to appeal to the next General or Quarter Sessions, for the same county, who may and shall hear and determine such appeal, and give such costs to either party as they shall think reasonable, whose determination therein shall be final."

Sect. 6. "Provided also, that where the party appealing shall enter into recognizance with one or two sufficient surety or sureties in double the sum so ordered to be paid, with condition to appear at such General or Quarter Sessions, the order of the said two justices shall not be executed against him in the mean time."

By sect. 7. it is further enacted, "That where any goods or chattels fraudulently or clandestinely conveyed or carried away by any tenant or tenants, lessee or lessees, his, her, or their servant or servants, agent or agents, or other person or persons aiding or assisting therein, shall be put, placed, or kept in any house, barn, stable, out-house, yard, close or place, locked up, fastened, or otherwise secured, so as to prevent such goods or chattels from being taken and seized as a distress for arrears of rent, it shall be lawful for the landlord or landlords, lessor or lessors, his, her, or their steward, bailiff, receiver, or other person or persons empowered to take and seize, as a distress for rent, such goods and chattels (first calling to his, her, or their assistance the constable, headborough, borsholder, or other peace officer of the hundred, borough, parish, district, or place, where the same shall be suspected to be concealed, who are hereby required to aid and assist therein; and in case of a dwelling-house, oath being first made before some justice of the peace, of a reasonable ground to suspect that such goods or chattels are therein), in the day-time to break open and enter into such house, barn, stable, out-house, yard, close, and place, and to take and seize such goods and chattels for the said arrears of rent, as he, she, or they might have done by virtue of this or any former Act, if such goods and chattels had been put in any open field or place."

Justices either of the county from which the tenants fraudulently remove goods, or of that in which they are concealed, may convict the offenders in their respective counties (a).

But in order to justify the landlord in seizing, under this statute, within thirty days, goods removed off the premises, as a distress for rent wherever found, the removal must have taken place after the rent became due, and must have been secret, and not open and in the face of day, as in such case the removal could not be said to be clandestine, within the meaning of the statute (b).

An averment in a declaration in an action of debt on Sect. 3. of this statute, to recover double the value of goods removed in order to

(a) 1 Cald. R. 156.

(6) Watson v. Main. 3 Esp. R. 16.

prevent a distress, that "a certain sum was due for rent" before the goods were removed, need not be precisely proved as laid; for whether 5. or any other sum were in arrear is perfectly immaterial; the damages not being to be measured by the quantity of rent, but by the value of the goods removed. Besides, the gist of the action is the fraudulent removal of the goods from the premises in order to defeat the distress; it was therefore immaterial to the defendants whether one sum or another were due for rent, for in either case they are guilty of a tort. Where the variance, therefore, does not consist in any part of the contract, but in an averment of matter subsequent to the contract, such averment being merely a matter of inducement to the action, need not be precisely proved (a).

So the notice of distress may be abandoned; for a party may distrain for rent and avow for fealty (a).

Trespass for breaking and entering the plaintiff's house and distraining his goods; plea the general issue. The defence was, that the plaintiff had held the house as tenant to the defendant, that the goods distrained were clandestinely and fraudulently conveyed away from this house on the 28th day of September, to prevent the landlord from distraining them for the arrears of rent to become due the following day, and that they were within 30 days afterwards taken and seized as a distress for the said arrears of rent. Holt, for the plaintiff contended, that there was no right to follow these goods, as they were removed before the rent became due (b); and, secondly, that at all events this was no defence under the general issue, as the goods were not taken upon the premises for which the rent became due (c). Lord Ellenborough, C. J. Upon the first point I entertain considerable doubts, and if the cause had turned upon that, I should have reserved it for the opinion of the Court. Where goods are fraudulently removed from the premises in the night, to prevent the landlord from distraining upon them for arrears of rent to become due next morning, the case certainly comes within the mischief intended to be remedied by 11 G. 2. c. 19. and there is some ground to contend it comes within the provisions of the statute. But upon the second point, I am clearly of opinion that the defendant was bound to justify specially (d).

When the double value of the goods fraudulently removed to prevent a distress, does not exceed 50/., the party injured, may, at his option, proceed either by action or in a summary way before a magistrate; and the fact of the party having, in the first instance, made

(a) Gwinnet v. Phillips. 3 T. R. 645, 6. (6) Watson v. Main. 3 Esp. 15.

() Vaughan v. Davis. 1 Esp. 257.
(4) Furneaux v. Fotherby. 4 Camp. 136.

his complaint before a magistrate will not preclude him from afterwards maintaining an action (a).

This statute applies to the goods of the tenant only, and not to those of a stranger; wherefore a plea justifying the following of goods off the premises and distraining them for rent arrear must shew that they were the tenant's goods (b).

[See also this statute as it regards the duty of a magistrate, 1 Burn. Just. Tit. Distress.]

(a) Horsefall v. Davy. 1 Stark. 169.

(6) Thornton v. Adams. 5 M. & S. 38.

CHAPTER XVIII.

Of the Remedies for Tenants against Landlords.

Of the Action of Replevin.

SECTION I. Of the Action.
SECTION II. Of the Judgment, &c.

SECTION I. Of the Action of Replevin.

HE action of replevin is founded upon, and is the regular way

TH

of contesting the validity of, a distress: being a re-delivery of the pledge, or thing taken in distress, to the owner, by the sheriff or his deputy; upon the owner giving security to try the right of the distress, and to restore it, if the right be adjudged against him: after which the distrainer may keep it till tender made of sufficient amends, but must then re-deliver it to the owner (a).

