cery to do execution, and thereupon an alias and pluries, and attachment against the Sheriff. In every case where the plaintiff may have his costs against Costs. the defendant, the defendant shall have his costs (u). Whenever a sci. fa. is requisite in the superior Courts it is Sci. fa. requisite here; an action may be brought upon this judgment in the superior Courts though the verdict be under 40s. (v) Before judgment. Where the suit is by writ,} Plaint without writ, it is removed by { All these are original writs issuing out of Chancery; as the forms of the writs, returns, &c. are the same in replevin as here, they are inserted under that title. After judgment it is removed by a writ of false judgment. The Court will compel a Sheriff to complete his entries of proceedings in a County Court and certify its practice, where on his return to a writ of false judgment only minutes of them have been transmitted (x). The delivery of a re. fa. lo. after interlocutory and before final judgment, is a stop to all further proceedings in that Court, and the officer cannot refuse paying obedience to it under pretence of his fees not being paid to him, quia parere necesse est, and as regards his fees he has a proper remedy (y). Removal of proceedings. plaint is determined. Where the record is removed, and the party declares in banco, When the plaint is determined, hence no advantage can be taken of a variance between the plaint and the declaration in the superior Court (x). There are two kinds of proceedings peculiar to the County Court, namely, Replevin and Outlawry. (u) 23 Hen. 8, c. 5. (v) Cro. Eliz. 96; Greenw. 22. (x) Overton v. Swettenham, 5 Dowl. 641; but the original minute of the proceeding need not be returned, 3 B. & Cr. 453. (y) Bevan v. Prothesk, 2 Burr. 1152. (z) Hargreave v. Arden, Cro. Eliz. 543. Replevin. Replevin to a taking SECTION III. REPLEVIN BY PLAINT (a). This remedy has now for so long a period of time, in this part of the United Kingdom (b) at least, been resorted to for the purpose of deciding the legality of a distress, that it may be said to be in effect confined to a taking by distress; but not universally so, as laid down by Sir W. Blackstone, for many authorities may be found in the books of replevin having been brought when not confined there was no distress (c). In 1 Inst. 145 b, it is said, that replevin may be brought in any case where a man has had his goods taken from him by another: being so, it is somewhat strange that it is not more generally resorted to as a remedy for the recovery of a specific chattel; it is quite clear that it is the only remedy in which a chattel can be recovered in specie, trover and detinue both sounding in damages. And in Evans v. Elliott (d) it was holden, that it would lie for a mere wrongful detention. of distress. A mere wrongful detention. Extends to all goods and chattels. Although the statute of Marlbridge (e) makes use of the term "averia" or "beasts," the statute has received a more enlarged construction and has been extended to all goods and chattels, and not confined to "beasts"(f). Tenant's fixtures (g); all animals feræ naturæ, reclaimed or not reclaimed, if they are the subject-matter of merchandize and valuable (h); the young of animals born after the distress (i); "so sheaves or cocks of corn, or corn loose or in the straw, or hay, lying or being in any barn or granary, or upon any hovel, stack or rick, or otherwise, upon any part of the land or ground charged with rent" (k); so when taken as a distress for arrears of rent " any cattle or stock of their (lessor's) respective tenant or tenants feeding or depasturing upon any common appendant or appurtenant, or any ways belonging to all or any part of the premises demised, all sorts (u) The action of replevin by writ is now obsolete. (b) In Ireland not so confined, Shannon v. Shannon, 1 Sch. & Lefr. 327. (c) Rex v. Monkhouse, Str. 1184; Rex v. Oliver, Bunb. 14; Pearson v. Roberts, Willes Rep. 672, cited in Selw. N. P. 1184, 8th edit.; 1 Sch. & Lefr. suprà. (d) 5 Ad. & Ellis, 146. (g) 3 Cowp. 414; vide post, as to (k) 2 W. & M. c. 5, s. 3. of corn and grass, hops, roots, fruits, pulse or other produce whatsoever which shall be growing on any part of the estate so demised," are repleviable (1). are not re All chattels are distrainable damage feasant (m) and repleviable. Damage As goods and chattels only are repleviable, it follows that feasant. When goods things affixed to the freehold (n) (except tenant's fixtures as before observed) are not repleviable, nor are goods taken by pleviable. virtue of a statute which authorizes a distress and sale repleviable(o), unless the statute by implication authorizes a replevy (p); for it is more in nature of an execution than a common law distress: note however, if a magistrate in such a case exceed the special jurisdiction given him by statute, the goods seized under his warrant are not in contemplation of law taken in execution and are repleviable (g). When a statute provides that the judgment of commissioners (») shall be final, their decision is conclusive and cannot be called in question in any collateral way; therefore, goods seized upon their decision are not repleviable(s): goods distrained under a conviction for deer stealing (t), and goods seized for duties due to the crown, are not repleviable (u): goods taken upon an execution awarded from a superior Court are not repleviable, but if awarded from an inferior Court it is said they are so (x). The Court will not, it seems, on motion to set aside proceedings, enter into the question whether replevin will lie or not (y). There are two kinds of property; a general property, which every absolute owner has; and a special property, as of goods pledged or taken to manure a man's lands or the like, and of both these a replevin lies (z): that is, if vested in him at the time of the taking a mere possessory right is not sufficient (a). (1) 11 Geo. 2, c. 19, s. 18. (m) Gilb. 45; Sid. 440. (n) Gilb. 170; Niblet v. Smith, 4 Term Rep. 504. (o) Hutchins v. Chambers, 1 Burr. 588; Wilson v. Wilson, 1 Brod. & Bing. 57. (p) Fletcher v. Wilkins, 6 East, 287; Milward v. Caffin, 2 Bl. Rep. 1330; Hurrell v. Wink, 8 Taunt. 