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when that is removed by recordarh and though there be no summons in the writ, yet it gives a good day to the defendant to appear, and if he do not appear, a tone issues, and then a capias (a).

Process of outlawry lies upon the capias in withernam, which issues upon the sheriff's return of averia elongata upon the pluries,- and upon the sheriff's special return of nulla bona on the "withernam, there shall go a capias against the person, and so to outlawry (a).

Capias and process of outlawry in replevin were given by srat. 25 E. 3. c. 17.

Of the Withernam.—If on the pluries replevin the sheriff return that the cattle are eloigned to places unknown, &c. so that he cannot deliver them to the plaintiff, then shall issue a withernam [from the Saxon words weder, other, and naam, distress, signifying another distress instead of the former which was eloigned, that is, removed,] directed to the sheriff, commanding him to take the cattle or goods of the defendant, and detain them till the cattle or goods distrained are restored to the plaintiff; and if upon the first withernam a nihil be returned, then an alias and pluries replevin shall issue, and so to a capias and exigent (b).

The writ of withernam ought to rehearse the cause which the sheriff returns, for which he cannot replevy the cattle or goods; so that it does not lie upon a bare suggestion that the beasts are eloigned, &c.— If upon the withernam, the cattle be restored to the party who eloigned them, yet he shall pay a fine for his contempt (3).

The withernam is but mesne process, and cannot be an execution, because it is granted before judgment (h).

Cattle taken in withernam may be worked, or if cows, may be milked; for the party has them in lieu of his own: and as the party is to have the use of the cattle, he is not to have any allowance or payment for the expenses he has been at in maintaining them (b).

In scire facias against an executor on a judgment de retorno habendo against his testator for a cow, but which was not executed, it was held that the plaintiff should have execution, for the defendant could not be prejudiced; inasmuch as, if the sheriff return averia elongata, he shall not have a withernam but of the goods of the testator: or if there be no goods of the testator, the sheriff can take nothing, but shall return nulla bona, and then the plaintiff hath his ordinary way to charge the defendant, if he have made a devastavit ,• and it was adjudged for the plaintiff (t).

If upon an elongate returned, the defendant's cattle be taken in withernam, yet upon the defendant's appearance, and pleading non cepit, or claiming property, the defendant shall have his cattle again, and if they are eloigned, a withernam against the plaintiff: for if the

(o) Bac. Abr. tit. Replevin, Ice. (E.) (*) Bac. Abr. D ante. (E. a.)

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property or taking be in question, there is no reason that the plaintiff should have the defendant's cattle.—Both the plaintiff and defendant, indeed, may, it seems, have a withernam (a).

Of writ of second deliverance.—At common law, if the plaintiff had been nonsuited either before or after verdict, the defendant who distrained should have had return, but not irreplevisable; [this signifies, that ought not to be replevied, or set at large upon sureties;] so that the plaintiff after nonsuit might have had as many replevins as he chose. To remedy which evil the stat. Westm. 2. (13 Ed. 1. st. i.e. 2.) restrains the plaintiff from any more replevins after nonsuit, but gives a writ of second deliverance: and if in such writ the plaintiff be nonsuited, or if the plea be discontinued, or the writ abate, or if he prevail not in his suit, return irreplevisable shall be granted (a).

If defendant in replevin have return awarded upon nonsuit of the plaintiff, upon which he sues a writ de ret. hab., and the sheriff return averia elongata per querentem, and upon this a withernam be awarded, and upon the withernam, the defendant have iota catalh to him delivered of the goods of the plaintiff, and thereupon the plaintiff sue a second deliverance: he shall sue it for the first distress taken, and not for the withernam, as appears by the nature and form of the writ of second deliverance (h).

Retorno habendo awarded to the sheriff, after a writ of second deliverance prayed by the plaintiff, is a supersedeas to the ret. hab. and closes the sheriff's hand from making any return thereon.—If the sheriff will not execute the writ of second deliverance, the party has his remedy against him (3).

This stat. of Westm. 2. gives the writ of second deliverance out of the same Court whence the first replevin was granted, and a man cannot have it elsewhere: for if he could, then he might vary from the place limited, as to this, by the statute. But though the writ cannot vary from the first in year, day, place, or number of beasts, yet if the first writ were of a heifer, the second may be of a cow, as by presumption it may in that distance of time grow to such.

Where the defendant had avowed, and plaintiff being nonsuited brought this writ, it was held that though the writ be a supersedeas to the ret. hab. it is not so to the writ of inquiry of damages; for these damages are not for the thing avowed for, but are given by the stat. 21 H. 8. c 10. as a compensation for the expense and trouble the avowant has been .at.

In error on a second deliverance, the writ must be certified: and if it vary in substance from the declaration in replevin it shall be abated (b).

Upon a nonsuit either before or after evidence, this writ will lie,

(«) Bic. Abr. ut ante. (E. a.) (4) Bac. Abr. W antt. (E. 3.)

because there is no determination of the matter, and there a writ of second deliverance lies to bring the matter in question (a).

But no second deliverance lies after a judgment upon a demurrer, or after verdict, or confession of the avowry; but in all these cases, judgment must be entered with a return irreplevisable ; for in the * case of a demurrer and verdict, the matter is determined by the law, and in that of a confession, it is determined by the confession of the party (a).

Note. In an avowry for rent, the second deliverance is taken away by stat. 17 Car. 2. c. 7.

Yet if the plaintiff in replevin be nonsuited for want of delivering a declaration, which happened through any cause that would have entitled him to a writ of second deliverance, as sickness of the person employed, &c. the Court will order the defendant to accept of a declaration on payment of costs ; else the plaintiff would be remediless, the writ of second deliverance being taken away by the 17th C. 2. c. 7.

