(5030.) SEC. 26. The defendant may plead the general issue plea and notice. to such declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defence to the action. etc. 4 Hill, 27. (5031.) SEC. 27. After issue joined in any action of replevin, Notice of trial, either party may give notice of trial, and if neither party shall 9 Wend., 497. have noticed the cause for trial, the defendant may move for is Wend., 519. judgment as in case of non-suit, in the same manner as in personal actions. ges for plaintiff. (5032.) SEC. 28. If, upon the trial of the cause, the verdict Assessing dama be in favor of the plaintiff, the same jury shall assess the dam-2 Mich. Rep., 325. ages which he has sustained by the unlawful taking and detention, or by the unlawful detention of the property; but if judgment pass for the plaintiff by default, or upon an issue of law, the damages may be assessed by the Court, in the same manner as in personal actions. ment in case of in goods, etc. 1 Mich. Rep., 388. (5033.) SEC. 29. When either of the parties to an action of Verdict and judg replevin, at the time of the commencement of the suit, shall special property have only a lien upon, or special property in the goods and 1841, p. 54. chattels described in the writ, and is not the general owner 12 Wend., 131. thereof, that fact may be proved on the trial, and the jury shall find according to such fact by their verdict; and the Court shall thereupon render such judgment as shall be just between the parties. plaintiff, in case property not de livered to him. (5034.) SEC. 30. If the goods and chattels specified in the Judgment for declaration, shall not have been replevied and delivered to the plaintiff, such plaintiff, in case he shall recover upon the whole record, shall be entitled, in addition to his damages and costs, to a further judgment that such goods and chattels be replevied and delivered to him.without delay; or in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels, as the same shall have been assessed. (5035.) SEC. 31. The execution to be issued upon such judg- Contents of Exement, shall command the Sheriff to levy the plaintiff's dama- case. ges and costs, of the goods and chattels, lands and tenements of the defendant, as in other executions against property; and also to replevy the goods and chattels described in the declaration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they can be found within his county, and if the same cannot be found, then that he levy the cution in such Powers and duties of Sheriff on Execution. Judgment for defendant on nonsuit, etc. When defendant may take judg property. value of such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the goods and chattels, lands and tenements of the defendant, as above provided. (5036.) SEC. 32. The Sheriff shall proceed in the same manner to collect any moneys directed to be collected upon such execution, as upon executions against property in personal actions, and he shall possess the same powers in respect to the replevying of the property described therein, as are herein provided upon the execution of writs of replevin; and if the goods and chattels described in the execution, are replevied and delivered to the plaintiff, they shall be irrepleviable. (5037.) SEC. 33. If the property specified in the writ shall have been delivered to the plaintiff, and the defendant recover judgment by discontinuance or non-suit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return as hereinafter provided; and also that he recover the damages sustained by him by reason of the detention of such goods and chattels, which damages shall be assessed by a jury in the proper Court. (5038.) SEC. 34. Whenever the defendant shall be entitled ment for value of to a return of the property replevied, instead of taking judg12 Wend., 134. ment for such return, as above provided, he may take judgment for the value of the property replevied; in which case, such value shall be assessed by the jury on the trial, or upon the assessment of damages, as the case may be. Notice of assessment of damages. When judgment for defendant to (5039.) SEC. 35. Whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the Court in the like cases in personal actions. (5040.) SEC. 36. If the property specified in the writ shall be for costs only. not have been replevied and delivered to the plaintiff, and the defendant recover judgment, such judgment shall be for costs only. Effect of judg ment for return (5041.) SEC. 37. Whenever judgment shall pass against the of property. plaintiff in replevin, whether by default or otherwise, and a return of the property is awarded, no writ of second deliverance shall be allowed, nor shall any second or other writ of replevin be brought for the same cause, but the plaintiff in replevin shall not thereby be barred from bringing an action of trespass or trover for the same property, unless the judg ment in the action of replevin shall have passed against him on the merits. held subject to certain cases. 44. (5042.) SEC. 38. If any goods or chattels which are Property to be replevied had been attached, they shall, in case of judgment attachment in for a return, be held liable to the attachment, until final judg- 1839, p. 230, Sec. ment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property when replevied was seized and held on execution, it shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied. Bond. 12 do. 122. 5 Hill, 293. 