369; and see 1 Swanst. 304. (q) Milward v. Caffin, 2 W. Bl. 1330; Nichols v. Walker, Cro. Car. ; Rex v. Newcombe, 4 Term Rep. 368; 7 Term Rep. 273; 2 Term Rep. 372; 5 Term Rep. 629; Rex v. Canterbury, 1 W. Bl. 667; Radnor v. Reeves, 2 (r) A decree of commissioners of (s) 1 Swanst. 304, suprà. (t) Rex v. Monkhouse, Str. 1184. (u) Rex v. Oliver, Bunb. 14. Parties to have re plevy. Executors. Joint tenants and tenants in common. Baron and feme. Against whom the action may be brought. Time and place. By whom granted. How made. Executors may have replevin of the goods of their testator taken in his life time (b); parties who have a joint interest in the distress may join in the replevin (c); but when the interest is several there must be several replevins (d). If the goods of a feme sole are taken and she marries, the wife may join, or the husband alone may have replevin (e); if the goods are taken after marriage the wife cannot join in the replevin (ƒ): whether wife can be joined with husband for a taking by them after marriage seems doubtful (g). The action of replevin may be brought against the bailiff who makes, or against the landlord who authorizes, the distress, or against both. If the distress be taken in one county and carried into another, the plaintiff may have replevin in either; for the law considers the distress as wrongfully taken in every place in which the defendant may have it in his custody (h). Neither the removal of a distress for rent from the demised premises after the five days, nor an appraisement of the distress, takes away the tenant's right to replevy (i). At common law too no time is limited for replevying, because the distrainer cannot sell the distress. None but the High Sheriff, Under-sheriff, or Replevin Clerks duly appointed, can grant replevy; a criminal information may be filed against one who usurps the office (k): or it is good ground for a prohibition to the Sheriff to restrain him from proceeding in the replevin suits(). When a party intends to replevy he gives the name of two sureties to the Sheriff's officer, who (after satisfying himself as to their sufficiency (m) ) will give him a certificate to the Sheriff to that effect: this certificate is taken to the Sheriff's office, or to that of his deputy, when the replevin bond is filled up and executed by the party replevying and his two sureties, and the warrant to replevy granted. The Sheriff thereupon makes out to his bailiff his Warrant to Replevy. W. to wit: G. H. esq. sheriff of the county of to and , my bailiffs, and to every of them, jointly and severally, greeting: Whereas A. B. hath found me sufficient security, as well for prosecuting his suit with effect against C. D. for taking and unjustly detaining his cattle, goods and chattels, to wit, [&c. set out the cattle and goods,] which the said C. D. hath taken and unjustly detains, as it is said, as also for making return thereof, if return thereof shall be adjudged; therefore on behalf of the said A. B. I command you, and every of you, jointly and severally, that without delay you replevy, and cause to be delivered to the said A. B. his said cattle, goods, and chattels; and that you immediately summon the said C. D. to appear at my next County Court, to be holden at in and for the said county, to answer the said A. B. in the plea aforesaid; and in what manner you shall have executed this precept, certify to me at my said next County Court, to be holden at the time and place aforesaid, under the peril attending the neglect thereof. Given under the seal of my office, this day of , A. D. 1839. By the Sheriff. [Or, if granted by a deputy, say," By L. H., one of the deputies of the said Sheriff, according to the form of the statute."] And the bailiff thereupon makes out his Summons. W. to wit: By virtue of a warrant by the Sheriff of the county aforesaid to me in this behalf directed, I summon you to be and appear at the next County Court, to be holden for the county aforesaid, at in the said county, to answer A. B. in a plea of taking and unjustly detaining his [cattle] goods, and chattels. Dated this day of A. D. 1839. To Mr. C. D. Replevin Bond. Know all men by these presents, that we, A. B. of and T. R. of , T. D. bailiff. G. A. of are jointly and severally held and firmly bound to G. H. esq. Sheriff of the county of in the sum of £ [a sufficient sum to cover the value of the cattle or goods distrained, if taken damage feasant; or for rent, then double the value of the cattle or goods taken, to be ascertained on the oath of one witness,] to be paid to the said Sheriff, or his certain attorney, executors, administrators, or assigns; for which payment to be well and truly made we bind ourselves and each and every of us in the whole, our and each and every of our heirs, executors, and administrators, firmly by these presents. Sealed with our seals. Dated this day of A. D. 1839. The condition of this obligation is such, that if the above-bounden A. B. do appear at the next County Court to be holden for the county of on the day of next, and do then and there at |