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Of the Action of Replevin.

GOODS, &c. are only replevisable when they have been taken by way of distress; and therefore replevin is a remedy grounded upon a distress, being a re-deliverance of the goods or cattle distrained to the first posterior, on security given by him to try the right, and to re-deliver the things distrained, 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 case where a man has his goods or cattle taken from him by another, by way of dijlress.

Where the party has had his goods re-delivered to him by the sheriff upon a writ of replevin, or upon a plaint levied before him, [which by the statute of Marlbridge 52. Hen. 3. the sheriff may take out of the county court, and make replevin presently] the action is in the detinuit, -wherefore he detained the goods, &c. but where the sheriff has not made such replevin, but the distrainer still keeps possession, 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, instead of an action of trespass de honis afportatis, is, that he can oblige the desendant to redeliver the. goods to him immediately, in case upon making his avowry they appear to be replevisable; but as he may more speedily have them delivered immediately after they are distrained, by application to the sheriff, the action m the detinet has sell into disuse, and is never brought, unless the distrainor has efloined the goods, so that the sheriff 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 desendant gage deliverance; or he may, upon the return of elongavit to the pluries writ of replevin, have a writ to the sheriff, commanding him to take other beasts, &t. of the desendants in wiihernam; but then, if the desendant, before the return of the withernam, appears to the writ of replevin, and offers to plead non cepit, it stjall stay the withernam; for the desendant shall not be con4. eluded

Os the Action of Replevin.

eluded 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 signifies a second or reciprocal distress, in lieu of the first, which was estoined. The writ of capias in withernam, is a writ therefore to the sheriff, commanding him to take other goods, tife. of the distrainors, in lieu of the distress formerly taken and estoined or withheld from the owner. 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 reason, goods taken in withernam, cannot be replevied, till the original distress is forthcoming. Ld. Raym. 475.

If the person taking the goods claims property in them before the sheriff, he cannot make replevin of them: But then the plaintiff may sue out a writ dt proprietate probanda, upon which the sheriff must have an inquest of office; and if, upon such inquisition, the property is found in the plaintiff, the sheriff shall make replevin; otherwise not. But though the property is not found in the plaintiff, he is not concluded, for he may still have his action of replevin in the detinet, or of trespass. But if in an action of replevin the desendant plead property, and it be found for him, the plaintiff is thereby concluded.

Therefore, he that brings replevin must have an absolute, or at least a special property in the thing distrained; and therefore, several 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 tejlatoris. '.

So if the cattle or goods of a seme sole be taken, and she afterwards intermarry, the hufband alone may have replevin; but if they join, and there be a verdict for them, judgment will not be arrested, because the court will presume them jointly interested (as they may, isa distress 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. A7. Pri. 53.

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

THE action of replevin may be brought eiiher in B. R+ or C. B. by writ made returnable therein; but the action is most usually commenced in the county court, though by special custom a replevin may be brought in an hundred court, is'c. or other -court of record, that may hold plea thereof. Vide Salk. 580. 2 Injlit. 139. 3 Mod. 56. &c.

A replevin lies two ways in a county court, by writ and by plaint. However, it is seldom brought by writ there, because the plaintiff may have his goods or eat,tle restored to him more speedily, by levying his plaint there, according to the statute of Marlbridge 52. Hen. 3. c. 2t. which gives a replevin by plaint, either in or out of court; till which statute, the sheriff could not replevy bv plaint. For, at common law, the sheriff could replevy by writ only, and that in his county court. Vide Ld. Raym. 219.

If the replevin is by writ there, the writ issues out of Chancery, and is in the nature of 2. jujlicies. 2 Instit. 240.

And if he does not return it, or does nothing upon it, the plaintiff may have an alias, in which is inserted usually this clause, that he make replevin, vet caufam nobis Jignifices. F. N. B. 68. E. And after that a pluries.

If the sheriff 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 sheriff for his contempt, and in the interim make replevin. Reg. 8i.

To any of these writs, the sheriff cannot return a mandavi hallivo, &c . For by IVtstm. 1. 17. the sheriff ought immediately to enter the franchise, and make deliverance. F. N. B. 58. F.

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

But as replevin by plaint is the most usual and expedi*tious, I shall shew how to proceed therein.

Upon plaint made to the sheriff, of goods or cattle di* strained, he, by parol or precept, may, by his bailiff, re<plevy them. 2 Injlit. 139. F. N. B. 69. E. Per Lit. 9 Edw. 4. 48. b.

And it is not necessary for the plaintiff to stay till the county court is held, before he makes plaint, if the plaint

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Os the Action os 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 40 s.

By stat. 1 & z P. & M. c. 12. fiSI. 3. "For the more speedy delivery of cattle distrained, the sheriff must appoint four deputies at lea/r 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, fcff."


Of finding Pledges in Replevin.

UPON making replevin, the sheriff ought to take two kinds of pledges—viz. pledges of profecution by the common law, and pledges pro retorno babendo, according to the statute Wejltn. 2. c. 2. by which it is provided, "That sheriffs or bailiffs from thenceforth (hall 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 cattie; and if the bailiff be not able to restore, his superior shall restore."

The pledges for prosecution in this, as in all other actions, are now become nominal persons; but the pledges pro retorno habendo ought to be real and responsible persons; for an action lies against the sheriff if he omits to take these pledges, or if he takes those that are insufficient; for the party may have a fire facias against the pledges, where the suit is in any court of record; and if it is in any court not of record, as the county court, hundred court, t5V. he may have a precept in the nature of a scire facias against these pledges, though not a scire facias, because a scire facias ought to be grounded on a record. Ld. Raym. 278; Comb. 1, 2. 59^.

But as sheriffs grew remiss in their duty, and often neg-r lected taking these pledges pro retorno habendo; or if any were taken, for the most part they were found to be indigent and irresponsible people; by the slat. of 11 Geo. 2. c. 19. s. 23. "An act for the better securing the payment of "rents, and preventing frauds by tenants;" It is enacted, "That to prevent vexatious replevins of distresses takenyir "rent, all sheriffs and other officers, having authority to u grant replevins, may and shall, in every replevin of a "distress for rent, take in their own names, from the "plaintiff, and two responsible persons as sureties, a bond "' in douWe the value of the goods distrained [such value to "be ascertained by the oath of one or more credible witness "or witnesses riot interested in the goods or distress, which "oath the person granting such replevin is hereby autholy rized and required to administer] and conditioned for pro"sceuting the suit with effect a::d without delay, and for "duly returning the goods and chaials dstrained, in case "a return shall be awarded before any deliverance be made

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