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is effected by action of replevin: an institution, which the mirror e ascribes to Glanvil, chief justice to king Henry the second. This obtains only in one instance of an unlawful taking, that of a wrongful distress; and this and the action of detinue (of which I shall presently say more) are almost the only actions, in which the actual specific poflession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature fo transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful poffeffor. And, since it is a maxim that « lex neminem cogit ad vana, feu imposibilia,” it therefore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured ; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distreinor ; and therefore they may not only be identified, but also restored to their first poflefTor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a refrous, for which the distreinor has a remedy in damages, either by writ of rescous", in case they were going to the pound, or by writ de parco fracto, or poundbreach, in case they were actually impounded. He may also at his option bring an action on the case for this injury: and shall t?erein, if the distress were taken for rent, recover treble damages'. The term, rescous, is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circum. stances the plaintiff has a similar remedy by action on the

case, or of rescous %: or, if the sheriff makes a return of such [ 149 7 rescous to the court out of which the process issued, the rç

scuer will be punished by attachment".
Cc. 2. 5 6.

Stat. 2 W. & M. Seff. 1. c. 5.
F. N. B. 101.

E 6 Mod. 211. c111. 100.

» Cro. Jac.419. Şalk. 586.

An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a redelivery of the pledge ', or thing taking in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against himj: after which the distreinor may keep it, till tender made of sufficient amends: but must then re-deliver it to the ownerk. And formerly, when the party distreined upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiari facias'; which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and afterwards to do justice in respect of the matter in dispute in his own county court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage". For which reason the statute of Marlbridge" directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute i P. & M. c. 12. that the theriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff or one of his faid deputies, security is to be given, in pursuance of the statute of Westm. 2. 13 Edw. I. c. 2. 1. That the party replevying will pursue his action against the distreinor, for which purpose he puts in plegios de profequendo, or pledges to prosecute; and, 2. That if the right be determined against him, he will return the distress again; for which purpose he is also bound to find plegios de retorno habendo. Besides these pledges, the sufficiency of !

[ 148 ] which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a distress for rent, shall take a bond with two i See pag. 13.

1F, N, B. 68. j'Co. Litt. 145.

m 2 Inst. 139. k & Rep. 147

0 52 Hen. III. c. 21. M 3


fureties in a sum of double the value of the goods diftreined, conditioned to prosecute the suit with effect and without delay, and for return of the goods; which bond shall be afsigned to the avowant or person making cognizance, on request made to the officer; and, if forfeited, may be sued in the name of the assignee. And certainly, as the end of all distresses is only to compel the party distreined upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient fureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving such fecurity, is immediately, by his officers, to cause the chattels taken in distress to be restored into the poffefsion of the party distreined upon (1); unless the distreinor claims a property in the goods so taken. For if, by this method of distress, the distreinor happens to come again into possession of his own property in goods which before he had loft, the law allows him to keep them, without any reference to the manner by which he thus has regained posseffion; being a kind of personal remitter o. If therefore the diftreinor claims any such property, the party replevying muft sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress sublisted P. And if it be found to be in the distreinor, the sheriff can proceed no farther; but must return the claim of property to the court of king's bench or common pleas, to be there farther prosecuted, if thought adviseable, and there finally determined 9.

But if no claim of property be put in, or if (upon trial) the sheriff's inqueft determines it against the distreinor; then See pag. 19.

9 Co. Litt. 145. Finch. L. 450. P Finch. L. 316.

(1) If goods are taken in distress for rent and are replevied, the landlord who distrained has no lien upon the goods, but his only remedy is upon the replevin-bond. Bro. 427.

the sheriff is to replevy the goods (making use of even force, if the distreinor makes resistance") in case the goods be found [ 149 1 within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown: and thereupon the party replevying shall have a writ of capias in withernam, in vetito, (or, more properly, repetita) namio, a term which signifies a second or reciprocal distress“, in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distreinor, in lieu of the distress formerly taken, and eloigned, or withheld from the ownert. 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 distreinor. For which reason goods taken in withernam cannot be replevied, till the original distress is forthcoming . .

But, in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which may be prosecuted in the county-court, be the distress of what value it may". But either party may remove it to the fuperior courts of king's bench or common pleas, by writ of recordari or poner; the plaintiff at pleasure, the defendant upon reasonable cause y; and also, if in the course of proceeding any right of freehold comes in question,

12 Inft. 193.

the university of Bruges in Flanders; s Smith's commonw. b. 3. c. 10. who gave a universal challenge to dispute 2 Inft. 141. Hickes's Thefaur. 164. with any person in any science: in omni t F. N. B. 69. 73.

Scibili, et de quolibet ente. Upon which • In the old northern languages the Mr. More sent him this question "utrum word witbernam is used as equivalent to " averia carucae, capta in verito namio, reprisals. (Stiernhook, de jure sucon. fint irreplegibilia ;" whether bearts of 1.1.6. 10.)

the plough, taken in witbernam, are v Raym. 475. The substance of this incapable of being replevied. (Hoddeld. rule composed the terms of that famous c. 5.) question, with which fir Thomas More W 2 Inft. 139. ' (when a Atudent on his travels) is said to x 2 Inft. 23• have puzzled a pragmatical professor in Y F. N. B. 69, 70. M4


the sheriff can proceed no farther?; so that it is usual to carry

it up in the first instance to the courts of Westminster-hall. [ 150 ) Upon this action brought, and declaration delivered, the

distreinor, who is now the defendant, makes avowry; that
is, he avows taking the distress in his own right, or the right
of his wife a; and sets forth the reason of it, as for rent
arrere, damage done, or other cause: or else, if he justifies
in another's right as his bailiff or servant, he is said to make
cognizance ; that is, he acknowleges the taking, but insists that
such taking was legal, as he acted by the command of one
who had a right to distrein; and on the truth and legal merits
of this avowry or cognizance the cause is determined. If it
be determined for the plaintiff, viz. that the distress was
wrongfully taken; he has already got his goods back into his
own poffeffion, and shall keep them, and moreover recover
damagesb. 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 distrein-
ed and then replevied) are returned again into his custody;
to be sold, or otherwise disposed of, as if no replevin had
been made. And at the common law, the plaintiff might
have brought another replevin, and so infinitum to the in-
tolerable vexation of the defendant. Wherefore the statute
of Westm. 2. c. 2. restrains the plaintiff, when nonsuited,
from suing out any fresh replevin; but allows him a judicial
writ, ifsuing out of the original record, and called a writ of
fecond deliverance, in order to have the same distress again
delivered to him, on giving the like security as before. And,
if the plaintiff be a second time nonfuit, or if the defendant
has judgment upon verdict or demurrer in the first replevin,
he thall have a writ of return irreplevisable ; after which no
writ of second deliverance shall be allowed. But in case of a
distress for rent arrere, the writ of second deliverance is in
effect d taken away by statute 17 Car. II. c. 7. which directs
that, if the plaintiff be nonsuit before issue joined, then upon
& Finch. L. 317.

< 2 Inft. 340.
* 2 Saund. 1951

, Veotr. 64. DF, N. B, 69:


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