRACTICE IN THE Where the issue is on the title stated in the avowry for damage feasant, it will be requisite for tlie defendant to produce the title-deeds, proving those of recent date by tlie subscribing witness, and shewing that the possession has gone with the deed ; or, if a seisin in fee, or a freehold be to be proved, it is prima fade evidence to shew the possession of the person so entitled. If the issue be on the demise, the lease or agreement should be proved ; and the like evidence will be requisite where the plea in bar to an avowry damage feasant states a title to other premises, in respect of which a right of common is claimed over the locus in quo. The light of common must be proved as stated in the pleadings (1). The evidence should also apply to the damages which are for the plaintiff at common law, and for the defendant under the statutes of Hen. 8, where the distress is for rents, customs, services, and damage feasant i and under the statute 17 Car. 2, c. 7, where the distress is for rent, the latter of which statutes requires that the defendant should in all cases bring forward evidence before the jury (1) Gilb. Replcv. IGl. See ject of evidence connected with Woolrych on Rights of Com- that important right is fully mon, 313, &c. where the sub- considered. ACTION OF UEI'LEVIN. 86 impannellcd to try the iasue of the amount of (lie iciit in arrear, and of the value of the goods and < attU; distrained, and if the jury find only one ot these facts and omit the other, there cannot l)c Judg- ment on this latter statute. The verdict in replevin is cither for the plaintiff or the defendant ; if the goods have not been de- livered on the replevin, damages are recovered for the plaintiff, as well for the value of the goods as for the detention, and this is said to be better than to proceed by way of withernam; in case the goods are delivered on the replevin, which is the case in general, damages are only to be recovered for the detention of the goods (1), which has been fixed on the Home Cii'cuit, and in London and Middlesex, at four guineas, the supposed expense of the replevin bond. The verdict should apply to all the issues, unless in the course of the trial any of them become im- material; therefore, where to an avowry for rent the plaintiff pleaded, 1st, non tcmiit ; 2nd. ricm in arrear : and the first plea was found for tlie plaintiff; the court held, that the second i)lea thereby became immaterial, the proper comse was (I) Gilb. Rcplcv. IGO ^6 PRACTICE IN THE to discharge the jury from finding any verdict upon it ; but that if any verdict was found, it should be for the plaintiff ( 1 ). Where a verdict is found for the plaintiff, subject to the opinion of the court, on a special case to be drawn up by the plaintiff, the court will not direct the case to be set down for argument, nor compel the party to draw up a special case, but the defendant may apply to set the verdict aside, and have a new trial (2). It appears, that at common law the defendant was not allowed any damages or costs in replevin (3) : to remedy this inconvenience, it was enacted by the statute 7 Hen. 8, c. 4. ^3, " Every avowant, and " every other person or persons that make avowry, " cognizance, or acknowledge or justify as bailiff to " any other person or persons, in any replegiance or " second deliverance for any rent, custom, or service ; " if their avowry, cognizance, or justification, be " found for them, or the plaintiffs in the actions " otherwise barred, shall recover their damages and " costs that they have sustained, as the plaintiffs " should have done if they had recovered in the " replevins." This statute was amended and ex- (1) 2 Barn. & A. 546. (,'j) Bohun. Replcv. 71. (2) 6 Moore Rep. 53. ACTION Ol' KKM.r.VlN. 87 tended by another statute ol' the saiiu' rtigii, '21 Hen. 8, c. 19, ^ 3, which enacts "• that every avow- " ant and every other person or persons that make " any suit, avowry, justification, or cognizance, as " baily or servant to any person or persons in any **' replegiare or second deliverance for rents, cus- " toms, services, or damage feasant, or other rent " or rents, upon any distress taken in any lands or '* tenements, if the same avowry, cognizance, or jus- " tification be found for them, or the plaintiffs in the " same be nonsuit or otherwise barred, that then " they shall recover their damages and costs against " the plaintiffs, as the same plaintiffs should have " done or had if they had recovered." It will be seen afterwards, in treating of costs, to what cases these statutes have been held to extend ; treble damages are given to the defendant by the statute 23 Hen. 8, c. 5. § 12, in any action of re- plevin brought against any person for taking any distress, or for any other act by authority of the commissioners of savers ; and treble damages are also given to the defendant by the statute 43 EUz. c. 3, J 19, upon verdict for the defendant, or nonsuit of the plaintiff after appearance, in any action of replevin respecting poofs rates. In the case of a distress for rent, th( jury may. S8 PRACTICE IN THE under the statute 17 Car. 2. c. 7, ^ 2, inquire con- cerning the arrears, and the value of the goods or cattle distrained, to entitle the avowant to judgment for such arrearages, or so much thereof as the goods or cattle distrained amount to. It is held, that the avowant may still enter up judgment at common law, or under this statute ; and therefore, if through mistake or otherwise it cannot be entered up under the statute, the defend- ant may take his judgment at common law. Thus, when under an avowry for rent the juiy inquired of the value of the cattle, but did not inquire what rent was in arrear ; it was held, that the omission could not be supplied by a writ of inquiry, the statute providing, that the jurors who were impan- nelkd to inquire of the issue, should inquire concern- ing the sum in arrear, and the value of the distress ; but the court held, that the avowant might have his judgment according to the common law(l). So, where a jury found a verdict for the avowant, and damages to the amount of the rent claimed in the avowry, but did not find either the amount of the rent in arrear, or the value of the cattle distrained : (1) 1 Lev. 255. 1 Sid. 380. Hardwickc, 207, 8. 1 Salk. 205. Cases temp. Ai'TioN oi jn:i'i,i:viN. 89 it was lickl, that this judgment was (.iiomtJiis, and could not be amended into a judgment undei the statute, because the neglect of sucli iiKjuiry by tlie jury could not in any manner be supplied by the court after error brought ; but they permitted the defendant to amend and enter a judgment pro rctoriio habendo at the common law (1). In every other case of replevin the omission of the jury to find damages for the defendant under the statutes of 7 Hen. 8, c. 4, and 21 Hen. 8, c. 19, or vmder the •13 Eliz. c. 2. ^ 19, &c. may be supphed by writ of inquiry (2) ; and Lord Hardwicke C/i. J. laid it down, " that in every case, unless where the court is " tied up ])y the statute 17 Car. 2. c. 7, which re- " spects only rent in arrear, a writ of inquiry may " be granted, in order to do complete justice (3)." (1) 3 Term Rep. 349. (S) 2 Str. 1021. Ca. temp. (2) Carth. 362. lSalk.205. Hard. 138. 5 Mod. 77. 2 Sir W. Black. Rep. 921. 3 Wils. 442. ( 00 ) CHAP. IX. OF THE JUDGMENT GENERALLY, AND AFTER VERDICT. After verdict for the plaintiff, judgment is given for the damages found by the jury, and costs. The judgment for the defendant is the important judgment in replevin, and is in general, as before observed, at common law, that he have a return of the cattle, goods, and chattels ( 1 ), in some cases replevisable, in other cases irreplevisable. It will, therefore, be necessary to consider, 1st, When the defendant is entitled to judgment de retonio habendo : and 2dly, When the same is replevisable^ or subject to the writ of second deliverance, and when the same is irreplevisable. In all cases where the defendant in replevin avows and hath judgment on such avowry, he shall have (1) On a verdict at common like under the statute 17 Car. law. Post Prac. Forms, IV. z, c. 7., IV. § IC. §10, On a nonsuit, § 11. The ACTION OF REPLEVIN. 9| return of the beasts awarded, because the avowry allows the caption, but avoids the injustice thereof, by shewing that he had good cause of taking such distress ; and consequently, if such cause of caption be approved of by the court, they must in justice return the pledge to the avowant (I). Where the defendant, instead of an avowry, pleads to the writ of replevin, that is, where he does not admit the caption, and avoid the injustice of it ; but by plea insists that the plaintiff ought not to have the replevin, whether the defendant took them or not ; yet here the defendant in some cases shall have return without any avowry or cognizance made. And in order to settle this, it will be neces- sary to take a distinction between pleas that disaffirm property in the plaintiff, and pleas that admit the property in the plaintiff (2). As if the defendant in replevin pleads property in the beasts himself, or in a stranger (whether it be pleaded in abatement, or pleaded in bar of the action, or by justification) (3), if the defendant prevails in it, he shall have retuni without any avowry, because if these pleas be true, they destroy all rjglit of complaint in tlie plaintiff (1) Gilb. Replev. 212. (3) Gilb. Rcplcv. 213. (2) Gilb. Replcv. 212. Salk. Vent. 249. f)'L 92 PRACTICE IN THE for the caption and retention ; and if the plaintiff hath no riglit to the replevin under the present form, nor under any other, he ought to have no benefit IVoni his unjust complaint ; and therefore the court must award restitution of the beasts to the defend- ant, out of whose possession they were taken by the replevin (1). If the defendant pleads property in the plaintiff and J. S., though this plea may abate the replevin under the present form ; yet by admitting the pro- perty in the plaintiff, it shews that the plaintiff and J. S. have a right to a replevin though vmder another form, and consequently the defendant shall not have return of the plaintiff's beasts, unless he shews good cause for such return, and avoids the injustice of the first caption complained of by the plaintiff (2). So if the plaintiff in replevin lays the caption in D. and the defendant pleads cepit in alio loco: this plea, if found for the defendant, may excuse him from damages, but can never give him a return of the beasts without suggestion in the nature of an avowry or cognizance, because he leaves the plaintiff a right to retain his beasts, when he neither denies (1) Gilb. Replev. 21(3. {'I) Gilb. Rqilev. ^'13. ACTION or IIEPLKVIX. 93 the property to be in the i)laintiir, nor slii'ws ativ cause why he should take tlieiii as a pledge (1). If the tenant taukr his Ycni at the time of the distress taken, or before impounding, and the lord refuses to accept of it, he sliall never after lia\e return of the beasts, though the rent be in arrear ; because the distress is but a })ledge for the rent, and when the rent is offered, the pledge ouglit to be restored ; consequently the court will never award the return of the pledge to the lord, which he ought to have restored to the plaintiff before the replevin was taken out (2). If the plaintiff be nonsuit before declaration (3), the defendant shall have return of the beasts, without making any avowry or cognizance, because where there is no express charge made against tlie defendant by a declaration in court, tlie defendant hath not an opportunity to shew his cause of caption, and, since this is owing to the default of the plain- tiff, he shall have no advantage from it, by detaining the beasts ; and therefore the defendant on such non- suit shall have return, though he liath made no avowry, or cognizance, or suggestion, in the nature (1) Gilb. Replev. 213,14. (.3) Gilb. Replev. 214. Bro. 2 Lord Raym. 1017. Abr. tit. Rdorn Dcs avers, pi. (2) Gilb. Replev. 214. 33. Dyer, 280. 94 PRACTICE IN THE of an avowry or cognizance (1). But if the plain- tiff* in replevin hath counted, and afterwards is non- suited, since by the count the defendant is charged vidth an unjust caption and detention, he must purge himself thereof by an avovrry or cognizance before he can be entitled to have retmn ; for the return of the beasts is ordered by the court on the justice of the original caption ; and therefore the defendant must first shew the justice of this caption before he can have a return (2). The return in this action was never irreplevisable at common law, whether the nonsuit of the plaintiff" had been before the avowry or cognizance, or after, or before or after issue joined ; because, where th© defendant had judgment for a return on a nonsuit, though after verdict, that judgment was not founded upon the verdict, but on the default of the plaintiff" in withdrawing himself at any continuance-day after the verdict ; so that, although the defendant had return, yet he had not the justice or legality of his caption established by such judgment ; and therefore as long as the caption and detention was not deter- mined by the judgment of the court, so long they (1) Gilb. Replev. 214. (2) Gilb. Replev, 214,15. ACTION oi in:n.KviN. 96 allowed the plaintill", after his own nonsuit, to take a new i^eplevin (1), Where the defendant pleads property in a stranger or in the defendant, these j)leas disaffirming the property of the plaintiff, are by verdict found for the defendant, or upon demurrer adjudged for him : in these cases the defendant shall have return irreplevisable ; for there could be no new replevin at common law, as upon a nonsuit, because the court had already given their judgment upon the kgality of the caption ; for if the proi)erty be in the defend- ant or a stranger, the plaintiff could have no cause to complain ; and therefore to grant a new replevin, or, which is the same thing, not to have made the return irreplevisable, were to leave that same point open to an examination, which had already been determined ; and no second deliverance can be given by the statute, for that is only upon the plaintiff's nonsuit (2). But if the defendant pleads property in the plain- tiff and J. S. in abatement, which only abates the writ under the present form, or pleads ccpil in alio loco in abatement, which al)ates the count, and consequently the writ ; in these cases, as there can (1) Gilb. Replev. 215. (2) Gilb. Replcv. '-'in. I Lord Havni. 217. 9G PRACTICE IN THE he no return without an avowry or cognizance, for reasons already given, so that return cannot be in the nature of the thing iiTcplevisable, because these pleas only aljating the replevin, must necessarily allow a replevin under a better form : and it were a contradiction to allow a new replevin to the plaintiff for the same beasts, which the court hath returned to the defendant irreplevisable; so if the plaintiff confesseth the plea of the defendant to be true, the defendant shall have return, but not irreple- visable (1). The act which creates the writ of second deli- verance (2), and awards the return irreplevisable, extends only to the king's superior courts of jus- ice, for the act dii-ects, " quod attachietur Hie qui " distriniit ad veniendum certum diem coram jus- " ticiariis ;" which words are to be understood of the king's justices in his superior courts, for the judges of inferior courts are looked upon as more subject to mistake and partiality, and therefore not to be trusted with the power of awarding a return irreplevisable, which is for ever to conclude the ])laintiff; but it seems, that where judgment was given u])on verdict, and not upon nonsuit, the infe- (1) Gilb. Replev. 220. (2) See Chap. 14. ACTION OF KKl'LV.VIN. ) Per Ld. KtivK.ii. C. .1. (2) Towns. Judgm. 200,7. 4 Term Kqi. .'ilO. II 2 100 ACTION OF REPLEVIN. The judgment on verdict is for a return at com- mon law, and also to recover the damages and costs assessed by the jury under the statutes of Heti. 8, where the defendant proceeds upon those statutes ; or if the distress was for rent, it is generally advis- able to proceed on the statute 17 Car. 2. c. 7. J 2, and in that case the judgment is to recover the arrearages of rent, or so much thereof as the goods or cattle distrained shall amount to, with costs. ( •<" ) CHAP. X. OF THE COSTS. In this chapter will be considered, 1st, the plaintiff's, 2dly, the defendant's costs, 3dly, the costs of double pleading (1). 1st. As the plaintiff m an action of replevin might have recovered damages at common law, so by the statute of Gloicceste?\ 6 Ediv. 1, c. 1, he is entitled to costs (2). 2dly. The defendant in| replevin was not entitled to any costs at common law ; nor until the statute 7 Hen. 8, c. 4, which gives damages and costs to every avowant and person making cognizance, or justifying as bailiff in replevin, for any rent, custom, or service, if his avowry, cognizance, or justification, be found for him, or the plaintiff be otherwise barred ; which has been extended by statute 2 1 (1) Costs in error, Pusi chap. tilicate that the cause was pro- XII. per to be tried by a special (2) Gilb. Replev.208, Ccr- jury. /'o.s/ Prac. Fonns, III. 1 1 . 102 PRACTICE IN THE Hen. 8, c. 19, to avowries, persons making cogni- zance and justifying damage feasant. These statutes have been construed to extend to the case of an estray (1), and to an amerciament in a court leet(2), and to an avovi^ry by an executor, imder the subsequent statute 32 Hen. 8, c. 37, though the latter statute is silent as to costs (3); but not to pleas of property in the defendant in the goods dis- trained (4), nor to pleas of cepit in alio loco, pleaded in abatement where the suit is abated (5), for the statute 7 Hen. 8, c. 4, gives costs where the plaintiff is barred, and the statute 21 Hen. 8. c. 19, gives costs where the plaintiff is nonsuited; but where the suit abates, the plaintiff is neither barred nor nonsuited (6). The statute 43 Eliz. c. 2, which gives to the defendant treble damages with his costs, in an action on a distress for poor-rates, has been lately lield, to entitle the plaintiff only to single costs (7). By the statute 1 Jac. 1, c. 15, ^ 16, relating to l)ankrupts, the defendant is entitled to costs after (1) Cro. Eliz. 330. (5) 1 Com. Rep. 122. 2 Ld. (2) Cro. Jac. 520. Hard. Raym. 788. 1.53. Cro. Eliz. 330. (G) 1 Com. Rep. 122. 2 Ld. (3) Gilb. Rcplcv. 209. 2 Raym. 788. Roll. R. 37. (7) 4 Moore 290. 1 Brod. (4) Hard. 153. & B. 517. ACTION OF KKI'LEVIN. ^^^^ verdict for him upon the general plea given hy tluit statute (1). By the statute 4 Jac. 1, c. 3, " if any person shall " commence any action in any court, wherein the " plaintiff or defendant might have costs, in case " judgment should be given for him, and tlie " plaintiff, after appearance, he nonsuited, or a ver- " diet pass against him, the defendant shall have his " costs." This statute is not confined to suits com- menced in the superior courts ; and where a defend- ant removed proceedings by a recordari from the county court into the King's Bench, and signed judgment of non pros, in default of the plaintiff's appearing, it vt^as held, that defendant was entitled to costs, not on the statute of 13 Car. 2, stat. 2. c. 2, which is confined to suits commenced m tlie superior courts, but to the before-mentioned statute, 4 Jr/c. l,c. 3(2). The statute 17 Car. 2, c. 7, gives full costs where the defendant proceeds on that statute. The statute 11 Geo. 2, c. 19, which gives the common avowry, enacts, that " if the plaintiff should become nonsuit. (1) See the new Bankrupt which gives double costs. Act, 5 Geo. 4, c. 98, § 44, (re- (2) 1 Term Rep. .371 pealing the stat. l.Jac. 1, c.l5), 104 PRACTICE IN THE " discontinue, or have judgment against hirn, the " defendant should recover double costs of suit." This statute is confined to three specific cases, — nonsuit, discontinuance, and judgment ; and there- fore, where in replevin, the cause not being at issue, the parties agreed by bond to submit the question to arljitration the costs to abide the event, and the arbitrator afterwards awarded in favor of the defend- ant, it was held by the Court of King's Bench, that he was not entitled to double costs; and that the master had done right, having allowed only single costs ; and Abbott J. observed, that if the arbitrator had awarded a discontinuance, it would have been different (1). By the statute 4 Anne c. 16, ^ 4 & 5, " the de- " fendant or tenant in any action or suit, or any " plaintiff in replevin in any court of record, may, " with the leave of the same court, plead as many " several matters thereto, as he shall think necessary " for his defence : provided, nevertheless, that if " any such matter shall upon demurrer joined be " judged insufficient, costs shall be given at the dis- " cretion of the court ; or, if a verdict shall be found " upon any issue in the said cause for the plaintiff (1) 1 Barn. & A. G7a. ACTION OF KEl'l-EVIN. !(.)."* " or demandant, costs shall also be given in like " manner, unless the judge who tried the issue shall " certify that the defendant or tenant, or ptaititijf' " in replevin^ had a probable cause to plead sucli " matter, which upon the said issue shall be found " against him ( 1 )." This statute extends to the action of replevin, and not only expressly to the plaintiff, but also to the avowant or defendant in replevin, who, though not within the words, is, and has always, as it seems, been considered to be, within the meaning of the statute (2), and therefore the defendant may plead several pleas, avowries, or cognizances, and the plaintiff may plead to the defendant's avowries or cognizances, several pleas in bar. The meaning of the legislature in passing that act was, that, though they would grant an indulgence to a defendant, &c. by permitting several pleas to be pleaded, yet it should not be prejudicial to the other side, and therefore, the costs of double pleadings are left in the discretion of the court ; l)ut the quaiitutn of costs only is so left, and a discretion is not vested in the court whether they will or will not allow any costs at all. The form for entering the jiulgnieiit (I) 1 Tidd Prac. 712,1^. ('J) Dougl. 