under the distress (s). If a mare in foal, or a cow in CHAP.VIII. calf, has been distrained, and during the detention the foal or the calf is produced, the replevin lies as well for the foal or the calf, as for the mare or the cow (t).

Replevin.

The replevin suit originally was commenced by a writ of replegiari facias, which issued out of Chancery, whereby the sheriff was commanded to deliver the distress to the owner, and afterwards to do justice, in respect of the matter in dispute, in his own county court (u). But to remedy delays occasioned by this mode of proceeding, the Statute of Marlebridge directs (r) that without any writ being issued out of Chancery, the sheriff, after complaint made, shall immediately redeliver the goods to the owner. And by a later statute (y) the sheriff is required to appoint at least four deputies in each county, for the sole purpose of making replevins; by which is meant, not only the delivering of the distress, but also the taking from the plaintiff pledges for the prosecution of the suit, and for the return of the goods in case restitution should be awarded. If a distress has been taken in one county and carried into another, the owner of the goods may have a replevin in either. But in order to prevent vexatious replevins after distresses for rent, the statute of Geo. 2 (3) directs sheriffs, and Replevin other officers granting replevins, to take from the plaintiff, and two responsible persons as sureties, a bond in double the value of the goods distrained, conditioned for prosecuting the suit with effect and without delay (a), and for a return of the goods. This bond the sheriff is (s) Jacobs v. King, 5 Taunt. 451.

(t) Bro. Abr." Replevin," 41. (u) F. N. B. 68.

(x) 52 Hen. 3, c. 21.

(y) 1 P. & M. c. 12, s. 3.

(z) 11 Geo. 2, c. 19, s. 23.

(a) Turner v. Turner, 2 B. & B. 107; Harrison v. Wardle, 5 B. & Ad. 146, infra, p. 291.

bond.

Replevin. Restitution.

CHAP.VIII. authorized to assign to the avowant or person making cognizance, and, if forfeited, the assignee may sue upon it in his own name (b). On receiving the requisite security, the sheriff is immediately to cause a restitution of the goods distrained; unless the distrainer claims a property therein, in which case the party replevying must sue out a writ de proprietate probandâ, whereupon the sheriff will hold an inquest, to ascertain in whom the property subsisted previous to the distress. If, however, no claim of property is put in, the sheriff may seize the goods wheresoever they may be found within his county; and if they cannot be found within his county, he must return that they have been eloigned, elongata; and thereupon the party replevying may have a writ of capias in withernam, which enables him to have a reciprocal distress in lieu of the first which has been eloigned (c). Goods taken in withernam cannot be replevied until the original distress is forthcoming.

Removal of plaint.

When the goods have been re-delivered to the owner by the sheriff, the plaint must be entered in the County Court, and may afterwards be removed by either plaintiff or defendant to one of the superior courts, by a writ of recordari facias loquelam. In some instances other courts besides that of the sheriff have jurisdiction in replevin, and a removal from these must be by certiorari. A removal from a Manor Court must be by accedas ad curiam. And where the suit has commenced in the Sheriff's Court by writ of replevin, which is seldom the case, the removal should be by a writ of pone. The plaintiff may remove the suit at pleasure, and the defendant on reasonable cause shown, if his right to remove is questioned. The effect of a removal by a proper writ for that purpose, is to stay all further proceedings in the inferior court (d); but if an improper writ is used it (b) Wilson v. Hurtley, 7 Dowl. 461.

(c) F. N. B. 69-73; Raym. 475; 2 Inst. 141.

(d) Bevan v. Protheck, 2 Burr. 1151; Wright v. Lewis, 9 Dowl. 183.

may be quashed, on application to the court out of which CHAP.VIII. it issued (e).

Replevin.

After the cause has been removed, the defendant Appearance. should enter an appearance to it, and if he neglects to do so the plaintiff may rule him to appear; and in case he refuses to comply with this rule, a writ of pone per vadios issues, which is followed by distringas, and so on to outlawry; but in practice the defendant usually appears voluntarily, especially if the replevin is in the detinuit, which is usually the case, a replevin in the detinet being only resorted to where the distrainer is allowed to retain the goods distrained. When the defendant has appeared, he may rule the plaintiff to declare; this rule to declare may be given within four days after the end of the term in which the writ of removal is returned (ƒ), and if not complied with, the defendant may sign judgment of non pros. for want of a declaration (g).

