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Of Replevin.

Of the Action of Replevin.

OODS, &c. are only replevifable when they have been taken by way of diftrefs; and therefore replevin is a remedy grounded upon a distress, being a re-deliverance of the goods or cattle diftrained to the firft poffeffor, on fecurity given by him to try the right, and to re-deliver the things diftrained, if judgment be given against him. Co. Lit. 145.

The action of replevin is of two forts; 1. In the detinet. 2. In the detinuit, and may be brought in any cafe where a man has his goods or cattle taken from him by another, by way of distress.

Where the party has had his goods re-delivered to him by the fheriff upon a writ of replevin, or upon a plaint levied before him, [which by the ftatute of Marlbridge 52. Hen. 3. the fheriff may take out of the county court, and make replevin prefently] the action is in the detinuit, wherefore he detained the goods, &c. but where the fheriff has not made fuch replevin, but the diftrainer ftill keeps poffeffion, the action is in the detinet; wherefore he detains the goods, &c. However, of late years, no action has been brought in the detinet, though there is much curious learning in the old books concerning it.

The advantage the plaintiff has in bringing an action of replevin in the detinet, inftead of an action of trespass de bonis afportatis, is, that he can oblige the defendant to redeliver the goods, to him immediately, in cafe upon making his avowry they appear to be replevifable; but as he may more speedily have them delivered immediately after they are diftrained, by application to the fheriff, the action in the detinet has fell into difufe, and is never brought, unless the diftrainor has efloined the goods, fo that the fheriff cannot get at them to make replevin; and then it may be brought in the detinet: Whereupon, after avowry made, the plaintiff may pray that the defendant gage deliverance; or he may, upon the return of elongavit to the pluries writ of replevin, have a writ to the fheriff, commanding him to take other beafts, &c. of the defendants in withernam; but then, if the defendant, before the return of the withernam, appears to the writ of replevin, and offers to plead non cepit, it fhall Bay the withernam; for the defendant fhall not be concluded

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Of the Action of Replevin.

cluded by the return of the elongavit, because the sheriff can make no other return, where he cannot find the thing to be replevied.

The word withernam, is a term, which fignifies a fecond or reciprocal diftress, in lieu of the firft, which was efloined. The writ of capias in withernam, is a writ therefore to the fheriff, commanding him to take other goods, &c. of the diftrainors, in lieu of the diftrefs formerly taken and efloined or withheld from the owner. 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 diftrainor. For which reafon, goods taken in withernam, cannot be replevied, till the original diftrefs is forthcoming. Ld. Raym. 475.

But

If the person taking the goods claims property in them before the sheriff, he cannot make replevin of them: But then the plaintiff may fue out a writ de proprietate probanda, upon which the sheriff must have an inqueft of office; and if, upon fuch inquifition, the property is found in the plaintiff, the sheriff fhall make replevin; otherwife not. though the property is not found in the plaintiff, he is not concluded, for he may ftill have his action of replevin in the detinet, or of trefpafs. But if in an action of replevin the defendant plead property, and it be found for him, the plaintiff is thereby concluded.

Therefore, he that brings replevin must have an abfolute, or at least a special property in the thing diftrained; and therefore, feveral men cannot join in a replevin, unless they be joint-tenants, or tenants in common., Co. Lit.

145.

Executors may have a replevin of a taking in vita tefta

toris.

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So if the cattle or goods of a feme fole be taken, and she afterwards intermarry, the hufband alone may have re plevin; but if they join, and there be a verdict for them, judgment will not be arrested, because the court will prefume them jointly interefted (as they may, if a diftrefs be taken of goods, of which a man and woman were jointtenants, and afterwards intermarry :) the avowry admitting the property to be in the manner it is laid. Vide Bull. Ni. Pri. 53.

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Of the Action of Replevin, and where it may be brought.

THE

HE action of replevin may be brought either in B. R. C. B. by writ made returnable therein; but the action is moft ufually commenced in the county court, though by special custom a replevin may be brought in an hundred court, &c. or other court of record, that may hold plea thereof. Vide Salk. 580. 2 Inftit. 139. 3 Mod. 56. &c.

