The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

In what Court it lies.

IN the County Court by plaint, per le Stat. dé Marlebridge, cap. 21.

And this may be before the day of the Court, 9 Edw. 4.48. 21 Edw. 4.66. pl. 46. For the conveniency of the people.

But by the Common Law the Sheriff cannot make a Replevin without a Writ, 8 Eliz. Dyer. 256. pl. 67. viz. out of the Chancery.

In the 5 Ports, Regist. Orig. 79. A. Nat. br. 67. A. By special priviledge.

In a Court-Baron by plaint, but this ought to be entred Sedente Curia, 21 Edw. 4.66. pl. 46.

In Ban. Regis, or Com. Ban.

An ancient Demean is a good plea to out the Court of jurisdiction, because the reality may come in debate upon the Replevin, which ought to be tried there, Coke 5. part 105. Aldens case, tide 2 Edw. 3.32. pl. 10. 17 Edw. 3.52. pl. 28. & fol. 75. 40 Edw. 3.4. pl. 9. 29 Edw. 3.9. pl. 29. 4 Edw. 3.123. pl. 34.

It lies not in the Marshalsey, Coke 10. part. 74. Marshalsey. For that is a limited Court, and holds not plea of all Actions.

Who shall have a Replevin.

* 1.1Administrator shall have a Replevin de bonis Testatoris, vid. the Count. Lib. Intra. 560. B. sect. 2. for the benefit of the Intestates Estate.

* 1.2Husband and Wise join in a Replevin for a Di∣stress taken upon the Land of the Wife, 2 Edw. 2. Replevin 42. Digest. brevium. 53. sect. 2. For they are both concerned, the Husband in right of his Wife, and the Wife in her own right.

But for goods of the Wife sole taken, which takes a Husband, the Husband alone shall bring the Action, Nat. br. 69. K. 33. Edw. 3. Repleg. 43. For by the Marriage the Goods and right to them are his.

If Goods be bayled to A,* 1.3 he shall have a Re∣plevin of them against a stranger, 21 Hen. 7.14. For he hath a property in them against all the world, but against the Bailor.

An Executor shall have it for Goods taken in the Testators time,* 1.4 17 Edw. 3. Executors, 106. 24 Edw. 3. Avowry, 257. 21 Hen. 6.1. B. Markham. For the right and title to the Goods is come unto him by the Executorship.

Executors shall have it for the Goods in their hands that were the Testators. Regist. Orig. 81. B. 5 Edw. 3.133. pl. 14. 18 Edw. 2. Repleg. 24. 18 Edw. 3. Severance, 28. For now the interest is theirs in trust.

And when he brings it of his own possession, he shall have it before the Probat of the Testa∣ment, Com. 281. A. in regard of the property which is in him thereby.

Joint-Tenant or Tenant in Common may join in a Replevin,* 1.5 11 Hen. 6.31. in respect of their joint interest.

But if two others join, the Writ shall abate, 11 Hen. 6.31. 3 Hen. 4.16. 21 Edw. 4.23. For one Writ cannot try distinct interests, but there must be several Writs.

But in a Homine Repleg. strangers may join, Nat. 66. F. 8 Edw. 4.16. pl. 19. Propter favorem libertatis, and yet 8 Hen. 4.2. is, that they shall not join. Q. Ergo. It seems needless for two to join, because the Writ may be as well prosecuted by one.

Parson shall have a Replevin of a Mortuary af∣ter Seisure,* 1.6 but not before, Com. 281. A. Foxes case. 10 Hen. 4.1. For before he had no property in it, but a bare right.

For he had not property before Seisure, 16 Hen. 7.5. pl. 3. Brian. The Seisure gains a property in it.

1. He that hath not the property in a thing,* 1.7 shall not have a Replevin for it. 6 Hen. 4.2. pl. 17. 7 Hen. 4.18. 11 Hen. 4.17. pl. 39. 2 Hen. 6.14. pl. 10. 20 Hen. 6.18. A. 35 Hen. 6.22. A. 39 Hen. 6.35. pl. 47. 4 Edw. 2.1. pl. 2. 9 Edw. 3.340. pl. 19. Lib. intra. 568. C. sect. 5. For a Replevin supposeth a property in the thing reple∣••led by one.

2. He that hath Cattel by way of Agistment, shall have a Replevin, because he hath a special

property against all strangers, as it is upon a Bail∣ment, 3 Edw. 3.71. pl. 36.42. Edw. 3.18. pl. 32. 21 Edw. 4.54. pl. 24.

3. So he that hath them to manure his Land, 42 Edw. 3.18. 11 Hen. 4.29. 21 Hen. 7.14. 21 Edw. 4.54. pl. 24. 2 Edw. 3.34. pl. 19. For he hath a property in them to that purpose.

4. So if one have Goods bayled to him, 21 Hen. 7.14. viz. to keep, or to bail over as it seems. Q.

The Lord of a Villain shall have it for Cattel of a Villain taken,* 1.8 for the bringing of the Action is a sufficient claim of the Cattel, and there needs no seisure, 42 Edw. 3.18. 33 Edw. 1.3. Re∣pleg. 43. 30 Edw. 3. Repleg. 36. 19 Edw. 3. Re∣pleg. 32. 9 Hen. 6.26. Babington. Nat. br. 69. F.

