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 distrainor, for which purpose he puts in plegios de prosequendo, 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 *148] *habendo. Besides these pledges, the sufficiency of 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 sureties in a sum of double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for the return of the goods; which bond shall be assigned 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 distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties 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 security is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained upon; unless the distrainor claims a property in the goods so taken. For if by this method of distress the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has gained possession, being a kind of personal remitter.(0) If therefore the distrainor claims any such property, the party replevying must 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 subsisted.(p) And if it be found to be in the distrainor, the sheriff can proceed no further, but must return the claim of property to the court of king's bench or common pleas, to be there further prosecuted, if thought advisable, and there finally determined.(g)

But if no claim of property be put in, or if (upon trial) the sheriff's inquest determines it against the distrainor; then the sheriff' is to replevy the goods (making *149] use of even force, *if the distrainor makes resistance)(r) in case the goods be found 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 repetito) namio; a term which signifies a second or reciprocal distress,(s) in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor in lieu of the distress for

(e) See page 19.

(P) Finch, L. 316.

(9) Co. Litt. 145. Finch, L. 450.

(r) 2 Inst. 193.

(*) Smith's Commonw. b. iii. c. 10. 2 Inst. 141. Hickes's Thesaur. 164.

2 But for the greater ease of the parties it is now provided, by stat. 19 & 20 Vict. c. 108, 22 63-66, that the registrar of the county court of the district in which the distress is taken shall grant replevins. Upon application therefore to the registrar, security is to be given by the replevisor for such an amount as the registrar shall deem sufficient to cover the rent or damage, in respect of which the distress was made and the costs of the action which is to follow, that he will pursue his action against the distrainor either in one of the superior courts of law or in the county court.

If the replevisor elects to sue in a superior court, the bond must be conditioned,—1, that the party replevying shall commence an action of replevin within one week, and prosecute the same with effect and without delay; 2, that, unless judgment be obtained by default, he shall prove either that he had good ground for believing that the title to some corporeal or incorporeal hereditament, or to some toll-market, fair, or franchise, was in question, or that the rent or damage in respect of which the distress was made exceeded twenty pounds; and, 3, that he shall make a return of the goods, if a return thereof shall be adjudged.

If the replevisor elects to sue in the county court, the bond shall be conditioned.—1, to commence the action within one month and to prosecute the same without delay; and, 2, to make a return of the goods, if a return be ordered.-Kerr.

merly taken, and eloigned, or withheld from the owner.(t) So that here is now distress against distress: one being taken to answer the other by way of reprisal, (u) and as a punishment for the illegal behaviour of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming.(v)

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.(w) But either party may remove it to the superior courts of king's bench or common pleas, by writ of recordari or pone;(x) 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, the sheriff can proceed no further,(z) so that it is usual to carry it up in the first instance to the courts of Westminster hall. *Upon [*150 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;(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 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. 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.(b) 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 hath been made. And at the common law, the plaintiff might have brought another replevin, and so in infinitum, to the intolerable 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 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 the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; after which no writ of second deliverance shall be allowed. (c) 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 suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on

() F. N. B. 69, 73.

(*) In the old northern languages the word withernam is used as equivalent to reprisals. Stiernhook, de jure Sueon. 1. 1, c. 10.

(*) Raym. 475. The substance of this rule composed the terms of that famous question with which Sir Thomas More (when a student on his travels) is said to have puzzled a pragmatical professor in the University of Bruges, in Flanders, who gave a universal challenge to dispute with any person in any science; in omni serinli, et de quolibet ente. Upon which Mr. More sent him this question,-" utrum

3 Now, however, by stat. 9 & 10 Vict. c. 95, s. 119, all actions of replevin in cases of distress for rent in arrear or damage-feasant shall be brought without writ in the New County Court and (s. 120) in the court holden for the district wherein the distress was taken. But (s. 121) in case either party declare to the court that the title to any hereditament or to any toll-market, fair, or franchise is in question, or that the rent or damage in respect of which the distress was taken exceeds 20., and becomes bound with two sureties to prosecute the suit without delay and to prove that such title was in dispute, or that there was ground for believing the rent or damage to exceed 207,-then the action may be removed before any court competent to try the same, which is done not by recordari, but by writ of certiorari, the new county courts being courts of record, which the schiremotes were not.-STEWART.

*151] demurrer, then, without any such suggestion, the defendant may have *a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear, with costs; or, if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury impanelled to try the cause shall assess such arrears for the defendant : and if (in any of these cases) the distress be insufficient to answer the arrears distrained for, the defendant may take a further distress or distresses. (e) 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, (f) and recover damages for the defendant the re-distrainor's contempt of the process of the law.