A replevin lies two ways in a county court, by writ and by plaint. However, it is feldom brought by writ there, because the plaintiff may have his goods or cattle reftored to him more speedily, by levying his plaint there, according to the ftatute of Marlbridge 52. Hen. 3. c. 21. which gives a replevin by plaint, either in or out of court; till which ftatute, the fheriff could not replevy by plaint. For, at common law, the fheriff could replevy by writ only, and. that in his county court. Vide Ld. Raym. 219.

If the replevin is by writ there, the writ iffues out of Chancery, and is in the nature of a justicies. 2 Inftit. 240.

And if he does not return it, or does nothing upon it, the plaintiff may have an alias, in which is inferted ufually this claufe, that he make replevin, vel caufam nobis fignifices. F. N. B. 68. E. And after that a pluries.

If the theriff makes replevin, he need not return the writ; but if he does not, he ought to return the cause. 2 H. 7. 5. b.

And if he does not, an attachment lies against him to the coroners, commanding them to attach the fheriff for his contempt, and in the interim make replevin. Reg. 81.

To any of these writs, the fheriff cannot return a mandavi ballivo, &c. For by Weftm. 1. 17. the fheriff ought immediately to enter the franchife, and make deliverance. F. N. B. 58. F.

If he does not replevy, and makes any other return, the plaintiff fhall have a capias in withernam; and after that, an alias, and a pluries capias in wither nam.

But as replevin by plaint is the most usual and expedi tious, I fhall fhew how to proceed therein.

Upon plaint made to the fheriff, of goods or cattle diftrained, he, by parol or precept, may, by his bailiff, replevy them. 2 Inflit. 139. F. N. B. 69. E. Per Lit. 9 Edw. 4. 48. b.

And it is not neceffary for the plaintiff to ftay till the county court is held, before he makes plaint, if the plaint VOL. II.

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Of the Action of Replevin, and where it may be brought.

is afterwards entered there. Ibid. And the sheriff may make deliverance, though the goods or cattle are above the value of 40s.

By ftat. 1 & 2 P. & M. c. 12. fet. 3. "For the more speedy delivery of cattle diftrained, the sheriff muft appoint four deputies at leaft in his bailiwick, dwelling not above. twelve miles one from the other, to make replevins; who have authority in his name, to make replevins and deliverances, &c."

Of

of finding Pledges in Replevin.

PON making replevin, the fheriff ought to take two kinds of pledges-viz. pledges of profecution by the com mon law, and pledges pro retorno habendo, according to the ftatute Weftm. 2. c. 2. by which it is provided, That fheriffs or bailiffs from thenceforth fhall not only receive of the plaintiff, pledges for the purfuing of the fuit, before they make deliverance of the diftrefs, but alfo for the return of the beafts, if return be awarded; and if any take pledges otherwife, he fhall anfwer for the price of the beafts; and the lord that diftrains fhall 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 fuperior fhall restore."

The pledges for profecution in this, as in all other actions, are now become nominal perfons; but the pledges pro retorno habendo ought to be real and refponfible perfons; for an action lies against the fheriff if he omits to take these pledges, or if he takes those that are infufficient; for the party may have a feire facias against the pledges, where the fuit is in any court of record; and if it is in any court not of record, as the county court, hundred court, &c. he may have a precept in the nature of a fcire facias against thefe pledges, though not a fcire facias, because a scire facias ought to be grounded on a record. Ld. Raym. 278. Comb. 1, 2. 593.

But as fheriffs grew remifs in their duty, and often neglected taking thefe pledges pro retorno habendo; or if any were taken, for the most part they were found to be indigent and irrefponfible people; by the ftat. of 11 Geo. 2. c. 19. f. 23. "An act for the better fecuring the payment of "rents, and preventing frauds by tenants;" It is enacted, "That to prevent vexatious replevins of diftreffes taken for "rent, all fheriffs and other officers, having authority to

grant replevins, may and fhall, in every replevin of a "diftrefs for rent, take in their own names, from the "plaintiff, and two refponfible perfons as fureties, a bond "in double the value of the goods diftrained [fuch value to "be afcertained by the oath of one or more credible witness "or witneffes not interested in the goods or distress, which "oath the perfon granting fuch replevin is hereby autho"rized and required to adminifter] and conditioned for pro،، fecuting the fuit with effect and without delay, and for "duly returning the goods and chails diftrained, in cafe a return fhall be awarded before any deliverance be made

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