But he shall not have dammages for the taking, but only for the Detainer, Nat. br. 69. F. For he could have no dammage, because before the claim they were none of his.

Successor of an Abbey shall have it for taking any thing in the time of his Predecessor,* 1.9 9 Hen. 6.25. pl. 21. Martin. For now he is concerned in right of his house.

Against whom a Replevin lies.

It lies not against him that hath Goods deli∣vered to keep,* 1.10 Lib. Intra. 569. B. sect. 1. For he comes lawfully to the possession of them.

It lies not against the King,* 1.11 nor where he is party, nor where the taking is in right of the King, 3 Hen. 7.1. Keble. This by his Preroga∣tive.

It is supposed the King will do no wrong.

It lies against a Lord that distrains wrongful∣ly,* 1.12 although the goods come again to the owner, Nat. br. 69. H. that the party injured may reco∣ver dammages.

It lies against the Sheriff, and the Writ shall be in the common form,* 1.13 and he shall be named by his proper name. Regist. Orig. 81. B. during his Office, but not as an Officer, but as a private person. Q. to whom the Writ shall be direct∣ed. It seems to the Coroner.

Of what things a Replevin lies.

It lies of Cattel, Regist. Orig. 81. Coke 1. part 141.* 1.14 Mayowes case, the count. Lib. intra. 570. C. sect. 123.4. Coke 1. part. 54. A. Capels case. and the Replevin needs not mention the Colour or Value of them, but only the Kind and Nature; that the Sheriff may know of what to make re∣torne, in case the distraier recovers.

But he ought to shew the place where they were taken; for the taking of them in another place shall abate the Writ, 2 Hen. 6.14. pl. 10. 35 Hen. 6.40. pl. 1. for the falsity of it, and it shall not be accounted the same ta∣king.

It lies of Wood within the Forest, Regist.* 1.15 Orig. 86. B. viz. Wood felled. Q. if he must shew what Wood it is.

Replevin lies of a Barge, 2 & 3 Mariae, Dyer.* 1.16 117. pl. 73. If taken infra corpus Comita∣tus.

It lies of a Mastiff-Dog,* 1.17 12 Hen. 8.3. For the Owner hath property in him, and he is a use∣ful Creature.

Of a Leveret, 2 Edw. 2. Distress 20. Q. For it is but a thing of pleasure, if alive.

It lies not of Deeds of Land,* 1.18 because they are Real, 4, Hen. 10. pl. 4. And a Replevin is not a real Action meerly.

It lies of a Hive of Bees,* 1.19 Regist. orig. 81. A. For the Owner hath a property in them, and they are valuable.

It lies of a Ferret,* 1.20 2 Edw. 2. Avowry, 142. for the same reason.

It lies of Grain in a Wagon loaded,* 1.21 Lib. in∣tra. 560. B. sect. 2.562. D. sect. 3. Q. toge∣ther with the Wagon, or without it.

It lies of a man,* 1.22 if he be not committed by the command of the King or his Justices, or for the Death of a man, Regist. orig. 77. B. Nat. br. 66. E. that is, be kept prisoner without any Suit or process in Law.

Or by Justice of the Forest outlawed, appro∣ver, taken for Felony with the manner, breaking prison, known Thief, appealed by an approver, burner of a House, or counterfeiting the Money or Seal of the King, or taken by an Excommu∣nicato Capiendo, or for Treason, Convict of Re∣dissein, Nat. br. 66. E. For these are Capital Crimes.

But if a man be taken for Trespass in a Forest, he shall be replevied, if detained against pledges, Regist. orig. 80. A.

And the Writ shall be directed Custodi Forestae, and if he be not delivered, then a Replevin shall

issue to the Sheriff, and an Attachment to attach the Gardein of the Forest, per Stat. 1 Edw. 3. up, 8. Statute 1. Regist. orig. 80. B. Nat. br. 67. A, B & C. Little use there is now of this Law.

And so for a Trespass in the Kings Chase, Regist. 80. B. because the Chase remains at the common Law, Nat. br. 67. D. and is not ordered by Fo∣••••st-Law.

And so if a man rescues one Indicted and Convi∣cted for a Trespass in the Forest, Regist. Orig. 81. A. and the rescuer detains the party.

* 1.23If one takes Sheep which asterwards have Lambs, it lies of all, Nat. Br. 69. D. 18 Edw. 3. 48. pl. 55. So of a Sow with Pig, a Mare with Fole, &c.

It lies of a Park seised into the hands of the King,* 1.24 Regist. 80. B. Nat. br. 67. E. Q.

* 1.25It lies of a Sow and Pigs which were not pig∣ged at the time of the taking, 12 Edw. 45. pl. 10. 18 Edw. 3.48. Nat. br. 69. D. Q. Whether of a Bitch and her Whelps.

* 1.26It lies of Cows and Calves not calved at the time of the taking, Nat. br. 69. D. 18 Edw. 3.48. pl. 55.

