2. Of the Writ of Pone under the Stat. Westm. 2d.

At the common law, where the lord 'avowed taking the distress for services or customs, if the plaintiff disavowed the tenure, and disclaimed holding of the avowant, the inferior court had not any farther cognisance of the suit, and the proceeding there was stayed; because the disclaimer brought the freehold in question, which the county court, not being a court of record, had not any authority to try. This inconvenience was remedied by the stat. Westm. 2. (13 Ed. 1. c. 2.) which gave the avowant in this case the writ of pone to remove the proceedings into the king's courts. It appears from the preamble, that the avowant is entitled to this writ of pone, as well where the proceedings are instituted in the inferior court by plaint, as where they are commenced by writ out of chancery. There is one passage in this statute which is worthy of remark, because it may be inferred from it, that before this statute the defendant in replevin could not remove the proceedings out of the inferior court (13). The words are these:

Nec per istud statutum derogatur legi communi usitatæ, quod non permisit aliquod placitum poni coram justiciariis ad petitionem defendentis; quia licet primâ facie videatur tenens actor, et dominus defendens, habito tamen respectu ad hoc quod dominus distrinxit, et sequitur pro servitiis et consuetudinibus sibi aretro existentibus, realitur apparebit potius actor, sive querens, quam defendens.

3. Of the Writ of Recordari facias loquelam.

This form of writ is adapted to the removal of the proceedings in replevin', when they have been instituted in the county court by plaint, and not by writ; and as the method of suing by plaint has superseded the ancient method of proceeding by writ, the recordari facias loquelam is the writ now in general use. By this writ the sheriff is commanded to record the plaint, and when recorded, to return it into the King's Bench or Common Pleas, at a fixed day, on which the parties are to attend in court. This being done, the superior courts have authority to proceed.

i F.N. B. 70 B.

(13) I am aware that Sir Edw. Coke has given a different explanation of this passage in the 2d Inst. p. 339, but his explanation seems to be at variance with the context.

When the record is removed, and the party declares in banco, the plaint is determined. Hence advantage cannot be taken of a variance between the plaint and the declaration in the superior court.

By virtue of the writ of re. fa. lo. the plaint may be removed either by the plaintiff or defendant; but the defendant must allege in the writ some cause of removal; this allegation', however, is not a material point of the writ, and the defendant may avow or justify the taking and detention on other grounds.

The delivery of the re. fa. lo. to the clerk of a county court, after interlocutory and before final judgment, is a bar to any farther proceeding in that court.

The officer of the inferior court cannot refuse paying obedience to the writ", under pretence of his fees not having been paid, because he may bring an action for such fees.

4. Of the Writ of Accedas ad Curiam.

This writ is only a species of re. fa. lo. adapted to the removal of replevins, sued by plaint in the Lord's Court. It derives its name from the language of the writ, "accedas ad curiam W. de C. et in illâ plená curid recordari facias loquelam, quæ est in eâdem curid sine brevi nostro." &c. See the form of this writ in Gilb. Repl. 145. ed. 1757.

N. If the writ of removal is made returnable on the first return of the term", it is incumbent on the plaintiff to declare in the superior court within four days before the end of that term; otherwise the defendant (although he has not appeared) will be entitled to an imparlance.

VI. By whom a Replevin may be maintained.

To maintain replevin, the plaintiff ought to have either an absolute or special property in the goods in question vested

k Hargreave v. Arden. Cro. Eliz. 543.

1 10 Ed. 2 Avowry, 213. 20 Ed. 3. Avowry, 130.

m Bevan v. Prothesk, 2 Burr. 1151.

VOL. II.

n Thompson v. Jordan, 2 Bos. & Pul. 137.

o Bro. Repl. pl. 8. 20.

Нн

in him at the time of the taking (14): A mere possessory right is not sufficient".

If the goods of a feme sole are taken, and she marries, the husband alone may (15) sue the replevin; because the property is transferred by the marriage, and vested absolutely in the husband, so that he may release it; and, consequently, he may have an action in his own name to bring back the property.

If the goods are taken after marriage, husband and wife ought not to join in the replevin; but if they do join in the action, and after verdict a motion is made on this ground in arrest of judgment, it will be presumed that the husband and wife were jointly possessed of the goods before marriage, and that the goods were taken before marriage, in which case the husband and wife might join.

Executors may maintain replevin for the goods of the testator taken in his life-times,

Parties who have a joint interest in the distress may join in the replevin', but where the interest in the goods taken is several", there ought to be several replevins.

VII. Of the Declaration.

Venue. The venue must be laid in the county in which the distress was taken.

Locus in quo. The place in which the distress was taken, technically termed the locus in quo, as well as the vill or parish, must be named in the declaration; because the right of cap

p Per cur. in Templeman v. Case, 10. s Bro. Repl. pl. 59.

