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Of removing the Suit from the County-court, &c. into the Courts of B. R. or C. B.

If the sheriff returns the recordari, tarde, the party shall have an alias, &c. F. N. B. 70. b.

By the recordari nothing is removed but the plaint, even though iffue fhould be joined below. F. N. B. 71. a.

And the plaint may be removed, though the plaintiff has difcontinued there. Ibid.

When the plaint is removed into B. R. or C. B. the plaintiff muft declare there de novo, otherwife the defendant

may fue out a writ de retorno babendo. F. N. B. 71. a.

And the plaint, when removed, is filed with the filazer of the county in B. R. as it is alfo when removed into C. B. *

If the plaintiff removes the plaint, he muft file the refalo, &c. with the filazer, and fee if the defendant has appeared; and if he has not appeared, he must give him a rule to appear; and upon non-appearance thereto, the plaintiff muft fue out a pone; and upon like non-appearance thereto, he may fue out a diftringas ad infinitum, till he does appear-And then the plaintiff declares.

But if the defendant removes it, he muft file the refalo and return thereto with the filazer; and having entered an appearance, he must then give a rule for the plaintiff to declare ; and for want of a declaration, when the rule is out, he may fign a non-pros for not declaring, and immediately fue out a writ pro retorno habendo.

The defendant's attorney, upon filing the refalo, which he ought to do on the return day, or at least on the appearance day of the return, ought to give the plaintiff's attorney notice thereof, and call upon him for a declaration. But if the defendant does not get it returned and filed within two terms, the plaintiff may have a certificate thereof from the filazer, and thereupon the curfitor will make him out a writ of procedendo, which being obtained, he may proceed in his plaint in the court below.

* But note: Upon removal of any other actions, except replevin, into C. B. the writ and proceedings are filed with the prothonotary there.

Of

T

Of the Declaration in Replevin.

HE declaration in replevin may be laid in the county where the cattle or goods were taken, or in the county into which they were driven after the taking. F. N. B. 69. I.

And the declaration ought to be not only of a taking in a vill or town, but alfo in quodam loco vocat'. But if the defendant would take advantage of this omiffion, he must demur to the declaration. Hob. 16. Bullitharp v. Turner, C. B. Tr. 16, 17 Geo. 2.

But if the defendant would take advantage of a variance in the place where the taking is laid, from that in which it really was, he must plead it in abatement. 6 Mod. 103. For prifal in auter lieu must be pleaded in abatement, and cannot be pleaded in bar. Salk. 2 Ld. Raym. 1016. Carth. 344. Show. 98.

3. pl. 8.

The declaration muft mention the cattle or goods demanded with fuch certainty, that the sheriff may make deliverance of them-and therefore, it fhould mention the forts or fpecies, as fheep, cows, &c. Carth. 218.

If the cattle or goods are returned, the declaration should fay, wherefore he took, &c. and detained them against gages and pledges, until, &c. I Saund. 347.

But if they are not returned, the declaration must be, wherefore he took, &c. and fill detains against gages and pledges. Co. Ent. 610. b. Raft. Ent. 560.

So if only part are returned, it fhall fay as to that, detained until, &c. and as to the refidue, fill detains. Co. Ent. 611. b.

If the declaration is in the detinuit, and the plaintiff prevails, he shall have damages for the taking and costs.

If in the detinet, and he prevails, he fhall recover the value of the cattle or goods diftrained, and his damages for the taking and cofts. F. N. B. 69. L.

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How to proceed if the Plaintiff does not declare, &c.

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the plaintiff declares, the defendant may plead in abateconufance in right of another, or justify-for all which, fee Comyns's Digeft, Viner's Abridgment, Bacon's Abridgment, &c. and the various books of entries.