708,<». lOG PRACTICE IN THE for costs states it to be by the discretion of the court (1). It has been held in the case of Dodd v. Jod- drell (2), that where some issues in replevin are found for the plaintiff, which entitle him to judg- ment, and some for the defendant, the defendant must be allowed the costs of the issues found for him out of the general costs of the verdict, unless the judge certify that the plaintiff had probable cause for pleading the matter on which those issues are joined ; and in such case, it is the practice of both the King's Bench and Common Pleas, not only to allow the costs of the pleadings, but also the costs of the trial of the issue (3) ; and the costs of such parts of the pleadings and briefs, and of such wit- nesses as are not applicable to the points on which the verdict for the successful party proceeds, must be deducted from the general costs (4). In a late case, where the defendant in replevin avowed for rent in arrear, and that the goods had been clandestinely removed, and the plaintiff pleaded 1st, 7ion temiit, 2dly, ricns in arrears and 3dly, that the goods were not clandestinely removed, and (1) 2 T. R. 394. (4) 2 Bos. & Pul. S35. 2 (2) 2 T. R. 235. Fox & Smith's Irish Rep. 47. (3) 2 n. Blackst 135. ACTION or ui:ri,i:viN. 107 the last issue was only found for the plaintilV. it w;is held, that the defendant was entitled to deduct from the plaintiff's costs the costs of the two first issues, which were found for the defendant (1). In replevin in the King's Bench in Ireland^ the defendant pleaded mm cep'it and six cognizances. He succeeded on one cognizance, and failed on tlio others, and also failed on the plea of iion cqnt. Upon motion on behalf of the plaintiff, that she might be allowed, on taxation, the costs of the issues found for her, the judge not having certified under the Irish statute of 6 Anne, c. 10, (i 3 & 4, (which is similar to the English statute 4 Ann. c. IG, ^ 4, 5), but the judge having at the time of the motion stated that it was a proper case for his certificate, except as to the plea of 7i07i cepit, it was held, that the plaintiff should be allowed the costs, she was put to by that issue, but not the costs of the cognizances which had been found for her (2). The judge who tried the issue may, however, certify that the defendant or plaintiff in replevin had a probable cause to i)lead such matter; and in such case the costs of the issues are not to be de- (1) 1 Marsh. 231. 5 Taunt. (':) 2 box cS; S. Irish lUp. 594. 2 Fox (S: S. Irish Rep. 17. 47. 108 ACTION OF REPLEVIN. ducted (1). Tlie certificate is not required to be made in court at the trial of the cause (2), It is said that there is not any instance of a judge at Nisi Prills certifying in favour of the party pleading double, when the issues on those pleadings are found against him ; for it is but just that the party who has created that expense, should pay it (3). If a party go to trial upon an immaterial issue, the court will revert to the first faidt upon the pleadings, and award a repleader; in which case no costs are paid by either side upon the pleadings subsequent to the fault (4): acting upon this prin- ciple, where the avowant in replevin, after trial and verdict for the plaintiff, obtained judgment non obstante veredicto, in consequence of the plaintiff's pleas in bar being bad, he is not entitled to any costs upon the pleadings subsequent to the pleas in bar, because he shoidd have demurred to them (5) ; for the plaintiff had contributed to the costs as well as the defendant : he should have demurred to the defendant's plea ; and by going on to trial he was equally in fault (6). (1) 2 Term Rep. 237. 2 Fox & S. Rep. 47. (2) In a case in the King's (3) 2 T. R. 394. Bench in Ireland, Burton, J. (4) 2 Bos. & Pul. 379. agreed to grant liis certificate, (5) 2 Bos. &. Pul. 376. after a motion for the taxing (6) 2 Bos. & Pul. 377,8. officer to review his taxation. ( loo ) CHAP. XI. OF THE EXECUTION. There are various executions in replevin. 1st. The plaintiff may have execution for his damages and costs by writ of capias ad satisfaciendum, fieri facias ( 1 ) or elegit. For the defendant, the executions are, 1st. at common law, de ixtorno hahendo. 2dly, under the statute 7 Hen. 8, c. 4, and 21 Hen. 8, c. 19 ; and 3dly, under the statute 17 Car. 2, c. 7. The execution at common law was by a writ de retorno hahendo (2), which is issued by the Filazer in the King's Bench and the prothonotary in the Com- mon Pleas (3). Under this writ it is the duty ol' (1) Vo$t Prac. Forms, VI. §1. (2) See a precept in the nature of a writ dt retorno lui' bendo, in the county court, Post Prac. Forms, VI. § 4 ; in K. B. or C. P. for want of a de- claration, § 5. ; for want of a plea in bar, §6.; the like on demurrer to plea in bar, with writ of inquiry of damages, § 7. ; the like after verdict and Jieri facias for damages and costs, § 8, 9.; after nonsuit, §10. 4 Moore R. GOG. '! Brod. & B. 107. (;}) Ro|). Com. C. P. (IS 19) 28. 110 PRACTICE IN THE the sheriff to take from the plaintiff the goods that were replevied; this is seldom effected; indeed, the retoDio hahendo is not often issued, except to ground proceedings on the replevin bond, or against the sheriff; and in the former case it is not absolutely necessary, for the pledges may be proceeded against without issuing a writ de retorno habendo, even after the avowant has proceeded on the statute 17 Car. 2, c. 7(1). If the plaintiff secrete, or otherwise dispose of the goods, the sheriff re- turns that the goods were eloigned (2), and removed to places unknown. Upon this return, the writ and return being filed with the custos bi^evium in the King's Bench, a capias in withernam (3) will be issued by the Filazer in the King's Bench, or the prothonotary in the Common Pleas (4), directed to the sheriff, commanding him to take in withernam the cattle, goods, and chattels of the plain- tiff to the value of the cattle, goods, and chattels before taken, to be delivered to the defendant, to be kept by him tUl the sheriff can cause to be returned the cattle, goods, and chattels, before (1) Willes 6. ciendum for damages and costs, (2) Post Prac Forms. VI. § 13. Ul. (4) Rep. Com. C. P. (1819) (3) Vost Prac. Forms, VI. 28. § 12, 13., with capias ml salisfu- ACTION OF REPLEVIN. 1 1 1 taken, and to put by gages and sale pledges tlie plaintiff, to answer as well for liis contempt as to the defendant, for the damages and injury to him done. If the plaintiff has not any cattk' or goods, which can be taken under this writ, and the sheriff has returned that fact, the defendant may proceed against the pledges, or against the sheriff, if the pledges be insufficient, or no pledges are taken. If the defendant should not take judgment under the statute 17 Car. 2, and damages shall be assessed under the statute 7 Hen. 8, c. 4, and 21 Hen. 8. c. 19, he is entitled to recover those damages and costs, as the plaintiff would have done if he had recovered, and consequently, he may have a capias ad satisfaciendum^ fieri facias, or elegit. If the defendant has proceeded under the sta- tute 17 Car. 2, c. 7, he will be entitled to exe- cution by fieri facias (1) or elegit. The statute adds, " or otherwise as the law shall require,'' un- der which words, it is a point not settled, whelhei he be or be not entitled to a capias ad satisfacien- dum. (1) Post Prac. Forms. VI. § 2, .'3. 8, D. ( 112 ) CHAP. XII. OF THE PROCEEDINGS AGAINST THE SURETIES, AND AGAINST THE SHERIFF. It will be recollected, that the sheriff was obliged by the statute Westm. 2nd, (13 Edw. 1, c. 2), to take from the plaintiff not only pledges for the prosecution of the suit, but also for a re- turn, if a return should be awarded, which was usually by bond, either of the plaintiff and his sureties, or fi'om sui'eties only; the sheriff was also particularly required by the statute 11 Geo. 2, c. 19, in every replevin in a distress for i^ent, to take in their own name from the plaintiff, and two re- sponsible persons as sureties, a bond in double the value of the goods conditioned for the prosecuting the suit with effect, and without delay, and for duly returning the distress in case a return shall be awarded. Before the passing of the statute 1 1 Geo. 2, c. 19, it seems to have been the practice to take bonds under the statute Westm. 2nd, conditioned ACTION or llEl'I.EVIN. Wi to prosecute the suit with efTect, and alsn make return, though the latter was the only condition expressed by the statute. It has been held, with respect to bonds upon tlie statute of Westm. 2, that the plaintiff must pro- secute his siut with effect, otherwise he is lial)le. But where the plaintiff had given a replevin bond with that condition, and the action was afterwards stayed by injunction, during which time the plaintiff in replevin died, so that there was neither nonsuit, nor a verdict against him, it was adjudged " that he " had prosecuted his suit with effect (1)," within the meaning of the condition. It has also been ad- judged upon bonds given under the statute of Westm. 2, that they apply to all the proceedings in the action, as well those in the court below, as in the superior court to which the cause may be removed (2). Under the statute 1 1 Geo. 2, c. 1 9, the bonds are, in general, taken to prosecute the suit with effect, to return the goods replevied, and sometimes, also to indemnify the sheriff. The decisions ui)on this statute agree with those on the statute of Westm. 2. (1) Carth. 519. 12 Mod. (2) Cartli. .'4?. 7 Med. 380. 380. 114 PRACTICE IN THE where a replevin bond was conditioned to appear in the county court, and then and there to prosecute the suit with effect, and also, to indemnify the sheriff, it was holden, that the words " then and " there" related to so much of the prosecution as should be in the county court, and that the defend- ant was bound to prosecute the cause with effect ; besides, he was to indemnify the sheriff, and the removal of the cause, and nonsuit thereupon was a damnification to the sherifr(l). The sureties under the statute 11 Geo. 2. c. 19, are liable to the amount of the penalty of the bond, and costs (2). The action on the bond may be brought by the sheriff or his assignee, for it is fiirther enacted by the statute 11 Geo. 2. c. 19, " that the sheriff or " other officer, having authority to grant replevins, " taking such bond shall, at the request and costs " of the avowant or person making conuzance, " assign (3) such bond to the avowant or person " aforesaid, by indorsing the same, and attesting it " under his hand and seal, in the presence of two or " more credible witnesses, which may be done (1) Ca. temp. Hard, by Lee, (3) Sec Post Prac. Forms, I. 137. § 5. (2) 1 TauDt. Rep. 218. ACTION OF TtEPI,EVIN. 1 1 . '* without any staiui), providcil tlic assignment so '* indorsed be duly stamped before any action *' brought thereupon ( 1 ) ; and if the bond so taken " and assigned l)e forfeited, the avowant, or jwrson " making conuzance, may bring an action, and re- " cover thereupon in his own name ; and the " court (2) where such action shall be brought may, " by a rule of the same court, give such relief to " the parties upon such bond, as may be agreeable to " justice and reason ; and such rule shall have the " nature and effect of a defeasance to such bond (3). ' Under this statute the assignment is made by the sheriff (4) to the avowant or conuzor, as expressly directed (5) ; or to the avowant and conuzor (6), or to the avowant only, though there be a conuzor (7) ; or to the conuzor only if there be no avowant (8) : but it seems questionable, whether the assigTiment (1) The stamp duty (now sherirt", hut hy a person accus- £l. 165.) will cease after the tomed to act in the sheriff's 10th October, 1824. office, m the name of the she- (2) Where the replevin is riff, and under the seal ot" the determined in the county court, office, has been lield sufficient. the action on the replevin bond 4 Camp. N. P. C. 30. may be brought in the superior {5) 3 Maule & S. 183. courts. 5 Term Rep. 195. (6) 3 Maule & S. 183. (3) 3 Maule & S. 156. (7) 1 Bos.&Pul. 379, 3S\,'2 (4) An assignment signed, (S) 1 Bos. & Pul. 378. 381. not by the sheriff or under- 5 Term Rep. lf>7. I 2 liG PRACTICE IN THE can be to the conuzor where there is an avowant (1). If the avowant, or person making cognizance, take an assignment of the replevin bond, and sue the prin- ciiml and sureties in the bond, and they are found to be insolvent or insufficient, he may afterwards bring an action on the case against the sheriff for taking insufficient sureties : for taking an assign- ment of the replevin bond from the sheriff is no waiver of any proceedings afterwards against him, as it is in the case of a bail-bond (2). It is advisable to proceed in the name of the sheriff, where the bond is not framed in all respects according to the statute (3), and where the plaintiff in replevin suffers himself to be non prossed before declaration (4). The defendant cannot be arrested in the action on the replevin bond (5), whether the action be brought in the name of the sheriff, or his assignee ; but after judgment has been obtained against the sureties, as they may be taken upon a capias ad satisfaciendum, grounded on the judgment, so, it seems, they may be holden to bail in an action on the judgment (6). (1) 1 Bos. & Pul, 382. Willes, 460. (2) 1 W'ms. Saund. Rop. (j) 1 Salk. 99. Rule M. 8 195. n. Anne, (c) K. B. (3) 7 Taunt. Rep. 28, 333. (6) 6 Term Rep. 336. 8 2 Marsh. 382. Term Rep. 85, 450. (4) Bull. N. P. 60. n. ACTION OF UEPI.KVIN. 117 The declaration on the replevin bond, at the suit of the sheriff, may be either general, stating nurely the obligatory part of the bond, or special, in w hich latter case, it is similar to the action at tlic suit of the assignee. The action at the suit of the assignee on the bond taken vmder the statute 11 Geo. 2. c. 19, ij 23, most frequently occurs in practice ; the venue may be laid in any county; the plaintiff may declare in the debei and detinet, or in the detinet only ( 1 ). The declaration states the distress, and that it was for rent ; the application and prayer to the sheriff to replevy, that the sheriff took a replevin bond, the obligatory part and condition of which must be truly set out ; it should then be stated that the replevin was granted ; that at the county court mentioned in the condition the plaintiff in replevin levied his plaint, and found pledges. The proceedings in re- plevin are then stated, and the judgment de retorno habendo ; and it is averred that the plaintiff in re- plevin did not return the goods, and that tlie bond became forfeited to the sheriff, who assigned it to the plaintiff. The defendant may plead that the action was (1)4 Maulc & S. 1.^0. 118 PRACTICE IN THE commenced before breach of the condition of the bond (1), that tliere was fraud in the judgment (2) ; but not that time was givenAo the principal (3), nor that the plaintiff has proceeded under statute 17 Car. 2. c. 7, by writ of inquiry for the arrearages of rent and costs, and obtained judgment thereon, unless it appear that execution had issued, and the sum recovered had been levied and paid (4) : pleas in actions on replevin bonds seldom occur ; in general, the defendant either compromises the suit, or demurs to the declaration : and where he de- murs, he will not be allowed to withdraw his de- murrer, and plead specially, unless full and reason- able cause be shewn (5). The statute 1 1 Geo. 2. c. 19, § 23, provides, " that " the court where the action on replevin bond may " be brought, may, by a rule of the same court, give " such relief to the parties u})on such bond, as may " be agreeable to justice and reason, and such ride is " to have the nature and effect of a defeazance to " such bond." In the action upon the replevin bond, by the (1) 5 Taunt. 77G. Rep. 214. (2) 2 Mardi. 392. 7 Taunt. (4) 4 Moore Rep. GOG. 2 ?»7. G Moore, 405. Brod. & C. 107- Sed. Q ; and (3) 7 Taunt. D7. 2 Dowl. sec Tidd Prac. 1079. & R. .343. .^cd vcdt. 3 Price (.5) 6 Moore, 495. ACTION Ul RErLEVlN. \\Q assignee, where the I)reacli is lor not making a return of the goods distrained for rent, the plain- tiff may, after signing judgment against the defend- ant, for not returning the demurrer book, tax the costs, and issue execution, for the costs and tlie amount of the goods distrained, as indorsed on tlic replevin bond, without executing a writ of in- quiry (1). The sureties are liable only to the amount of tlie penalty in the bond, and costs of suit on the bond(2), and it has been held in the Common Pleas, they will not be discharged, by time being given to the plain- tiff in replevin (3) ; but the Court of Exchequer have since held, that an injunction may be granted, to restrain a landlord, from proceeding at law, on an assignment of a replevin bond against the sureties, if there have been an agreement to refer, and a re- ference between the landlord and tenant (without the concurrence of the surety) of the matters in tlifference, whereby the performance of the condition of the bond (to proceed with effect) have been sus- pended. On such an agreement having been entered into, the bond became functus ojjicio (4). (1) 3 Maule& S. 156. (4) 3 Price Rep. CU. sed (2) 1 Taunt. Rep. 218. vide. 2 Dowl. & U. 343, where (3) C Taunt. 379. 2 rvlarsli. it is said by the court, the ub- 82, 392. jection that the surety was dis- 120 PRACTICE IN THE Where the plaintiff has obtained judgment for a return, and a writ de retorno habendo has been issued, if the sheriflf return, that the cattle are eloigned, it was formerly the practice, first, to issue a capias in luitheniam, and if the plaintiff had no cattle or goods which could be taken, the sheriff returned nihil upon that writ, and the defendant then sued out a sciix facias against the pledges, to shew cause why their cattle and goods, to the value of the cattle and goods eloigned, should not be de- livered to the defendant ( 1 ), and if no cause was shewn, a writ issued to take their cattle ; and if the sheriff returned nihil upon that writ, a scire facias was awarded against the sheriff himself, that he should render to the defendant as many cattle (2). Both the scire facias against the pledges, and against the sheriff, are now obsolete : against the pledges it is the practice to proceed on the replevin bond (3) ; where the sheriff has taken no pledges at charged by the agreement with in distress for rent, the dis- the principal, did not apply to trainor has no Hen on the a replevin bond. goods, but is left to his remedy (1) 1 W'ms. Saund. Rep. on the replevin bond. 1 Brown. 195. .3 Mod. 5Q. Rast. Ent. C. C. 427. : and therefore where 5G9. B. Thes. Brev. 274. goods were distrained and re- (2) llutton, 77. j)lcvied, and the tenant became (.'3) Where goods arc taken bankrupt, and the landlord ACTION OF REPLEVIN. I2l all, or such as arc insufficient, the sherifT islia])le: — it was decided in the case o£ Rous or P rouse v. Patter- son {\), that an action on the ca^t' may be brouglit against the sheriff upon the construction of the sta- tute of Westm. 2, for taking insufficient pledges ; for though it is not particularly mentioned in the statute, as being a sort of action but little in use at the time of making it, yet, of late, it has become more fre- quent, being found to be an easier and more expedi- tious mode of proceeding ; and it appears, by former cases (2), that case will lie for taking no pledges at aU, and the action seems to be equally proper where in- sufficient pledges are taken, especially as such pledges are always considered as none (3). It was also held, that an action on the case will lie against the sheriff for taking insufficient pledges, setting forth a retorno habendo awarded, and an dongata returned, without first bringing a scire facias against the pledges : for though some books mentioned such a })revious step, yet as the statute does not direct it, nor any case filed a bill in equity against the also unsuccessful. 1 Brown. C. assignees, the bill, after much C. 433. consideration, was dismissed (1) 16 Vin. Abr. 399. with costs ; and an attempt (2) Cro. Car. -l 1:6. Sir W. made to recover the proceeds Jones, 378. of the goods in an action for (3) 2 Inst. 340, money had and received, was 122 PRACTICE IN THE say it is necessary, it would be hard to require such a circuitous mode of proceeding (J). This action is maintainable even after the avow- ant or person making cognizance has taken an assignment of the replevin bond, and sued the prin- cipal and sureties ; for such assignment is no waiver of any proceedings against the sheriff (2). Where there is no avowant, the person making cognizance must bring the action (3). The declaration in the action on the case, states the distress, and the replevin, and the proceedings in the replevin suit, terminating with the judgment de retorno hahtndo; it then states the duty of the sheriff to take a replevin bond ; but that he neg- lected to take such bond, and that the plaintiff hath not obtained a return of the goods, or their value : and in the case of taking insufficient pledges, it is stated, that the sheriff did take a bond from certain })ersons as sureties, and that they were not good, sufficient, or responsible sureties : Special damage is generally added. The ipka to this action is " not guilty," and being an action on the case, the plaintiff is called upon to (1) Sec 1 Brown. C.C 427. 195. n. (2) 1 \Vm,i. Saund, IJcp. (;}) 1 Bos. & Bui, 378. ACTION or lUJM.EVIN. 123 slicw in evidence tlic whole ol the laets staled in hi> declaration ; the fact of the replevying of the dis- tress will be proved by the original precept to deliver, which should be called for from the baihft' under a writ of suhpcena duces tecum ; or if the j)recept be returned to the sheriff's office, notice shoiUd be given to produce it on the trial (1). It should then be shewn that the bailiff delivered the goods without taking a replevin bond ; or if a replevin bond was taken, that should be produced, notice having been given for that purpose ; and, it seems, that tlie ex- ecution of the bond need not be ])roved by the subscribing witness. It has been lield, that the sheriff is not bound to warrant the sufficiency of the sureties, if they are apparently responsible (2). It appears that the sureties themselves are competent witnesses to prove whether they are, or are not sufficient (3) ; and it may be proved tliat tliey w ere in debt, been applied to for payment, and liad neg- lected to pay, their declarations on such occasions have been admitted by Lord Elknborough C. ./., at Nisi Prius, as evidence (4). There has been nnich discussion on tlie (piestion, (1) Phill. Evid. 227. 