Property must be claimed by the defendant in person; it cannot be claimed by his bailiff or servant. A bailiff cannot claim property below, because being only servant to another, in whose right he has taken the goods, he cannot say that they are his own; but the bailiff above may plead property in a stranger, for this is a sufficient reason to excuse him from damages, since he has not taken the plaintiff's goods from him.

V. Of the Process for removing the Cause out of the inferior Court; and herein of the Writs of Pone, Recordari facias loquelam, and Accedas ad Curiam.

FOUR different forms of writs are prescribed by law for the removal of the proceedings in replevin out of an inferior into a superior court:

1. The writ of pone at common law.

2. The writ of pone under the statute of Westminster the 2d (13 Edw. 1.) c. 2.

3. The writ of recordari facias loquelam.

4. The writ of accedas ad curiam.

1. Of the writ of Pone at Common Law.

When the proceedings in the county court were instituted by writ out of chancery, and the plaintiff was desirous of removing them, this was the proper form of writ for that purpose; but the proceeding in replevin by writ having fallen into disuse, the writ of pone has consequently shared the same fate; it will not be necessary, therefore, to trouble the reader with an explanation of it. The different forms of this writ, as adapted to a removal into the Courts of King's Bench and Common Pleas will be found in F. N. B. 69. M.

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 prima 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 partics 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. 1o. 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 plenâ curiâ recordari facias loquelam, que est in eâdem curiâ 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. 110 Ed. 2. Avowry, 213. 20 Ed 3. Avowry, 130.

m Bevan v. Prothesk, 2 Burr. 1151.

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

o Bro. Repl. pl. 8. 20.

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-time.

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. ia Templeman v. Case, 10 Mod. 25.

q F. N. B. 69. K.

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

s Bro. Repl. pl. 59.

t3 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. 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. 280. 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 the 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 forma, 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

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

z 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 an other, the plaintiff may have replevin in either county, because it is a caption in every county into which the distress is taken by the defendaut. 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 formá 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.