How granted.

And for the greater ease of the parties, it is farther provided by 1 & 2 Phil. & Mar. c. 12, that the sheriff shall at his first county day, or within two months after he receives the patent, depute and proclaim in the shire-town, four deputies to make eplevins, not dwelling above twelve miles distant from one another, on pain to forfeit for every month he wants such deputy or deputies 57, to be divided between the king and the prosecutor.

When the sheriff makes replevin, he ought to take two kinds of pledges, plegii de prosequendo, by the common law, and ple gii de retorno habendo, according to stat. West. 2. 13 Ed. 1. stat. 1. by which it is provided, "That sheriffs or bailiffs from thenceforth shall not only receive of the plaintiff, pledges for the pursuing of the suit, before they make deliverance of the distress, but also for the return of the beasts, if return be awarded; and if any take pledges otherwise, he shall answer for the price of the beasts, and the lord that distrains shall have his recovery by writ, that he shall restore to him so many beasts or cattle; and if the bailiff be not able to restore, his superior shall restore."

The taking of sufficient pledges, is therefore at the peril of the sheriff, and an action on the case will lie against him for taking such as are insufficient: very slight evidence of which insufficiency, will be sufficient to throw the proof on the sheriff, for the sureties are known to him, and he is to take care that they are sufficient. Buller's Nisi Prius, 8vo. edit. 60.

But in such action, the sheriff shall only be liable to answer in damages for the actual value of the distress, and not for what the plaintiff may have recovered against the tenant in replevin. 4 Term Rep. 433.

And in all cases of misbehaviour by the sheriff or other officers, in relation to replevins, they are subject to the controul of the king's superior courts, and punishable by attachment for such misbehaviour; and the court have gone so far as to order the high and undersheriff, and the replevin clerk, to pay the damages and costs, where the replevin clerk had neg. lected to take the proper suretics.* Carther 381. Black. Rep. 1220.

Besides these pledges for the greater security of persons distraining for rent, it is enacted by 11 Geo. 2. c. 19, That sheriffs and other officers having authority to grant replevins, shall in every replevin of a distress for rent, take in their own names, from the plaintiff, and two sureties, a bond in double the value of the goods distrained + (such value to be ascertained

* From hence it seems that the landlord may obtain relief in a summary way by motion. See the Report in Blackstone.

The practical mode of replevying goods distrained is as follows-the party distrained on, must go with two sureties to the sheriffs' office, or to the office

by the oath of one witness not interested; which oath the person granting such replevin is to administer) and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods, in case a return shall be awarded, before any deliverance be made of the distress; and such sheriff, or officer, taking such bond, shall at the request and costs of the avowant or person making conusance, assign such bond, by indorsing the same, and attesting it under his hand and seal in the presence of two witnesses; which may be done without stamp, provided the assignment indorsed be stamped before action brought thereon; and if such bond be forfeited, the avowant or person making conusauce may bring an action, and recover thereupon in his own name; and the court may by rule give relief upon such bond, agreeable to justice, which rule shall have the effect of a defeazance. s. 23.

The sheriff having thus taken pledges from the plaintiff in replevin, he ought forthwith to make deliverance of the goods or cattle distrained; and if the distress be drawn into a house, or other strong hold, the sheriff or his bailiff, after demand made for deliverance of the distress, may break open the house to replevy them; for though a man's house is privileged by common law for himself, his family, and his own goods, so that the sheriff cannot break it open, to attach any of them in a civil action at the suit of a private person, yet a man's house could not privilege or protect the goods of another person unjustly taken, so as to prevent the officer to make replevin ; bccause the privilege and security of a man's house could protect but his own goods. 2 Inst. 140.

But if the distress be carried out of the county, or concealed, then the sheriff may return, that the goods or beasts are eloigned, that is, carried to a distance, to places to him unknown: and thereupon the party replevying shall have a writ of capias in withernam; a word, according to Spelman, derived (from the Saxon words weder, other, and naam, pledge,or distress), a term which signifies a second or reciprocal distress, in lieu of the first which was eloigued. 3 Black. 149. 2. Inst. 140.

It is therefore a command to the sheriff to take other goods of the distrainor, in lieu of the distress formerly taken and eloigned, or withheld from the owner. Fit:. Nat. Brev. 69. 73.

So that here is now distress against distress; one being taken to answer the other by way of reprisal, and as a punishment for the illegal behaviour of the original distrainor, for which

of one of his replevin clerks, and also with one person competent to make oath as to the value of the goods distrained, which person need not be an appraiser but any fiend who is capable of ascertaining such value: the goods being thus valued upon oath, and the sheriff satisfied as to the responsibility of the sureties, a replevin bond is executed by the party distrained upon and his sureties, and thereupon the sheriff issues a warrant to one of his offeers to estore the goods to the party, and turn the bailiff out of possession. For the tenor of this bond, see p. 704. sup; a.

Removal of proceeding.

By pane.

By recordari.

Cognizance.

Trial.

Judgment.

Second deliver

ance.

reason goods taken in withernam, cannot be replevied, till the original distress is forthcoming. 3 Black. Com. 149.

But either party may remove the action of replevin from the county court to the superior courts of King's Bench or Common Pleas, by writ of pone, or recordari. 2 Inst. 339.

The pone is when the proceeding is by writ of replevin; for where a writ of replevin issues, and it is returned out of the county court; that gives the judges above authority to proceed thereon, whether the proceeding below be recorded or not; for the judges want no record from below, when they have the king's writ with them. 2 Inst. 339.

