court. the precept to replevy. (a) The court of King's Bench will not, Proceedings in the county on motion, whatever they might do by mandamus, compel the sheriff to enter the plaint. (b) The precept to replevy contains a summons for the defendant to appear at the next county court, and, if he neglects to do so, he cannot, as it seems, take an assignment of the replevin bond, and sue the sureties for the plaintiff's not prosecuting with effect. (c) As the cause cannot proceed in the county court, when the defendant claims property (d), or the freehold comes in question (e), and, as the statute which gives the writ of second deliverance only extends to the superior courts (ƒ), and consequently, the defendant below is subject, in case of the plaintiff being nonsuited, to a new replevin, it is the usual practice to remove the cause in the first instance into one of the superior courts. Where the replevin has been sued by original writ, the plaintiff or defendant may remove the cause out of the county court into the King's Bench or Common Pleas, by writ of pone. (g) If the replevin was commenced in the county court by plaint, the mode of removing it is by a writ of recordari facias loquelam, which is a writ out of Chancery, whereby the sheriff is commanded that, in his full county, he cause to be recorded the plaint which is in the same county, without the king's writ, and that he have that record in the court above, on a general return day, under his seal, and the seals of four lawful knights of his county, who were present at the recording, and that he prefix the same day to the parties, that they be then there to proceed in the action. (h) Although the suit has been discontinued in the county court, the plaint may yet be removed by recordari. (i) Of removal into By pone. cius loquelam. curium. Where the replevin has been sued by plaint in the court of a By accedas ad lord, it may be removed by a writ similar to the last, but commanding the sheriff, that taking with him four discreet and law (a) 2 Inst. 139. Co. Litt. 145, h. (b) Ex parte Boyle, 2 Dowl. and Ryl. 13. (c) Seal v. Phillips, 3 Price, 7. (d) Ante, p. 626. (e) Bac. Ab. Repl. (C). (ƒ) 2 Inst. 340. Gilb. Repl. 255. (g) F. N. B. 69, M. Tidd's Pr. 415, 8th edit. (h) Com. Dig. Pleader, (3 K. 8). Tidd's Pr. 415, 8th edit. Wilk. Repl. 27. The plaint is well removed by certiorari where it ought to have been by recordari, F. N. B. 69 M. (a). Tidd, 417. So where there is a variance between the writ and plaint. Ibid. But see Moor, 30. (i) F. N. B. 71 A. Gilb. Repl. 150. Of removal into fal knights of his county, he go in his proper person to the court superior court. of the lord, and in that full court cause to be recorded the plaint, &c. The four persons mentioned in this writ need not in fact be knights. (a) By certiorari. When cause {shewn. Duty of the sheriff or lord on receipt of the writ. Proceedings after removal. Where the replevin has been brought in a court of record, which may hold plea in replevin, it may be removed by certiorari. (b) The plaintiff may remove the cause either by pone or recordari, without cause shewn, for it is in his own delay; but the defendant cannot remove it without cause shewn, and the cause usually assigned is, that the sheriff or his clerk is related to one of the parties, to which the sheriff cannot return that the cause is not true. (c) But neither the plaintiff nor defendant can remove a cause out of the lord's court, without cause shewn, for they cannot oust the lord of the profits of his jurisdiction without apparent reason. (d) Anciently the cause alleged was examined before granting the writ, but it is now usual to issue it as a matter of course, without such examination. (e) The writ of pone, recordari, or accedas ad curiam when delivered to the sheriff or lord, instantly suspends his power, so that if he afterwards proceeds, he is liable to an attachment (ƒ), and he cannot refuse obedience to the writ, because his fees are not paid. (g) The return to the pone or recordari should be made and filed by the party suing it out, with the filaçer of the court above, in two terms after it is returnable, or upon the filacer's certificate the cursitor will issue a procedendo. (h) The recordari or accedas ad curiam should be returned under the sheriff's seal, and the seals of four suitors of his court; and it is a good return for the sheriff to say, that after the receipt of the writ, and before the return, no court was held; and also, that he required the lord to hold his court, and he would not, so that he could not execute the same, upon which a distringas shall issue to distrain the lord to hold his court. (i) Where the writ of removal is prosecuted by the plaintiff, and the defendant does not appear on or before the appearance day of removal into of the return, the plaintiff having filed the writ and return with superior court. the filacer, should give a rule with that officer for the defendant to appear (a), which expires in four days (b); and upon his nonappearance, a pone per vadios is issued, upon which a summons is made out and served upon the defendant, and if he still neglects to appear, the plaintiff, upon the return of nihil, may have a distringas, and afterwards, if necessary, an alias and pluries distringas, upon which issues may be levied from time to time, until the defendant appears, when he must pay the costs of the different writs. (c) If nulla bona is returned, the plaintiff may have a capias and process of outlawry. (d) If the defendant has removed the cause by pone, or as it seems by recordari, and the plaintiff appears, but the defendant makes default, a distringas issues, and on nulla bona returned, a capias. (e) The appearance of the defendant is entered with the filacer in the King's Bench, and with the prothonotary in the Common Pleas; after which the next step for the plaintiff is to declare. (ƒ) Where the writ of pone or recordari is brought by the defendant, he should file the writ and return with the filacer, and