In like manner, other remedies for other unlawful takings of a man's goods consist only in recovering a satisfaction in damages. And if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury, which though it doth not amount to felony unless it be done animo furandi, is nevertheless a transgression for which an action of trespass vi et armis will lie; wherein the plaintiff shall not recover the thing itself, but only damages for the loss of it. Or, if committed without force, the party may, at his choice, have another remedy in damages by action of trover and conversion, of which I shall presently say more."

2. Deprivation of possession may also be an unjust detainer of another's goods, though the original taking was lawful. As if I distrain another's cattle damagefeasant, and before they are impounded he tenders me sufficient amends; now, though the original taking was lawful, my subsequent detainment of them after tender of amends is wrongful, and he shall have an action of replevin against me to recover them :(g) in which he shall recover damages only for the detention and not *for the caption, because the original taking was lawful. Or, if I lend *152] a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining and not in the original taking, and the regular method for me to recover possession is by action of detinue.(h) In this action of detinue it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like, for that cannot be known from other money or corn, unless it be in a bag or a sack, for then it may be distinguishably marked. In order therefore to ground an action of detinue, which is only for the detaining, these points are necessary :(i) 1. That the defendant came lawfully into possession of the goods as either by delivery to him, or finding them; 2. That the plain

4

(e) Stat. 17 Car. II. c. 7.

() F. N. B. 71.

() F. N. B. 69. 3 Red. 147.

(F. N. B. 138.
(4) Co. Litt. 286.

In order to sustain trespass for taking goods, the actual or constructive possession must be vested in the plaintiff at the time the act complained of was done. For instance, the lord before seizure may bring the action against a stranger who should carry off an estray or wreck; for the right of possession, and thence the constructive possession, is in him. So the executor has the right immediately on the death of the testator, and the right draws after it a constructive possession. I T. R. 480. 2 Saund. 47, in notes. See 1 Chitty on Pl. 4th ed. 151 to 159.-CHITTY.

5 The general owner of a chattel, who has leased it for a time certain, cannot maintain trespass. He must sue in an action on the case for the injury to his reversionary interest. Soper es. Sumner, 5 Vermont, 274. Putnam vs. Wyley, 8 Johns. 432. Fitler vs. Shotwell, 7 Watts & Serg. 14. In the case of personal chattels, he who has the general property need not prove possession in the first instance, because the law draws the possession to the property; but one who claims only a special property must prove that the one had actual possession, without which no special property is complete. Mather vs. Trinity Church, 3 Serg. & R. 512.-SHARSWOOD.

As to the action of detinue in general, see Com. Dig. Detinue. 1 Chitty on Pl. 4th ed. 110 to 114. It has been supposed that detinue is not sustainable where the goods have been taken tortiously by the defendant; but that doctrine is erroneous, and it is the proper specific remedy for the recovery of the identical chattels personal, when they have not been taken as a distress. See cases and observations, 1 Chitty on Pl. 4th ed. 112, 113.-CHITTY.

tiff have a property; 3. That the goods themselves be of some value; and 4. That they be ascertained in point of identity. Upon this the jury, if they find for the plaintiff, assess the respective values of the several parcels detained, and also damages for the detention. And the judgment is conditional; that the plaintiff recover the said goods, or (if they cannot be had) their respective values, and also the damages for detaining them.(j) But there is one disadvantage which attends this action, viz., that the defendant is herein permitted to wage his law, that is, to exculpate himself by oath,(k) and thereby defeat the plaintiff of his remedy: which privilege is grounded on the confidence originally reposed in the bailee by the bailor, in the borrower by the lender, and the like; from whence arose a strong presumptive evidence that in the plaintiff's own opinion the defendant was worthy of credit. But, for this reason, the action itself is of late much disused, and has given place to the action of trover.

This action of trover and conversion was in its original an action of trespass upon the case, for the recovery of damages against such person as had found another's goods and refused to deliver them on demand, but converted them to his own *use; from which finding and converting it is called an action of trover and conversion. The freedom of this action from wager of law, and the [*153 less degree of certainty requisite in describing the goods,(1) gave it so considerable an advantage over the action of detinue, that by a fiction of law actions of trover were at length permitted to be brought against any man who had in his possession by any means whatsoever the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion; for any man may take the goods of another into possession, if he finds them; but no finder is allowed to acquire a property therein, unless the owner be forever unknown:(m) and therefore he must not convert them to his own use, which the law presumes him to do if he refuses them to the owner: for which reason such refusal also is, prima facie, sufficient evidence of a conversion.(n) The fact of the finding or trover is therefore now totally immaterial; for the plaintiff needs only to suggest (as words of form) that he lost such goods, and that the defendant found them; and if he proves that the goods are his property and that the defendant had them in his possession, it is sufficient. But a conversion must be fully proved; and then in this action the plaintiff shall recover damages, equal to the value of the thing converted, but not the thing itself; which nothing will recover but an action of detinue or replevin.