It lies of Yarn,* 1.27 Mich. 39 & 40. Eliz. com. Ban. Burley versus Read, and generally for any thing that may be distrained.

The Writ.

If a live and dead thing be put in one Writ, the live shall be put first, Regist. Orig. 81. B. propter excellentiam rei. A living Dog is better than a dead Lion.

If it be of more live things, ye shall say, Ave∣ria. Regist. orig. 81. B. Nat. br. 68. D. Com. 229. A. For that is a word of large extent, compre∣hending all four-footed beasts.

And if the Writ be Averia, and the Count be de Bonis & Catallis, it is not good, because the Count is more large than the Writ, 2 Hen. 4.25. pl. 28. For Bona & Catalla comprehends all man∣ner of Goods, as well dead as living things.

If it be of a live thing, it shall be named par∣ticularly, Regist. orig. 81. B. Nat. br. 68. D. Com. 229. A. 20 Hen. 6.42. pl. 21. viz. the kind of it.

If it be of more dead things, it shall be said Catalla, and not Averia, 2 Hen. 4.25. pl. 28. Nat. br. 68. D. If it be of one dead, it shall be named, Nat. br. 68. D. Regist. 81. A. For the more certainty.

* 1.28The Defendant shall not plead Misnosmer of the place, but may say that he took it in another place, 16 Hen. 7.5. pl. 4. fol. 7. pl. 9. and not in the place alledged by the Plaintiff, and this is a good traverse.

Distress in one County,* 1.29 and impounded in ano∣ther County, Replevin lies in any of the Coun∣ties, Nat. Br. 69. I. For it is a continuing wrong from the taking to the impounding.

It is a good plea that the Defendant took the Cattel in another Village,* 1.30 2 Hen. 6.14. pl. 10. For then it shall be presumed not to be of the same taking.

The Process. 1. Of a man Replevied. 2. Of Chattels.

[unspec 1] Repleg. alias pluries & Attachment against the Sheriff, Nat. br. 66. F. 167. B. to make a re∣turn.

If the Sheriff return him not replevisable, a Ca∣pias in Withernam shall issue, Regist. orig. 79. A. 80. A & B. That is to take the person of the man that detained him, or hath elongated him.

If upon the Capias in Withernam, a Non est in∣••entus of the person be returned, then a Capias in Withernam shall issue against his Goods, Nat br. 68. C. to make the Owner appear.

Repleg. alias and pluries, Nat. br. 68. E, F, G.

[unspec 2] And an Attachment to the Coroners against the Sheriff, Regist. orig. 81. A. for not making his return.

Upon a return that the Bayliff of a Franchise makes not an Answer, or will not make delive∣rance, there shall be a Non omittas propter aliquam libertatem, but it seems that the Sheriff ought to do it without a Writ, Nat. br. 68. F. in fa∣vour of Liberty. Q. tamen.

If the Sheriff return

Fugavit, in another County.

That the Bayliff of the Liberty returns elon∣gata.

Or that he cannot have the view.

Or that the Cattel elongata sunt out of the County.

Or that the Bayliff of the Liberty returns that they are impounded within the Rectory of S.

In all these Cases Withernam shall be award∣ed, Nat. br. 68. G. 69. A. because the Sheriff cannot execute the Writ of Replevin.

And upon this three Capias's and an Exigend. shall issue, 5 Edw. 4.18. A. by Danby.

The Writ of Withernam ought to rehearse the Return of the Sheriff. Nat. Br. 69. B. For upon that it is grounded.

Vid. The Writ Regist. Orig. 82. A. No. Lib. intra. 611. B. sect. 21.

If the Replevin be in the County-Court per plaint, and the Bayliff return elongata, the She∣riff ought to enquire by Inquest whether it is so or not, and then Withernam shall be awarded by him, if it be true; and if he refuse to grant the Withernam, the party shall have a Writ against him, and an Alias pluries, and an Attachment, Nat. br. 69. C. directed to the Coroner.

Notes

• * 1.1

  Admini∣strator.
• * 1.2

  Husband and Wife.
• * 1.3

  Baylee.
• * 1.4

  Executor.
• * 1.5

  Joint-Te∣nant, or Tenane in Common,
• * 1.6

  Parson.
• * 1.7

  Proprie∣tor.
• * 1.8

  Lord.
• * 1.9

  Successor.
• * 1.10

  Baylee.
• * 1.11

  King.
• * 1.12

  Lord.
• * 1.13

  Sheriff.
• * 1.14

  Cattels.
• * 1.15

  Wood
• * 1.16

  Barg••.
• * 1.17

  Mastiff.
• * 1.18

  Deeds.
• * 1.19

  Bees.
• * 1.20

  Ferret.
• * 1.21

  Grain.
• * 1.22

  Man.
• * 1.23

  Sheep and Lambs.
• * 1.24

  Park.
• * 1.25

  Sow and Pigs.
• * 1.26

  Cows and Calves.
• * 1.27

  Yarn.
• * 1.28

  Misnosmer of the Place.
• * 1.29

  County.
• * 1.30

  Willage.