195. n. (2) 5 Taunt. Rep. 22.5. (4) G Esp. N. W C. H»0. (.3) 1 Wms. Saund. Rep. 124 PRACTICE IN THE what should be the amount of damages recovered in this action against the sheriff : the whole of the deci- sions have been upon the statute 11 Geo. 2, c. 19. In the case of Rous or P rouse v. Patterson (1), the rent in arrear, added to the costs in the replevin suit, formed the damages, which sum, however, did not exceed the value of the distress. In Gibson v. Burnell (2), Gould J. was of opinion, " that the " plaintiff was entitled to recover the costs in re- " plevin as well as the rent in arrear :" in a subse- quent case (3), Bailer J. at Nisi Prius, " thought " the plaintiff could only recover the value of the " distress.'' And as the statute of West)n. provided that the sheriff should answer for the price of the beasts, and the statute 1 1 Geo. 2, Cc 119, had not enlarged the sheriff's responsibility, the Court of King's Bench also decided, that the plaintiff could not recover damages beyond the value of the distress. The Couit of Common Pleas subsequently (4) ex- pressed their dissatisfaction at the last-mentioned decision, and decided, " that the plaintiff might " recover damages, not only beyond the price of (1) 16 Vin.Abr. 400. (3) 4 Term Rep. 433. (2) 30 Ceu. 3, cited 4 Term (4) 2 H. Black. 36. Rep. 430. ACTION or REPLEVIN. 125 " the goods, but beyond the penalty of tlic boml, " which was in doujjle the value of the goods ;" observing, " that there was no rule, that in an ac- " tion on the case for an injury, accompanied with " a bad intent, less shall be recovered than the " whole damage sustained.'' But that court soon afterwards decided, "that the responsibility of tlie " sheriff was limited l)y the statute 1 1 Geo. 2, c. 19, " to double the value of the goods distrained, wliich " are to be the measure of damages against the " sheriff; the court therefore recommended tlie " verdict to be reduced to that level.' In a late action on the case against the sheriff, Abbott Ch. J. at Nisi Prius, is reported to have said (1), " that as the " verdict in the replevin suit was merely for a return " of the goods, the jury could not in then- verdict " against the sheriff exceed the value of the goods." It may be observed, that the question of damages in an action against the sheriff, for not taking pledges under the statute of Westm. 2, does not ai)pear to have been settled by any of the preceding cases. (1) 3 Stark. Rep. 171. ( 12G ) CHAP. XIII. OF SCIRE FACIAS, AND OF ERKOR AND FALSE JUDGMENT. There are many writs of scire facias in re- plevin ; 1 st. The scire facias against the pledges in the superior courts, and the precept in the nature of scire facias against tlie pledges in the inferior courts, which appear to have been given by the statute Westm. 2d, c. 2 : these modes of proceeding are now nearly obsolete. Much curious and valuable learning on this subject wiU be found in one of the truly excellent notes of the late Mr. Serjeant Williams to his edition of Saundefs Reports (1). 2dly, The scire facias against the sheriff ijuod reddat ei, the defendant, tot averia, which is granted after his return of nihil, on the writ issued against the goods of the pledges ; for the sheriff, by the statute of Westm. 2d, c. 2, then became liable : this proceeding is also obsolete. 3dly, The scire facias to revive which may be granted upon (1) I W'ms Sauiul. Rep. 19.5. n. ACTION OF KT.PI.KVIN. 127 the jiulgments both ibr the i)hiintill ami Ibr the defendants In a late case the defendant j)leaded tliat hel'ori suing out of the scitx facias to revive, the plaintiir sued out a Jiet^i facias, commanding the slieriff to levy £274. 13^. 4(1., who accordingly seized and took in execution goods to the value of £37.; to which plea there was a special demurrer ; it was held, that the plea was bad, in not stating that the sheriff had returned the writ, and as being no answer to the whole of the declaration (1). At common law, no writ of error lay on a judg- ment from the King's Bench, except in parlia- ment (2) : the statute 27 Eiiz. c. 8., (creating the E.vcheqiicr Chamber,) intended to remedy this incon- venience, only expressly mentions debt, detinue, covenant, account, action on the case, ejectment and trespass, first commenced in the King's Bench ; has been held not to extend to actions of reple- vin (3), for two reasons : 1st, This action is omitted in the enumeration of actions in the statute ; and 2dly, The action of replevin is not first commenced in the King's Bench. (1) 4 Moore, Rep. 1G3. (3) ?. Roll. Rep, 434, (2)Tiad Prac. 1 178. 128 PRACTICE IN THE The statute 3 Hen. 7, c. 10, enacts, " that " if any such defendant or tenant, defendants or " tenants, or if any other that shall be bound by the "judgment, sue afore execution had, any writ of " en*or to reverse any such judgment, in delaying of " execution, that then, if the same judgment be " affirmed good in the said writ of error, and not " erroneous, or that the said writ of error be discon- " tinued in the default of the party, or that any " person or persons that sueth writ or writs of en'or, " be nonsued in the same, that then the said per- " son or persons, against whom the said writ of en'or " is sued, shall recover his costs and damages for his " delay and wrongful vexation in the same, by dis- " cretion of the justice afore whom the said writ of " error is sued." Under this statute, it seems, the plaintiff below is entitled to damages and costs, where judgment is re- covered by him below, and affirmed on a writ of error (1) ; but it has been decided, that an avowant in replevin, for whom judgment below was given, which was afterwards affirmed in error, is not within this statute (2) ; nor is an avowant in replevin, for (1) 10 East Rep. 2. 122. Dougl. 702. 10 East (2) 4 Mod. 78. Bohun Re- Rep. 2. plev. 75. 1 Salk. 20.5. Carth. ACTION OF IlEPLEVIN. 129 whom verdict and judgment are given below, uliidi was affirmed on a writ of error, entitled to costs under the statute 8 & 9 Will. 3. c. 11,^2, which is confined to judgments for defendants on de- murrer (1). Interest is not allowed in error on the affirmance of a judgment, in an action ujwn a replevin bond (2). In other respects the proceedings in error are as in common cases. The writ of false judgment (3) which issues out of the Cur^itor's office in Chancery, and is returnable in the Common Pleas, lies to redress errors of in- ferior courts, 7iot of record : if the Avrit be brought upon a judgment in the sheriff's court, it is directed to the sheriff, and is in the nature of a rccordari; if in another inferior court not of record, I lien it is in the nature of an accedas ad curiam, also directed to the sheriff, and must be certified by the suitors ; for if there be no suitors, then there is no writ of false judgment. For en'oneous proceedings in a Court Baron, it is said, a writ of false Judgment (1) 10 East Rep. 2. writ in the Cowman Pleas is (2) 4 Taunt. 30. Tidd Prac. entered with the Prothonotary. 1240. Rep. Com. (C. P.) 1819, 24. (3) The appearance to this Posl Prac. Forms, VII. § I. K 130 ACTION OF KEPLEVIN. doth not iie ( I ), but a petition to the lord or the })erson aggrieved must proceed in Chancery (2). If the writ of false judgment be not duly re- turned and filed, the adverse party may have a writ de executione judicii, and proceed to execution in the court below. The practice in false judgment is little known ; it is similar to the proceedings in error (3). (1) Tidd Prac. 1237. F.N.B. Nels. Lex Man. 71. 18. Co. Litt. 60. a. (3) See Lee's Diet. Prac. (2) Owen, 63. Moore, 68. tit. False Judgment. ( 13i ) CHAP. XiV. OF THE WRIT OF llECAPTION lOIl THE I'LAIX- TIFF, AND OF THE WRIT OF SECOND DELI- VERANCE FOR THE DEFENDANT. It is akeady observed, that where the defeiKlant hath judgment upon his avowry in replevin he shall have restitution of the beasts, to detain them as a pledge, until the rent or duty for which they were taken be paid or satisfied ; and since he hath got security to have return, upon making out the justice of his first caption, it is highly reasonable that pend- ing that suit the tenant should be protected from farther distresses for the same rent or cause for which the first distress was taken. For this puiTiose the writ of recaption was framed ; in which, if the defendant be convicted, he shall be fined to the king ; because, by the second caption, the defendant takes upon him to determine the justice and legality of the first, while that very point is under the con- sideration of the court in which the replevin de- pends. For if the first distress were lawfiU, he sliall K 2 132 PRACTICE IN THE have return of it, and therefore, the second is un- reasonable. If the first were unlawful, much more so is the second taking for the same cause ; so that the recaption lies even where the cause of the first caption was just (1). But it seems, that, if A. distrain beasts damage feasant, and, pending that suit, the same cattle, or other cattle of the same owner, trespass on the soU of ^., A. may distrain again pending the first suit; because each distress is for a distinct and several tres- pass or injury, for which A, is entitled to satisfac- tion. The restitution of the cattle for the first trespass will be no compensation for the second tres- pass, since A. cannot legally withhold them as a pledge for satisfaction of a second trespass, when the first is satisfied (2). The design, then, of the writ of recaption being to prevent a second distress for the same rent or duty, it follows, that the defendant cannot avow in recaption as in replevin, because the avowry in re- plevin is to have a return of the pledges; but in recaption, whether the first distress were just or unlawful, the defendant cannot have return of the (1) Gilb. Replev. 227,8. F. (2) Gilb. Replev. 228. F. N.B. 71. c. N. B. 71. e. ACTION OF REPLEVIN. ^^ 133 beasts under the notion of the pledge ; for tliat wvw to invert the design of the law by allowing tjjo defendant a second distress by judgment upon that very writ which was framed to punish the person taking a second distress for the same thing ( 1 ). In the writ, therefore, of recaption, the defendant must justify as in trespass, because, since he cannot avow the taking under the notion of a pledge for a rent or duty, (inasmuch as he hath already a pledge for that, which will be returned to him, if in tlie event of the suit in replevin the rent appears to Ik^ in arrear,) he must therefore be looked upon as a trespasser, unless he can justify the taking for another cause (2). Hence it is, that there are no pledges de retorno habendo taken from the plaintiff as in the replevin ; because, though the deliverance of the Ijeasts to the plaintiff be immediate, as in the replevin, yet the defendant can have no return : for, if the rent or duty was unpaid, for which the distress was taken, the defendant will have restitution of his first dis- tress, which being to remain in his hands till thf rent be paid, there is no reason for the restitution of the second distress ; and consequently, no oica- (l) Gilb. Replev. 228,9. (2) Gilb. Rcplov. 22M. 134 PRACTICE IN THE sion for the pledges de retorno hahcndo, as in the original replevin (1). It is not necessary to entitle a man to the writ of recaption, that the same beasts or cattle be taken the second time which were first taken ; but only that the cattle or beasts of the same person were distrained for the same rent or duty; for the injury is the same to the plaintiff in replevin whether the first distress be taken again, or any other goods or cattle of the plaintiff; and the writ of recaption is to punish the injury. But if the lord distrain, first the beasts of his tenant for rent, and afterwards the beasts of /. S., a stranger, being on the land, for the same rent, — in this case no writ of recaption lies for this second distress : not for the tenant, because the second distress is not of the tenant's beasts ; nor for /. -S., because the beasts of /. S. were not formerly taken, l)ut /. S. must bring replevin or trespass (2). If the landlord distrain his tenant, and, pending tlie suit in replevin, command his servant to distrain tlie tenant again for the same rent, the tenant shall ha\'e a recaption against the landlord himself for the secontl distress; because tlie second distress is (1) Gilb. Replev. 229,30. (2) Gilb. Replev. 230. ACTION 01 UEPLEVIN. l'6o esteemed in law to be taken by the landlord liiiii- self, according to the rule qui facit per alium facit per sc. So if the servant had taken the second distress without the landlord's command, yet if the landlord had afterwards by any subseciuent act agreed to the taking of the second distress, as by joining in aid with the servant to defend the justice of the caption, such subsequent agreement makes it a distress of the landlord, and to have been taken in his right ab initio. For omnis retihabitio mandato aquiparatur ; and a parol assent of the landlord to the second distress seems sufficient (I). But if there be no such command or subsequent assent of the lord, the tenant shall have no recap- tion, either against the lord or the servant, though the servant make conusance of the second distress in right of his lord, and for the same rent for which the lord took the first distress; for the writ of re- caption is to punish the second caption only where it is wilfully made by the same person that made the first, or by another under his direction or authority ; and it may be, that the lord and his servant had no notice of each other's caption (2). So that where there is no precedent connnand, nor (1) Gilb. Replev. 231. (2) Gilb. Ropkv. 231, I3G PRACTICE IN THE a subsequent assent to the second caption, the tenant is left to his action of trespass against the servant ; because the second caption is a violation of property, and unlawful, though the rent be in aiTear ; since the lord by the first distress hath taken a pledge for his rent, which will be returned to him, if, in the event of the suit in replevin, the tenant be found to be in aiTcar ( I ). The writ of recaption lies for the tenant before avowry made by the lord in the first replevin ; for otherwise the remedy would not be adequate ; because the lord might harass the tenant by several distresses, before the lord by the rules of the court covdd be compelled to avow. But then the tenant must, in his declaration on the recaption, aver that the second distress was taken for the same cause as the first ; otherwise the tenant fails in making out to the coui't his title to the writ of recaption, and consequently cannot punish the lord for taking the second distress. By the common law, when the merits of the case were decided by a verdict in replevin, the judgment was for a return of the distress irreplevisable ; when the plaintiff was nonsuited, the return was reple- visable(2) ; and, therefore, until the justice or legality (1) GUb. Replev. 231,2. per Wood, arguendo. (2) See 4 Term. Rep. 509. ACTION OF REPLEVIN. I:j7 of his caption was establislicd by the jiulgiiient or verdict, so long the plaintiff was allowed after his own nonsuit to take a new replevin (1). To remedy this mischief, the statute of Westf/i. 2, c. 2, reciting the rule of the common law, enacted, " that as soon " as return of the beasts should be awarded to the " distrainor, the sheriff should be commanded by a " judicial writ to make return of the beasts unto the " distrainor ; in which writ it should be expressed, " that the sheriff should not deliver them without " writ, making mention of the judgment given by the " justices {justiciaiiis)^ which could not be witliout a " writ issuing out of the rolls of the justices before " whom the matter was moved : Therefore, when he " Cometh unto the justices and desireth replevin of " the beasts, he shall have a judicial writ ; then the *' sheriff, taking surety for the suit and also of the " beasts or cattle to be returned, or tlie price of " them, (if return be awarded), shall deliver unto " him the beasts or cattle before retunied ; and tlie " distrainor shall be attached to come at a certain " day before the justices, afore whom the plea was " moved, in presence of the parties ; and if he that (1) As to a new replevin defendant in abatement, see when there is judgment for the Com. Rep. 122. 138 PRACTICE IN THE " replevied make default again, or for another cause " return of the distress be awarded, being now twice "replevied, the distress shall remain irrepleviable; " but if a distress be taken of new, and for a new " cause, the process abovesaid shall be observed in " the same new distress." This statute has been held to apply to the king's superior courts only ( 1 ). The writ of second deliver- ance is a judicial writ issuing out of the record of the replevin between the same parties, and for the same goods, and for the same taking, as in the re- plevin. The writ of second deliverance has been held to be a supersedeas in law to the writ of retorno hahendo, but not to the writ of inquiry of damages under the statutes 7 Hen. 8. c. 4, & 21 Hen. 8. c. 19, (2), nor to the writ of inquiry under the statute 17 Car. 2. c. 7.; indeed, it is the opinion of eminent lawyers (3) that the statute 1 7 Car. 2. c. 7, has m effect taken away the writ of second deliver- ance^ when the distress is for rent ; for of what use can a second deliverance be to the plaintiff, when the defendant may stiU proceed to judgment and execu- (1) Gilb. Replev. 220. 1 Salk. 95. (2) 1 W'ms. Saund. Rep. (3) 3 Bl. Com. 150. 1 W'ms. \'^)b. II. Latch 72. Palm. 103. Saund- Rep. ]95. u. ACTION OF REPLEVIN. 139 tion eitlier for the whole rent, or at least for th(^ value of the distress ( 1 ) ? The writ of second deliverance, which is issued by the filacer in the King's Bench, and the prothonotary in the Common Pleas (2), is a supersedeas in law to the sheriff to forbear to execute the writ de retorno hahendo, and is only executed by the sheriff where return has been made of the goods, in whicli case it is in the nature of a new replevin (3). The proceedings in second deliverance are nearly the same as in replevin. In the declaration it is stated, " that the defendant was summoned by His " Majesty's writ of second deliverance to answer the " plaintiff." If the plaintiff in the second deliver- ance be nonsuit, or if the plea be discontinued, or the writ abate, or if he in any manner prevail not in his suit, the defendant shall have judgment for a return irreplevisable (4). And Lord Chief Baron Gilbert adds, " the defendant sliall detain " the goods as a pledge until the rent or duty (1) 1 W'ms. Saund. Rep. (2) Rep. Com. C. P. (1810) 195. n. 1 Vent. 64. Bull. 28. N. P. 58. 2 Wils. 116. Q«(rre. (3) Glib. Rcplev. 217,18. Where the defendant takes 2 Inst. 311. Dyer 41. judgment and issues execution (-1) 1 ^V'mo. Saund. Rep. de retorno hahemh. 195. n. Gilb. Rcplev. 217. 2 Inst. 341. 140 ACTION OF REPLEVIN. " for which they were originally taken be paid to " the defendant, and the plaintiff shall not be " admitted to disturb the defendant's possession " by replevin or writ of second deliverance ; but " if the plaintiff tender the rent for which the " distress was originally taken, the defendant ought " to restore the beasts, and if he refuse, the plaintiff " may recover them by action of detinue ( I )." (1) Gilb. Replev.217. 2 Inst. 107. 341. Cro. Jac. 143. PRACTICAL FORMS. 1. PROCEEDINGS ON GRANTING THE RE- PLEVIN, AND IN THE COUNTY COURT. II. WRITS OF REMOVAL, &C. III. PROCEEDINGS AFTER APPEARANCE, AND TO JUDGMENT. IV. JUDGMENTS. V. WRITS OF INQUIRY, &C. VI. WRITS OF EXECUTION, &C, PRACTICAL FORMS. I. PROCEEDINGS ON GRANTING THE RE- PLEVIN, AND IN THE COUNTY COURT. Know all men, by these presents, Ihat I, W. P. Esq. (§ i) i-ii-«.Pi / i-x/» Deputation to high shenft oi the county (or county palatine) ot , grant Ripk- do hereby appoint R. R. gentleman, one of the dcpii- ^'"^' tics for making or granting replevins within the said county, pursuant to the statute in that case made and provided ; and for so doing this shall be a sufficient warrant and authority. Given under the seal of my office of sheriff, the day of , IS — . By the same sheriff. George the Fourth, by the grace of God, of the United i§ 2.) Kingdom of Gre/7f Britain and Irelaml, King, Defender picvin. of the Faith, to the sheriff of greeting : We com- mand you, that justly and without delay you cause to be replevied to A. B. liis cattle, goods, and chattels, which C. D. hath taken and unjustly dctaincth, as he saith, and after cause him to be brought to justice for the same ; that we hear no more complaint for want of justice. Witness ourself at Wcsfmi/ister, the day of , in the year of our i-oign. Know all men, by these presents, That we, A. B. of ^^ i^',/,;!