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the defendant cannot be found, the process may be pursued to the exigent and outlawry thereupon; and when such accountant shall appear in court, and submit, or be adjudged to account, auditors shall be alligned to take his or her account; and if he or she shall be found in arrears, and cannot pay the arrears, and the costs of suit forthwith, he or she shall be committed to gaol, there to be kept, under fafe custody, living at his or her own coils, unei he or she shall have fully satisfied such arrears, with the costs of suit. And if such accountant shall neglect or refuse to account before the auditors, he or The shall be committed to gaol, there to be kept as aforesaid, until he or she fhall satisfy the plaintiff of his or her demand, with costs as aforesaid. And further, That if it shall be found, that there is a furplusage due on fuch account, from the plaintiff to the defendant, then the defendant shall have judgment to recover such surplusage, with colts of fuit, againit the plaintiff, unlefs where the suit is brought by executors or administrators, in right of their testator or inteftate ; in which case the defendant shall not recover costs against them : And the defendant shall or may have such execution for the fame, as he or she might have had, if he or she had recovered such surplusage by action of debt. · And moreover, If any sheriff or gaoler shall fuffer any fuch prisoner to go out of prison, without the affent of the plaintiff, he shall be aniwerable to the plaintiff for the debt or damages done to him or her by such accountant, according as it may be found by the country; and the party at whose fuit such prisoner was committed, shall have his or her recovery, by action of debt, or by bill or plaint, in any court of record.
II. And be it further enacted by the authorily aforefuid, That actions of account shall and may be brought and maintained by one joint-tenant, or tenant in common, his or her executors or administrators, against the other, as bailiff, for receiving more than comes to his or her just share or proportion, and against the executors or administrators of such joint-tenant or tenant in common.
III. And be it further enacted by the authority aforesaid, That the auditors appointed by the court where any action of account shall be depending, Thall be, and hereby are empowered to administer an oath, and to examine the parties, on oath, touching the matters in question ; and for their pains and trouble in auditing and taking such account, shall have such allowance as the court shall adjudge to be reasonable, to be paid by the party in whole favour the balance shall be found, and to be allowed to him or her, in the costs to be taxed against the opposite party, where costs are recoverable.
CH A P. V.
Palled 6th February, 1788. 1.
and assembly, and it is hereby enailed by the curthority of the fare, That if the beasts, or goods, or chattels of any person, at any time hereafter, be taken and wrongfully detained, the sheriff
, by a writ of replevin to be issued out of the chancery, or upon complaint thereof to him to be made without writ, shall cause the fame beasts, or goods, or chattels, to be replevi. ed, and delivered, without let or gain saying of the person who took them, whether they were taken within liberties or without, and fall fummon the person who took them, to appear, if the suit be by writ, ai the return there.
Writs or plaires in teplevin, may be re
into dic airt.
of; and if by plaint, at the next court of common pleas, to be held in his county, !o answer the plaintiff of the taking and unjust detention of the fame barts, or goods, or chattels. And if any defendant shall not appear according to such summons, then he or she shall be attached; and if such der fendant shall not appear upon the return of the attachment, then he or she Thall be distrained, fion time to time, until he or she shall appear to answer the plaintiff. And further, Thar fuch plaint before the sheriff Mall be in writing, and in the following form:
ESTCHESTER county, to wit: A. B. of Bedford, in the county of
Westchester, yeoman, complains of C. D. of the manor of Pelham, in the county of Westchester, gentieman, of a plea of taking and unjustly detaining his beafts (or, his beasts, goods and chattels, or, his goods and chattels, or, his certain mare, or, his certain tiiver bowl) and gives security to profecute his said complaint, and to return the same beasts, if return thereof shall be adjudged.
Which plaint the sheriff shall return to the next court of
common pleas to be held in and for his county, in the same inoved by eitirt party manner as if it was a writ of replevin, returnable into the
Supreme fame court, and the like proceedings shall thereupon be had
in the same court, as may or ought to be had upon a writ of replevin. And moreover, It shall be lawful for either party, in any writ or plaint in replevin, to be depending in any court of common pleas, at any time before any juror is sworn, or any judgment obtained, to cause the writ or plaint, and the proceedings thereon, to be removed into the supreme court, by writ of certiorari; and such proceedings shall be thereupon in the fupreme court, as if the suit had been originally commenced in the supreme court.
II. Ard be it further enodled by the authority aforesaid, An writs of reple. That all writs of replevin shall henceforth be inade returna
or ble in the supreme court, or in the court of common pleas, pleas.
in and for the county where the beasts, or goods or chattels, for the taking whereof the writ shall be brought, were taken,
and shall be in the form following: "HE people, To the Ineriff. If A. B. of the city of New York, mer.
chant, Mall give you security to prosecute his complaint, and to return his beasts (or, his beasts, goods and chattels, or, his goods and chattels, or, his certain horse, or, his certain silver tankard) which C. D. of Goshen, in Ora ange county, gentleman, took and unjully detains against gages and pledges, as he faith, if return thereof shall be adjudged; then cause the same bearts to be replevied, and delivered to the aforesaid A. B. without delay, and fummon, by good fummoners, the aforesaid C. D. that he be before our justices of our supreme court (or, our judges and allistant justices of our court of common pleas, to be held in and for your county) at (such a place) on (such a day) to answer the aforesaid A. B. of a plea of taking and unjustly detaining the beasts aforesaid.
