For what. charged with the rent, and the statute 11 Geo. 2, c. 19, s. 8, which authorises landlords to distrain corn, grass, or other product growing on any part of the land demised, replevin will lie in case of such distresses. Replevin does not lie for charters relating to the inheritance, which are not esteemed chattels in law (a), nor for goods taken in a foreign country, though afterwards brought into this realm, because such a caption might have been justifiable according to the law and custom of the place where it was made, though illegal by our law. (b) Goods distrained for rent may be replevied, after the expiration of five days, and removal and appraisement of the distress, but before the sale. (c) A replevin does not lie for goods taken in execution (d), nor for goods distrained under a conviction for deer-stealing (e), nor upon a distress made for a duty to the crown (ƒ), and in general, where a distress and sale are given by statute, they are in the nature of an execution, and replevin will not lie (g), unless the statute contemplates the bringing of a replevin (h), as where a distress is taken for poor's rates under the statute 43 Eliz. c. 2, by the nineteenth section of which statute, the party "making avowry or justification" is allowed to plead generally. (i) Where replevin was brought for goods seised under a warrant of distress for an assessment made by a special sessions, under the highway act 13 Geo. 3, c. 78, s. 47, the court of Common Pleas refused to set aside the proceedings (k); and where a similar application was made to set aside the proceedings in replevin, upon a distress (a) Br, Ab. Repl. 34. Gilb. Repl. (C). 1 Barnard. B. R. 110. Wilson v. 170. (b) Nightingale v. Adams, 1 Shower, 91. Gilb. Repl. 171. (c) Jacob v. King, 5 Taunt. 451. 1 Marsh. 155, S. C. (d) Con. Dig. Replevin, (D). Bull. N. P. 53; but according to Gilbert, replevin lies for goods taken in execution under the process of an inferior court. Gilb. Repl. 167. (e) R. v. Moukhouse, 2 Str. 1184; and see Wilson v. Weller, 1 B. and B. 57. (f) R. v. Oliver, Bunb. 14; and the court granted an attachment against the sheriff. Ibid. (g) Bradshaw's case, Bac. Ab. Repi. Weller, 1 B. and B. 63. Willes, 672, note (b); but see Anon. T. Jones, 25. See also Hutchins v. Chambers, 1 Burt. 588. (h) Fletcher v. Wilkins, 6 East, 287. (i) See also the statute of sewers, 23 H. 8, c. 5, s. 11. Callis on sewers, 194. As to replevin for poor's rate, see Milward v. Caffin, 2 W. Bl. 1330. Hurrell v. Wink, 8 Taunt. 369. 2 B. Moore, 417, S. C. See the form of avowry, 2 Chitty's Pl. 546, 3rd edit. The plaintiff may plead in bar de injuriâ generally. Com. Dig. Pieader, (F. 18). (k) Fenton v. Boyle, 2 Boz. and Pul. N. R. 392. by authority of the commissioners of sewers, the court declined to interfere in this summary way, but left it to the defendant to put his objection on the record in a formal manner (a); nor will the court of King's Bench issue an attachment against the officer who grants a replevin of goods taken under a conviction before a magistrate on a penal statute, it being only a contempt of the inferior jurisdiction, in which case the court of King's Bench never interposes. (b) The mode of proceeding in this action at common law was by issuing an original writ directed to the sheriff, by which he was authorised to deliver the goods, and to determine the matter in the county court. (c) But this method of proceeding has been long obsolete (d), and the usual way of recovering the goods now is by levying a plaint in the county court, the sheriff being authorised by the statute of Marlbridge, c. 21, to deliver the goods, and to hold plea in replevin of any value, as he might at common law on a writ of replevin. (e) Upon application to the sheriff, or to one of his deputies, appointed by virtue of 1 and 2 P. and M. c. 12, s. 3 (f), the sheriff or his deputy will grant a precept to replevy the goods, and such precept may be granted in the interval between one county court and another (g), and the plaint may be entered at the next court. For what. Process. In order that the defendant in replevin, if he had judgment Replevin bonds. for a return, might not be defrauded of the fruit of such judg- Stat. West. 2. ment, the statute of West. 2, (13 Ed. 1, c. 2,) requires the sheriff, before he makes deliverance of the distress, not only to take from the plaintiff the usual pledges to prosecute, but also for a return of the beasts, if a return be awarded; and, if he take pledges otherwise, he shall answer for the price of the beasts, (a) Pritchard v. Stephens, 6 T. R. 522. (b) R. v. Barchett, 1 Str. 567. 8 Mod. 209, S. C. (e) 2 Inst. 140. right to hold plea of replevin by plaint. (f) See Griffiths v. Stephens, 1 Chit- (d) Replevin by writ is still frequent to the sheriff, on replevin granted by a in Ireland. (e) 2 Inst. 140. Inferior courts, (not hundred courts,) may have a prescriptive person not appointed under this statute. Stat. West. 2. Replevin bonds. and he who distrains shall have his recovery by writ, that the sheriff shall render to him so many cattle or goods, and, if the bailiff have not wherewith he may render, his superior shall render. c. 19. Under this statute, the sheriff may take a bond either from the plaintiff himself (a), or from one or more pledges (b), conditioned to prosecute the suit with effect, and to make a return, if a return shall be adjudged; and it does not render the bond invalid, if a condition is added to save the sheriff harmless. (c) In order to give the defendant in replevin, in cases of distresses for rent, a more complete remedy against vexatious Stat. 11 G. 2, suits, it is enacted by statute 11 Geo. 2, c. 19, s. 23, that all sheriffs and other officers, having authority to grant replevins, may and shall, in every replevin of a distress for rent (d), take in their own names from the plaintiff, and two responsible persons as sureties, a bond in double the value of the goods distrained, (such value to be ascertained by the oath of