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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 rtcordari nothing is removed but the plaint, even though issue should be joined below. F. N. B. 71. a.
And the plaint may be removed, though the plaintiff has discontinued there. Ibid.
When the plaint is removed into B. R. or C. B. the plaintiff must declare there de novo, otherwise the desendant may sue out a writ de ittorno 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 also when removed into C.B. *
If the plaintiff removes the plaint, he must file the resale, ice. with the filazer, and see if the desendant has appeared; and if he has not appeared, he must give him a rule to appear; and upon non-appearance thereto, the plaintiff must sue out A pone; and upon like non-appearance thereto, he may sue out a dijlringas ad infinitum, till he does appear—And then the plaintiff declares.
But if the desendant removes it, he must file the result 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 sign a non-pros for not declaring, and immediately sue out a writ pro retorno habendo.
The desendant'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 desendant does not get it returned and filed within two terms, the plaintiff may have a certificate thereof from the filazer, and thereupon the curfilor 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 fretboaotary there.
Of the Declaration in Replevin.
TH E declaration. in replevin may be laid in the coufi-' ty where the cattle or goods were taken, or in the county into which they were driven after the taking. F. N. B. 69. /.
And the declaration ought to be not only of a taking in a vill or town, but also in quodam loco vocas. But if the desendant would take advantage of this omission, he must demur to the declaratian. Hob. 16. Bullithorp v. Turner, C.B. Tr. 16, 17 Git. 2.
But if the desendant 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 prisal in auter lieu must be pleaded in abatement, and cannot be pleaded in bar. Salk. 3. pi. 8. 2 Ld. Raym. 1016. Carth. 344.. Show. 98.
The declaration must mention the cattle or goods demanded with such certainty, that the sherift' may make deliverance of them—and therefore, it should mention the softs or species, as sheep, cows, &c. Carth. 218.
If the cattle or goods are returned, the declaration should say, wherefoie he took, &c. and detained them against gages and pledges, until, &c. 1 Saund. 347.
But if they are not returned, the declaration must be, wherefore he took, See. andjliil detains against gages and pledges. Co. Ent. 610. b. Raft. Ent. 560.
So if only part are retuYrred, it shall say as to that, de' iained until, &c. and as to the residue, Jlill 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 shall recover the value of the cattle or goods distrained, aud his damages sot the taking and costs. F. Ar. B. 69. L.
How to proceed if the Plaintiff does not declare, &c.
IF the plaintiff declares, the desendant may plead in abatement, or in bar; or he may avow in his own right, make conufance in riglrt of another, or justify—for all which, fee Comyns's Digejl, Viner's Abridgment, Bacon's Abridgment, &c. and the various books of entries.
If the parties go on to issue or demurrer, the proceedings and practice therein are the same as in other actions.
If the plaintiff has removed the cause, and does not declare or proceed therein; or if the desendant has removed it, and after having served the plaintiff with a rule to declare, and demanded a declaration, and the plaintiff does not declare and proceed therein, the desendant may sign a non-pros and judgment pro retorno habcndo, and then sue out a* writ pro retorno babendo, which is made out by the stJazer, and is to the following effect:
GEORGE the third, by the grace of God, ice. To the sheriff of Buds, greeting. Whereas E. F. was summoned to appear in our court before us [or before our justices] at Westminster, to answer C. D. in a plea, wherefore he took the cattle of the said C. to wit, one mare and four colts, and unjustly detained the same against sureties and pledges, as he says; and the same C. afterwards in our said court made desault, whereupon it was then and there considered, that the said C. and his pledges of prosecuting should be in mercy, and that the aforefaid E. should 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 said E. without delay; and the same at the complaint of the aforefaid C. you do not deliver without our writ, which shall make exprefs mention of the aforefaid judgment, and in what manner you shall execute this our precept, you shall make manisest to us [or to our justices'] at
* Note: If the distress was mede for rent, fee a better method of proceeding, i oft.
How to proceed if the Plaintiff does not dd-t clare, &c.
• Wejlminjler, on [a general return day, all the pro
ceedings 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 such judgment of non-pros signed, and this writ of rttorno habendo sued out by the desendant, would wish to go on in his suit, he is at liberty so to do; and his application for that purpose must be made to the filazer for a writ of second deliverance; which writ of second deliverance is in the nature of a supersedeas to the writ pro retorno habendo., if brought before it be executed.
At the common law, if the plaintiff in replevin had been nonsuited, either before or after verdict, the desendant who distrained had judgment for a return, but not irreple•visable: So that the plaintiff might have had as many replevins as he would, which was vexatious and mischievous. To remedy which, the statute Wejlm. 2. c. 2. restrains the plaintiff from having any more replevins after a nonsuit, but gives him a writ of second deliverance. 2 Instit. 340.
And if after such writ of second deliverance the plaintiff is nonprossed, or becomes nonsuited, or the plea be discontinued, or the writ abates, or he prevails not in his suit, the desendant then shall have judgment for a return irreplevisable. 2 Instit. 341.
The writ of second deliverance is to the following effect:
"GEORGE the third, tst. To the sheriff of Bucks, greeting. We command you, if C. D. shall make you secure of prosecuting his complaint, and also of returning the cattle which to E. F. lately in our court, before cur jujlices at Westminster, at a certain day now past, were adjudged by the desault of him the said C. D. if a return thereof shall be adjudged; then the cattle to him the said C. D. without delay, you cause to be delivered, and put by sureties and sase pledges the aforesaid E. F. that he be before our justices
How to proceed if the Plaintiff does not declare, &c.
at Wellminjler, [the return] to answer the said C. D. of the taking of the cattle aforesaid, and that you have there the names of the pledges, &c. and this writ. Witness Sir William de Grey, knight, at Wejlminjler, the day of in
the twentieth year of our reign.
If upon the return-day, or the appearance-day of the return-day of the writ of second deliverance, the plaintiff declares, the subsequent proceedings are the same as in other cases throughout the cause.
If the plaintiff does not sue out a writ of second deliverance, and the sheriff should 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 same to the desendant, as by the said writ he was commanded, then upon such return of elongata, the desendant snail have a tapias in witbernam, which is to the following effect, and which is also obtained of the filazer.i
GEORGE the third, &c. To the sheriff of Bucks, greeting: Whereas E. F. was summoned to appear in our court, before our jujliees at IVeJlminder, to answer C. D. of a plea, wherefore ne took the cattle of the said C. and unjustly detained th» same against sureties and pledges, as he says; and the fame C. afterwards, in our same court, made desault in the same plea; whereupon it was then and there considered, that the same C. and his pledges of prosecution should be in mercy; and that the said E. should go thereupon without day, and that he should have a return of the cattle aforesaid: whereupon, by our writ, we commanded you, that you caused to be returned the cattle aforesaid to the said E. without delay, and the same at the complaint of the said C. you should not deliver without our writ, which of the aforesaid judgment should make express mention, and in what manner you should have executed our said