But the recordari is to record the proceedings, and when recorded, to return them into the King's Bench or Common Pleas, so that it gives authority to record those proceedings that were not of record before; therefore, if the replevin were by plaint, it must be removed by recordari; because the courts must have their authority by proceedings returned of record. 2 Inst. 339.

And this removal may be by the plaintiff at pleasure, and by the defendant upon reasonable cause. Fitz., Nat. Brev. 69, 70. 3 Black. Com. 149.

Also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no further, so that it is usual to carry it up to Westminster-hall, in the first instance. 3 Black. Com. 149. Finch. L. 317.

Upon this action brought, and declaration delivered, the distrainor, who is now the defendant, makes avowry, that is he avows taking the distress in his own right, or the right of his wife; and sets forth the reason of it, as for rent arrear, damage-feasant, or other cause: or else, if he justifies in another's, as his bailiff or servant, he is said to make cogni zance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain: and on the truth and legal merits of this avowry or cognizance the cause is determined. 3 Black. Com.50.

In replevin, both plaintiff and defendant are actors, there. fore either party may carry down the cause; and if the defendant give notice, and do not go on to trial, the court will give costs against him; for the same reason the defendant may not move for judgment of nonsuit, unless the plaintiff have given notice of trial. Buller's Nisi Prius, 8vo. ed. 61.

If it be determined for the plaintiff, viz. that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages. 3 Black. Com. 150.

But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels, which were distrained and then replevied, are returned again into his custody, to be

sold, or otherwise disposed of, as if no replevin had been made. Ibid.

And at the common law, the plaintiff, if nonsuited, might have brought another replevin, and so infinitum, to the intolerable vexation of the plaintiff; wherefore the Stat. West. 2. 13 Ed. 1. st. 1. c. 2, restrains the plaintiff when nonsuited, from suing out any fresh replevin; but allows him a judicial writ, issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before; and if in such writ of second deliverance the plaintiff be nonsuited, or if the plea be discontinued, or the writ abates,

or if he prevails not in his suit, return irreplevisable shall be Return irreples granted, after which no writ of second deliverance shall be visable. allowed. 2 Inst. 340, 311.

So also if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; for no new replevin or second deliverance is grantable, but only upon a nonsuit. 2 Inst. 340.

But in the case of a distress for rent arrear, the writ of second deliverance is in effect taken away by 17 Car. 2. c. 7, which directs, that whenever any plaintif in repleviu upon a distress for rent, shall be non suit before issue joined, in any court of record, the defendant making a suggestion, in nature of an avowry or cognizance for the rent in arrear, to ascertain the court of the cause of the distress, or if judgment be given on demurrer for the defendant, then without such suggestion, the court upon his prayer shall award a writ to the sheriff, to inquire by the oath of twelve men, touching the sum in arrear at the time of such distress taken, and the value of the goods distrained; and thereupon notice of fifteen days shall be given to the plaintiff or his attorney, of the sitting of such inquiry: and upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods distrained shall amount unto that value; and in case they shall not amount to that value, then so much as the value of the goods or cattle distrained shal amount unto, with his full costs of suit, and shall have execution for the same by fieri fucius, elegit, or otherwise; and in case such plaintiff shall be non-suit, after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff'; then the jurors shall, at the prayer of the defendant, inquire concerning the arrears, and the value of the goods distrained; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or So much thereof as the goods distrained amount unto, together with his costs. s. 2, 3.

And in all the cases aforesaid, where the value of the goods distrained shall not be found to be of the full value of the ar

Writ of recaption.

rears distrained for, the party to whom such arrears were dae,
his executors or administrators, may, from time to time, distrain
again, for the residue of the arrears. s. 4.

But otherwise, if pending a replevin for a former distress, a man distrains again for the same rent or service; then the party is not driven to his action of replevin, but shall have a writ of recaption, and recover damages for the defendant, the distrainor's, contempt of the process of the law. 3 Black. Com. 151. Fitz. Nat. Brev. 69.

Stealing them.

DOGS.

It is not felony to steal dogs, which are of a base nature, for though a man may have a base property therein, and maintain a civil action for the loss of them, yet they shall never be so highly regarded by the law, that for their sakes a man shall die. 1 Hawk. c. 33. s. 23. 4 Black. Com. 235.

But by 10 Geo. 3. c. 18, If any person shall steal any dog or dogs, of any kind or sort whatsoever, from the owner, or from any person intrusted by the owner with such dogs, or shall sell, buy, receive, harbour, detain, or keep any such dog or dogs, knowing the same to have been stolen, every such per son convicted upon the oath of one witness, or his own confession, before two justices, shall for the first offence forfeit not exceeding 301. nor less than 20%, as to such justices shall seem meet, together with the charges previous to, and attending such conviction, to be ascertained by such justice, and in

* Burn doubts, whether in a case so highly penal the statute will warrant a conviction for stealing a bitch, the words in the act being any dog er dogs; and he suggests this doubt upon the general rule, that all pœnal sta tutes must be construed strictly; and with a retrospect to the case, respecting the statute of 1 Ed. 6. c. 12, (which took away the benefit of clergy from persons convicted of stealing horses, mares, or geldings,) whereon the judges, doubting whether it extended to those who should steal one horse, it became necessary in the following year, to pass an explanatory act for the purpose of extending it expressly to such persons.

But as the words are, If any person shall steal any dog or dogs of any kind on sort whatsoever; it rather seems that no such objection could be of any avail; for the word kind is very comprehensive, and may apply as well to the sex, as the species and special distinctions among these animals; and that the legislature intended it should, is probable, from their having disjunctively added the word sort, which is in strictness applicable only to the species.

+ It is so printed in Mr. Runnington's edition of the Statutes, and seems to be a mistake, as the conviction must be before two justices.

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