III. And be il further enabled by the authority aforesaid, Sheriff maytake the That if any person shall take the beasts, or goods, or chatpower of liis county, tels of another, and drive and convey and put them into
or place of any house or place of strength, and the person from whom ftrength, to make relevi!
the fame beasts, or goods or chattels shall be taken, fues tor
vin returnable in the fupreme court, court ot
GEORGE CLINTON, Esq. Governor. a replevin thereof, by writ or plaint, the sheriff fall solemnly demand deliverance thereof, at the house or place where the fame are detained ; and if neither the taker, nor any person on behalf of such taker, shall, upon demand, deliver the fame, or if no person shall come upon such demand to deliver the fame, the sheriff shall take the power of his county, and breaks open fuch housa or place of strength, and make replevin according to the writ or plaint.
IV. And be it further enacted by the authority afore fuid, That every Theriff, before he makes deliverance of any beasts, goods or chattels, by virtue of any writ or plaint in repievin, shall take of the plaintiff sufficient security to prosecute the suit, and to return the fame bealls, goods or chattels, if return thereof shall be adjudged; and if any sheriff shall take fecurity otherwisc, or neglect to take such security, he fall answer for the price or value of the beaits, goods and cliattels; and the perfon who distrainerh, shall have his or her recovery, by writ that he shall restore to him or her so many beasts, goods or chattels.
V. And be it further cnadied by the awhority aforeluid, In what cases plain. That if the plaintiff
, in any action, or fuit in replevin, shall of lecond deliverance. make default, and a return of the beasts, or goods, or chat
tels, is awarded to the distrainer, the theriff (hall be commanded, by a judicial writ, to make return of the beaits, or goods, or chartels, unto the distrainer; in which writ it shall be exprefled, that the sheriff Ihall not deliver them without writ, making mention of the judgment, which Cannot be without a writ illuing out of the same court in which the matter was moved; and if the plaintiff cometh unto them, and desireth replevin of the same beasts, goods and chattels, he or sne shall have a judicial writ, that the sheriff, taking security for the suit, and also for the return of the same beaits, goods and chattels, or for the price or value of them, iföreturn shall be awarded, shall deliver unto the plaintiff the beasts, goods and chattels before returned ; and the distrainer Mall be attached to come and be at a certain day, at the court in which the plea was moved, in the presence of the parties; and if the plaintiff make default again, or for another cause, return of the distress be awarded, being now twice replevied, the dittreis shall remain irrepleviable. But if a diftreis be taken of a-new, and for a new caule, the process aforesaid shall be observed in the fame new distreis.
VI. And whereas frequent abuses have been coinmitted in the execution of writs of replevin, by Theriffs making deliverance, notwithstanding due notice and claim of property have been interposed by the defendant or pofeffor ; For the more effectual prevention whereof, Be it firthct enaciou by On claim of proper
the catethority aforesaid, That if at any time hereafier, on a ty, it thrift makes writ or plaint of replevin, the defendant in replevin, or tried, he inters 1991: poffeffor, shall claim property in the thing whereof deliverbesides being mtwer. able for the trefpais. ance is fought, and the ineriff
, either by
himself, his under Theriff, or bailiff, having due notice, shall nevertheless proceed to make deliverance, and disposeis Tuch defendant thereof, before the claim of property shall be enquired into, or tried according to law; tuchfreriff , for every fuchi oflence shall
, besides being answerable to the defendant for the trespass, forfeit the sum of one hundred pounds, to be recovered by any person who shall sue for the same, in any court of record, by action of debt, bill
, plaint or information; the one moiety thereof to the use of the perfon who shall fue for the fame, and the other moiety thereof to the use of the people of this flate.
VII. And be it further enacted by the authoriy oforesiid, That no distress of beasts shall be driven out of the town, manor, district, or precinct, where Braits distrained, not such distress is or shall be taken, except that it be ton poundto bedri: cu vist of the overt, within the fame county, not above three miles dif
Nor impounded in tant from the place where the said distress shall be taken; different places.
and that no baits,or goods or chattels, distrained or taken by way of distress, for any cause whatsoever, at one time, shall be impounded in several places, whereby the owner or owners of such distress, Thall be conttrained to sue several replevins for the delivery of the faid distress, so taken at one time, upon pain that every person offending therein, Niall, for every such offence, forfeit to the party grieved, ten pounds, and treble damagis; to be recovered in any court of record, by action of debt, bill, plaint or information.