-*,,,,,,,, , W. G. of , and T. S. of , are jointly and ""'i*;'' '''^- ^'•'- tjte of llistm. severally field and firmly bound to W. P. Escj. sheriff of 2(1, uheic rat- thc county of , in the sum of £— (the full value TamaZ^Z. 144 PRACTICAL FORMS. of the cattle or goods distrained) of lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns, for which payment well and truly to be made, we bind ourselves, and each and every of us in the whole, our and each and every of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated the day of , in the year of the reign of our Sovereign Lord George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, and in the year of our Lord 18 — . The condition of this obligation is such, that if the above bounden A. B. do appear at the next county court to be holden in and for the county of , at , on the day of next, and do prosecute his suit with effect and without delay against C. D. for the taking and unjustly detaining of his cattle, goods, and chattels, to wit, {here set forth the cattle or goods distrained], and do duly make return of the said cattle, goods, and chat- tels, if return thereof shall be awarded, that then this obligation shall be void and of none effect ; or else to be and remain in full force and virtue. Sealed and delivered > in the presence of y f § 4.) Know all men, by these presents,That we, A. B.of , The like, under 11//^^ JT-Cf ••*! J the statute 11 '^. G. ot , and i. -S. of , are jomtly and seve- wh?re go^di''^' ^""^^y ^^^^ ^"^ fi™^y ^^o""^^ to ^^' ^- Esq. sheriff of the are di;strained county of , in the sum of £ [double the value of the cattle or goods distrained'] of lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns, for which payment well and truly to be made, we bind ourselves, and each and every of us in the whole, our and each and every of our heirs, executors, and administrators, PRACTICAL FORMS. UTi firmly by these presents. Sealed with our seals. Dated the day of , in the year of the reign of our Sovereign Lord George the Fourth, hy the grace of God, of the United Kingdom of Great IJritain and Ireland King, Defender of the Faith, and in the year of our Lord, 18 — . The condition of this obligatum is sucii, that if the above bounden A. B. do appear at the next county court to be holden in and for the county of , at , on the • day of next, and do prosecute his suit with eft'ect, and without delay, against C. D. for the taking and unjustly detaining of his cattle, goods, and chattels, to wit {here set forth the cattle or goods dis- trained) and do duly make return of the said cattle, goods, and chattels, if a return thereof shall be awarded, tliat then this obligation shall be void and of none effect, or else to be and remain in full force and virtue. Sealed, &c. (as before.) KNOW all men by these presents, that I, W. P. esq. (§ ij) sheriff (or late sheriff) of the county of , have, at theieof imlors- the request and costs of the within-named C. D. the |,',^,^.", ,,,,'^^5^^' avowant (or " person making cotmizance") m this cause, tikinmuUrthe assigned over this replevin bond unto the said C D., 2. c. ly pursuant to the statute in such case made and provided. In witness whereof I have hcremito set my hand and seal of office, (or if late sherijf\ say " «'aP only), this day of , 1 8 — . Sealed and delivered ^ in the presence of 5 , (to wit.) A. B. complains of C. 7). in a plea p,^;,ft^ ^;,' r,.. of taking and unjustly detaining his cattle, goods, plovin. and chattels, against sureties and pledges, &c. C John Doc Pledges to prosecute n & {.Richard Roe. 14G PRACTICAL FORMS. (§ 7) , (to wit.) W. P. esq. sheriff of the county of Precept to re- . i •!•«» i /• plcvy. , to , and , my baihtts, and to every oi them, jointly and severally, greeting : Whereas A.B.hath found me sufficient security, as well for prosecuting his suit ^vith effect against C. D. for taking and unjustly detaining his cattle, goods, and chattels, to wit, &c. {setting out the cattle and goods) which the said C. D. hath taken and unjustly detains, as it is said, as also for making return thereof, if return thereof shall be award- ed]; therefore, on behalf of the said A.B., I, the said sheriff, command you, and every of you, jointly and severally, that without delay you replevy, and cause to be delivered to the said A. B. his said cattle, goods, and chattels ; and that you immediately summon the said C. D. to appear at my next county court, to be holden at in and for the said county, to answer the said A. B. in the plea aforesaid ; and in what manner you shall have executed this precept, certify to me at my said next county court, to be held at the time and place aforesaid. Given under the seal of my office, this day of , in the year of our Lord 18 — . By the sheriff. {or if granted hy a deputy, say,) By the sheriff, by , one of the deputies of the said sheriff, according to the form of the statute. f§ 8.) YORKSHIRE, (to wit.) W. E. esq. sheriff of the The like. . . . county of York, to the chief bailiff of the liberty of Hozc- den and Hoivdens/iire, and his deputies, and also to G.B. my bailiff, for this purpose specially deputed, greeting : Because j4. B. hath given me sufficient security, as well to prosecute his suit, as to make return of, &c. {here set out the goods) if return thereof shall be adjudged ; VRACTICAL FORMS. 147 TuEKEFouii;, on the part of our sovcivign Loul iIk* Kmg, I command you, and every of you, that you, some, or one of you, do replevy, and deliver to the said .7. />. the goods and chattels above mentioned, which C. I). and -E. F. have taken and unjustly detained, as it is said. And that you, some, or one of you, do suunnon the said C. D. and E. F., so that they may be, and a}>- pear at the castle of York^ at the next county court, to be there holden for the said county, on the day of instant, to answer to the said A. B. in a plea of taking, and unjustly detaining the goods and chattels aforesaid of the said A. B. And that you, some, or one of you, make it appear to me, at my said county court, that you have executed this my precept. Given under the seal of my office this day of , in the year of our Lord . (L. S.) By the sheriff , Attorney. , (to wit.) By virtue of a warrant from the (§ D.) , Summons, sheriff of the county of , to mc du'cctcd, 1 siuii- mon you to appear at the next county court, to be holden at , in and for the county aforesaid, on , to answer A. B. in a plea of taking and unjustly de taining the cattle, goods, and chattels of the said A. B. Dated the day of 1 8 — . G. B. bailiff. To Mr. C. D. , (to wit.) W. p. esq. high sheriff of the said (§ 10.) county, to all and singular my bailiffs of the said nature of a m- county, greeting : AVhereas A. B. hath fouiul me j,,^j,,j sufficient security, as well to prosecute his plaint against C. D. for taking and unjustly detaining his cattk\ goods, and chattels, to wit, &c. (seNiug out tl'c entile 1.2 148 PRACTICAL FORMS. and goods)y as to make return thereof, if return tliereof shall be awarded; and thereupon, by virtue of my office, I have often commanded you, and every of you, that you, some, or one of you, should cause to be replevied to the said .4. B. his aforesaid cattle, goods, and chattels, which the said C. D. hath taken and unjustly detains, as it is said : And you, upon my several precepts of re- plevin to you directed, have certified that the cattle, goods, and chattels aforesaid, are eloigned and taken to places to you unknown, so that you cannot replevy the same to the said A. B. : Therefore, I now command you, and every of you, that you, or some, or one of you, do take in withernam the cattle, goods, and chattels of the said C. D. to the value of the said cattle, goods, and chattels so eloigned as aforesaid, and deliver the same to the said A. B. for his cattle, goods, and chattels, last aforesaid; and also, that you put by gages and safe pledges, the said C JD. so that he be and appear at my next county court, to be holden at , in and for the said county, on the day of next, to answer to the said A. B. of the plea aforesaid, and that you, some, or one of you, make return to this my mandate at my next county court. Given under the seal of my office this day of , in the year of our Lord 18 — . (§ 1 1) GEORGE the Fourth, &c. To the sheriff of , greet- Writ of pro- . ' , . , prietaie prolan- ing : Whereas we have often commanded you, that justly and without delay, you should cause to be replevied to A.B. the cattle, goods, and chattels of his, which C. D. hath taken and unjustly detaineth, as he saith, or that you would signify to us the cause, why you would not, or could not execute our command formerly directed to you therein; And for that the said C. D. doth avouch the said cattle, goods, and chattels, to be his own proper cattle, goods, and chattels, you could not replevy the PRACTICAL FORMS, ^^ 140 same to the said ^4. B. as you have signified to us: \\ . not wilhng, that the said yJ. B. should be defraudid of his cattle, goods, and chattels, by such false avouch- ment, whereby the said cattle, goods, and chattels, (if they be his,) cannot be replevied to him, according to the law and custom of England, command you, that taking with you the keepers of the public pleas, in the presence of the said C. D., if he will be present, and he will hereupon be by you warned, you diligently inquire by the oath of honest and lawful men of your county, by whom the truth of the matter may be best known, whether the cattle, goods, and chattels, so taken and detained, be the cattle, goods, and chattels of the afore- said jJ. B., or of the aforesaid C. D. ; and if by such inquisition it may appear to you, that the said cattle, goods, and chattels, be the cattle, goods, and chattels of the said j4. B., then you shall cause the same to be replevied to the said ^. B. according to the tenor of our said commands therein, formerly directed unto you ; and nevertheless, if the said A. B. shall give you secu- rity to prosecute his suit, then attach the said C. D. so that you may have him before us, on , wheresoever Ave shall then be in England, to answer us for the con- tempt done in this behalf, and the said A. B. for the damages which he hath sustained by reason of tlu- avouchment of the said cattle, goods, and chattels ; ;uul have you there this writ. Witness, &;c. In the county-\ (§ \2.) p V nciliinilion in court Ot > the county (to wit.) C. D. was summoned to answer A. B. f""''t- of a plea, wherefore he took the goods and chattels of the said A. B. and unjustly detained the same against sureties and pledges until, &c. ; and thereupon the said J. B. by E. F. his attorney, complains: For tli;it ilu said C. D. heretofore, to wit, on the day of , m 150 PllACTICAI. l-ORMS. the year of our Lord , at the parish of , in the county of , and within the jurisdiction of this court, in a certain dwelhng-house there, took the " goods and chattels" (to wit, &c.) {here state the goods) of the said A. B. of great value, (to wit) of the value of £ , and there unjustly detained the same against sureties and pledges, until, &c. wherefore the said J. B. saith that he is injured, and hath sustained damage to the amount of £50, and therefore he bring-s suit, &:c. ( 131 ) II. Writs or Removal. , (to wit.) Ilecordari facias loquelam between (§ •■) A. B. and C. D., for takinj^ and unjustly detaining tlie fordan facias cattle, goods, and chattels of the said A. B. Returnable '"''" """* before the Lord the King on , wheresoever, &c. {or, in C. P. " before His Majesty's justices at Westminster, on ."") On the part of the plaintiff, (or " defend- ant.") attorney. 18— GEORGE the Fourth, by the grace of God, of the (§ 2.) United Kingdom of Great Britain and Ireland King, jari facias h- Defender of the Faith. To the sheriff of , greeting : Jiil^tJ^^ '^' We command you, that in your full county, you cause the plaint to be recorded, which is in the same county, without our writ, between A. B. and C. D., of the cattle, goods, and chattels of the said A. B., taken and un- justly detained, as it is said; and that you have the saitl record before us, on • , wheresoever we shall then be in England, {or, in C. P. " before our justices at West- minster, on ,") under your seal and the seals of four lawful knights of the same county, of such as shall be present at the said recording; and that you prefix the same day to the parties, that they be then there, to proceed in that plaint as shall be just, and that you have there the names of the said four knights and this writ. Witness ourself at Westminster, the day oi" , in the year of our reign. Let this be executed if the said A. Ji desire it, otherwise not. 152 PRACTICAL I OHMS. By the defend- If the recordari be sued out by the defendant, there ant. . •' must be a cause assigned at the end of the writ, as thus : " Because the said C. D. took the said cattle in his damage, as it is said : let this writ be executed, if the cause be true, and the said C. D. desire it, otherwise not." (§ 3.) BY virtue of this %vnt to me directed, in my full Return thereto. , i i • ^ p ^ p county, holden at , m and tor the county oi , on the day of , in the • year of the reign of our Sovereign Lord George the Fourth, &c. I caused to be recorded the plaint, which is in the same county, Avithout the writ of our said Lord the King, between A. B. and C. D., of the cattle, goods, and chattels of the said A.B. taken and unjustly detained, as it is said ; which said plaint appears in a certain sche- dule to this writ annexed : and I have the said record before our said liOrd the King, {or, in C. P. " before his Majesty's justices,'') at Westminster, at the day within contained, under my seal, and the seals of E. F. &c. four lawful knights of the same county, who were present at the said recording ; and I have prefixed the same day to the parties within named, that they may be tlien there, ready to proceed in the said plaint, as shall be just, and as I am within commanded. The answer of , sheriff. , (to wit.) At the county court of W. P. esquire, sheriff of the county aforesaid, held at , in and for the said county, on the day of , in the year of the reign of our Sovereign Lord George the Fourth, by the grace of God, &c., and in the year of our Lord , before L. M. &c. freeholders of the said county, (amongst other things) it is entered as follows : , (to wit.) A. B. yeoman, complains of C. D. of a plea of taking and unjustly detaining his cattle^ PRACTICAL FORMS. I Vi goods, and chattels, to wit, &c. {setting out the cattle and goods)^ and also found pledges, as well to prosecute his suit with effect, as to make a return of the said cattle, goods, and chattels, if a return thereof shall be adjudged by law, to wit, G. H. of , and I. A. of . By the same sheriff. As yet of term in the year of the reign (§ 4.) of King George the Fourth. Witness, Sir ,^"p^°.j,j/(^ William Draper Best, knight. ^- ^• Roll, No. , (to wit.) Our Lord the King sent to his sheriff of his writ, close, in these words : (to wit) George the Fourth, &c. [here copy the re. fa. /o.] At which day before the justices of our said Lord the King at Westminster, comes the said A. B. in his proper person and jhe said C. D. appears by , his attorney ; and the said sheriff, (to wit) esq. sheriff of afore- said, now here returns that he has caused the said plaint, which was in his court, to be recorded between the parties, which appears in a certain schedule thereto annexed, and that record he had ready at the day and place in the writ mentioned ; and that he had prefixed that day to the parties, that they should be then and there to proceed in the plaint, as should be just. {Copy the schedule.') In the King's Bench, f§;.''.) A T> -t Notice of tiling Between ^ J) \ ^" r^^pl^'vin. «^/«- '"• The defendant having sued out a writ of recordari facias loquelam, directed to the sheriff of , for removing the above cause out of the county court of into the court of King's Bench, returnable on last past, I do hereby give you notice, that the said 154 PRACTICAL FOllMS. defendant has filed the said writ and the return thereof mth the filazer of the Court of King's Bench, and hath entered his appearance in the said cause with the said filazer, and tliat you are required to declare in the said cause, otherwise the defendant will sign a non pros. Dated the dav of , 18-. (§ 6.) GEORGE the Fourth, &c. To the sheriff of Pone on recor dari against greeting : Put by sureties and safe pledges J. B. that plaintiff. jjg |jg before us on , wheresoever we shall then be in England, to answer C. D. in a plea of taking and un- justly detaining the goods and chattels of the said C. D., as it is said, and have there the names of the pledges and this writ. Witness, &c. Kenyon. (§ 7.) GEORGE the Fourth, &c. To the sheriff of , The like against . -r»i i/»ii/-irkii the defendant, greeting : rut by gages and sate pledges L. D. that he be before us on , wheresoever we shall then be in England {or, in C. P. " before our justices at West- minster, on , ") to answer to A. B. of a plea wherefore he took the cattle, goods, and chattels of the said A. B., and unjustly detained them against gages and pledges, as it is said, and to shew why he was not in our court before us, (or, in C. P. " before our said justices, on ,") being the day that was prefixed to him, and have there the names of the pledges and this writ. Witness, Sir Charles Abbot, knight, (or, in C.P. " Sir William Draper Best, knight,") at Westminster, the day of in the year of our reign. (§ 8.) GEORGE the Fourth, &c. To the sheriff of , Distringas . „_ - , t • /^ rv thereon. greeting: We command you that you distrain C. U., late of , by all his lands and chattels in your bail- iwick, so that neither he, nor any one for him, do lay PRACTICAL FORMS. I .'>;"> hands thereon, until you siiall liave another coinniaiul from us in that behalf, and that you answer to us ior the values and issues thereof, so that he be.- before us on , wheresoever we shall then be in KugUuid^ (o/-, in C. P. " before our justices at Westmimter, on ,") to answer to il. jB. of a plea wherefore he took the cattle, goods, and chattels of the said A. 7i., and un- justly detained them against gages and pledges, as it is said, and to hear judgment thereupon for his many defaults, and have there this writ. Witness, &c. (as above.) GEORGE the Fourth, &c. To the sheriff of , .(§ 90 greeting: We command you, that you take C D., if he shall be found in your bailiwick, and him safely keep, so that you may have his body before us on , wheresoever we shall then be in England, {or, in C. P. " before our justices at Westminster, on ,'') to answer ^4. B. of a plea wherefore, &c. {as above) as it is said, and have there this writ. Witness, &c. {as before.) GEORGE the Fourth, &c. To the sheriff* of , (§ lo.) greeting : Whereas a plaint which was in your county, ^vrherc the n- without our writ, between A. />. and C. D., of the ^'"''"^' ,''' ""' cattle, goods, and chattels of the said A. B.. taken and unjustly detained, as it was said, by certain dilatory cavils and exceptions, unjustly suggested on behalf of the said C D. hath been long delayed in the said county, to the great charge and grievance of the said A. B., we command you, that you proceed in that plaint as far as with justice you may, and cause full and speedy justice to be done to the said A. B. in the said plaint, that no further complaint come to us. Witness, &c. 156 PRACTICAL FORMS. (§11.) GEORGE the Fourth, &c. To the sherifF of , Accedas ad . i ■ • i /» curiam. greeting : We command you that, takmg with you four discreet and lawful men of your county, you go in per- son to the court of the most noble , Duke of Leeds, chief baiUfF of the liberty and franchise of Richmond, and in court there, you cause the plaint to be recorded which is in that court, without our writ, between A.B. and C. D,, of the cattle, goods, and chattels of the said A.B. taken and unjustly detained, as it is said; and that you have the said record before us on , wheresoever we shall then be in England, {or, in C. P. " before our justices at Westminster, on ,"'"') under your seal and the seals of four lawful men of the same court, of such as shall be present at that record, and prefix the same day to the parties aforesaid, that then, they may be there, to proceed in the said plaint as shall be just ; and have you there the names of the said four men and this writ. Witness ourself, at Westminster, the day of , in the year of our reign. Because the said C D. took the said cattle, goods, and chattels in his damage : let this writ be executed, if the cause be true, and the said A. B. require it, other^vise not. (§ 11- «•) Richmond Liberty, ) At the court baron of the most Return thereto. /. xr , ? county of York. } noble Duke of Leeds, chief bailiff of the liberty and franchise of Richmond, and Rich- mondshire, in the said county, holden at Richmond, in and for the said liberty, on the day of , 1824, before L. T. steward of the said court. In replevin. A.B. complains of C. D. of a pica of taking and un- justly detaining his goods and chattels to the damage of the said A. B. of £ . Defendant appears and de- sires declaration. PRACTICAL FORMS. ^_ 107 GEORGE the Fourth, &c. To the steward of the (4 '2' I'riurdrndu court of , greeting: Whereas a plaint whic-li was in the thereon. court of without our writ, between y/. li. and C.I). of the cattle, goods, and chattels of tlie said A. li. taken and unjustly detained, as it was said, by certain dilatory cavils and exceptions, unjustly suggested on l)ehalf of the said C. D. hath been long delayed in the said court, to the great charge and grievance of the said jI. B. : We command you, that you proceed in that plaint as far as with justice you may ; and cause full and speedy justice to be done to the said A. B. in the said plaint, that no further complaint come to us. Witness, &c. GEORGE the Fourth, &c. To the sheriff of , (§ i'^) . . „, , p Pone for the greeting : At the request of the plaintiff, put l)eiore us piaiatiir. on , wheresoever we shall then be in Euglmul, {or, in C. P. " before our said justices at Westminster, on ,") the plaint which is in your county, by our writ, between A. B. and C. D., of the cattle, goods, and chat- tels of the said A. B. taken and unjustly detained, as it is said, and summon by good eummoners the said C. D. that he be then there, to answer to the said A. B. thereof; and have there the summoners and this writ, and the other writ. Witness ourself, &c. GEORGE the Fourth, &c. To the sheriff of > ^, /§ »/•) , ' ^ Tho like for the greeting: Put before us on , wheresoever we shall defemiant. then be in England, {or, in C. P. " before our justices at Westminster, on ,") the plaint which is in your county, by our writ, between A. B. and CD., of the cat- tle, goods, and chattels of the said A. B. taken and un- justly detained, as it is said ; and give notice to the said A. B. that he may be there, ready to ])rosecuto his plaint thereupon, against the said C. D., if he be willing; ami 158 PRACTICAL FORMS. liavc there this writ and the other writ. Witness ourself at Westminster, the day of , in the year of our reign. Because the aforesaid A. hath taken the said cattle, goods, and chattels in his damage, as it is said : let this writ be executed, if the cause be true, and the said y/. desire it, otherwise not. f§ 15.) GEORGE the Fourth, &c. To the mayor and sheriffs remove^cause ^^ Loudou, greeting: We, willing for certain causes to m replevin jjg certified of the record and process of a certain plaint from the slie- _ ^ _ rirs court in which is before you in our court, without our writ, be- Kin<»'s Bench, tweeii A.B. and CD., of the goods and chattels of the said A. B. taken and unjustly detained, as it is said, do com- mand you, that distinctly and plainly, you send the record and process of the said plaint, with all things touching the same, by whatsoever names the said parties in the said plaint are called, under your seals, unto us in our Chancery, on , wheresoever it shall then be, and this writ. Witness ourself at Westminster, the day of , in the year of our reign. Leek. (§ 16.) Giltspur-Street. A plaint levied in the court of our ■ Sovereign Lord George the Fourth, by the grace of God, &c., holden before , esq. one of the sheriffs of the city of London, in his Compter, situate in the parish of St. Giles without Cripplegate, in the ward of Crip- plegate Without, within the said city of London, on the day of , in the year of the reign of our said Lord the King, the tenor whereof fol- loweth in these words : (to wit) , (to wit,) Jl. B. complains of C. I), concerning his goods and chattels following, (to wit,) &c. [^here set out the goods^ by him taken and unjustly detained at No. 4, Golden Lane, in the parish of St. Giles without Cripplegate, in the ward of Cripplegate Without, within the said city of London, and there arc pledges of prosecution, and to make a PRACTICAL FORMS. 