If the parties go on to iffue or demurrer, the proceedings and practice therein are the fame as in other actions. If the plaintiff has removed the cause, and does not declare or proceed therein; or if the defendant has removed it, and after having ferved the plaintiff with a rule to declare, and demanded a declaration, and the plaintiff does not declare and proceed therein, the defendant may fign a non-pros and judgment pro retorno habendo, and then fue out a * writ pro retorno habendo, which is made out by the filazer, and is to the following effect:

GEORGE the third, by the grace of God, &c. To the sheriff of Bucks, greeting. Whereas E. F. was fummoned to appear in our court before us [or before our juftices] at Westminster, to answer C. D. in a plea, wherefore he took the cattle of the faid C. to wit, one mare and four colts, and unjustly detained the fame against fureties and pledges, as he fays; and the fame C. afterwards in our faid court made default, whereupon it was then and there confidered, that the faid C. and his pledges of profecuting fhould be in mercy, and that the aforefaid E. fhould go thereupon without delay, and that he should have a return of the cattle aforefaid. Therefore we command you, that you cause to be returned the cattle aforefaid to the faid E. without delay; and the fame at the complaint of the aforefaid C. you do not deliver without our writ, which shall make express mention of the aforefaid judgment, and in what manner you fhall execute this our precept, you fhall make manifest to us [or to our juftices] at

1

*Note: If the diftrefs was made for rent, fee a better method of proceeding, of.

Westminster

How to proceed if the Plaintiff does not de

clare, &c.

Westminster, on [a general return day, all the proceedings being by original] and have you there this writ.

Witness, &c. on, &c. in the twentieth year of our reign.

If, however, the plaintiff even after fuch judgment of non-pros figned, and this writ of retorno habendo fued out by the defendant, would wish to go on in his fuit, he is at liberty fo to do; and his application for that purpose must be made to the filazer for a writ of fecond deliverance; which writ of fecond deliverance is in the nature of a superfedeas to the writ pro retorno habendo, if brought before it be executed.

At the common law, if the plaintiff in replevin had been nonfuited, either before or after verdict, the defendant who diftrained had judgment for a return, but not irreplevifable: So that the plaintiff might have had as many replevins as he would, which was vexatious and mischievous. To remedy which, the ftatute Weftm. 2. c. 2. reftrains the plaintiff from having any more replevins after a nonfuit, but gives him a writ of fecond deliverance. 2 Inftit. 340.

And if after fuch writ of fecond deliverance the plaintiff is nonproffed, or becomes nonfuited, or the plea be difcontinued, or the writ abates, or he prevails not in his fuit, the defendant then shall have judgment for a return irreplevifable. 2 Inftit. 341.

The writ of fecond deliverance is to the following effect :

"GEORGE the third, &c. To the fheriff of Bucks, greeting. We command you, if C. D. fhall make you fecure of profecuting his complaint, and alfo of returning the cattle which to E. F. lately in our court, before our juftices at Westminster, at a certain day now paft, were adjudged by the default of him the faid C. D. if a return thereof fhall be adjudged; then the cattle to him the faid C. D. without delay, you caufe to be delivered, and put by fureties and fafe pledges the aforefaid E. F. that he be before our justices

at

How to proceed if the Plaintiff does not declare, &c.

at Westminster, [the return] to anfwer the faid C. D. of the taking of the cattle aforefaid, and that you have there the names of the pledges, &c. and this writ. Witnefs Sir William de Grey, knight, at Westminster, the

day of the twentieth year of our reign.

in

If upon the return-day, or the appearance-day of the return-day of the writ of fecond deliverance, the plaintiff declares, the fubfequent proceedings are the fame as in other cafes throughout the cause.

If the plaintiff does not fue out a writ of fecond deliverance, and the theriff fhould return to the writ pro retorno habendo, that the cattle, &c. were eloined or removed to places unknown, by reason of which he could not return the fame to the defendant, as by the faid writ he was commanded, then upon fuch return of elongata, the defendant fhall have a capias in withernam, which is to the following effect, and which is also obtained of the filazer.

GEORGE the third, &c. To the fheriff of Bucks, greeting: Whereas E. F. was fummoned to appear in our court, before our juftices at Westminster, to anfwer C. D. of a plea, wherefore ne took the cattle of the faid C. and unjustly detained th fame against fureties and pledges, as he fays; and the fame C. afterwards, in our fame court, made default in the fame plea; whereupon it was then and there confidered, that the fame C. and his pledges of prosecution should be in mercy; and that the faid E. fhould go thereupon without day, and that he should have a return of the cattle aforefaid whereupon, by our writ, we commanded you, that you caufed to be returned the cattle aforesaid to the faid E. without delay, and the fame at the complaint of the faid C. you should not deliver without our writ, which of the aforefaid judgment should make exprefs mention, and in what manner you should have executed our faid

precept

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