4. Property.

5 Statutes:

1. Of Limitations.

2. Of Set-off.

IX. Of the Judgment:

1. For the Plaintiff.

2. For the Defendant.

X. Of the Costs.

I. In what Cases a Replevin may be maintained. Ir is said, in 3 Bl. Com. 147. that a replevin is founded on a distress taken wrongfully and without sufficient cause (1); whence it may be inferred that the learned commentator supposed that this remedy was confined to a taking by distress. But, (as it was justly remarked by Lord Redesdale, Ch. in Shannon v. Shannon, I Sch. & Lef. 327.) this definition of replevin is too narrow, and many old authorities. will be found, in the books, of a replevin having been brought where there was not any distress (2). The writ,

(1) Although, generally speaking, wherever there is a distress, replevin may be maintained, yet this rule is not universally true; for it appears from R. v. Monkhouse, Str. 1184. that the court directed an attachment to be issued against an under-sheriff, for granting a replevin of goods distrained on a conviction for deer stealing. So a replevin will not lie upon a distress made for a duty to the crown. R. v. Oliver, Bunb. 14. But where the plaintiff brought replevin for goods levied under a warrant of distress, for an assessment made by a special sessions under the highway act, 13 G. 3. c. 78. s. 47., on the ground of the premises, for which he was assessed, being situated without the township which was liable to repair the road; the court refused to set aside the proceedings. Fenton v. Boyle, Feb. 12th, 1807. C. B. 2 Bos. & Pul. N. R. 399. (2) Replegiare est, rem apud alium detentam, cautione legitima interposita, redimere. Spelm. Gloss. 485. Quant les biens ou chattels d'aucun sont prises, il avera per common ley un breve hors de Chancery commandant, &c. Doct. Plac. Replevin, 313. Replevin lies of all goods and chattels unlawfully taken. Comyns' Dig. Replevin (A). A replevin is a judicial writ to the sheriff, complaining of an unjust taking and detention of goods and chattels. Gilb. Repl. 58. Note, by the learned reporters of the Irish

s was farther remarked by Lord Redesdale, is founded on a aking, and the right which the party from whom the goods are taken, has to have them restored to him, until the question of title to the goods is determined. The person who takes them may claim property in them; and if he does, the sheriff cannot deliver the goods until that question is tried; but this claim of property can be made only where there has been a taking; and it appeared to him that the writ of replevin was calculated in such cases to supply the place of detinue or trover, and to prevent the party from whom the goods were taken being put to those actions, except in cases where the other could shew property.

A replevin lies for goods and chattels only, hence it cannot be maintained for things affixed to the freehold.

In a replevin for taking the goods and chattels, to wit, one lime-kiln, &c. of the plaintiff, to which there was an avowry for rent in arrear, the plaintiff in his plea in bar, said, that the lime-kiln, before and at the said time, when, &c. was affixed to the freehold of the piece or parcel of ground on which, &c. and as such was by law exempt from any distress for the arrears of rent in the avowry mentioned, and ought not to have been distrained for the same, &c. To this plea, the defendant demurred generally. After argument, the court were of opinion, that the plea in bar could not be supported, because it was a departure from the declaration. That the declaration, treating the lime-kiln as a chattel, might possibly be true; because lime may be burnt in a portable oven, and the kiln need not therefore necessarily be affixed to the freehold; but that as the plea in bar stated it to be affixed to the freehold, it was inconsistent with the declaration.

II. Of the Proceedings in Replevin at Common Law, and the Alterations made therein by Statute.

Ar the common law, the proceedings in replevin commenced with suing out of the Court of Chancery a writ of

a 1 Inst. 145 b.

b Niblet v. Smith, 4 T. R. 504.

c 2 Iust. 140.

66

Chancery Cases, temp. Ld. Redesdale. See also Bull. N. P. B. 2. c. 4.- Replevin may be brought in any case where a man has had his goods taken from him by another." See also I Inst. 145. b.

replevin directed to the sheriff of the county where the distress was taken. Generally, writs directed to the sheriff gave him a ministerial power only; but the writ of replevin was in the nature of a justicies, not returnable, and gave the sheriff a judicial authority to determine in the county court, the matter in question between the parties. Thus distinguished from other writs, it was called festinum remedium, a speedy remedy; but, notwithstanding the advantage accruing to the subject from the circumstances of its being a justicial writ, it was frequently attended with so much delay as to require the interposition of the legislature. This delay arose from several causes: 1. From the necessity of an application to Chancery, when the distress was taken in a distant part of the kingdom.

To obviate this inconvenience, it is provided by stat. 52 H. 3. (commonly called the statute of Marlebridge) c. 21. that if the beasts (3) of any person are taken and unjustly detained, the sheriff, after complaint made to him, may deliver them without the hindrance or refusal of the person who shall have taken the beasts.