enter an appearance. (g) If the party suing out a recordari, &c. does not get it returned and filed within two terms, the other party should apply to the filacer for a certificate that the same is not returned and filed; which will be a sufficient warrant for the cursitor to make out a writ of procedendo, for remanding the cause to the inferior court; or if either party, having sued out a recordari, &c. neglects to file it, the other party, for the sake of expedition, may, without waiting till the end of the second term, sue out another writ of the same nature, and get it returned and filed, for removing the proceedings into the court above. (h) Where the cause has been removed by the defendant, and an appearance been entered by him, he may give a rule for the plaintiff to declare, with the master in the King's Bench, or (a) Tidd's Pr. 418, 8th edit. Wilk. Repl. 31. (b) Thompson v. Jordan, 2 Bos. and Pul. 138. (e) Tidd's Pr. 418, 8th edit. Wilk. Repl. 31. (d) Ibid. Gilb. Repl. 142. (e) Gilb. Repl. 142. Tidd's Pr. 418. (g).Tidd's Pr. 418, 8th edit. Of the declaration. Of the filacer in the Common Pleas (a), and if the return to the recordeclaration. dari is filed on or before the appearance day, there is no occa How entitled. Venue. Place. sion to demand a declaration in writing (b), but otherwise a written demand is necessary. (c) The rule to declare may be given in the King's Bench within fourteen days (d), or in the Common Pleas within four days (e), after the end of the term, and served on any day before the time in the rule has expired; and the plaintiff in the King's Bench must declare within four days after such service. (ƒ) The same mode of proceeding may be adopted to compel the plaintiff to declare, where he neglects to do so, after having himself sued out and filed the writ of recordari, and if he does not declare within the time limited by the rule, or obtain a rule for time to declare, the defendant may sign a judgment of non pros, and may have a writ of retorno habendo, or if the distress was for rent, may proceed to execute a writ of inquiry on the statute 17 Car. 2, c. 7. (g) Though the plaintiff has already declared in the county court, yet as nothing is removed but the plaint, he must declare de novo in the court above (h), and though the plea has been discontinued in the county court, yet the plaint may still be removed, and the plaintiff shall declare upon such plaint in the court above. (1)] Where the cause has been removed into a superior court, the declaration may be entitled of the term of the return of the recordari (k), or as it seems of that in which it is delivered; but if it is entitled of an intermediate term, it is irregular. (4) The venue may be laid either in the county where the cattle or goods were taken, or in a county into which they have been driven after the taking (m), for the wrong is continued in every place where the defendant has them in his custody. (n) The locus in quo, or place in which the defendant took the cattle, &c. or had them in his custody, must be stated, as well as (i) F. N. B. 71 A. Tidd's Pr. 417. (k) Smith v. Muller, 3 T. R. 624. Wilk. Repl. 40. (1) Topping v. Fuge, 5 Taunt. 774. Wilk. Repl. 40. (m) Com. Dig. Pleader, (S K. 10). F. N. B. 69 I. Abercrombie v. Parkhurst, 2 B. and P. 481. (n) Per,Wilmot, C. J. Walton v. Ker sop, 2 Wils. 355. the parish, or vill, and if it be omitted, the defendant may demur, but the omission is cured by pleading over, or after verdict. (a) The place and vill are both traversable. (b) If the cattle are stated to have been taken in A. and B. it should appear how many were taken in the one, and how many in the other. (c) The cattle or goods must be stated to be the property of the plaintiff (d), and must be described with sufficient certainty, and therefore where the plaintiff declared for taking " divers goods and chattels," and the defendant suffered judgment by default, final judgment was arrested (e); but where the goods were described as "fourteen skimmers and ladles, and three pots and covers," without showing how many of each; on motion after verdict to arrest the judgment, the description was held sufficient. (ƒ) The particular kind of cattle ought to be mentioned (g), but it is not usual to insert the value of the cattle or goods taken. (h) The defendant in replevin may either plead a justification, or avow, or make cognisance. The distinction between a justification, and an avowry or cognisance, is, that the justification confesses the taking of the cattle, &c. but avoids the illegality of such taking, without seeking for a return, the object of the plea being solely to exclude the plaintiff from damages; but the avowry or cognisance not only justifies the taking, but claims a return of the cattle, &c. (i) The rule is, that when the defendant ought to have the thing for which he took the distress, he must avow, but that where, by matter arising since the distress, he is not entitled to have the thing which he distrained for, and is conse (a) Read v. Hawke, Hob. 16. 1 Brownl. 176, S. C. Ward v. Lavile, Cro. Eliz. 896. Moore, 678, S. C. Com. Dig. Pleader, (3 K. 19). 1 Saund. 347, notes, 5th edit. Bull. N. P. 53. (b) Weston v. Carter, 1 Sid. 10. Read v. Hawke, Hob. 16. (c) Litt. Rep. 37. Com. Dig. Pleader, (3 K. 10). (d) Franklyn v. Reeves, cases temp. Hardw. 118. 2 Str. 1023, S. C. (e) Pope v. Tillman, 7 Taunt. 642. 1 B. Moore, 386, S. C. It is more necessary in replevin than in trespass or trover, that the goods should appear. Per Gibbs, C. J. Ibid. (f) Bern v. Mattaire, Ca. temp. Hardw. 119. 2 Saund. 74, b. notes, 5th edit. (g) Per Ellis, J. Whateley v. Con. quest, Cart. 218. Com. Dig. Pleader, (3 K. 10). (h) 2 Saund. 320, notes, 5th edit. That is, in replevin in the detinuit, which is now the usual form of action. If brought in the detinet, the value should be stated, for the plaintiff will be entitled to recover it. (i) Gilb. Repl. 183. Anon. T. Jones, 25. Aylesbury v. Harvey, 3 Lev. 204. Of the declaration. Of the plea. |