one or more credible witness or witnesses (e), not interested in the goods or distress, which oath the person granting such replevin is thereby authorised and required to administer), and conditioned for prosecuting the suit with effect and without delay; and for duly returning the goods and chattels distrained, in case a return shall be awarded, before any deliverance be made of the distress; and that such sheriff or other officer as aforesaid, taking any such bond, shall, at the request and costs of the avowant, or person making conusance, assign such bond to the avowant or person aforesaid, by indorsing the same, and attesting it under his hand and seal, in the presence of two or more credible witnesses, which may be done without any stamp, provided the assignment so indorsed be duly stamped before any action brought thereupon; and, if the bond so taken and assigned be forfeited, the avowant, or person making conusance, may bring an action and recover thereupon in his own name, and the court, where such action shall be brought, may, by a rule of the same court, give such relief to the parties upon such bond as may be agreeable to (a) Blackett v. Crissop, 1 Ld. Raym. 278. Short v. Hubbard, 2 Bingh. 357. 278. (b) Moyser v. Gray, Cro. Car. 446. Gilb. Repl. 79. He must not take money in lieu of pledges. Ibid. (c) Blackett v. Crissop, 1 Ld. Raym. (d) A rent-charge is within the statute. Short v. Hubbard, 2 Bingh. $49. (e) See Middleton v. Bryan, S M. and S. 157. justice and reason, and such rule shall have the nature and effect Replevin bond. of a defeasance to such bond. The sheriff, under this statute, takes a bond, either from the plaintiff and two responsible persons, or from the latter alone; and where the bond had been executed by one of the sureties only, it was held that the sheriff was entitled to sue upon such bond. (a) The bond must, by the statute, be in double the value of the goods distrained, and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained, in case a return shall be awarded; and a bond conditioned for appearance at the next county court; prosecuting the plaint with effect; making a return, if adjudged, and indemnifying the sheriff from all charges and damages by reason of the replevin, is authorised by the statute. (b) If a surety in the replevin bond is a material witness in the cause, the court will grant a rule for substituting another surety in his place, upon giving the defendant's attorney notice of such rule. (c) Stat. 11 G. 2, c. 19. The plaintiff having found the requisite sureties, it is the duty Duty of the of the sheriff to issue his precept to replevy the goods taken, sheriff in makand to summon the defendant to appear at the next county ing deliverance. court. If the cattle were taken within a liberty, and impounded there, the sheriff must, in the first instance, issue his warrant to the bailiff of the liberty, having return of writs, to make deliverance, and, if the bailiff makes no answer, then the sheriff may, by the statute of Marlbridge, c. 21, himself deliver the goods without a non-omittas (d), and, if the distress was taken out of the liberty, but impounded within it, the sheriff may enter the liberty, to make deliverance, without any previous warrant to the bailiff. (e) By the statute of Westm. 1, c. 17, the sheriff, after demand made, may break open the house of the person who has made the distress, in order to deliver the cattle or goods distrained. (f) If the goods cannot be taken on the first precept, the sheriff issues another precept, in the nature of an alias writ (a) Austen v. Haward, 7 Taunt. 28. 2 Marsh. 352, S. C. Quare whether such bond be assignable under stat. 11 G. 2, c. 19. (b) Short v. Hubbard, 2 Bingh. 349. Perhaps a question may arise, whether an assignee can sue on the indemnity clause. Per Gaselee, J. Ibid. 360. (c) Bailey v. Bailey, 1 Bingh. 92. (ƒ) 2 Inst. 193. This seems to be in Duty of the of replevin, after which a pluries may issue, and, if the cattle, on sheriff in mak- an inquest of office held by the sheriff, are found to be eloigned, ing deliverance. a precept issues in the nature of a writ of withernam to take other Writ de proprie. tate probands. Proceedings in cattle in lieu of those eloigned. (a) The goods or cattle taken in withernam cannot be replevied until the original distress is forthcoming. (b) If the cattle are withheld, the plaintiff may still proceed in the cause, and recover damages to the full value of the cattle, as well as for the detention. (c) If the defendant claims property in the goods, the sheriff cannot proceed to replevy them, for he is not authorised to determine questions of property in his court without the king's writ. (d) The plaintiff, therefore, in this case, may sue out a writ de proprietate probandâ, when the replevin is by plaint, upon which the sheriff holds an inquest of office, to inquire in whom the property resides; if it is found in the plaintiff, the sheriff is to make deliverance; if in the defendant, he can proceed no further. (e) If the inquest find against the plaintiff, the latter may still have a new replevin by writ, and, if to this writ the sheriff returns the claim of property, the cause shall, notwithstanding, proceed in the court above, where the property shall be put in issue and finally tried. (ƒ) The claim of property must be made by the defendant in person, and not by his servant or bailiff (g), but a bailiff, though he cannot claim property before the sheriff, may, in the court above, plead property in a stranger, for that is a sufficient reason to excuse him from damages, since it shews that he has not taken the plaintiff's goods. (h) The writ de proprietate probandâ is an inquest of office, and the sheriff must give notice to the parties of the time and place of executing it. (¿) The first proceeding in the county court is the plaint, which the county ought regularly to be levied before the goods are replevied (4), but which may be entered at the court next after the granting of court. |