The form of a notice from the tenant, where he requires a Mr. T. C. 19. I HEREBY defire you will keep poffeffion of my goods which you have this day diftrained for rent due from me to you, in the place where they now are, being in (the prefurther time for miles where the distress was made, which must be described) and I will pay the man for keeping the faid poffeffion. As witness my hand this the payment of the rent, &c. Notice to the fheriff when in poffeflion on an execution. day of , 1791. A. B. 20. NOTE: If the sheriff is in poffeffion of the goods of a tenant on an execution, the landlord need not make a dif tress, but should forthwith serve him with the following notice. 21. TAKE NOTICE that there is now due from A. B. the person to whom the goods belong, you are now in poffeffion of, by virtue of his majefty's writ of fieri facias, &c. returnable (here mention the writ and return) the fum of pounds, for one year's rent due at Michaelmas-day laft. As witness my hand this day of , 1791. F. G. Landlord of the faid premises. 22. NOTE: The man in poffeffion of the goods, &c. is to be paid two fhillings and fix-pence per day, if the tenant keep him; and three fhillings and fix-pence if he keep himself. CHAPTER THE EIGHTH. Replevin. 103 R Practice 224. I. EPLEVIN, from the Latin word replegiare which 2 Crompton's ver the things diftrained if judgment be given against him. Precedents. For and against whom Replevin lies. Sid. 82. F. N. B. 69. 2. The general rule is, that the plaintiff in replevin muft Plowd. 281. have a general or a fpecial property in the goods at the Co. Lit. 145. time of the taking, and therefore a lord for a heriot, or a parfon for a mortuary fhall not have it before the property have been vested in them by feizure. AN EXECUTOR may bring replevin for goods and chattels taken in the life-time of his teftator. A HUSBAND alone or husband and wife jointly may bring replevin for cattle belonging to his wife, which were taken by distress previous to the coverture; for as this action admits and affirms the property to be in the wife at the time of the marriage, it of courfe is converted Sid. 172. by the marriage into the exclufive property of the husband. 2 Stra. 1015. But in replevying goods which a wife holds as executrix, 4 Bac. Abr. this action cannot be brought by either of them fingly, but 385. they must be joined. Several perfons whofe refpective pro- 5 Co. 19, 38. perties are diftrained cannot join in replevying them, but each must proceed for his own goods. II. For what Things Replevin lies. 3. REPLEVIN will lie for every fpecies of chattel perfonal, which by its nature and in contemplation of law is capable Vent, 261. Co. Lit. 145. F. N. B. 69 of legal ownership, not only where the party diftrained has a general property as every owner hath, but also where he has only a special property, as where a man hath goods in pledge, or where he hath the cattle of another, not abfolutely, but for the purpose only of manuring his lands. 4. Replevin alfo, will lie for things wild by nature, if made tame or reclaimed, fo long as they continue in that state, as for a leveret, or a ferret, or a swarm of bees; for they poffefs the animus revertendi, and though they rove at large, they return to the dominion of their owner; but animals though domefticated, as dogs, bears, cats, apes, parrots, and finging birds which are only kept for pleasure, curiofity, or by law be dif- whim, are not replevifable, though perhaps an action of trefpafs will lie for taking them. (a) (a). Sed quere, for the general rule feems to be that replevin lies for any thing that may trained. F. N. B. 68. Mcor 394. 5. Replevin will not lie of trees or timber growing, nor of things annexed to the freehold, because fuch things cannot be diftrained, but it will lie for a certain iron or other implement or utensil belonging to the party's mill. 6. Replevin will not lie for deeds or charters concerning lands, for they are only valuable by relation to the lands, 2 Brownl. 139. nor will it lie for money, nor for leather made into shoes; nor for goods taken beyond the feas, and afterwards brought into England. 2 Stra. 1084. 3 Bl. Com. 147. 2 Inst. 139. 7. Replevin will not lie for goods taken in execution or upon a conviction. 8. But in those cafes where replevin will not lie, an action of detinue may be brought to recover in fpecie the deeds, goods, &c. wrongfully detained. III. The different Kinds of Replevin. 9. The party diftrained upon had formerly no other mode of trying the right to the distress than by the old common law procefs of replegiari facias or writ of replevin; which iffued out of chancery commanding the sheriff to deliver the distress to the owner, and afterwards to do juftice in respect to the matter in difpute in his COUNTY COURT: But this being a tedious method of proceeding, the beafts or other goods were long detained from the owner to his great lofs and damage. 