159 return, if a return of the said goods and chattels shall be adjudged by law, (that is to say,) F. C. of , in the county of , gent., and T. S. of the same placL-, gent., to return, &c. Whereupon afterwards (to wit) on the day and year aforesaid, at the prayer of the said A.B. then made to the said sheriff at his court held at the said Compter, according to the custom of the said city. It is commanded by the aforesaid sheriff, to J. P. one of the Serjeants at mace of the said sheriff, and a mi- nister of the said court, that he, according to the custom of the said city, replevin, appraisement, and delivery, do make of the goods and chattels aforesaid, to the said ^.jB. and what, &c., and a return thereof, &c. Whereupon afterwards, (to wit) on the said day of , in the year aforesaid, the said J. P. re- turned and certified to the same court, his precept afore- said, to him directed; that he, according to the custom of the city aforesaid, replevin and appraisement had made, of the goods and chattels aforesaid, to the sum of £ , by J. D. haberdasher, citizen of the city afore- said, according to the custom of the city aforesaid ; and that the said goods and chattels so )-eplevied and ap- praised as aforesaid, he has delivered to the said Jl. B.^ as to him above was commanded, as by the record and proceedings thereon, in the same court remaining, more fully and manifestly appears. GEORGE the Fourth, &c. To our justices appointed (§ 17.) ,.-,,„ . ...r ' 1 • Mittimus. to hold pleas before us, greetmg : We send to you m- closed in these presents, the record and process of a certain plaint which was in our couit of the mayor and sheriffs of Lotidon, before the said mayor and sheriffs, without our writ, between A. B. and C. Z)., of the goods and chattels of the said A.B., taken and unjustly detained, as it is said, certified to us by the mayor and sheriffs aforesaid, into our Chancery, by virtue of our 160 PRACTICAL FORMS. writ of certiorari, and remaining upon the files of our said Chancery, commanding you that, inspecting the record and process aforesaid, you cause further to be done therein at the prosecution of the said A. B., as of right, and according to the law and custom of England, shaU be meet to be done. Witness ourself at West- minster, this day of , in the year of our reign. (§ 17. a.) GEORGE the Fourth, &c. To {direction of the court) Procedendo . * i i i i i i i • • upoD certiorari, greetmg : Although we have lately by our writ given command and were willing that you should, under your seals, distinctly and plainly certify us, in our Chancery, by a certain day in our said writ contained, wheresoever it should then be, record and process of a certain plaint which is before you in our court of the said {tozen, borougli, or city), without our writ, between A. B. and C. D., of a plea of taking and unjustly detaining cattle goods, and chattels, as it is said, with all things there- unto belonging, by whatsoever names the said parties in the said plaint are called, and our said writ ; yet for cer- tain causes us now moving, we command you, that you proceed in the said plaint, with such speed as of right, and according to the custom of the said (town, borough, or city), ought to be done, our said writ formerly di- rected to you, to the contrary thereof notwithstanding. Witness, &c. (§ 18.) GEORGE the Fourth, &c. To the sheriff of , Prefigas dtem. greeting: Whereas we have lately sent to our justices, appointed to hold pleas before us, our writ closed in these words, that is to say, {here copy the certiorari). Whereupon on the , {the day the writ of prefigas diem is tested, zchich must be the quarto die post of the return of the certiorari,) in the year of our reign, the said A. B. by , his attorney, comes into our court before us at Westminster, and prays that PRACTICAL lOKINlS. |(i| a clay may be prefixed to the said C. /). to appear in our said court before us, to answir to the said A. B. in the said j>laint, in our said court lufore us, according to tlie form and effect of tlie aforesjiid writ. Therefore, at the request of the siid A. J5., we command you that you })refix to the said C. J). , wheresoever we shall then be in England, to apjKar in our said court before us, to answer to the said J. B. in the plaint aforesaid, in our said court before us, according to the exigency of the aforesaid writ, and have there this writ. Witness, Sir Charles Abbott, knight, at IVcslmin- ster, the day of , in the year of our reign. GEORGE the Fourth, &c. To the mayor and recorder fW') „ , - . . Crrtidritri out CI the town oi , m the county oi , greet mg : oftheExdic- We being willing, for certain reasons, that the barons of J"j,^-,t"j'^'"'"*'''' our Exchequer at West minster should be certified by you, rtp'^'^i"- of and concerning all and singular plaints, actions, and suits before you lately levied, recovered, or prosecuted against C. D., for taking and unjustly detaining, the goods and chattels of A. B., as it is said, command you, and every of you, that all and singular the plaints, actions, and suits aforesaid, together with all things be- longing thereto, in as ample manner and form as the same remain before you, or either of you, in our court of the said town, you have before the barons of our Exchequer at Westminster aforesaid, on, &c. together with this writ, so that our said barons may be enabled to do thereupon, what of right ought to be done, accord- ing to the laws and customs of this realm. And that in the mean time you proceed not, nor do any thing between the parties aforesaid, to our prejudice or theirs. Witness, &c. By the barons, solicitor. Rose. M ( IG2 ) III. Proceedings after the appearance. /^ ^-^ , (to wit.) Appearance for C. D. at the suit of appearance for A. B. to a recordari facias loquelam, returnable «" defendant. on G. H. attorney. (§ 2.) A. B. '\ next after is given to the plain- in K. B. ^^ ** ^ V. Miff in replevin to declare, otherwise let there C. D. 3 he a return of the goods. Entered. ^§ ^■) In the King's Bench, Declaration in replevin in {or^ Common Pleas.) K. B. or C. p. , n A term, treo. 4. , (to wit.) C. D. was summoned to answer A. B. of a plea wherefore he took the cattle, goods, and chat- tels of the said A. B., and unjustly detained the same against gages and pledges, until, &c. ; and thereupon the said A. B. by E. F. his attorney, complains, that the said C. D. heretofore, to wit, on the day of , in the year of our Lord , at the parish of , in the county of , in a certain dwelling house there, {or, " in a certain close there, called ,*''') took the cattle, goods, and chattels, to wit, &c. {here set out the cattle and goods, and tlieir number,') of the said A. B., and unjustly detained the same against gages and pledges, until, &c. Wherefore the said A. B. says, that he is injured, and hath sustained damage, to the value of £ , and therefore he brings suit, &c. PRACTICAL Foil MS. _^ IGi In the King's Bench, _ («4.) ion Pleas.) term, Geo. 4. {or J Common Pleas.) ^^,v. C. D. ^ AND the said C. D. by G. H. his attorney, ats. ^conies and defends the wronf^ and injury A. B. } when, &c. and says tliat lie did not take the said cattle, goods, and chattels, in the said declaration mentioned, or any or either of them, in manner and form as the said A. B. hath above thereof complained against him. And of this the said C. D. puts himself upon the country, &c. f§5.) C. D. ^ AND the said C. D. by G. H. his attor- c.,,u\,toiu, ats. /nev, comes and defends the wrong and ^"':'[ '" '"""' i _ -^ '^ with an avowry A. B. J injury when, &c., and says that the said or c- 170 PRACTICAI, FORMS. his costs and charges by him about his suit in that behalf expended to £ , and for those costs and charges to forty shillings, (or, if the defendant proceeds on the statute 17 Car. 2. c. 7. § 2, then, instead of the above assessment of damages, the postea proceeds with, " and the jurors aforesaid, upon their oath afore- said," as before, § 14.) ( 171 ) IV. Judgments. AT a coiintv court holdcii in and for the , f5 !•) .ludgincnt of county of Middlesex:, the day of , 'wnproi.\ni\n- ., r T 1 1^ xi rr county court m the year oi our l^ord , at the olhcc f^r not declar- of the sheriff of the county of Middlesex, '"S- situate in , in the county of MiddleseXy and within the jurisdiction of the said court, before , and sheriff' of the county of Middlesex, and G. R., R. B., S. C. and T. T., free suitors of tlie said court. County court of-\ Be it remembered, tliat at this Middlef,ex, to wit. y court comes here into court A. B. in his proper person, and levies his jjlaint against C. D. of a plea of taking and unjustly detaining the goods and chattels of the said A. B. against gages and pledges until, &c., and now here in this court the said A. B. finds pledges to prosecute his said plaint, to wit, John Doe and Richard Roe ; and the said C. D. by , his attorney, at this same court, comes into court here and defends the force and injury when, &c. and prays that the said A. B. may declare in tlie plea of the said plaint, and thereupon it is ordered by the said court here, that the said A. B. do declare in the said plea of his said plaint at the next county court of the said sheriff", to be holden in and for the said county of Middlesex. The same day is given in the said court here, as .mII to the said A. B. as to the said C. D. there, &c. At which next county court, to wit, at a coiuity couit holden in and for the said county of Middlesex, at the said 72 PRACTICAL FORMS. office of the said sheriff of Middlesex, situate in , in the said county of Middlesex, and within the jurisdiction of tlie said court, the day of , in the year of our Lord , before the said , sheriff of the said county of Middlesex, and tlie said G, R., R. B., S. C. and T. T., free suitors of the said court, comes the said C. D. by , his attorney. And the said A. B. doth not come into this court here to prosecute his said plaint levied against the said C. D. in manner aforesaid. And the said A. B. hath not declared in the said plea of his said plaint against the said C. D., but hath therein wholly failed and made default. Therefoj-e it is con- sidered by this court here, that the said A. B. take nothing by his said plaint, but that he and his pledges to prosecute be in mercy ; and that the said C D. go thereof \vithout day, and that he have a return of the said goods and chattels, &c. (§ 2.) .ludgmcnt of nnn pros, for want of decla- ration, in the county court ; with contiuu- ance by dies datus. — , (to wit.) The — esquire, sheriff of holden at , in — — county court of /. K. the county aforesaid, — , in and for the said county, and within the jurisdiction of the same court, on the day of , in the year of the rtign.of our Sove- reign Lord George the Fourth, by the Grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, and in the year of our Lord , before G. R. and N. O., freeholders of the said county, and suitors of the said court. I3E it remembered, that heretofore, to wit, on the day of , in the year of our Lord , at iiibresaid, came A. B. in his proper person, and then and there made and levied to and before the said /. K., PRACTICAL rOllMS. I T-J then being sheriff of the county of aforisaid, out of the county court of the said sheriff, his certain plaint against C. D. of a plea of taking and unjustly detain- ing the cattle, goods, and chattels of the said yj. B. to wit, &c. {setting out the cattle and goods) ^ and then and there found pledges, as well to prosecute his suit with effect, as to make return of the said cattle, goods, and chattels, if a return thereof should be adjudged ])v law, to wit, E. F. of and G. H. of , Avhich said plaint is entered as follows : , (to wit.) A. ]i. conijjlains of C. D. of a plea of taking and unjustly detaining his cattle, goods, and chattels, to wit, &c. {setting out the cattle and goods), and also found pledges, as well to prosecute his suit with effect, as to make a return of the said cattle, goods, and chattels, if a return thereof shall be adjudged by law, to wit, E. F. of and G. H. of . And now in the same court here comes the said A. B. in his proper person, and ofl'ers himself against the said C. D. in the plea of his said plaint ; and the said C D. having been duly summoned in that belialf, also comes into the same court here, in his proper person : And thcreujjon the said A. B.y in this same court, puts in his place , his attorney, against the said C, X)., in the ])lea of the said plaint; and the said C. D., in the same court, lure puts in his place , his attorney, at the suit of the said A. B, in the plea aforesaid : And thereupon the said A. B. prays a day to declare against the said C. D. in the plea of the said plaint here, until the next court of the county aforesaid, to be holden at aforesaid, in and for the said county, and within the jurisdiction of the same court, on the day of now next ensuing, and he hath it, &c. The same day is given to the said C. D. to be there, &c. At which same next court, to wit, the ct)untv court of the said /. A , 174 PRACTICAL FORMS. sheriff of the county aforesaid, held at aforesaid, in and for the said county, and within the jurisdiction of the same court, on the aforesaid day of , in the year of the reign of our said Lord the now King, before and , freeholders within the said county, and suitors of the same court, comes the said C. D. by his attorney aforesaid, and offers himself against the said A. B., in the plea of his said plaint ; but the said A. B.^ although solemnly called, comes not, but makes default, nor does he further prosecute his plaint against the said C. D. Therefore it is considered by the court here, that the said A. B. take nothing by his said plaint, but that he and his pledges to prosecute be in mercy, &c. ; and that the said C. D. do go thereof without day, &c., and that he have a return of the said cattle, goods, and chattels, &c. It is also considered by the court here, that the said C. D. do recover against the said A. B. £ , for his costs and charges by him laid out about his defence in this behalf, by the said court here adjudged to the said C. D., and with his assent, according to the form of the statute in such case made and provided, and that the said C. D. have execution thereof. (§3.) As yet of term, Geo. 4, Src. Judgment of reiornn haben- YORKSHIRE, (to wit.) Be it remembered that else- rfo and won pro?. , . p i • z-i i t»*- for not dcclrtr- where, to Wit, at the court baron of his Grace the Most i°pliinf rf-" """ ^^^^^ ^^'^ ^"^^ o^ ^^^^^' ^oi'^ «^ ^^^ *"^"o^ «^ Wakefield, moved out of in the said county, liolden within the said manor, the — ■ i)y arceiinslhii- ^l^y of , in the fifth year of the reign of our Sovereign tion thllT' Lo^"^ George the Fourth, &c. A . B. complained of C. D. and E. F. of a plea of taking and unjustly detaining the goods and chattels of the said A. 7J., which said plaint, at the petition of the said C. J), and E. /•'., by virtue of a writ of our said Lord the King, of Accedas ad PRACTICAL rOHMs. 17/5 curiam^ returnable before our said Lord tlu' Kin;;, on , in this same term, wheresoever our said Lord tlu- King should then be in Eug/aml, is had before our said Lord the King at Weslminster, on the , in this sanu- term, at which day at Westminster aforcssiii}, come the said C. D. and E. F. by , their attorney : but the said A. ZJ., although solemnly demanded, cometh not, but maketh default ; nor hath he in due time declared against the said C. D. and E. F., or any of them ; nor hath he further prosecuted the said writ: whc'reuj)on the said C. D. and E. F., for having a return of the goods and chattels hereinafter mentioned, say, that , then being steward of the said duke of the said court of the said manor, to wit, on the said day of , in the year aforesaid, at Wakefield^ within the said manor and county, on the said plaint of the said A. B., caused divers goods and chattels, to wit, , whicli they the said C D. and E. F. had taken as a distress, and then and there detained, to be replevied and delivered to the said j4. B., and that the said complaint of the said jd. B. so made as aforesaid, was made for and on the accoinit of the taking and detaining of the said goods and chat- tels so replevied and delivered as aforesaid. Therefore it is considered that the said A. B. take nothing by the said writ, but that he be in mercy, kc, and that the said C. D. and E. F. go thereof without day, and that they have a return of the goods atid cliattels so replevied as aforesaid, if it shall appear to the sheriff" that the said allesration of the said C. D. and E. F. be true. As vet of term (the term of which inter- ^§ «^ "^ .... Jiidariiunt for locutary judgment is .signed) in the the plaintirf by _ ' '^. p T>- yt ^1 T7 ii ni/ PRACTICAL FORMS. justly detaining the cattle, goods, and chattels of the said A. B. against gages and pledges, &c. , (to wit.) The said C. D. puts in his place G. H., his attorney, at the suit of the said A. B. in the plea aforesaid. , (to wit.) C. D. was summoned to answer A. B. of a plea wherefore, &c. {here copy the declaration ver- batim, and proceed on a Jiew line, a^ follows :) And the said C T>. by G. H.^ his attorney, comes and defends the wrong and injury, when, &c., and says nothing in bar or preclusion of the said action of the said A. B.y whereby the said A. B. remains therein un- defended against the said C. D. ; wherefore the said A. B. ought to recover against the said C. D. his damages on occasion of the taking and unjustly de- taining of the cattle, goods, and chattels aforesaid. But because it is unknown to the court of our said Lord the King now here, what damages the said A. B. hath sustained by means of the premises, the sheriff is commanded that, by the oath of twelve good and lawful men of his bailiwick, he diligently enquire what damages the said A. B. hath sustained, as well on occasion of the premises as for his costs and charges by him about his suit in this behalf expended; and that he send the inquisition which he shall thereupon take to our said liOrd the King at Westminster, on next after , under his seal and the seals of those by Avhose oath he shall take the said inquisition, together with the writ of our said Lord the King, to him thereupon directed. The same day is given to tiie said A. B. here, &c. At which day, before our said Lord the King at Westminster, comes the said yl. B. by his said attorney ; and the sheriff, to wit, , sheriff of the said county, now here returns a certain inquisition indented, taken before him at , PllACTKAl. FORMS. 