Mod. 25.

qF. N. B. 69. K.

r Bourn et Ux. v. Mattaire, Ca. Temp. Hardw. 119.

t 3 H. 4. 16. a. 1 Inst. 145. b.
u Bro. Abr. Repl. pl. 12.

(14) There are two kinds of property, a general property which every absolute owner has, and a special property, as goods pledged or taken to manure his lands, or the like, and of both these a replevin lies. 1 Inst. 145. b.

(15) Or the husband and wife may join. Agreed by Lord Hardwicke, C. J., in Bourn v. Mattaire, Ca. Temp. Hardw. 119. See ante, p. 292. n. (23).

tion may turn on the place, and the freehold may come in question*.

If the locus in quo be not named, the defendant may take advantage of the omission by special demurrer", but if he plead over, the defect is cured.

This obligation on the plaintiff to name the locus in quo, has, from the supposed difficulty of ascertaining it in all cases, been frequently considered as a great hardship. It must be admitted, that if the law required the plaintiff to name the place, where distress was first taken, such a rule might deserve censure; but the law does not require such strictness; it being sufficient for the plaintiff to name that place in which he finds the defendant in possession of the distress; for the law considers the distress as wrongfully taken in every place in which the defendant may have it in his custody (16).

Hence where the plaintiff declared of a taking in A., and the defendant pleaded non cepit modo et formá, the plaintiff having proved that he found the cattle in the possession of the defendant in A., it was adjudged sufficient, although the defendant proved, that he first took them in B., and was only driving them through A. to the pound (17).

x 2 H. 6. 14. a.

y Ward v. Lavile, Cro. Eliz. 896. Moor, 678. S. C. under the name of Ward v. Lakin. See also Read and Hawke's case, the arguments in which are reported in Godb. 186. and

z

the judgment of the court in Hob. 16. and 1 Brownl. 176.

Bullythorp v. . Turner, Willes, 476. and per Bridgman, C. J., 1 Sidf. 10. a Per Chambre, J., 2 Bos. & Bul. 481. b Walton v. Kersop, 2 Wils. 354.

(16) If the distress be taken in one county, and carried into another, the plaintiff may have replevin in either county, because it is a caption in every county into which the distress is taken by the defendant. F. N. B. 69. I. Doct. Pla. 315. See also Bro. Repl. pl. 63.

(17) If the defendant never had the goods in the place named in the declaration, non cepit modo et formâ seems a proper plea, where the defendant does not seek a return.

The plaintiff declared for taking guns in quodam loco vocat, the Minories; the defendant pleaded non cepit modo et forma. At the trial the plaintiff proved the taking at a place in Surrey, upon which it was objected, that he had failed in proving his issue; to which Pratt, C. J., assented, observing, that where the defendant does not insist on a return, he may plead non cepit modo et forma, and prove the taking to be at another place; the plaintiff was nonsuited. Johnson v. Wollyer, Str. 507.

Н и 2

If the replevin be brought in an inferior court, the locus in quo must be alleged to be within the jurisdiction of the

courte.

With respect to the description of the goods taken", it is stated in some of the books as a rule, that the goods must be described in the declaration with such certainty, that the sheriff may make re-deliverance of them.

The following cases contain all the learning on this subject:

Replevin for taking bona et catalla sua, viz. quandam parcell' lintei et quandam parcell' papyri ipsius querentis; the defendant avowed the taking as a distress for rent arrear. Verdict for the plaintiff with entire damages. It was objected, in arrest of judgment, that "quandam parcell' papyri et lintei" was too general and uncertain a description; and although it might be well enough in trover and trespass, yet it was ill in replevin; because it was not a sufficient direction to the jury in assessing the damages, nor to the sheriff in re-delivering the goods: but Parker, C. J., observed, that although the declaration would have been ill on demurrer, yet the pleadings had supplied the defect; because the defendant having avowed the taking, he had thereby admitted that he knew what the goods were, and consequently, both parties agreeing on this point, the only question was, who should have them. He added, that it would not be of any advantage to the defendant to have the goods particularized; because, if the plaintiff should demand 500 reams of paper, and prove that the defendant had wrongfully taken one only, yet he would be entitled to recover, agreeably to the rule, that in actions of torts, it is sufficient for the plaintiff to prove part only of his declaration; and as to the necessity of an exact description or the goods on account of the re-delivery by the sheriff upon the retorn' habend', he observed, that the sheriff might require the defendant to shew him the goods (18), and that it was a good return for the sheriff to make, "that no person came on the part of the defendant to shew

e Quarles v. Searle, Cro. Jac. 95.

d See Buller's Nisi Prius, p. 53.

e Kempster v. Nelson, Pasch. 13 Ann.

4 Bac. Abr. 387. cited and recognised in Bern v. Mastaire, Ca. Temp. Hsrdw. 121.

(18) This argument has frequently been urged, when exceptions. in arrest of judgment have been made in actions of ejectment, for uncertainty of description in the declaration. See Portman v. Morgan, Cro. Eliz. 465.