To the extent possible under law, the Text Creation Partnership has waived all copyright and related or neighboring rights to this keyboarded and encoded edition of the work described above, according to the terms of the CC0 1.0 Public Domain Dedication (http://creativecommons.org/publicdomain/zero/1.0/). This waiver does not extend to any page images or other supplementary files associated with this work, which may be protected by copyright or other license restrictions. Please go to http://www.textcreationpartnership.org/ for more information.
IN a Replevin, the Defendant avoyed to distrein for Rent; Charge granted in Tayl, the Plaintiff says, that an Ancestor of the Defendant, whose Heir he is, was seized of the Lands, discharged of the Rent, and gave to him with Warranty: No Assetts descend∣ed; adjudged an illlegal plea; First, because he pleads Warranty from an Ancestor, and shew∣ed not what, whether lineal or collateral:
Nor, Secondly, because he pleads, that he was seized of the Lands, discharged of, &c. and shewed not how, viz. by Union or o∣therwise, H. 21 H. 7. pl. 11.
Replevin avows Damage feasant barr, that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue; after Verdict moved, the Blank in the Declaration makes all uncertain, quid resid' est sed non alloc'; 'tis found there is a Residue; and be it what it will, he is to have Common: And here no Land is to be reco∣vered so, certain enough. Sir Anthony Cope a∣gaiust Temple, Yel. 146, 147.
Replevin, the Defendant avows, Forty shillings Rent for two Acres held of him; the Plaintiff replies, that he holds them and twenty more of him by 12 s. absque hoc; that he holds the two last by Twenty shillings; and though objected, the plea double, tra∣versing that the quantity of the Rent: And also, that he holds the two Acres, only ad∣judged good, because otherwise he could not avoid the false Avowry, M. 8. H. 7. pl. 1.
Replevin and Avowry, for that A. was seized in Jure Ecclesiae, and leased; good, without saying, that he was Parson, supplied by in Jure Ecclesiae, but not in Quare Impedit the Plaintiff, that so he is a Parson Imparson', because till then, in that cause, he cannot plead in Bar. Rolls against Walters, Noy. 70.
If Cattel or Goods be distrained for Rent, or otherwise for Damages, then the party, whose Goods are fo distrained, may make Replevin, and must prosecute his Replevin, as Plaintiff, and the Defendant must avow the taking; but if by chance the Plaintiff in Replevin become Non-suit, or Judgment a∣gainst him, then shall the Defendant have a Retorn' hend' averiorum, upon which the Plaintiff in Replevin, may bring his Writ of Second Deliverance; but if he become Non-suit again, or Judgment against him, then the Defendant shall have Retorn' hend', irre∣pledgeable, and keep the Goods for ever.
If Live Cattel, and Dead Things be Re∣plevied by one Writ, as they may; the Live Beasts or Cattel, must be named before the Dead; as thus, Quendam Equum suum & Catella sua quae B. cepit.
If a Man distrain Beasts or Goods for his Rent, and the Tenants tenders Amends be∣fore the Distress is taken: The taking the Distress, is tortious, Mesme le Ley pur Damage fesant. But tender after the Distress be ta∣ken, and before the Impounding, the De∣tainer, and not the taking, is tortious: But tender after the impounding, neither the ta∣king nor detaining are tortious; for the Ten∣der comes too late.
In Replevin, the Plaintiff is Non-suited, and the Defendant had a Writ of Retorn' ha∣hend'
and enquiry de dampnis, the Plaintiff brings Second Deliverance: This is a Super∣sedeas to the Retorn' hend', but not to the En∣quiry.
By the Common Law, when the Goods or Chattels of any person are taken, he may have a Writ out of the Chancery, command∣ing the Sheriff to make Replevin of them; and this Writ is Viscontiel, and in the na∣ture of a Justicies, in which the Sheriff may hold plea to any Value, and in all Cases; but when the Defendant claims Property, and when more than one Live Beast is taken, then the Form of the Writ, is quod replegiari faceret J. S. averia sua; and when only one Beast is taken, then the Form is quod reple∣giari faceret J. S. quendam Juvencum suum, vel bovem suum &c. And when many Dead Chat∣tels are taken, then the Writ shall be quod replegiari faceret Bona & Catella sua, and the Plaintiff must ascertain them in the Declara∣tion; But if but one Dead Chattel be taken, then the Writ shall be, quod replegiari, facias J. S. quoddam Plaustrum cum furnitura, &c.
By the Statute of Marlbridge, cap. 21. the Sheriff upon Plaint made to him in Court, or out of Court, ought to make Replevin of the Goods or Chattels taken.
In Replevin, the Sheriff ought to take two sorts of Pledges; by the Common Law, Pledges de prosequendo, and by the Statute,
Pledges de Retorn' habend', Co. Com' 145. b.
A Man who hath but only a special Pro∣perty, may bring a Replevin, as when Goods are pledg'd to him, or Beasts are taken by him to compost his Land; and the Writ may be General or Special, 41 E. 3. 18. b. 22 H. 7. 14 b. 11 H. 4. 17.
If this Plea be before the Sheriff by Writ, then it may be removed into the Kings Bench or Common Pleas, by pone, by the Plaintiff, without Cause, and by the Defendant, with Cause mentioned in the Writ: But if it be before the Sheriff by plaint, then it may be removed by Recordare, issuing out of Chan∣cery by the Plaintiff, without shewing cause, and by the Defendant, if he do shew cause in the said Writ.
A Replevin lies of such things whereof a man hath but a qualified Property, as of things that are ferae naturae, and are made tame, so long as they have Animum rever∣tendi: le Case de Swans in Co. 7. rep.
So Replevin lies of a Leveret or of a Fer∣ret, 2 E 2. Fitz. tit. Avowry 182.
Also Quare cepit quoddam examen Apium, &c. Register Original. fol. 81.
In many cases, this Action or Trespass lies at the Election of the Plaintiff; but against the Lord, Trespass lies not, 7 H. 4. 28. b. 6 H. 7. 9.
A Replevin lies against one, de Averiis capt'
per ipsum simul cum alio, Co. Ent. 600. 2 Inst. 533.
So it lies de averiis capt' & detent' quous{que} &c. & de aliis averiis capt' & adhuc detent', Rast-Entr. 567. 572. And in this Case, when the Plaintiff declares, that the Defendant yet de∣tains the Cattel, and the Defendant appears, and makes Default, the Plaintiff shall recover all in Damages, F. N. B. 69. b. Co. Ent. 610.
When the Beasts are chased into another County after they are taken, the party may have a Replevin in which of the Counties he pleaseth, or in both, Idem 65. 6.
When the Cattel of several men are taken, they shall not joyn in Replevin; nor is it a Plea to say, that the property is to the Plain∣tiff and another, Co. Com. 145 b.
In Replevin, the Plaintiff ought to alledge a place certain, where the Cattel, &c. were taken.
When the Plaintiff is Non-suited before Declaration, and he sues Second Deliverance, and is Non-suited also again before Declara∣ration, the Defendant shall have the Cattel irreplegiable without any Avowry, &c. Dyer 280.