is effected by action of replevin: an inftitution, which the mirror afcribes to Glanvil, chief justice to king Henry the fecond. This obtains only in one inftance of an unlawful taking, that of a wrongful distress; and this and the action of detinue (of which I fhall presently say more) are almost the only actions, in which the actual specific poffeffion of the identical perfonal chattel is reftored to the proper owner. For things perfonal are looked upon by the law as of a nature fo tranfitory and periflable, that it is for the most part impoffible either to afcertain their identity, or to restore them in the fame condition as when they came to the hands of the wrongful poffeffor. And, fince it is a maxim that "lex neminem cogit ad vana, feu impoffibilia," it therefore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a fatisfaction in damages. But in the cafe of a distress, the goods are from the first taking in the cuftody of the law, and not merely in that of the diftreinor; and therefore they may not only be identified, but also restored to their first poffeffor, without any material change in their condition. And, being thus in the cuftody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a refeous, for which the diftreinor has a remedy in damages, either by writ of refeous, in cafe they were going to the pound, or by writ de parco fracto, or poundbreach, in cafe they were actually impounded. He may also at his option bring an action on the cafe for this injury: and fhall therein, if the distress were taken for rent, recover treble damages. The term, refcous, is likewife applied to the forcible delivery of a defendant, when arrefted, from the officer who is carrying him to prifon. In which circumftances the plaintiff has a fimilar remedy by action on the cafe, or of refcous: or, if the fheriff makes a return of such [147] refeous to the court out of which the process iffued, the rçfcuer will be punished by attachment ". cc. 2. § 6. F. N. B. 1ON e Ibid. 100. f Stat. 2 W. & M. Seff. 1. c. 5. 6 Mod. 211. ▸ Cro. Jac. 419. Șalk. 586. AN An action of replevin, the regular way of contefting the validity of the tranfaction, is founded, I faid, upon a distress taken wrongfully and without fufficient caufe: being a redelivery of the pledge, or thing taking in distress, to the owner; upon his giving fecurity to try the right of the distress, and to restore it if the right be adjudged against him after which the diftreinor may keep it, till tender made of fufficient amends: but must then re-deliver it to the ownerk. And formerly, when the party diftreined upon intended to dispute the right of the distress, he had no other procefs 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 juftice in refpect of the matter in difpute in his own county court. But this being a tedious method of proceeding, the beafts or other goods were long detained from the owner, to his great lofs and damage". For which reason the ftatute of Marlbridge " directs, that (without fuing a writ out of the chancery) the fheriff immediately, upon plaint to him made, fhall proceed to replevy the goods. And, for the greater eafe of the parties, it is farther provided by ftatute 1 P. & M. c. 12. that the theriff fhall make at least four deputies in each county, for the fole purpose of making replevins. Upon application therefore, either to the fheriff or one of his faid deputies, fecurity is to be given, in pursuance of the statute of Westm. 2. 13 Edw. I. C. 2. 1. That the party replevying will purfue his action against the distreinor, for which purpose he puts in plegios de profequendo, or pledges to profecute; 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. Befides these pledges, the fufficiency of [ 148 ] I n which is difcretionary and at the peril of the sheriff, the ftatute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a diftrefs for rent, fhall take a bond with two fureties in a fum of double the value of the goods diftreined, conditioned to profecute the fuit with effect and without delay, and for return of the goods; which bond fhall be affigned to the avowant or perfon making cognizance, on requeft made to the officer; and, if forfeited, may be sued in the name of the affignee. And certainly, as the end of all diftreffes is only to compel the party diftreined upon to fatisfy 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 occafion 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 diftrefs to be reftored into the poffeffion of the party diftreined upon (1); unless the distreinor claims a property in the goods fo taken. For if, by this method of diftrefs, the diftreinor happens to come again into poffeffion 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 poffeffion; being a kind of perfonal remitter. If therefore the diftreinor claims any fuch property, the party replevying muft fue out a writ de proprietate probanda, in which the sheriff is to try, by an inqueft, in whom the property previous to the diftrefs fubfifted". And if it be found to be in the diftreinor, the sheriff can proceed no farther; but muft return the claim of property to the court of king's bench or common pleas, to be there farther profecuted, if thought adviseable, and there finally determined 9. BUT if no claim of property be put in, or if (upon trial) the fheriff's inqueft determines it against the distreinor; then 9 Co. Litt. 145. Finch. L.450. • See pag. 19. P Finch. L. 316. (1) If goods are taken in diftrefs for rent and are replevied, the landlord who diftrained has no lien upon the goods, but his only remedy is upon the replevin-bond. 1 Bro. 427. the sheriff is to replevy the goods (making use of even force, if the diftreinor makes refistance') in case the goods be found [149] within his county. But if the diftrefs 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 fhall have a writ of capias in withernam, in vetito, (or, more properly, repetito) namio, a term which fignifies 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 reprifal", and as a punishment for the illegal behaviour of the original diftreinor. For which reafon goods taken in withernam cannot be replevied, till the original diftress is forthcoming. BUT, in common cafes, 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 ponex; the plaintiff at pleasure, the defendant upon reasonable caufey; and also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no farther2; 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 diftreinor, 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 fets forth the reason of it, as for rent arrere, damage done, or other caufe: or elfe, if he justifies in another's right as his bailiff or fervant, he is faid to make cognizance; that is, he acknowleges the taking, but infists that fuch 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 damages. But if the defendant prevails, by the default or nonfuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distreined and then replevied) are returned again into his cuftody; to be fold, or otherwise disposed of, as if no replevin had been made. And at the common law, the plaintiff might have brought another replevin, and fo infinitum to the intolerable vexation of the defendant. Wherefore the ftatute of Westm. 2. c. 2. reftrains the plaintiff, when nonfuited, from fuing out any fresh replevin; but allows him a judicial writ, iffuing out of the original record, and called a writ of fecond deliverance, in order to have the fame distress again delivered to him, on giving the like fecurity 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 fhall have a writ of return irreplevifable; after which no writ of fecond deliverance fhall be allowed. But in cafe of a distress for rent arrere, the writ of fecond deliverance is in effect taken away by statute 17 Car. II. c. 7. which directs that, if the plaintiff be nonfuit before iffue joined, then upon z Finch. L. 317. e 2 Inft. 340. dj Ventr. 64. fuggeftion |