As to the damage that may be offered to things personal while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in any wise taking from the value of any of his chattels or making them in a worse condition than before, these are injuries too obvious to need explication. I have only therefore to mention the remedies given by the law to redress

(5) Co. Entr. 170. Cro. Jac. 681.
(*) Co. Litt. 295.

() Salk. 654.

(m) Seo book i. ch. 8; book ii. ch. 1 and 26.
(") 10 Rep. 56.

'Formerly the defendant in an action of detinue always had it in his power to retain the chattels upon payment of the value as assessed by the jury. The remedy at law was in this respect incomplete, and it became usual to apply to the court of chancery, which from a very early period interfered to compel the return of the chattels themselves. This jurisdiction seems originally to have been confined in its exercise to cases where the chattels were of peculiar value to the owner, as, for instance, heirlooms, jewelry, articles of curiosity or antiquity, family pictures, &c. But latterly it has been decided that the right to be protected in the use or beneficial enjoyment of property in specie is not confined to articles possessing any peculiar or intrinsic value. The damages recovered in an action, although equal to the intrinsic value of the article detained, may be infinitely less than that at which it is estimated by the owner, so that damages may not be any thing like adequate compensation to him for the loss. And accordingly the courts of common law have now (by a peculiar process of execution) the same powers as the court of chancery to compel the return of the chattel itself. Com. Law Proc. Act, 1854, s. 79. Regula Generales, Michaelmas Vacation, 1854.—KERR.

Wager of law was abolished by stat. 3 & 4 W. IV. c. 42, s. 13.—Stewart.

chem, which are in two shapes; by action of trespass vi et armis, where the act is in itself immediately *injurious to another's property, and therefore ne

*154] cessarily accompanied with some degree of force; and by special action on the case, where the act is in itself indifferent, and the injury only consequential, and therefore arising without any breach of the peace. In both of which suits the plaintiff shall recover damages, in proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction; for the action will lie against the master as well as the servant.(0) And, if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit.

II. Hitherto of injuries affecting the right of things personal in possession. We are next to consider those which regard things in action only: or such rights as are founded on, and arise from, contracts; the nature and several divisions of which were explained in the preceding volume.(g) The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered: but I shall now consider them in a more comprehensive view, by here making only a twofold division of contracts; viz., contracts express, and contracts implied; and pointing out the injuries that arise from the violation of each, with their respective remedies.

Express contracts include three distinct species; debts, covenants, and promises.

1. The legal acceptation of debt is, a sum of money due by certain and express agreement: as, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. The non-payment of these is an injury, for which the proper remedy *is by action *155] of debt, (r) to compel the performance of the contract and recover the specifical sum due.(s) This is the shortest and surest remedy; particularly where the debt arises upon a specialty, that is, upon a deed or instrument under seal. So also, if I verbally agree to pay a man a certain price for a certain parcel of goods, and fail in the performance, an action of debt lies against me; for this is also a determinate contract: but if I agree for no settled price, I am not liable to an action of debt, but a special action on the case, according to the nature of my contract. And indeed actions of debt are now seldom brought but upon special contracts under seal; wherein the sum due is clearly and precisely expressed for, in case of such an action upon a simple contract, the plaintiff labours under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks proper. (t) Secondly, in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all. For the debt is one single cause of action, fixed and determined; and which therefore, if the proof varies from the claim, cannot be looked upon as the same contract whereof the performance is sued for. If therefore I bring an action of debt for 30l., I

() Noy's Max. c. 44.
(P) Cro. Car. 254, 487.
(9) See book ii. ch. 30.

() F. N. B. 119.

(*) See Appendix, No. III. 2 1.
() Rep. 94.

4

As to what is evidence of knowledge, see 4 Camp. 198. 2 Stra. 1264. 2 Esp. 482. But the owner is not answerable for the first mischief done by a dog, a bull, or other tame animal. Bull. N. P. 77. 12 Mod. 333. Ld. Raym. 608. Yet if he should carry his dog into a field where he himself is a trespasser, and the dog should kill sheep, this, though the first offence, might be stated and proved as an aggravation of the trespass. Burr. 2092. 2 Lev. 172. But where a fierce and vicious dog is kept chained for the defence of the premises, and any one incautiously, or not knowing of it, should go so near as to be injured by it, no action can be maintained by the person injured, though he was seeking the owner, with whom he had business. Bates vs. Crosbie, M. T. 1798, in the King's Bench. If a man sets traps in his own grounds, but baited with such strongscented articles as allure the neighbouring dogs from the premises of the owners or from the highways, the owner of a dog injured may maintain an action upon the case. East, 227; but see Ilot vs. Wilkes, 3 Bar. & Ald. 304.-CHITTY.