To make this remedy more effectual, and to render the delivery of distresses more expeditious, it is enacted by stat. 1 & 2 Ph. & Ma. c. 12. s. 3. that "Every sheriff of shires, not being cities, or towns made shires, shall, at his first county day, or within two months next after he has received his patent of office, appoint and proclaim, in the shire town, four deputies at the least, dwelling not above twelve miles one from the other, who shall have authority, in the sheriff's name, to make replevins and delivery of distresses, in such manner and form as the sheriffs may and ought to do.

By force of the statute of Marlebridged (52 H. 3. c. 21.) the sheriff' may hold plea in replevin by plaint of any value, and this plaint may be taken out of the county court, and replevin made immediately (4). But it is incumbent on

d 2 Inst. 139.

e Id.

fi Inst. 145. b. 2 Inst. 139.

(3) The word in the statute is "averia," "beasts," but it is usual for the sheriff to hold plea of replevin by plaint of other goods and chattels as well as cattle.

(4) This position, which is to be found in 2 Inst. 139. is not warranted by 21 Edw. 4. 66. there referred to. But it is said in Broke, Repl. pl. 46. to be the best opinion. The reason assigned for it by Sir Edw. Coke is, "that it would militate against the scope of

the sheriff to enter the plaint at the next county court, in order that it may appear on the rolls of the court. This statute does not extend to hundred courts. The hundred court, which derives its authority from the county court, cannot prescribe to grant replevins by plaint by its steward out of court; for, at common law, the sheriff could only replevy by writ in his county court. But this decision is to be confined to replevins in hundred courts, which courts are all ejusdem generis, and owe their jurisdiction to the common law, and does not furnish a rule for replevins in other courts which owe their origin and jurisdiction to charters from the crown, and in which pleas of replevin upon plaint, and without writ, may be maintained".

The proceeding by replevin by plaint under the statute has superseded the replevin by writ. The observations, therefore, made in this chapter, with respect to the method of prosecuting replevin, must be understood with reference to the replevin by plaint, except where the proceeding by writ is expressly mentioned.

2. Another cause of delay at common law proceeded from the sheriffs not being able to enter a liberty without a non omittas, where the distress was taken and impounded within any liberty which had return of writs, and the bailiff of such liberty did not pay any regard to the warrant of the sheriff. The statute of Marlebridge has removed the necessity of suing out the non omittas, but still the sheriff must make a warrant to the bailiff of the liberty before he can enter.

3. The same cause of delay as that last-mentioned was experienced in cases, where the distress, though not taken within a liberty, yet was impounded within it. By force of the statute of Marlebridge, the sheriff may in this case enter the liberty immediately, even without previously issuing a

warrant.

g Hallet v. Byrt, 5 Mod. 248. Ld. Raym. h Wilson v. Hobday, 4 Maule & Sel218. Carth. 382. Salk. 580 Skinner, wyn, 120. 674. S. C.

the statute, that the owner of the beasts should be deprived of the use of them, until the day on which the county court is holden.” The same doctrine is laid down in 1 Inst. 145. b.

III. Of the Duty of the Sheriff in the Execution of the Replevin-Of the Pledges-Bond from the

Party replevying-Sureties under the Stat. 11 G. 2. c. 19. s. 23.

AT the commencement of a suit, it was the duty of the sheriff at the common law, in all actions, to take from the plaintiff pledges for the prosecution of his suit. This duty was the same in replevin; but as these pledges were only answerable for the amerciament to the king, pro falso clamore, if the plaintiff did not prevail in the suit, they were found insufficient for the security of the defendant in replevin, inasmuch as if the party distrained upon, either sold or eloigned the distress after the replevy, the defendant was wholly prevented from reaping any advantage from an award of a return. To remedy this mischief the stat. Westm. 2. (13 Ed. 1.) c. 2. requires the sheriff, before he makes deliverance of the distress, to take from the plaintiff not only pledges for the prosecution of the suit, but also for the return of the beasts, if a return be awarded. And if the sheriff take pledges in any other manner, he is to answer for the price of the cattle to the distrainors; and if the bailiff has not wherewith to make restitution, it is to be made by his superior.

The course pursued by sheriffs, or other officers making replevins, in carrying into effect the provisions of this statute, does not appear to have been uniform. Two different methods have been adopted by them for the protection of the defendant. The first method has been to take a bond from the pledges conditioned for the appearance of the party replevying at the next county court', for his prosecuting his suit with effect, and making return of the distress, if return should be adjudged. In taking this security, the sheriff has been considered as pursuing the directions of the statute; for the word pledges has been holden to be synonimous with

sureties.

The other method has been to take a bond from the party replevying (5); the condition of which is similar to the

i Dalton's Shff. 439. k Ld. Raym. 278. Lutw. 687. Dalton's Shff. 438.

(5) I have not been able to discover the origin or first introduction of these securities, and, consequently, I cannot ascertain