The declaration must contain an accurate description Declaration. of the goods taken; for an allegation that the defendant took divers goods and chattels, has been held bad for uncertainty, after judgment by default (h); there must be something to guide as to the nature of the goods taken; an insufficient description of the goods taken is, however, cured by the defendant's avowry or cognizance (i). The place of the taking, as well as the vill or parish, must be specified (k); the venue, however, may be laid

(e) Ruffman v. Thornwell, 7 Dowl. 613; and see Edwards v. Bowen, 5 B. & C. 206; and Clark v. Mayor of Berwick, 4 B. & C. 649.

(f) 1 R. H., 2 Will. 4, s. 37.

(g) Ward v. Creasy, 2 Moore, 642.

(h) Pope v. Tilman, 7 Taunt. 642; 2 Saund. 74 b. c.; but see Bern v. Mattaire, 2 Str. 1019; Kempstone v. Nelson, Ca. tem. Hardw. 121; Bac. Abr. "Replevin," H.

(i) Banks v. Angell, 7 A. & E. 843.

(k) 1 Saund. 347, n. (1).

CHAP.VIII. either in the county in which the goods were taken, or in some other county where the defendant had them in his custody.

Replevin.

Defence.

Avowry or cognizance.

The defendant either denies the taking of the goods, or he admits and justifies it by setting forth the cause; the admission is called an avowry, if the defendant is the party claiming a right to distrain; and a cognizance, if the defendant is merely the bailiff who made the distress by command of such person. In some cases a defendant may plead "not guilty by statute;" as where the distress was for poor's rates (1), or for sewers' rates (m); and a similar provision occurs in the Bankrupt Act, for the case of a defendant sued for anything done in pursuance of it (n).

If the defendant intends to deny the taking of the goods, he may plead "non cepit;" or if he took the goods in another place than that mentioned in the declaration, such a plea would be proper (o), provided he never had the goods there at all, for if the plaintiff should prove that the defendant had the goods there, he will be entitled to a verdict, though the first taking was in another place (p). But under the plea "non cepit," or "cepit in alio loco," the defendant cannot have a return of the goods (9).

At common law great nicety was required in an avowry or cognizance, for it was necessary that the defendant should show therein that he, or some person under whom he claimed, was seised, and the quantity of estate he was seised of; and if the avowry or cognizance was for rent, a lease by the defendant to the plaintiff,

(1) 43 Eliz. c. 2, s. 19.

(m) 23 Hen. 8, c. 5, s. 11.

(n) 6 Geo. 4, c. 16, s. 44.

(0) Johnson v. Woollyer, 1 Stra. 507.

(p) Walton v. Kersopp, 2 Wils. 354; Mattravers v. Fossett, 3 Wils. 295; Abercrombie v, Parkhurst, 2 B. & P. 480. (9) 1 Saund. 347, n. (1).

Replevin.

Avowry or

for life, or years, or at will, must have been alleged. CHAP.VIII. But by the statute of Geo. 2, it is enacted (r), “that it shall and may be lawful to and for all defendants in replevin to avow or make cognizance generally, that cognizance. the plaintiff in replevin, or other tenant of the lands and tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent, during the time wherein the rent distrained for incurred, which rent was then and still remains due; or, that the place where the distress was taken was parcel of such certain tenements, held of such honour, lordship, or manor, for which tenements the rent, relief, heriot, or other service distrained for, was at the time of such distress and still remains due, without setting forth the grant, tenure, demise, or title of such landlord or landlords, lessor or lessors, owner or owners of such manor." But it may still be convenient to avow as at common law, setting out the title and demise specially; as where the parties to the replevin suit wish to try the title to the premises. And it is to be observed that the above enactment does not extend to avowries and cognizances for distresses damage feasant. Even in a general form of an avowry or cognizance, the demise under which the rent became due must be correctly stated; for if a defendant in replevin avows on a contract for 110l. rent, and proves a demise at 15s. an acre, amounting to 1117., it is a fatal variance, on the ground that the verdict would be evidence between the same parties in another action (s). If, however, the defendant avows for more rent than he proves to be due, he may recover as much as he proves to be due, and abate his avowry as to the residue (t). If he claims double rent in his avowry in (r) 11 Geo. 2, c. 19, s. 22.

(s) Brown v. Sayce, 4 Taunt. 320; Philpott v. Dobbinson, 6 Bing. 104; Innes v. Colquhon, 7 Bing. 265; Banks v. Angell, 7 A. & E. 843; Hayward v. Haswell, 6 A. & E. 265.

(t) Harrison v. Barnby, 5 T. R. 248; Forty v. Imber, 6 East, 434; Roberts v. Snell, 1 M. & Gr. 577.