177 in the county aforesaid, on the tlav of , in the year of the reign of our said Lord tlu- now King, by the oath of twelve good ami lawful men of his bailiwick, by which it is found, tiiat the said A. li. hath sustained damages, by means of the premises, to -£ , over and above his costs and charges by him about his suit in this behalf expended, and for those costs and charges to shillin ' ^1 • 1 . i-.,\ Judirnifiil for A. J3. as tn the judgmetit, p. l/o.) the .i.f.nd- , (to wit.) C J), was sunnnoned to answer unto ""' ^"/ * ''*' ^ ' lurn, &c. on A, B. of a plea, &c. (here copy the dec/aration and avouru, """ p^"'- for a . ^ - , . ,, want of a pica or cognizance, and proceed asjollows :) in har; with And upon this the said C. D. prays that the said "J]^"^ hairndo, A. B. may plead in bar of the said avowry (or "cojjni- l*"*^ T"* °[ •^ " inquiry of da- zance,") and thereupon a day is given to the said A. B. mages. before the Lord the King until , wheresoever our said Lord the King shall then be in England, (^or in C. p. " a day is given here to the said A. B. until /') that is to say, for him the said A. B. to plead in bar of the said avowry {or " cognizance,") &c. ; the same day is given to the said C. J), &c. At which day, before the said Lord the King at Westminster, comes (or, in C. p. " at which day comes here,") the said C D. by his attorney aforesaid, and offers himself against the said A. B. in the plea aforesaid ; but the said A.B. although solemnly called, comes not, but makes default ; nor hath he pleaded in bar of the said avowry (^or " cognizance,'^) nor does he further prosecute his writ against the said C. D. Therefore it is considered that the said A. B. Jiulijmcnt take nothing by his said writ, but that he and iiis pledges to prosecute be in mercy, &c. ; and that the said C. D. do go thereof without day, &c. ; and that he have a return of the cattle, goods, and chattels aforesaid, &c. And it is further considered that the said C. D. ought to recover against the said A. B. his damages on occasion of the premises, according to the form of the statute in such case made and provided. Therefore it is commanded to the sheriff that, without delay, he cause the cattle, goods, and chattels aforesaid, to be returned to the said C. D., and that lie do not de- liver them on the complaint of the said A. 11 without the writ of our said Lord the King, which shall make express n2 180 PRACTICAL FOiaiS. mention of the judgment aforesaid. And in what manner he shall execute the writ of our said Lord the King * he make appear to the said Lord the King on , wheresoever he shall then be in England, (or, in C. P. " to the justices here, on .") It is also commanded to the sheriff, that, by the oath of twelve good and lawful men of his bailiwick, he diligently inquire what damages the said C. D. hath sustained, as well on occasion of the premises, according to the form of the statute in such case made and provided, as for his costs and charges by him laid out, about his defence in this behalf; and that the inquisition which the said sheriff shall thereupon take, he make appear to the said Lord the King at the time aforesaid, wheresoever he shall then be in England, {or, in C. P. " to the justices here at the time aforesaid,") under his seal, and the seals of those by whose oath he shall take that inquisition, and that he have there then, the names of those by whose oath he shall take that inquisition, together with the writ of the said Lord the King to him thereupon directed. The same day is given to the said C D., &c. f§ ^■) (After the judgment for a return as above, proceed as Tlie like, with "^ J S J ^ ^ ^ f ■.iremit/.iiur follows.) And hereupon the said C. D. freely here in court remits to the said A. B. his damages aforesaid, therefore let the said A. B. be acquitted thereof. And it is further considered by His Majesty''s court here, that the said C. D. do recover against the said A. B. £ for his costs and charges, by him laid out, about his defence in this behalf, by the said court here ad- judged to the said C. D., and with his assent, according to the form of the statute in such case made and pro- vided; and that the said C. D. have execution thereof, Sec. PRACTICAL FORMS. ^_ \^\ (Efitru of warrants ofattorneii for bolli partus at 'i'-*) , -^ -^ ^ ■ . .I.Klpiii.iil for A. B. as before, p. 175, and after enteriug the jmnced- the cUf.miant ings to the end of the demurrer-hook, go on asfuliotcs.) \,-.'ondiinur- At which day before our said Lord the Km^r at West- f'"'^ '" " '•''" '" -' ^ tijir at roiniiion minster, come (or, in C. P. '* at which day come here,'') '"". the parties aforesaid, by their attorneys aforesaid, where- upon all and singular the premises being seen, and by the court of our said Lord the King now here (c»r, in C. p. " by the justices here,"") fully understood, antl mature deliberation being thereupon had, it appears to the said court {or "justices*') here, that the said ])lea of the said A. JB., by him above pleaded in bar of tlie avowry {or " cognizance "") aforesaid, and the matters therein contained, are not sufficient in law to bar the said C. D. from avowing {or " acknowledging") the taking of the said cattle, goods, and chattels, in the said place in which, &c. to be just, as the said C. D. hath above alleged. Therefore it is considered that the said^.B. take nothing by his said writ, but that he and his pledges to prosecute be in mercy, &c. ; and that the said C. D. do go thereof without day, &c., and that he have a return of the said cattle, goods, and chattels, to hold to him irreplevisable for ever, and that he ought to recover against the said A. B. his damages on occa^ sion of the premises, according to the form of the statute in such case made and provided. Therefore it is com- manded to the sheriff, that without delay, he cause the cattle, goods, and chattels aforesaid, to be returnetl to the said C. D. to hold to him irreplevisable in form aforesaid. And in what manner he shall execute the writ of the said Lord the King, &c., {as in the last pre- cedent but one from the * to the end. ) {To the end of the postea as in other cases, and then as (§ lo.^ ^ ^ /^ . If .Imlpimlit for follows:) Therefore it is considered that the saul "l '>• the difniJant 182 PRACTICAL FORMS. for a return, take nothinff by his writ aforesaid, but that he and his &c. on a ver- 0^7 diet at com- pledges to prosecute be in mercy, &c. ; and that the said C. D. do go thereof without day, &c., and that he have a return of the cattle, goods, and chattels aforesmd, to hold to him irreplevisable for ever. And it is further considered that the said CD. do recover against the said A. B. his damages aforesaid, by the jury afore- said, in form aforesaid, assessed, and also £ for his costs and charges aforesaid, by the court of our said Lord the King now here adjudged of increase to the said C D , and with his assent, according to the form of the statute in such case made and provided; which said damages, costs, and charges in the whole amount to £ , and that the said C. 1). have execution thereof, &c. (HI.; (2b the end of' the postea as in other cases, and then as iH)D&mt\'aK.B.J(jf^<^ws :) Therefore it is considered that the said A. B. take nothing by his writ aforesaid, but that he and his pledges to prosecute be in mercy, &c. ; and that the said C. D. do go thereof without day, &c., and that he have a return of the cattle, goods, and chattels aforesaid, to hold to him irreplevisable for ever. And it is further considered by His Majesty's court here that the said C. D. do recover against the said A. B. £ , for his costs and charges by him laid out about his defence in this behalf, by the court of our said Lord the King now here adjudged to the said C. D., and with his assent, according to the form of the statute in such case made and provided, and that the said C. D. have execution thereof, &c. (§ 12.) {Lntri/ of timrrant oj attorney Jor the defendant same Judgment for the defendant «* p. 1 7/x) tlXT&Z'i ' (^^ ^^^O ^- ^' ^^^ summoned to answer A. B. PRACTICAL FORMS. ^^ 183 of a ])lea wherefore he took the eattle, ^^o(hI>, ami cliat-/-" • f-THant tels of the said A. R, and unjustly detained tlieni 't'i„n'(oriU*«r- against gages and pledges, &c. And thereupon the ?"""^r'""'' said CD. in his proper person offers himself on tjie tuu- 17 Car. 2. fourth day against the said J. Ji. in the plea aforesiid; and the said j4. B. eomes not, hut makes default. Therefore it is considered, that the saiil ^4. I>. take nothing by his said writ, but that he and his j)ledges to prosecute be in mercy, &c.; and that the said C. ]). do go thereof without day, &c., and that he have a return of the said cattle, goods, and chattels, &c. And there- upon the said C. D., according to the fonii of the sta- tute in such case made and provided, suggests and gives the court here to understand and be informed, that the said C. D. took the said cattle, goods, and chattels of the said A. B., for the taking whereof he was summoned to be in the said court of our said Lord the King, before the King himself, (or, in C. P. " before his justices here,"") to answer to the said A. B. as aforesaid, at the parish of , in the said county of , in a certain place there, called , and that he took the same as bailiff of E. F., for that the said J.B. for the space of next before and ending on the day of , in the year of our Lord , ami from thence until the time of taking the said cattle, goods, and chattels, held and enjoyed the said place in which, &c., with the appurtenances, amongst other things, as tenant thereof to the said E. F., at and under the yearly rent of £ , payable on the , on the , &c. (dat/s of prnpnent.) And because the sum of £ of the rent aforesaid, for the space of , ending as aforesaid on the said day of , in the year aforesaid, and from thence luitil, and at the time of taking the said cattle, gcHuls. and chattels, was in arrear and unpaid from the saitl A. B. to the said E. P., the said C. D. a> bailill PRACTICAL FORMS. of the said E. F. took the said cattle, goods, and chat- tels as, for, and in the name of a distress for the said rent, so due, and in arrear from the said A. B. to the said -E. F. as aforesaid : And hereupon the said C. £)., according to the form of the statute in such case made and provided, prays the writ * of our said Lord the King, to be directed to the sheriff of to inquire of the sum in arrear of the rent aforesaid, and of the value of the cattle, goods, and chattels aforesaid ; and it is granted to him, &c. Therefore it is commanded to the said sheriff of , that according to the form of the statute in such case made and provided, he diligently inquire, by the oath of twelve good and lawful men of his bailiwick, how much of the yearly rent aforesaid, at the time of taking and distraining the said cattle, goods, and chattels, was in arrear and unpaid ; and how much the said cattle, goods, and chattels, so as aforesaid taken and distrained, were worth, according to the true value of the same ; and that the inquisition which the said sheriff shall thereupon take he make appear -j* to our said Lord the King, on , wheresoever our said Lord the King shall then be in England, {or, in C. P. " to the justices here, on, &c."") under his seal and the seals of those by whose oath he shall take the said in- quisition, and that he have there the names of those by whose oath he shall take the said inqviisition, together with the writ of our said Lord the King, to him there- upon directed. The same day is given to the said C. D., &c. At which day before our said Lord the King at Westminster, comes {or, in C. P. " At which day comes here") the said C. D. by his attorney afore- said ; and the sheriflP of , to wit, , now here returns a certain inquisition indented, taken before liim at , in the said county, on the day of , in the year of the reign of our said PRACTICAL rORMS. _^ 1^5 Lord the Kinj.^^^ ^^^ K. D. as before, p. 175.) arrinr» of r.nt, >/ ^ r ^ . .J \c. on tin- 5U- , (to wit.) C. D. was summoned to answer yl. />. luu- 17 Car. 2. of a plea, &c. {here copy the declaration and arourii nr ^,;,|;^^,;;'Xr cognizance, and proceed as follows ;) And upon (hi> w«''t^"f •■> r'" 186 PRACTICAL FORMS. the said C. D. prays that the said A. B. may plead in bar of the said avowry or cognizance, &c. {as before, p. 179 to the end of the judgment for a return, and then as follows ;) And hereupon the said C. X)., according to the form of the statute in such case made and pro- vided, prays the writ, &c. (as in the last precedent but one, from * to the end.) (§ I'') {Copy the demurrer-book, with Serjeants' names, and Judgment for i, the defendant then asJollooVS :) return &c. on ^^ which day come here the parties aforesaid, by their demurrer to attorneys aforesaid, whereupon all and singular the pre- avownes, for •' ^ ' ^ _ ^ ' the value of the mises being seen, and by the justices here fully under- statute 17 Car. stood, and mature deliberation being thereupon had, it 2, c. 7. § 2. appears to the said court here that the said several cog- nizances of the said A. B. by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law for the said A. B. to acknowledge the taking of the said cattle, goods, and chattels, in the said declara- tion mentioned, in the said place in which, &c. to be just, as the said ^. 5. hath above alleged: Therefore it is considered that the said C. D. take nothing by his said writ, but that he and his pledges to prosecute be in mercy, &c. ; and that the said A.B. do go thereof without day, and that he have a return of the cattle, goods, and chattels aforesaid ; And hereupon the said A. B., accord- ing to the form of the statute in such case made and pro- vided, prays the writ of our said Lord the King to be directed to the sheriff of the said county of , to inquire of the value of the cattle, goods, and chattels so taken as a distress as aforesaid; and it is granted to him, &,c. Therefore it is commanded to the said sheriff of the said county of , that he diligently inquire, by the oath of twelve good and lawful men of his bailiwick. rilACTICAL FORMS. ^.^ how much the said cattle, gooils, and i Imitels, su as aton-- said taken and distrained, were worth aaoidin^r tit the truevalue of the same, at the said time of takin^j the same ; and that the said inquisition which the saiil sheriff shall thereupon take, he send to the justices here, on the mor- row of , under his seal, and the seals of tluisv hv whose oath he shall take the said intiuisition, to^^ither with the writ of our said Lord the King to him there- upon directed. The same day is given to the said A. B., &ic. (End of judgment.) At which day, before the justices of our said l^ord the King here, come the parties aforesaid, by their attorneys aforesaid; and the sheriff of , (to wit) , now here returns a certain inquisition incKnted, taken before him, at , in the said county, on the day of , in the year of the reign of our said Lord the King, by the oath of twelve good and lawful men of his county, whereby it is found that t la- cattle, goods, and chattels, so as aforesaid taken and distrained, were worth according to the true value thereof, at the said time of taking the same, the sum of £ . Therefore, according to the form of tlu- statute in that case made and provided, it is considered that the said A. B. do recover against the said C. D. the said sum of £ , the said value of the said cattle, goods, and chattels, so taken and distrained as aforesaid, anvl also £ by the court of our said Lord the King, of the Bench now here, adjudged to tiie said -/. />., as and for his costs and charges by him laid out about his defence in this behalf, according to the form of the statute in such case made and ]irovided; which siid several sums amount in the whole to <£* , and tlwit the said ^. B. have execution thereof, &e. (The execiiliun should be marked lo levy onh/ X , the amount of the rent and costs.) 188 niACTICAL FORMS. (§ 16.) fJ'Q f/ig gfifi Qf ffig postea. and then as follozcs :) Judgment on a ... . nonsuit or ver- Therefore it is considered that the said A. B. take rears of rent, nothinf^ by his writ aforesaid, but that he and his pledges &c. on statute jq prosecute be in mercy, &c. ; and that the said C. D. §2. do go thereof without day, &c. It is also considered that the said C D, do recover against the said A. B. the said £ , being the sum of the arrears aforesaid, in form aforesaid assessed, and also £ by the court of our said Lord the King now here, adjudged to the said CD., and with his assent, according to the form of the statute in such case made and provided, for his costs and charges by him laid out about his defence in this behalf; which said arrears, costs, and charges, in the whole amount to £ , and that the said C D. have execution thereof, &c. ( i<^o ) V. Writs of Inquiry, &( GEORGE the Fourth, &c. To the shorif!" of , ... ./V'"^ v- ' ' \\ riti)rin()Uirf ffreetmg: : Whereas C. D. was summoned to be in our "f •'■"'»i^»^'' ^"' IP / • /-■ r. 1 P • • ^'"^ plaiuliff, in court before us, (or, e« C i . " before our justices at a'. «. (cr, c. P. Westminster/^) to answer A. B. of a plea wherefore the ^[^^J t'i^'?'^ "" said C D. on the day of , in the year of our Lord , at the parish of in your county, in a certain place there, called , took the cattle, gcxuls, and chattels of the said A. jB., to wit, &c. {here set out the cattle and goods, as in the declaration,) and unjustly detained them against gages and safe pledges until, &c-. Wherefore the said A. B. said that he was injured, aiul had sustained damage to the value of £ , and tliore- fore he brought his suit, &c. And such proceedings were thereupon had, in our said court before us at West- minster aforesaid, {or, in C. P. "it was in such manner proceeded in our said court") that the said A. B. ought to recover against the said C. D. his damages, on (Hta- sion of the taking and unjustly detaining of the cattle, goods, and chattels aforesaid. But because it is unknown to our said court before us, what damages the said J. B. hath sustained by means of tlie premises aforesaid, therefore we command you, that, by the oath of twtlve good and lawful men of your bailiwick, you diligently inquire what damages the said J. B. hath sustained, as well by means of the premises aforesaid, as for his costs and charges by him about his suit in this behalf i\- pended, * and that you send to us at West/iiiih^tc>\ on next after , the inquisition which you >hall thereupon take, under your seal and the seal> of those 190 PRACTICAL FORMS. by whose oath you shall take that inquisition, together with this writ. Witness, Sir Charles Abbott, knight, at Westminster, the • day of , in the year of our reign. Ellenhorongh & Markfiam. (§ 2.) (If in the Common Pleas, it should conclude as follows The like, in ^ -^ » i , . ... , • , , i, , C. P. from the *). And the inquisition which you shall there- upon take, make appear to our justices at Westminster, in , under your seal and the seals of those by whose oath you shall take the said inquisition ; and have there the names of those by whose oath you shall take the said inquisition, and this writ. Witness, Sir William Draper Best, knight, at Westminster, the day of , in the year of our reign. , (§ 3.) GEORGE the Fourth, &c. To the sheriff of , Writ of inquiry . /^ -r\ i i • of damages on greeting : W hereas C . D. was summoned to be m our Sr"n!&/and '^""^^ ^^^°^'^ "^ (^^' ^^ ^- ^- " ^^^^^^ °"^ justices at for damages on Westminster^'') to answer ^. J3. of a plea wherefore the demurrer to a _, --^ , • i i plea in bar. said C. D. on , at , in a certain place there, called , took the cattle, goods, and chattels of the said A. B., to wit, &c. (setting out the cattle and goods,) and unjustly detained them against gages and pledges until, &c. And the said C D. appearing in our said court before us, {or, in C. P. " before our said justices at Westminster,") by , his attorney, well avowed (or, " as bailiff of E. F. well acknowledged,") the taking of the said cattle, goods, and chattels, &c. (reciting the avowry or cognizance, plea in bur, demurrer, and joinder.) And such proceedings were thereupon had, in our said court before us, (or, in C. P. " before our said jus- tices,"") that it was afterwards considered by the same court that the said plea of the said C. /)., by him above pleaded in bar of the avowry (or " cognizance") afore- PRACTICAI, roUMS. I'M said, and the matters therein contaiind, won- not sulll- cient in law, to bar the said C. J). iVoni avowing {or " acknowledging"") the taking of thi- said cattle, gtHnls, and chattels in the said place in which, &c., to be just, as the said C. D. hath above alleged. It was also con- sidered by the same court, that the said J. B. slioulij take nothing by his writ aforesaid, but that he and his pledges to prosecute should be in mercy, &c. ; and that the said C. D. should go thereof without day, &c, and that he ought to recover against the said J. B. his damages on occasion of the premises, according to the form of the statute in such case made and provided. But because it is unknown to our said court before us, what damages the said C. D. hath sustained, as well on occasion of the premises, according to the form of the statute in such case made and provided, as for his costs and charges by him laid out about his defence in this behalf, therefore, &c. {same as the last precedent to the end, saying " defence" instead of " suit.") GEORGE the Fourth, &c. To the sheriff of , ^§4). >\ rit of iiupiiry greeting: Whereas CD. was summoned to be in our to usciTtJiin the court before us, (or, in C. P. "before our justices at ^.j. „„„„„„ Westminster:'') to answer J. B. of a plea wherefore he f'"'- l''^ "**"' took the cattle, goods, and chattels, of the said A. B., tion, on statute 1 • ,1-11 • ,11 irrar. 