In this writ or action, both the plaintiff and defendant are called actors; the plaintiff suing for damages, and the defendant or avowant to have a return of the goods or cattle (b).

Replevin is an action founded on the right, and different from tres. pass, or detinue: and it is now held, that as no lands can be recovered in this action, it cannot, with any propriety, be considered as a real action, though the title of lands may incidentally come in ques

(a) 3 Bl. Com. 147.

(6) Bac. Abr. tit. Replevin, &c. (A.)

tion; as it may do in an action of trespass or even debt, which are actions merely personal (a).

In our account of this action, we shall endeavour to confine our notice of it as it regards distress for rent, or cattle damage feasant; the services of copyholders, &c. being without the scope of our consideration.

Who may have Replevin.-This remedy may be said to be of common right for if a man by his deed grant a rent with a clause of distress, and grant further that the party shall keep the goods distrained against gages and pledges, until the rent be paid, yet shall the sheriff replevy the goods distrained; for it is against the nature of such a distress to be irreplevisable, and by such an invention the current of replevins would be overthrown to the hindrance of the commonwealth; and therefore it was disallowed by the whole Court, and awarded that the defendant should gage deliverance [that is, engage to deliver the distress to the owner on his pledging to try the distrainer's right thereto] or else go to prison (b).

It is a general rule that the plaintiff ought to have the property of the goods in him at the time of the taking: but there are two kinds of properties: a general property, which every absolute owner hath, and a special property, as goods pledged or taken to manure his lands, or the like, and of either of these replevin lies (b).

An executor may have a replevin for goods taken in the lifetime of his testator (c).

So, if the cattle or other goods of a feme sole be taken and she afterwards intermarry, the husband alone may have replevin: and if they join, judgment will not be arrested after verdict, because the Court will presume them jointly interested (as they may be if a distress be taken of goods of which a man and woman were joint-tenants, and afterwards intermarry); the avowry admitting the property to be in the manner it is laid.-But in replevying goods which a wife holds as executrix, this action cannot be brought by either of them singly, but they must be joined (d).

The right of the tenant to replevy, is not taken away by the removal and appraisement of the goods after the expiration of five days; it continues until the same are sold (e).

Where cattle put on the premises for the purpose of taking possession where the tenant had held over, were distrained by the tenant on the ground of being damage feasant, on replevin being brought, L. Kenyon said, The case is too plain for argument. Here is a tenant from year to year, whose term expired upon a proper notice to quit, and

(a) Bac. Abr. tit. Replevin, &c. (A.) (b) Co. Lit. 145. b.

() Bull. N. P. 53.

(d) Ibid. Bac. Abr. tit. Replevin, &c. (G.) (e) Jacob v. King. 5 Taunt. 451. 1 Mars, 135. S. C.

because he holds over in defiance of law and justice, he now attempts to convert the lawful entry of his landlord into a trespass. If an action of trespass had been brought, it is clear that the landlord could have justified under a plea of liberum tenementum.-If, indeed, the landlord had entered with a strong hand to dispossess the tenant by force, he might have been indicted for a forcible entry; but there can be no doubt of his right to enter upon the land at the expiration of the term. There is not the slightest pretence for considering him a trespasser in this case, and therefore there must be judgment for the plaintiff (a).

If the goods of several persons be taken they cannot join in replevin, but every one must have a several action (b).

Tenants in common, therefore, should not join.-But coparceners should join, for they make but one heir: and for the same reason, so should joint tenants (c).

Against whom.-Replevin lies against him who takes the goods, and also against him who commands the taking or against both (d).

So it lies against him who takes damage feasant, if he detain after amends tendered (e).

Replevin lies for what.-Replevin lies for whatever is capable of being distrained, and for nothing else, for the action is the remedy of the party whose goods are distrained.

Replevin, therefore, does not lie of things fera natura; nor of deeds or charters; nor of money; nor of leather made into shoes (ƒ).

But if a mare in foal, a cow in calf, &c. be distrained, and they happen to bring forth their young whilst they are in custody of the distrainer, a replevin lies of the foal, calf, &c. (ƒ).

Replevin lies of a ship: so, of the sails of a ship (ƒ).

But no replevin lies of goods taken beyond the seas, though brought hither by the defendant afterwards.

In those cases in which replevin does not lie, the party may bring an action of detinue to recover the deeds, goods, &c. in specie (f).

The plaintiff having brought replevin for goods levied under a warrant of distress for an assessment, by a special sessions under the Highway Act, 13 Geo. 3. chap. 78. sect. 47, on the ground of the premises for which he was assessed, being situated without the township which was liable to repair the road; the Court refused to set aside. the proceedings (g).

The several kinds of Replevin.-Replevin may be made either by original writ of replevin at common law, or by plaint by the statute of Marlbridge, 52 H. 3. c. 21.

(a) Taunton v. Costar. 7 T. R. 431. (b) Co. Lit. 145 (6).

(c) Willis v. Fletcher. Cro. Eliz. 530. Stedman v. Bates. Salk. 390. Bull. N. P. 53.

(d) 2 Roll. 431. 1. 5.
(e) F. N. B. 19. G.

(f) Bac. Abr. tit. Replevin, &c. (F.)
(g) Fenton v. Boyle. 2 N. R. 399.