VIII. And be it further enacted by the authority aforesaid, In replevin of dit. That every sheriff shall, in every replevin of : Jitress for ril to take a bond of rent, take, in his own name, from the plaintiti and two pliintifts. sureties, a bond in double the value of the beatis, or goods or chattels distrained (such value ro be ascertained by the oath of one or more witneties not interested, and which oath such sheriif is hereby auihorised to administer) and conditioned for prosecuting the suit with effect, and without delay, and for returning the beasts, or goods and chattels, in case a return fhail be awarded, before any deliverance be made of the distreis; and the sheriff (hall, at the request and colts of the defendant, avowant, or person making cognizance, allign such bond to the defendant, avowant, or person making cognizance, by endorfing the fame, and attesting it under his hand, in the presence of two witnesses ; and if the bond be forfeited, the defendant, avowant, or person making cognizance, may bring an action thereupon, in his or her own name; and the court may, by rule, give such relief to the parties upon such bond, as shall be agreeable to justice; and such rule shall have the nature and effect of a defeazance to such bond.
IX. And be it further ennited by the authority aforesaid, That wheresoever any lands, tenements or hereditaments, are or shall be held by any person or perlong, by rents, customs or services, if the person of whom any such lands, tenements or hereditaments, are or shall be held, shall distrain upon the same lands or tenements, for any such rents, customs or services, and replevin thereof be sued, the person of whom the same lands, tenements or hereditaments, are or shall be so holden, may avow, or his or her bailiff, or servant make cognizance or jullify for taking the faid diftress, upon the fame lands, tenements or hereditainents, so holden as in lands or tenements within his or her fee, alledging in the faid avowry, cognizance and justification, the same lands and tenements to be holden of him or her, without naming any person certain to be tenant of the same, and without making any avowry, cognizance or justification upon any certain person. And that the distrainer, or his or her bailiff or servant, may make avowry, cognizance or justification, in like manner and form, upon every writ of second delive: ance.
X. And be it further cnailed by the authority aforesaid, Plaintiff and defen. That the plaintiffs and defendants in all writs or plaints of in writs of fecond de- replevin, or writs of second deliverance, and in every
of pleas and aid-prayers them, shall and may have like pleas, and like aid-prayers
in all such avowries, cognizances and justifications (pleas of disclaimer only excepted) as they might have had before the making of
as at common Law,
making of this act, and as though the said avowry, cognizance or justificarion, had been made after the due order of the common law; and that all such persons, as, by the common law, may lawfully join to the plain:iffs or defendants in the said writs or plaints of replevin, or second deliverance, as well without process as by process, fhall or may, from henceforth, join unto the faid plaintiffs or defendants, as well without process as by process, and have like pleas, and like advantages in all things (pleas of disclaimer only excepted) as they might have done by the order of the common law, before the making of this act.
XI. And be it further enacted by the authority aforesaid, If plaintiff in te: That whensoever any plaintiff in replevin shall be nonsuit, fore ifte joined, the before ifsue joined in any suit of replevin, by plaint or writ avimury, i taxe dis lawfully returned, removed or depending in any court of tress was for rent, and record, the defendant, is the distress was made for rent, have a writof inquiry,
making a suggeftion in nature of an avowry or cognizance for such rent, to ascertain the court of the cause of distress, the court, upon his or her prayer, instead of awarding a return of the distress, shall award a writ to the sheriff of the county where the distress was taken, to enquire, by the oath of twelve good and lawful men of his bailiwick, touching the sum in arrear at the time of such distress taken, and the value of the beasts, or goods and chattels diftrained ; and thereupon fifteen days notice shall be given to the plaintiff
, or his or her
attorney, in court, of the setting of such enquiry; and thereupon the sheriff shall enquire of the truth of the matters contained in such writ, by the oath of twelve good and lawful men of his county; and upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in cafe the beasts, goods and chattels distrained, shall amount unto that value; and in case they shall not amount to that value, then so much as the value of the faid beasts, goods and chattels so distrained, shall amount unto, together with his or her full costs of fuit, and shall have execution thereupon for the same, by capias ad fatisfaciendum, fieri facias, or otherwilė, as the law shall require; and in care such plaintiff shall be nonfuit after a vowry or cognizance nade, and issue joined, or if the verdict shall be given againit such plainti it, then the jurors impanelled, or returned to enquire of such issue, shall, at the prayer of the defendant, enquire concerning the sum of the arrears, and the value of the beasts, or goods and chattels distrained; and thereupon the avowant, or the person who makes cognizance, shall have judgnient for fuch arrearages, or so much thereof as the beasts, goods and chattels distrained, amount unto, together with his or her full colts, and shall have like execution for the same as aforesaid. And further, That if judgment be given upon demurrer for the arowant, or the person who makes cognizance for any rent, the court, instead of awarding a return of the distress, shall, at the prayer of the defendant, award a writ to enquire of the value of such distress, and upon the return thereof, judgment shall be given for the avowant, or person who makes cognizance as aforesaid, for the arrears alledged to be behind in such avowry or cognizance, if the beasts, or goods and chattels so distrained, Thall amount to that value ; and in case they shall not amount to that value, then for so much as the said beasts, or goods and chattels fo distrained, amount unio; together with his or her full costs of fuit, and shall have like execution for the fame as aforesaid. Provided always, That where the value of the beasts, goods and chattels diftrained as aforesaid, shall not be found to be of the full value of the arrears distrained for, the party to whom such arrears, Vol. II.