2.C. 7. and unjustly detamed them agamst gages and pledges, §j. &c. And the said C. D, offered liimself in our said court before us, {or^in C. P. "before our said justices,") on the fourth day, against the said A. B. in the plea aforesaid; but the said A. B., although solenmly called, came not, but made default, nor did he further prose- cute his writ against the said C. D. : Therefore it was considered by the same court, that the said A. B. should take nothing by his said writ, but that he and his pledges to prosecute should bo in mercy, S.'C. ; and that 192 PRACTICAL FORMS. the said C. D. should go thereof without day, &c., and that he should have a return of the said cattle, goods, and chattels, &c. And thereupon it hath been suggested in our said court before us, {or, in C. P. " before our said justices") by the said C. J)., that he took the said cattle, goods, and chattels of the said A. B. for the taking whereof he was summoned to be in our said court before us, {omitting " before us," in C P.) to answer the said .4. B. as aforesaid, at , in the said county, in a certain place there, called , and that he took the same as baihff of E. P., for that the said A. B. for the space of next before, and ending on the day of , in the year of our Lord , and from thence until and at the time of taking the said cattle, goods, and chattels, held and enjoyed the said place in which, &c. with the appurtenances, amongst other things, as tenant thereof to the said E. F., at and under the yearly rent of £ ; and because £ of the rent aforesaid, for the said space of ending as aforesaid on the said, &c., and from thence until and at the time of taking the said cattle, goods, and chattels, were due, and in arrear from the said A. B. to the said E. F., the said C. D., as bailiff of the said E. F., took the said cattle, goods, and chattels, as for and in the name of a distress for the said rent so due and in arrear from the said A. B. to the said E. F. as aforesaid. And thereupon the said C. D., according to the form of the statute in such case made and provided, prayed our writ to be directed to you, to inquire of the arrears of the rent aforesaid, and of the value of the said cattle, goods, and chattels, and it was granted to him, &c. as by the record and proceedings thereof still remaining in our said court before us, {or, in C. P. " before our said justices) at Westminster aforesaid, fully appears : There- fore we command you, that according to the form of the ruAc ruAi idiiMs. ^ I'.KJ statute aforesaid, you (liH^iiUly ukjuut, hv ilu- oatli of twelve good and lawful uwn of your halliuick, liow much of the yearly rent aforesaid, at the time of taking and distraining the said cattle, goods, and chattels, was in arrear and unpaid ; and how much the said cattle, g(X)(is, and chattels, so as aforesaid taken and iiis( rained, were worth, according to the true value of the same, and tlie inquisition which you shall thereupon take, make appear to us on , wheresoever we shall then he in Eiigittnd, {or, in C. P. " to our said justices at Westminster, on ,") under your seal, and the seals of those bv whose oath you shall take the said inquisition ; and have there the names of those, by whose oath you shall take the said inquisition, and this writ. Witness, Sir Char/ts Abbott, knight, {or, in C. P. " Sir WiUinm Draper Best, knight,") at Westminster, the day of , in the year of our reign. GEORGE the Fourth, &c. To the sheriff" of , 'i;\-^ Writ of in- greeting: Whereas C. D. was summoned to be in our quin- onnon court before us, {or, in C. P. "before our justices at ^f"^pij„ ;„ Westtninsier,'") to answer J. B. of a plea w herefore the ^'"■• said C. D., on , at , in your couiny, in a cer- tain place there, called , took the cattle, goods, and chattels, of the said J. B., to wit, {set out the cattle and goods mentioned in the declaration,) and unjustly de- tained them against gages and }>Icdges initil, Sec. And the said C. D. appearing in our said court before us, {or, in C. P. " before our said justices at Westminster^ aforesaid,) by his attorney, well avowed (or, " as baihff'of G. N., well acknowledged,") the taking of the sHid cattle, goods, and chattels, &c. {here recite the whole of the avoiori/ or cognizance, and proceed as j'ollous:) And such proceedings were thereupon had, in our *aid court before us, {or, in C. P. "before our said iui>tice5. o 194 phactical forms. at Westmbistei^'' aforesaid,) that it was afterwards con- sidered in the same court, that the said A. B. should take nothing by his writ aforesaid, but that he and his pledges to prosecute should be in mercy, &c., and that the said C. D. should go thereof without day, &c. ; and that he should have a return of the said cattle, goods, and chattels, &c. And thereupon the said C Z)., ac- cording to the form of the statute in such case made and provided, prayed our writ, &c. {tis in the last, to the end.) (§ «•) GEORGE the Fourth, &c. To the sheriff of , Writ of inquiry under the sta- greeting : Whereas C D. was summoned to be in our C.7 in reple- court before our justices at Westminster, to answer A. B. Tin, after dc- of a plea. For that the said CD., on &c., at &c., murrer to the *^ avowry and in a certain dwelling house, barn, and premises there, the avowant, took the cattle, goods, and chattels, to wit, &c. of him the said A. B. of great value, to wit, of the value of £ , and unjustly detained the same against sureties and pledges until, &c. And the said C. D. appear- ing in our court before our justices at Westniiimer, bv J. H., his attorney, comes and defends the wrong and injury when, &c., and as bailiff of S. B. H., esq. well acknowledged the taking of the said cattle, goods, and chattels, {heie copy the cognizance, demurrers, and join- ders, tvithout Serjeants' names,) and such proceedings were thereupon had in our said court before our said justices, at Westminster aforesaid, in the same plea, that it was afterwards considered by the same court, that the same cognizances and the matters therein contained were, and each and every of them was, sufficient in law for the said C. D., to acknowledge the taking of the said cattle, goods, and chattels in the said declara- tion mentioned, in the said place in which, &c., to be just, as is before alleged : And it was also considered by phactu'ai. roiLMs. _^ 196 the same court that the said A. B. should take nothing by his writ aforesaid; l)ut that hi> ami his pledj^i-s to prosecute should be in mercy, &c. ; and that the said C. D. should go thereof without day, and that hi- should have a return of the said cattle, <,'(K)ds, and chattels, &c. And thereupon the said C. D. acet)rd- ing to the form of the statute in such case matle and provided, prayed our writ to be directed to vou the said sheriff, to inquire of the value of the Kiid cattle, goods, and chattels aforesaid, and it was granted to him, &c. ; As by the record and proceedings tlunof, still remaining in our court before our said justices at Westminster aforesaid, more fully appears. Thereiore we command you that you diligently inquire, by the oath of twelve good and lawful men of your bailiwick, how much the said cattle, goods, and chattels, were worth at the time of taking the same, according to their true value, and the inquisition which you shall there- upon take, you send to our said justices at Westminster, on , under your seal, and the seals of those by whose oath you shall take the said Inquisition, and have there the names of those by whose oath you shall take the said inquisition, and this \\rit. Witness. ^\r William Draper Best, knight, at Westminster, the day of , in the year of our reign. In the King's Bepch, ^ ^„iicc of in- (or. Common Pleas.) S 'i"-'^' ?". ')'/ A. B. agamst C . /). Take notice, that a writ of mciuiry will be executed in this cause, on , (at the distance of fifteen daip at the least) at , {if in London, say, "at tiie >e- condary's office. No. 28, Coleman Street, London) ; [and if the plaintiff mean to attend by counsel, add, '' when and where counsel will attend on behalf of the said o2 196 PRACTICAL FORMS. plaintiff."] {If in Middlesex, say, " between the hours of eleven o'clock in the forenoon, and one of the clock in the afternoon, of the same day, at the sheriff's office, in Red Lion Square, near Holhorn, in the county of Mid- dlesex.'''') [If in the country, say, " at the house of , commonly called or known by the name or sign of , in street, at , in the county of .■"] {If before the chief-justice or chief-baron, say, " at the sittings after this present tenn, to be holden at the Guildhall, of the city of London"") ; {or, in Middlesex, " at Westminster Hall, in the county of Middlesex,^'') touching the sum in arrear at the time of the distress taken, and the value of the goods {or " cattle") dis- trained ; {or, on demurrer,) of the value of the dis- tress, according to the form of the statute in such case made and provided. Dated the day of , 18 — . Your's, 5cc. To Mr. G. H., E. F., plaintiff's defendant's attorney, attorney, {or " agent.") {or " agent.") (§ 8.) , (to wit.) An inquisition indented, taken at the Inquisition and i o n i i i i • e return. iiouse oi • -, called or known by the name or sign oi — — , in the said county of ■ , on the day of , in the year of the reign of our sovereign Lord George the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, before ■ , sheriff of the county aforesaid, by virtue of a writ of our said Lord the King to the said sheriff directed, and to this inqui- sition annexed, to inquire of certain matters in the said writ specified, by the oath of G. P., &c., honest and lawful men of the said county, who, upon their oath, say that the sum of £ , of the yearly rent, in the said writ mentioned, was in arrear and unpaid from the PRACTICAL I OHMS. ^ 197 said A. B. to the said C. D. at the time of taking and distraining the cattle, goods, and chattels in the said Avrit also mentioned ; and that the said cattle, g(X)ds, and chattels were then worth, according to their true valvie, the sum of £ {or, on demurrer, that the cattle, goods, and chattels, in the said writ| mentioned, were worth at the time of taking the same, according to their true value, the sum of £• .) In witness whereof, as well I the said sheriff, as the said jurors, have set our seals to this inquisition, the day and year, and at the place above written. The execution of this writ appears in the inquisition hereunto annexed. The answer of , sheriff. ( i9B ) VI. Execution. .(§ 10 GEORGE the Fourth, by the grace of God, of the the plaintiff. United Kingdom of Great Britain and Ireland King, Defender of the Faith. To the sheriff of , greet- ing : We command you, that of the goods and chattels of C. D. in your bailiwick, you cause to be made £ , which A. B. lately in our court before us (or, in C. P. " before our justices at Westminster,'') recovered against him for his damages which he had sustained, as well on occasion of the taking and unjustly detaining of the cattle, goods, and chattels, of the said A. B. as for his costs and charges by him about his suit in that behalf expended, (o/-, in C. P. " for his damages, Stc." omitting the costs), whereof the said C. D. is convicted, -}- as appears to us of record. And have that money before us at Westminster, on next after , (by bill,) (or, bi/ original, " on , wheresoever we shall then be in England,'''') to be rendered to the said A. B. for his damages aforesaid, and have there then (or, bu original, " have there") this writ. Witness, Sir Charles Abbott, knight, f at Westminster, the day of , in the year of our reign. {If in C. P. instead of what is between f and f say, " And have that money before our justices at Westminster, on , to be rendered to the said A. B. for his damages aforesaid, and have there this writ. Witness, Sir William Draper Best, knight.") (§ 2.) GEORGE the Fourth, &c. {as above.) To the The like, for , .„ „ the defendant ^^neritl ot , greetmg : We command you, that of I'KACriCAI, lOKMS. I99 the goods and chattels of A. B. in your l)aHi\vuk, you on ih.- M«tuic cause to be made £ , which ( '. />. lately in om* JorVrrr.rs'^or court before us {or, in C. P. " hefoie our justices at ''''"'• **^- Westminster^'') recovered against hini for certain arriar- ages of rent, according to the form of the statute in such case made and provided, and also £ , -f- wiiich in our same court before us {omitting " before us" in C.P.) were adjudged to the said C. D. for his costs and charges by him laid out about his defence, in a certain action of replevin lately connnenced, and depending in the same court, at the suit of the said .7. B. agaiiist the said C. JD., whereof the said A. B. is convicted, as appears to us of record {omitting tlie latter words in C. P.) And have the said monies l)efore us, on , wheresoever we shall then be in England, (or, in C. P. " before our said justices at Westminster aforesaid, on ,") to be rendered to the said C D., for the ar- rearages of rent, and costs and charges, and have there this writ. Witness, &c. GEORGE the Fourth, &c. (as before.) To the (§3.) sheriff of ^ , greeting: We command you, of the ,,,^,..^,„'.'of the goods and chattels of A. B. in your bailiwick, you cause mtti.- or goodi *=> •' . •' distrained. to be made £ , which C. D. lately in our court before us, {or, in C. P. *' before our justices at West- minster,") recovered against him for the value of cer- tain cattle {or " goods and chattels'") distrained by the said C. D., for certain arrearages of rent, according to the form of the statute in such case made and provided, and also £ , &c. {same as tfte last Jrom the -)- to tlie end.) §4.) , (to wit.) /. K. Esq. high sheriff of the said ,.^^.^^.^,^ j^ ^^. county, to all and singular my bailifl'sof the said county, f"^"<' haimd- greeting: Whereas heretofore, to wit, at the eountv court, on a •200 PRACTICAL FOKMS. judgment of court of G.H. Esq. lute sheriff of the county aforesaid, non pros, for . i /. i • i i • i • want of a plea holdeii at , in and lor the said county, and within ^^' the jurisdiction of the same court, on the day of , in the year of the reign of our Lord the now King, before the free suitors of the same court, came A. B. in his proper person, and then and tliere in the same court, levied his plaint against C. D. as bailiff of E. F., of a plea of taking and unjustly detaining his goods and chattels, (to wit) [here set out the goods as in the plaint,) And afterwards, (to wit) at the county court of the said G. H., late sheriff of the county afore- said, holden at aforesaid, in and for the said county, and within .the jurisdiction of the same court, on the day of , in the year of the reign of our said Lord the King, before the free suitors of the same court, the said ^. B. declared in the said plea against the said C. D. as bailiff of the said E F., that the said C. D. on the day of , in the year of our Lord , at the parish of , in the county of aforesaid, and within the jurisdiction of the said court, in a certain dwelling-house there, did take the aforesaid goods and chattels of the said A. B., and the same then and there unjustly detained against sureties and pledges, until, &c. as it was said. And afterwards, (to Avit), at the county court, of me the said /. K. sheriff of the county aforesaid, holden at- aforesaid, in and for the said county, and within the jurisdiction of the same court, on the ■ day of , in tlie year of the reign of our said Lord the King, before the free suitors of the same court, the said C. D. appearing in the said court as- bailiffof the said E. F., wcW acknowledged the taking of the said goods and chattels in the said dwelling-house, in which, &c. and justly, &c. for certain rent due and in arrcar, from (he said A, B. to the said E. F., for the I'KAc ruAi, loK.Ms. _^ unl said dwelling-house, in whicli, ^cc. with the appur- tenances, held and enjoyed by the said A. li. imdi i a certain demise thereof, for the space of (juartcrs of a year next before, and en(lin«r on the dav of — — , in the year of our Lord . And sucli further proceedings were thereupon had, that afterwards, (to wit), at the county court of me the said /. K., sheriff of the county aft)resaid, holden at aforesaid, in and for the said county, and within tin- jurisdiction of the same court, on — the day of , in the year aforesaid, before R.li. and G. P., free suitors of the same court; it was considered and adjudged by the same court, that the said A. B. should take nothing by his said plaint, but that he and his pledges to prose- cute should be in mercy, &c. ; and that the said C. D. should go thereof without day, &c. ; and that he should have a return of the goods and chattels aforesaid, &c. : Therefore I now command you and every of you, that without delay you, or some, or one of you, cause the said goods and chattels to be returned to the said C. D. And in what manner you shall have executed this my precept, make appear to me, at my next county court to be holden at aforesaid, in and for the county aforesaid, on the day of next, (iivcn under the seal of my office this day of , in the year of our I^ord . By the sheriff. GEORGE the Fourth, &c To the sheriff <.f , ,,^^J^Xt.n. n-reetino-: Whereas C. D. was sununoiied to be in our i/o on a non f> ^ pros, for want court before us, (or, in C. P. "belore our justices at „,- „ .lerUra- Westmin.'iter,''') to answer y<. B. of a plea wluivfoie he """• took the cattle, goods, and chattels, of the said A. li.. and unjustly detauied them against gages and pledge^, &c. as it was said. And the said ./. B atuiuaicU in 202 PRACTICAL FORMS. our same court before us, (omitting' " before us" in C. P.) made default. Wherefore it was considered in our same court, that he and his pledges to prosecute, should be in mercy, &c. ; and that the said C. D. should go thereof without day, &c. ; and that he should have a return of the said cattle, goods, and chattels, &c. Therefore we command you, that without delay you cause the said cattle, goods, and chattels, to be returned to the said C. D. ; and that you do not deliver them on the complaint of the said A. B. without our writ, which shall make express mention of the judgment aforesaid, and in what manner you shall have executed this our writ make appear to us on , wheresoever we shall then be in England, {or, in C. P. " to our justices at Westminster on ,") and have there this writ. AVitness, &c. .'§ 5.) GEORGE the Fourth, &c. To the sheriff of ^— , tiu- want' of a g^'^^ting : AVhereas C. D. was sunnnoned to be in our pica 111 bar. court before us, {or, in C. P. " before our justices at Westminster,'^) to answer A. B. of a plea wherefore the said C jD. on the day of , in the year of our Lord • , at tlie parish of , in your county, in a certain place there, called , took the cattle, goods, and chattels of the said A. B., to wit, &c. {here set out the cattle and goods, as in the declaration), and unjustly detained them against gages and pledges, until, &c, as it was said. And the said C. D. appear- ing in the said court before us (or, in C. P. " before our said justices") as bailiff of E. F. well acknowledged the taking of the said cattle, goods, and chattels, in the said place in which, &c., and justly, &c., for damage there done, {or, for certain arrears of rent,) to wit, for the sum of £ , due and in arrear from the said A. B. to the said C 7)., for the t,aid place in I'HACTICAI, lOU.MS. _^ •-!'»;{ which, &c'., with the appurtenances, held aiul enjoyed under and by virtue of a certain demise thereof inaik- by tlic said C D. for tlie space of next l)efore and ending on the day of , in the year of our Lord .") Whereupon the said A. B. being after- wards solemnly called in our said court before us (or, in C. P. "before our said justices,'") came woX, nor did he further prosecute his writ aforesaid. "Where- fore it was considered in our said court, tliat tlie said A. B. should take nothing by his writ aforesaid, but that he and his pledges to prosecute should be in mercy, See, and that the said C D. should go thereof without day, &c., and that he should have a return of the said cattle, goods, and chattels. There- fore we command you, that without delay, you cause the said cattle, goods, and chattels to be returned to the said C. D., and that you do not dehver them on the complaint of the said A. B. without our writ, which shall make express mention of the judgment aforesaid, and in what manner you shall have executed this our writ make appear to us on , wheresoever we shall then be in England^ {or, in C. P. " to our said justices at Westminster aforesaid, on ,"') and have there this writ, &c. Witness, &c. (as before). GEORGE the Fourth, &c. To the sheriff of , ,^, (\7) ' I lu' like, on greeting: Whereas C. D. was suunnoned to be in our (KMinirrerio a court, &c. {as in the last). And the said C. D. a])pear- J|,Vh urii of ing in our said court before us, {or, iu C. P. " l)cfore 'j;;;;-' ^'" ''"" our said justices,") well avowed (or, *' as bailiff of K.F. well acknowledged,") Sec. {reciting the avowry or cog- niimTice, plea in bar, demurrer, and joinder.) And sucli proceedings were thereupon had in our said court before us {or, in C. P. " before our said justices,") that it was afterwards considei-ed by the same court, tiiat 204 PKACTICAL FOllMS. the plea aforesaid by him the said A. B. above pleaded in ])ar of the said avowry {or " cognizance"), and th© matters therein contained, were not sufficient in law to bar the said C. D. from avowing {or " acknowledging") the taking of the said cattle, goods, and chattels in the said place in which, &c., to be just, as the said C. D. hath above alleged. It was also considered by the same court, that the said A. B. should take nothing by his said writ, but that he and his pledges to prosecute be in mercy, &c., and that the said C. D. do go thereof without day, &c., and that he have a return of the cattle, goods, and chattels aforesaid, to hold to him irre- plevisable for ever, and that he ought to recover against the said A. B. his damages on occasion of the] premises, according to the form of the statute in such case made and provided. Therefore we command you, that with- out delay you cause the cattle, goods, and chattels aforesaid, to be returned to the said C D. to liold to him irreplevisable in form aforesaid, and in what manner you shall execute this our writ make appear to us on , wheresoever we shall then be in England (or, in C. P. " to our said justices at Westminster aforesaid, on .") We likewise command you, that by [the oath of twelve good and lawful men of your bailiwick, you diligently inquire, according to the form of the statute in such case made and provided, what damages the said C. D. hath sustanied, as well on occasion of the pre- mises, as for his costs and charges by him laid out about his defence in this behalf, {or, in C. P. " on occasion of the premises," omitting the costs), and the inquisition which you shall thereupon take, make appear to us on the aforesaid day, wheresoever we shall then be in Eng- land, {or, in C. P. " to our said justices at Westminster aforesaid, on ,") undej- your seal, and the seals of those by whose oath you shall take that inquisition, and PRACTICAL rOK^lS. -*- 2Uo have there the names of those hy whose t)ath you sliall take that inquisition, and this writ. Witness, &c. GEORGE the Fourth, &c. To the sherifrof , ^5 8.) . Tlu- liki-, nflcr oreetuiii; : Whereas C. D. was sunmioiied to l)t.' ni our verdict on a court, &c. (as in the last hut one.) And the- Niid ('. D. 'J'"''-'^**/"'" in our said court hefore US, {or. hi C. P. " before our "'"' .'"*^'/"'"'* for the damages said justices,") alleged and said, that he as hailifi' of and cosu. E. F. took the cattle, goods, and chattels aforesaiil, in the said place in which, &c., being the soil and freehold of the said E. F. doing damage there ; and the said C D. prayed a return of the said cattle, goods, and chattels, to be adjudged to him, &c. And afterwards by a certain jury of the country, u])on which, as well the said C. D. as the said J. B. had put themselves in that behalf, taken on the day of , in the year of our reign, at , in your county, before Sir Charles Ahhott^ knight, our chief-justice, &;c., by virtue of our writ of Nisi Prius, it was foinid that the said place in which, &c., at the said time when, &c. was the soil and freehold of the said E. F., as the saitl C. D. had alleged ; and the jurors of the said jury, according; to the form of the statute in such case made and provided, assessed the damages of the said C D. on occasion of the premises, besides his costs ami charges by him laid out about his defence in this behalf, to £ , and for those costs and charges to £ . Whereupon it was afterwards considii- ed in our said court before us {or, in C. P. " before oar said justices'") that the said A. B. should take nothing by his writ aforesaid, but that he and Ins pledges to prosecute be in mercy, ^c, and that the said defendant do go thereof without day, &c., and that he have a return of the cattle, goods, and chattels afore- said, to hold to him irreplevisable forever. And it is ^-^'>ov considered, that the said defcndaiit do recovc- iiiliv.raiKc. secuting his claim, and also of returning tiie cattle, goods, and chattels, which Avere lately adjudged to C. D. in our court before us {or, in C. P. " before our justices at Westminster;') by the default of the said J. B. in our coiu-t before us at Westminster, if a return tlureof shall be adjudged, then cause the said cattle, gooils, and 214 PRACTICAL F01l]\rfe. chattels to be delivered without delay to the said A. B,, and put by gages and safe pledges the said C. D. that he be before us on , wheresoever we shall then be in England (or, in C. P. " before our said justices at Westminster aforesaid, on • ,") to answer to the said -4. JS., in a plea of taking and unjustly detaining of the cattle, goods, and chattels aforesaid, and have there the names of the pledges, and this writ. Witness ourself at Westminster, the day of , in the year of our reign. (5 l^-) By virtue of this writ, to me directed, I have caused Return to writ *^ . of second to be dehvered to the \vi thin-named A. B. his cattle, goods, and chattels within mentioned, as I am within commanded. The pledges within mentioned are John Den and Richard Fen. The answer of , sheriff. INDEX TO THE PRACTICE. A. ABATEMENT, pleas of, to declaration. 