10. To remedy this mischief it is directed by the 52 Hen. 3. c. 21. commonly called the ftatute of Marlbridge, "That (without fuing a writ out of the chancery) if the "beafts of any perfon be taken and wrongfully withholden "the fheriff after complaint made to him thereof may de"liver them without let or gainfaying of him that took the "beafts "beafts if they were taken out of liberties; and if they were taken within liberties, and the bailiffs of the liberty will not deliver them, then the fheriff for default of "thofe bailiffs fhall caufe them to be delivered." 11. And for the greater ease of the parties it is further provided by the ftatute of the 1 Philip & Mary, c. 12. That the sheriff fhall make, at leaft, four deputies in each county dwelling not above twelve miles from each other, for the fole purpose of making replevins, under a penalty of five pounds a month for every month fuch deputies are wanting. 12. When any man's goods therefore are diftrained or impounded he may repair to one of these fheriffs deputies for the purpose, and may there have A REPLEVIN, (upon pledges given to return the diftrefs) to caufe the goods diftrained to be delivered to the owner. IV. Out of what Courts Replevin issues. 13. THE WRIT of replevin iffuing, as we have already 2 Inft. 312. obferved, out of the court of chancery, is only returnable into the courts of King's Bench, Common Pleas, the court of the Cinque Ports, and the County Court. may Dalton Sheriff 230. Buller's Nifi Prius 52. 14. The fheriff upon plaint made to him without writ 2 Inft. 159. either by parol or precept command his bailiff to deli- Keb. 205. ver the goods, that is to make replevin of them, and by these words in the statute of Marlbridge, " After complaint made "to him thereof," he may take a plaint out of the county court and make replevin presently, which he is to enter in the court; for it would be inconvenient and against the scope of the ftatute, that the owner for whose benefit the statute was made should tarry for his beasts till the next county court, which is only holden from month to month. 15. And by this statute the sheriff may hold plea in the county court on REPLEVIN by plaint of whatever value the fubject in dispute may be, although in other actions he fhall only hold plea where the matter is under forty fillings value, yet if the king be party or the taking be in right of the crown, or if any thing touching the freehold come in queftion, or ancient demefne be pleaded, or if the diftrainer claim property in the goods and on a writ de proprietate probanda, they be found to be his, the sheriff can proceed no further, but must return the proceedings into the Court of King's Bench or Common Pleas to be there, if thought adviseable, finally determined. And indeed either party may by the Finch 317. 149. writs of pone and recordari facias (a) remove a REPLEVIN to 3 Black. Com. thefe fuperior courts: the plaintiff at pleasure; the defendant upon reasonable caufe; so that it is usual to carry it up in the first inftance to the courts in Westminster Co. Lit. 145. 227. Bro. Replevin 3. Hall. 16. Proceedings in replevin cannot be carried on in the hundred court, court baron, or any other court claiming a jurifdiction over fuch proceedings by prefcription; and 1 Ld. Ray. 219. therefore a lord of a hundred cannot prescribe to grant replevins on plaint. Brownl. 33. 17. The fheriff is obliged to grant replevins in all such cafes as are allowed of by law, and the officer who takes the goods by virtue of a replevin iffuing for what cause soever, is not liable to an action of trefpafs, unless the party in whofe poffeffion the goods were, claim property in them And in all cafes of misbehaviour by the sheriff or other officers in relation to replevins, they are fubject to the controul of the king's fuperior courts, and punishable by ATTACHMENT for fuch misbehaviour. 18. If the distress be made in a franchise or bailiwick the fheriff is to direct the replevin to the bailiff thereof to deliver the goods upon pledges, and if he make no anfwer or return that he will make no deliverance or the like, then the sheriff may enter into the liberty and make deliverances; and if the diftrefs be taken without the liberty and impounded within the liberty then the fheriff may enter and make deliverance, and need not firft make out a warrant to the fheriff of the liberty. V. Of the Pledges in Replevin. 19. The fheriff, when upon complaint made to him he makes replevin, muft take two kinds of pledges: FIRST, by the common law, that the party replevying will purfue his action against the diftrainer, for which purpofe he puts in plegios de profequendo, or pledges to profecute, and SECONDLY, by 13 Edw. I. c. 1. that if the right be determined against him, he will return the distress again; for which (a) The pone is used when the proceedings are by writ of replevin -The recordari facias is a writ to record the proceedings, and when recorded to return the fame into the king's bench or common pleas as the cafe may be; and therefore where THE REPLIVIN is by plaint it can only be removed by writ of recordari-but if the replevin be in plaint of record it may be removed certiorari.-See poft. fect. 6. p. 110. purpose |