333. (5043.) SEC. 39. If any writ of return, or other execution, suit on plaintiff's issued in favor of the defendant in the action, shall be returned 18 Wend., 334. unsatisfied in whole or in part, such defendant or his repre-10 do. sentatives may have an action upon the bond executed by or on behalf of the plaintiff, to recover against the obligors therein the value of the property replevied, and he tmoneys, damages and costs awarded to such defendant, and such bond. shall be assigned to such defendant or his representatives, on their request. damages to be re1 Hill, 557. (5044.) SEC. 40. In such action the plaintiff shall assign proceedings; breaches of the condition of such bond, as in other cases; and covered. the return of the Sheriff to the execution issued in the action of replevin, shall be evidence of such breach; the amount recovered in such action of replevin, and remaining uncollected, shall be the measure of the damages, if the value of the property replevied shall have been so recovered, and if not so recovered, and a return thereof shall have been awarded, such value shall be added to the damages and costs recovered in the action of replevin, and the amount of such value, damages and costs, remaining uncollected, shall form the measure of damages. tain cases. (5045.) SEC. 41. In any action prosecuted on such bond Mitigation in cer given by the plaintiff in an action of replevin for the deliverance of any property, the defendant may show, in mitigation of the damages, that the plaintiff in such action had only a lien upon such property and the amount of such lien; and if such amount, with interest, be less than the value of the property replevied, a corresponding deduction shall be made from such value. СНАРТER CLIII. OF DISTRAINING AND REPLEVYING BEASTS. SECTION OF DISTRAINING BEASTS. 5046. Beasts Distrained to be impounded. 5049. Proceedings in case of injury by Beasts. fees, and expenses paid. 5052. When person impounding Beasts to have 5053. Notice to owner, etc. 5054. When notice to be posted up in public 5055. When notice to be published in newspaper. SECTION 5058. If sum not paid, Beasts to be sold. 5060. Beasts escaped or rescued may be re- 5061. Penalty for rescuing Beasts Distrained. 5062. Legality of distress to be tried only in action of Replevin. REPLEVIN OF BEASTS DISTRAINED. 5063. Owner may have Writ of Replevin. 5065. Bond to be given; Consequence of failure. 5067. Judgment for Plaintiff. Chapter One Hundred and Twenty-Five of Revised Statutes of 1846. OF DISTRAINING BEASTS. Beasts distrained to be impounded. Fees for distrain ing and impounding. (5046.) SECTION 1. When any beasts are taken up and distrained by any person, for going at large, contrary to law, or contrary to any by-law of a township, they shall be forthwith impounded in the township pound, and the keeper of such pound shall furnish them with suitable food and water, so long as they are detained in his custody. (5047.) SEC. 2. The person so taking up and distraining the same, shall be entitled to fifty cents per head for all horses, mules, asses and neat cattle, and ten cents per head for all sheep, goats and swine, so distrained by him; and the pound keeper shall be entitled to four cents per head for all the said animals so impounded. delivered until paid. (5048.) SEC. 3. The pound keeper shall not deliver to the Beasts not to be owner any beasts so impounded, until such owner shall pay fees and expenses him his fees and the expense of keeping such beasts, and also the fees due the person distraining said beasts, which last mentioned fees he shall pay to such person. case of injury by (5049.) SEC. 4. When any person is injured in his land, by Proceedings in sheep, swine, horses, asses, mules, goats or neat cattle, he may beasts. recover his damages in an action of trespass, or trespass on the case, against the owner of the beasts, or against the person having the care and control of such beasts, or by distraining the beasts doing the damage, and proceeding therewith as hereinafter directed; but if the beasts shall have been lawfully on the adjoining lands, and shall have escaped therefrom in consequence of the neglect of the person who has suffered the damage, to maintain his part of the division fences, the owner or person having the control of the beasts shall not be liable for such damage. beasts dcing dam (5050.) SEC. 5. The beasts so distrained for doing damage, Impounding shall be impounded in the township pound, if there be one, age. and the distrainer shall leave with the pound keeper a memorandum in writing, signed by him, stating the cause of distraining, and the sum that he demands from the owner, for the damages done by the beasts. delivered until and expenses (5051.) SEC. 6. The pound keeper shall not deliver the Beasts not to be beasts to the owner, until such owner shall pay him his fees, damages, fees and the expense of keeping such beasts, together with the paid. sum so demanded by the distrainer, and the expense of advertising such beasts, if they shall have been advertised, and all other legal costs and expenses. pounding beasts them. (5052.) SEC. 7. If there shall be no public pound within the when person imtownship, the beasts shall be impounded in some suitable to have care of place under the immediate care and inspection of the person who distrained them, and he shall furnish them with suitable food and water so long as they remain impounded. etc. (5053.) SEC. 8. When beasts are impounded for either of Notice to owner, the causes aforesaid, the person impounding them shall, within twenty-four hours thereafter, give notice thereof to the owner or person having the care or control of them, if known, and living within six miles from the place of impounding, which notice shall be delivered to the party, or left at his place of abode, and shall contain a description of the beasts, and a statement of the time, place and cause of impounding. |