46, &c. avowry. 47. 74. judgment after. 101. ABUSE, of distress. plea in bar of, to avowry. for damage feasant . 77- not good for rent. 76. except in Ireland. 76. ACCEDAS AD CURIAM, 26. See Recordari what. 27. when it lies. 26. cause for. 28. sheriff's duty under it. 2g. returns to. 29. proceedings on. 29, &c. against lord. 30. ACTION. See Detinue, Replann, &c. ACTION on the CASE, against sheriff, for neglect as to pledges. 120, when maintainable. Id. after assignment of replevin bond. 122. by whom. Id. declaration. 122. plea. Id. evidence. Id. 123. damages. 123,4. ACTORS, parties in replevin are. 52,3. ADMINISTRATORS. See Extcutors. AGREEMENT for a LEASE, distress under. 82. ALIAS REPLEVIN, precept in the nature of. 20, 216 INDEX. AMENDMENT, by adding similiter after verdict. 80. after non-suit for variance. 82. AMERCEMENTS, avowry, &c. for. costs of. 102. ANCIENT DEMESNE, removals from courts of. by accedas. 26. ANIMALS, Jierce naturae deer, &c. when replevin ties for. 4. young, born since distress. 5. ANNUITY or RENT-CHARGE, avowry for. 38. APARTMENTS, avo%vry for rent of furnished. 58. APPEARANCE, proceedings to compel. 31,2. where entered. 33. ARREST, in action on replevin bond. Il6'. on judgment in. Il6. ASSIGNEES of BANKRUPT, distress on goods of. under statute 5 Geo. 4. c. ()8. 76. plea for, 102,3. costs of. Id. and (n.) ASSIGNMENT of REPLEVIN BOND, by statute 11 Geo. 2. c. If). 114,15. by whom. Id. Id. to whom. Id. Id. by indorsement. 115. witnesses. Id. stamp. 14. (h.) 1 15. when not advisable. Il6. ATTACHMENT. i4. (n.) 20. against sherifl. for not obeying recordari. 20. AVERIA. 10, 11. AVOWRY and COGNIZANCE, what. 51. should be good ?« omnibus. 53. at common law. Id, for rents. 54. damufie feasant. 53. fines and amercements. Id. on bye laws. Id. judgments. Id. for poor rates, 53. tolls and canal duties. Id. rent, title. seisin. 54. estate for years. Id. INDEX. -^7 AVOWRY and COGNIZANCE, at common law. lor rent. fial'ens lilnlum. 54,6. tenancy, bb. name of tenant. Id. statute L'l II en. 8. c \\). Id. by executors. Id. laron after feme's death, bd. within six months of tenancy lielermimd. IlL under statute 11 Geo. 2. c. IQ. Id. for rent. to what it extends. 57,8. nomine pa^nc. b8. furnished lodgings. Id. not to rent-charge. Id. hcriot custom. Jd. amount of rent. Id. yet due. Id. tenant. Id. goods clandestinely removed. Id. what removal. Id. bQ. goods, 69. for double rent. Id. AVOWRIES, for rent. under statute 11 Geo. 2. c. ig. pleas in bar to. 74. not bailiff. Id. non temrit. Id. evidence under. 80,1,2. coverture. 74,5. (h.) infancy. 75. tender. Id. former distress. Id. riens in arrear. Id. evidence under. 80. 8^. set-off. 75. for taxes. Id. rates. Id. de injuria. Id. nil habuit in Icncmentis. Id. irregular distress. statute 11 Geo. 2. c. U)- § '. does not extend to Ireland. Id. denying title. 77. demise. Id. right of common. Id. defect of fences. /(/. abuse of distress. Id. tender. 103. for damage feasant. bQ. title. Id. freehold. GO. 218 INDEX. AVOWRIES, not bound by distress. 6o. several avowries, &c. Id. may plead several matters. 78. B. BAILIFF, replevin lies against. 5. cognizance by. 51, &c. command. evidence of. 83. BAILIFF of LIBERTY. See Liberty. BANKRUPT, distress on goods of. for rent. 76,7. plea under statutes relating to. costs of. 102. BAR, pleas in. See Pleadings, Avowries. BARONS. 18. BARON COURT. See Accedas. BARON and FEME, replevin by. 4. when by baron alone. Id. avowry by. evidence. 82. (k.) plea in bar of coverture. 75. BOND. See Replevin Bond. C. CAPIAS and OUTLAWRY, on non-appearance to recordari. 32. CAPIAS AD SATISFACIENDUM, for plaintiff. lOQ. defendant, under statutes of Hen. 8. 1 IJ. 17 Car. 2. c. 7. Id. CASE. See Action on the Case. CASE, SPECIAL. 86. CEPIT IN ALIO LOCO, plea of. See Pleading. evidence on. 81. costs in. 102. CERTIFICATE for COSTS. 108. of filazer, &c. to ground procedendo. 30 CERTIORARI, what. 33. out of what courts. 33,4. to what courts. Id. Id. return and proceedings on. Id. Id. CLANDESTINE REMOVAL, avowry for rent after. 58. COGNIZANCE. See Avorcry and Pleading. fNDKX. .^11) COGNOVIT, by plaiiilitr. 70. juclp;inciU oil. Id. CONUSANCE. <,cc Avowry. CORN, replevin for, when cut. 3. "rowing. Id. 4. COSTS, for plaintiff. lOl. by the statute of Gloster. Id. defendant. of distringas, &c. to compel appearance. 32. none at common law. 101. under statute 7 Hen. 8. c. 4. Id. 21 Hen. S. c. KJ. Id. to what these statutes extend. Id. 102. under statute 43 EWz. c. 2. 102. 1 Jac. 1. c. 15. Bankrupts. Id. 103. 4 Jac. 1. c. 3. 103. 13 Car. 2. c. 2. Id. 17 Car. 2. c. 7 Id. 11 Geo. 2. c. 19. § 22. Id. 104. 3 Geo. 4. c. 98. Banknipfs. 103. of double pleading. 104. &c. COSTS in ERROR. See Error. COVERTURE, plea in bar of. 75. COUNTY COURT. 1. replevin in. 7. See Replevin. plaint in. 21. form of. Id. entry of. Id. 22. recordari before entry of. 28. 30. precept. See Replevin, ■withernam. See Replevin. appearance. 22. judgment for not declaring. Id declaration. Id. commencement. Id. cause of action. Id. irifrajurisdictionem. Id. ?3. pleadings. 23. pleading double. Id. in bar double. /(/. liherum tcncmentinn. Id. removal after, by pone, &c. Id. demurrers in. 24. need not be special. Id. removal after joinder. 28 verdict in. setting aside. 24. new trial. Id. judgment in. before apj>earancc. '1': setlinir aside. 24. 220 INDEX. COUNTY COURT, replevin in. judgment in. discontinuance. 28. removal after interlocutory. Id. removal of causes from. See Rccurduri. reasons for. 24. removal of causes to, by toll. 26. statute of 17 Car. 2. c. 7- does not extend to. 67. new replevin in. 24,5. COUNTY PALATINE, no certiorari to, without special motion. Ab. statute 17 Car. 2. c. 7. extended to. 66. COURT BARON, replevin in. accedas to. 26,7- false judgment in. I2g. CROPS, replevin lies for, when distrained. 3. 4. D. DAMAGE FEASANT, replevin lies for cattle taken, pledges. 10, &c. avowry for. 59. pleas in bar to. 77. evidence. 83,4. DAMAGES, for plaintiff. 85. when goods not delivered. Id. delivered. Id. on the Home Circuit, &c. Id. defendant. 86. none at common law. Id. by statute. Id. DEBT on REPLEVIN BOND, in what courts. 1 15. by whoi)>, sherrff'. 114. when advisable. 1 16. assignee. 1 14, &c. against whom. 115. no arrest on. 1 16. action on judgment. Id. declaration. at ihe suit of the sherifl. 1 17- general. Id. special. /(/. at the suit of the assignee, declaration, form of 1 17. venue. Id. debet el detinet. Id. IN'DKX. _»22l DEBT oil REPLEVIN BOM), pleas to. 1 17. 1 18. demurrer to. 1 18. withdrawiiic;. Id. relief by statute II Geo. '.'. c. If). Id. judguieiU. liability of sureties, lit. lit), execution. I U). capias ad satisfaciendum. 1 Hi. DECLARATION, in replevin. in inferior court. 22. infra j u risdictioii cin. Id. in sujjcrior courts, title of. 40. venue. Id. place. 41. omission of. Id. effect of. Id. » until, &C.- Id. goods. /(/. number of. Id- 42. of husband and wife, 41. (») second deliverance. 139. DE EXECUTIONE JUDlCIl, Writ of. 130. DEER, replevin lies for. when distrained. 4. DE INJURIA, plea in bar of. 75. DELIVERANCE, SECOND. See Second Deliverance. DEMAND of DECLARATION. 35. DEMURRER, to declaration, in replevin. form of. Gl. in action on replevin bond. 118 withdrawing. Id. DEPUTIES, replevin granted by. 8. (71) . M. MANDAMUS, to enter plaint. 21. M ASTER and SERV A NT, replevin against. 3. avowry and cognizance by. ,51. N. NEW ASSIGNMENT, none in replevin. 41. NEW REPLEVIN, by writ aher proprielafe prol-nnda. I?. in county court, 24,5. NEW TRIAL, after mistake in avowry. 82. special case. 80. NIL DIGIT. SeeJmlgmenL NIL HABUIT in tenemcntis. 75,6. 82. NON CEPIT. See Pleading. evidence on. 81. NON DIM I SIT. See Pleading. NON EST FACTUM, variance under. 82. (n.) NON OBSTANTE VEREDICTO, costs on iudgment of. 108. NON OMitTAS. ig. NON PROS. See Judgment . NONSUIT, judgment as in case of. 7Q. NON TENUIT, plea in bar of. See Avowry. evidence on, 81,2. NOTICE of INQUIRY, by defendant. 72. O. ORIGINAL, replevin by, obsolete, y. in Ireland. Id. OUTLAWRY, on nulla l-oiia returned to distringas after recorduri. 32. P. PARK, deer distrained in, replevin lies for. 4. in inclosed ground called a nark. Id PAVING RATES, ' pica in bar to avowry for. 75. INDEX. -^27 PAYMENT of RENT. Sec h'u-ns in anear. evidence. 83. PHILAZER in K. B. his duty in replevin. 30. (h.) PLAINT, replevin by. 7. out of court. 10. declaration on. 22. removal of. 2(i, &c. See Recordari facias lo(/uclam. PLEAS and PLEADINC;. Sec nrpUvin Bond, SluTiJ, Second Deliverance. declaration. in the county court. 22. See County Court. court above. 4(j. commencement of. 22. PLEAS. in abatement. to declaration. -16. difierence between replevin and other actions. Id. property. 47- cejyil in alio loco. Id. justifications and in bar. Id. properly. 47,8. to prevent damages. 4g. 7ton crpit. Id. cepit in alio loco. 50. statute of funitations. Id. avowry. See Avowry and Cognizance. plea in abatement to. CO. bar. See Avowry and Cognizance. PLEDGES, de prosequendv. what. 10. d^ retorno hal-endo. under statute JFcsf)u. 2. c. 2. 10. what pledges. bond of plaintiff and sureties 1 1 . sureties. Id. one surely. Id. 12. what sum. 1 1. condition. Id. not assignable. Id. money not a pledge. Id. under statute 11 CJco. 2. c. U). 12. on distresses ibr rent. 13. substituted for pled-es under the sialute H utm. 2. 14. (;i.) bond of plaintitVand two sureties. Id. sureties. Id. one surety. Id. double value of the goo(N distrained. Id. condition. Id- I-''- stani]). 14. no stamp afieiOeldber 1H21. 14 defectr\e. 16 228 INDEX. PLEDGES. de retorno hal'endo. under statute 11 Geo. 2. c. IQ. 12. bond of plaintiff, &c. assignment of. See Assignment. stamp. 14. remedy against sheriff' for not taking. See Replevin Bond- not by attachment. 15. motion. Id. PLURIES, precept in the nature of. 20. PONE, to compel appearance. issued by filazer in K. B. 30. in.) PONE LOQUELAM, removal by. 26, &c. POOR RATES, damages and costs on distress for. 87. 102. POSSE COMITATUS, assistance of to execute replevin. If). POSTEA, for plaintiff. 85. defendant. Id. on several issues. Id. statute 17 Car. 2. Id. PRECEPT to REPLEVY. i6. what it formerly contained. 14. («.) PREFIGAS DIEM, on certiorari. 31. PROCEDENDO, writ of. on recordari, &c. 30,1. PROHIBITION. 12. PROPERTY. CLAIM of, writ of proprietate probanda. lO. inquest on. 17. verdict for plaintiff. Id. effect of. Id. verdict for defendant. Id. PROPERTY. pleas of. 17. in abatement. costs in. 102. in bar. costs in. 102. PROPRIETATE PROBANDA. lO. S^q Property. PROVISO, trial by defendant is without. 79- R. RECAPTION. 131, &c. RECEIPTS for RENT. 82. RECORD. 80. RECORDARI FACIAS LOQUELAM, what. 27. IN'DIX. ^iO RECORD ARl FACIAS LOOUliLAM. when it lies. 26. after |)lea of Ubcriim tenemcnlum in county courl. '.'3. direction of. 2?. form of. Id. causes for. for plain tifl". 28. defendant. /(/. teste of. before entry of plaint. Id. after discontinuance. Id. interlocutory judgment. Id. sherift^s duty on. 2y. returns to. Id. how made. Id. copy of plaint only. /(/. when filed. 30. by philazer. 30. («.) certificate. 30. procedendo. Id. proceedings for defendant's appearance. 31. when to appear. /(/. rule to appear in C. P. Id. pone per vadios. 31,2. when tested. 31. summons on. /(/. return. Id. distringas. 32. alias and pluries. Id. issues on. Id. capias and process of outlawry. Id. REMOVAL of CAUSES, hyrecordari. See Recordari. acccdas ad curiam. See Accedas, tolt. 26. (n.) pone. Id. certiorari. See Certiorari. wrong writ. Sf). second writ of. 31. RENT, avowry for. See Avowry. RENT CHARGE, avowry for. 58. REPLEADER, costs on awarding. 108. REPLEGIARE. 2. REPLEGIARE de AVERUS. 7. REPLEVIN, definition of. 1. not confined to distresses. 2, &c. on a general taking. 2. observations on. 3. for what. cattle or goods. 3. properly in. Id. 230 INDEX. REPLEVIN, for cattle or goods, property in. absolute. 3. qualified. Id. what may be distrained upon may be repleried. Id. fixtures. Id. hay and corn. Id. 4. corn and crops growing. 4. beasts reclaimed. Id. deer. Id. young of animals distrained. 5. by whom. several having joint property. 4. hami anAfome. goods taken before marriage. Id. after marriage. Id. baron alone. Id. executors. 5. against whom. master and servant. Id. when, always at common law. 14. (n.) 1. before sale. Id. after sale. Id. where. in county where goods taken. 5. carried. Id. kinds of. by writ. 6. plaint. Id. 7. amount. 23. not for damages only. 6. created by the statute of Marlebridge. 7> how granted. application to the sherifl. 8. deputies. Id. Q. when granted. Q. out of court. 10. entered, g. no cause in court before entry. l6. 20,1, pledges. See Pledges. precept to replevy. l6. in liberty. See Liberty. old form of 14. (?;.) proceedings under it. breaking open doors. 18,19- posse comilatus. 1(5. deliverance. Id. attachment. 20. summons. Id. in the nature of an alias replevin. Id. a pluries replevin. Id. proceedings where cattle arc not returned. Id. precept m the nature of a writ of uiillicrnam. Id. damages to the value of the goods. Id. IN I) 1.x. ^*4231 RKi'LKVlN !5()ND, uudor stalulc IVcshi:. 'J. 10. coiKlilioii of. 1 1. cases on. 1 13. action on, 1 15, &c. Sec Dtil. (uulov statute 11 Geo. '2. c. I<). 12, Xc condition of. 14. cases on. 113. defective. 15. assignment of. 13. stamp. 14. («.) 115. no stamp after October 18'J4. 14. by whom. 1 14. to whom. 1 15. action on. 1 14, &c. by sherifl". 114. assignee, 1 14, &c. arrest. 1 16. declaration on. 1 17. pleas, &c. Id. staying proceedings. 118. execution. Il6. II9. REPLEVIN CLERK. See 7>7»////. RETORNO HABENDO. See Jud-matI and Exccutvni. RULE, to declare. 37. plead. 42. for time to declare. 38. to enter the issue. 80. S. SCIRE FACIAS. 120. against the pledges. 120. sheriff. /(/. 10 revive. 126,7- pleas to. 127. SECOND DELIVERANCE, by statute Wcstm. 2. c. 2. 136,7,8. in what courts. 138. issues out of record in replevin. Id. when supersedeas. 138,9- when not. Id. proceedings in. declaration. 139. judgment. Id. SECURITY for COSTS. 45. SET OFF. 102. not generally pleadable to avowry (or taxes or luics. lb. must be pleaded. 83. SEW^ERS, plea for commissioners, damages under statutes of- 87- SHERIFF, , ^ action on the case against. Sec Aclion on llic Uise. his duty. to take pledges. 232 INDEX. SHERIFF, his duty. to take pledges. remedy against, for not taking. not attachment, lb. summary motion. Id- in executing replevin. See Replevin. SIMILITER, necessity of adding. 80. SPECIAL CASE. 86. STAMPS, of deputation. 8. (n.) rej)levin bond. 14. («.) assignment. Id. STATUTES, Marlebridge. c. 21. Replevin, Liberty, Plaint. 3.7- 9- il. \8. Gloucester, c. 1. CW^. 101. Westm. 1. c. 17- IQ. Westm. 2. c. 2. Pledges, Pone. 10, &c. 23. 52. 112,13. 126. c. 11. Second Deliverance. 97- 137, &c. c. 17- Replevin, Sheriff". IQ. 3 Hen. 7- c. 10. Costs, Error. 128. 7 Hen. 8. c. 4. Avoivries, Damages, Execution, Costs. 56. 70,1. 81. 84. 86,7- 89. 101,2. 109. 111. 138, 21 Hen. 8. c. 19. Avoivry, Tenant, Damages, Casts, Execution. 81. 84. 86,7. 89. 101,2. 109,10,11. 138. 23 Hen. 8. c. 5. Treble Damages, Sewers. 87. 32 Hen. 8. c. 37- Executors, Baron and Feme, Avowry, bb. 102. 1 Phil, and M. c. 12. Deputies. 8. 27 Eliz. c. 5. Demurrers. 24. c. 8. Error. 127. 43 Eliz. c. 2. Poor Rates, Actions, Damages, Costs. 87- 89. 102, 1 Jac. 1. c. 15. Bankrupts, Actions. 102,3. 4 Jac. 1. c. 3. Costs. 103. 21 Jac. 1. c. 16. Limitation of Actions. 50. c. 23. Recordari. 28. («.) 13 Car. 2. st. 2. c. 2. Costs. 103. 17 Car. 2. c. 7. Inquiry, Distresses. 38,g. 42,3. 62, 6: c. 84. 88. 100, &c. 110,11. 19 Car. 2. c. 5. County Palatine, f Fates. 6b. 2 VV. & M. c. 5. Distresses, Corn. 3. 8 and 9 W. 3. c. 1 1 . Costs. 1 29. 4 Anne, c. I6. Pleading, County Court, Costs. 23. 78. 104, (ic. 6 Anne, c. 10. Irish Siai., Double Pleading, Costs. 107. 8 Anne, c. 14. Avoivry, Determination oj" Lease. 56. 2 Geo. 2. c. 6. Set off, .'Ivowry. 75. 11 Geo. 2. c. 19. Distress, Growing Crops, Replevin Bonds. 4. 12. 15. 15. (hO 21. 53. 56,7. 76. 1 12. 124,5. 14 Geo. 2. c. 17- Judg7ncnf as in case of a nonsuit. 79. 25 Geo. 2. c. 13. Irish Stat., Distress.' 76. 55 Geo. 3. c. 184. Stamp, Declaration, Replevin Bond, Assign- ment. 8. (n.) 14. (n.) 3 Geo. 4. c. 126. Hightvay, Distress. 77. 6 Geo. 4. c. 41. Stamps, Replevin Bond, Assignment. 14. («.) c. 98. Bankrupt, Distress. 76,7. c. 106. JVcleh Judicature Act, Certiorari. 35,0. INDEX. ^^33 STAYING PROCEEDINGS. 4j. SUMMONS. 20. SURETIES, j)roceedings against. Sec Replevin liaud. T. TAXES. 14. (H.) i)lea in bar to avowry of. 75. TENDER of RluNT, before replevin. 44. plea in bar of. 75. TOLT, to remove cause from court baron to county court. 2G. (n.) TREBLE DAMAGES. 'Sua Damages. TRESPASS, for goods, replevin lies. 2. election to bring trespass or replevin. 2, dec. (m.) TRIAL. 85. V. VARIANCE, in amount of rent in avowry. 82. VENUE, where distress taken. 8. where distress carried. Id. VERDICT, for plaintiff. 85. defendant. Id. on several issues. /(/. discharge of jury. 85,6. special case. 84. W. WALES, no ccrtioran to, without special motion. 35. statute 5 (^eo. 4. c. 106. relating to. 35,6. 17 Car. 2. c. 7. extended to. 65. WARRANT to REPLEVY. l6. WITHERNAM, precept in the nature of a wrii of. '..'0. proceedings in lieu of it. /(/. W ITN ESS. Sec Evidence. INDEX TO PRACTICAL FORMS. ACCEDAS AD CURIAM. 156. return thereto. Id. procedendo after. 137. APPEARANCE, precipe for. l62. ASSIGNMENT of REPLEVIN BOND. 145. AVOWRY, for rent. l64. damage feasant. l63. BOND. See Replevin Bond. CAPIAS, after distringas. 155. in ivithernam. 20Q. the Hke, with ca. sa. ibr the damages and costs. 211. CEPIT IN ALIO LOCO, plea of. l63. CERTIFICATE that cause was proper to be tried l)y a special jury. iG?. CERTIORARI, out of Chancery, 158. return to. Id. mittimus. 159. procedendo on. 160. prejigas diem. Id. out of the Exchequer. 161. DAMAGE FEASANT, replevin bond for cattle taken. 14J. DECLARATION, in the county court. 149. King's Bench. l62. Common Pleas. Id. DEMURRER, judgments on. at common law. 181. on statute 17 Car. 2. c. 7- 186. INDEX. -^35 DEPUTATION lo gram replevins. 143. DISTRINGAS. 154. FALSE JUDGMENT, writ of. 213. FIERI FACIAS, for plaiiitirt'. I98. defendant. on statute 17 Car. 2. c. 7. HJS. the like, for the value of the cattle or goods dislraincd. |{)ij. INgUIRY, writ of. for plaintifl'in K. B. I89. inC. P. igo. for defendant. for damages on judgment for a return, and for damages cm demurrer to a plea in bar on ilic statute 1/ Car. '2. c. 7. \i)0. on 7ion pros, for want of a declaration, lyi. pica in bar. I93. on demurrer to avowry. 194. notice of. \Q5. inquisition and return. 196. ISSUE in K. B. or C. P. 166. JUDGMENT, in county courts. o{ noti pros, for want of a declaration. 17 1- the like, by dies datus. 172. of relomo lialindo and noii pros, for not declaring in K. B. ou a ])laint removed out of the court liaron by acccdat before declaration there. 174. in superior courts, for plaintiff. by nil dicil. in King's Bench. 175. Common Pleas. 177- defendant, at common law. for a return. on non pros, for want of a declaration. 17B- the like, for want of a plea in bar, with inquiry under the statutes of Hon. H. 17!l the like, with a nmiltitur daihim. 180. on demurrer. 181. verdict. /(/. nonsuit. 182. on statute 17 Car. 2. c. 7. on nonpros, for want of a declaration. 18^. the like, where goods found to be of less value than the rent. I8.i. on nan pros, for want of a plea in bar. /(/. demurrer to avowry. 180". nonsuit. 188. JURY PROCESS. i()6. 236 INDEX. MITTIMUS, to King's Bench. 159. NON CEFIT, plea of. 163. NON PROS. Sec Judgment. NOTICE, of filing recordari. 153. of executing writ of inquiry. I95. PLAINT in REPLEVIN. 145. PLEAS in BAR. 160. PONE, to remove cause. for plaintiff. 157- defendant. Id. after recordari. for plaintiff. 154. defendant. Id. POSTEA, for plaintiff. on ?ion cepit. 167. several issues. 168. for defendant. on non tenuit, with inquiry under the statute 17 Car. 2. c. 7. 168. on the second avowry on non ienuit, riens in arrear, and on eviction for the defendant, and for the plaintiff on the other avowries. 168. PRECEPT, of replevin. 146. in Yorkshire, to the bailiff of a liberty. Id. in the nature of a withernam on a plaint. 147. PREFIGAS DIEM. 160. PROCEDENDO, after recordari. 1 55. accedas. 156. certiorari. 16O. PROPRIETATE PROBANDA, writ of. 148. RECORDARI FACIAS LOQUELAM, precipe for. 151. writ of. by the plaintiff. 151. defendant. 15i.'. return thereto. Id. entry of on record. 153. notice of filing. Id. REMOVAL, writs of. 151, &c. RENT, replevin bond for goods taken for. 144. REPLEVIN, writ of. 143. plaint in. 145. REPLEVIN BOND, under the statute Wextm. '2. 143. 11 Geo. 2. c. 19. 144. INDEX. ^"iin HKTORNO HAHENDO, in the counly court. on tton pros. H)(). in the su])erior courts. on Hon pros, for want of adeclaralioii. 201. for want of a ])Iea in har. L'Oi.'. on demurrer. to a plea in bar. 203. after verdict. after avowry for clama<^e feasant and furi facias for da- mages and costs. 20.^. for rent. 20G. after nonsuit after avowry for rent. C08. return of elongata. 209. RETURN, to recordari. 152. certiorari. 158. retorno hahendo. 20g. RULE to DECLARE. i(i2. SECOND DELIVERANCE, writ of. 213. return to. 214. SUMMONS, on precept of replevin. 147, VERDICT. See Postea, Judgment. WITHERNAM, writ of. 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