Of Writ de proprietate probanda.—The writ de proprietate probanda issues out of Chancery, or K. B. or C. P. When it issues out of Chancery it is an original, and goes upon the sheriffs return to the alias replevin; when out of either of the other Courts, it is judicial and granted on the return of the pluries, for the pluries is returnable only there, the original and alias giving no day, but being merely vicontiel (b).

If the defendant in replevin claim property, the sheriff cannot proceed, for property must be tried by writ. In this case, therefore, the plaintiff may have the writ de proprietate probanda to the sheriff, who is to give notice to the parties of the time and place of executing it, for it is an inquest of office. If it be found for the plaintiff, the sheriff is to make deliverance; if for the defendant, then he is to proceed no further, but being an inquest of office, the plaintiff may notwithstanding have a replevin to the sheriff, and if he return the claim of property, yet it shall proceed in C. P. where the property shall be put in issue and finally tried.—None but he who is party to the replevin shall have the writ de prop. prob.

The sheriff is to return the claim of property on the pluries, before which time the writ de prop. prob. does not issue, for it recites the pluries (b).

If the defendant in replevin claim property, the plaintiff may have the writ de Prop. Prob. without continuance of the replevin, though it be two or three years after; for by the claim of property the first is determined (b).

If the plaintiff have property and omit to claim it before the sheriff,

(1) Bac. Abr. ut antt. (E.3.) (i) Ibid. (E. 4-)

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he may notwithstanding plead property in himself, or in a stranger, either in abatement or bar.

If it be notified to him that comes in aid of the sheriff or his officer, that claim of property is made, he at his peril ought to desist, for if he take them away, he will be a trespasser ab iniiio (a).

A man cannot claim property in the County Court by his bailiff or servant, for if the claim be false, a fine will be imposed for the contempt: but in K. B. one may make conusance and claim property by a bailiff, for there the bailiff is not liable to a fine (a).

Of Writ de reform hebendo.—A replevin being granted, if the person who takes the distress "avow," or if his bailiff make "conusance," and prove the distress to be lawfully taken; or if upon removal of the plaint into the Courts above, the plaintiff whose cattle were replevied, make default or do not declare, or prosecute his action, and thereby become nonsuited; or if a verdict be given against him; in any of these cases, the party distraining, that is, the defendant in replevin, shall have a writ de retorno habendo; which being a judicial writ, and not a'returnable process, if on the pluriei the sheriff return that the cattle, goods or chattels are eloigned, he shall have a scire facias against the pledges according to the stat. alWestm. 2.; and if they have nothing, then he shall have a withernam against the plaintiff's own cattle (b).

A bailiff who makes conusance may have judgment of a return, and consequently, a writ de ret. hab. grounded on such judgment F.

Of Returns irreplevisable.—Return irreplevisable is a judicial writ directed to the sheriff for the final restitution of the cattle unjustly taken by another, and so found by verdict or after nonsuit in a second deliverance (c).

If the plea be to the writ, or any other plea be tried by a verdict, or judged upon demurrer, return irreplevisable shall be awarded, and no new replevin shall be granted, nor any second deliverance by stat.

Westm. 2. s. 2. but only upon a nonsuit But if upon issue joined

the plaintiff do not appear on the trial, being called for that purpose, return irreplevisable shall not be awarded, but the party may have a writ of second deliverance.

If a man have return irreplevisable, and a beast die in the pound, he may distrain anew: so, if the beast die before judgment (r).

If a return irreplevisable be awarded, the owner of the cattle may offer the arrearages; and if the defendant refuse to deliver the distress, it being only in the nature of a pledge, the plaintiff may have detinue.

Such processes how to be executed.—By the stat. Westm. 2. if the party who distrains, convey the distress into any house, park, castle, or other place of strength, and refuse to suffer them to be replevied, the sheriff may take the posse comitatus, and on request, and refusal, may break open such house, castle, &c. and make deliverance. If the sheriff return that the beasts are inclosed in a park among savages, &c. or quod tnandavi ballivo libertatis, £sV. qui nullum dedit mihi responsum, or that the bailiff will not make deliverance of the cattle, these are not good returns; for he ought to enter the franchise and make deliverance (a).

(a) Bac. Abr. ut ante. (E. 4.) 1 (c) Ibid. (E. 6.

(4) Ibid. (E. s) I

If a man sue a replevin in the County Court without writ, and the bailiff return to the sheriff, that he cannot have view of the cattle to deliver them, the sheriff ought by inquest of the office to inquire of the truth thereof, and if it be found by a jury that the cattle were eloigned, &c. the sheriff may award a withernam to take the defendant's cattle: if he will not so do, the plaintiff shall have a writ out of Chancery directed to the sheriff rehearsing the whole matter, commanding him to award a withernam, &c. and he may have an alias, and after zpluries, and an attachment against the sheriff, if he will not execute the king's command (a).

If the sheriff return quod averia elongata sunt ad loca incognita, it is a good return, and the party must pursue his writ of withernam; but if the sheriff return averia elongata ad loca incognita infra comitatum tneum, he shall be amerced, for the law intends that he may have notice in his county (a).

Quod averia mortua sunt is a good return: so, quod nullus venit ex parte qutrentibus ad demonstranda averia; but it seems the sheriff is not obliged to require this (a).

If the sheriff come to take replevin of beasts impounded in another man's soil; if the place be inclosed and have a gate open to the inclosure, he cannot break the inclosure and enter thereby, where he may enter by the open gate: but if the owner hinder him, so that he cannot go by the open gate for fear of death, he may break the inclosure and enter there (a).

If the sheriff be shewn a stranger's goods and he take them, trespass lies against him, else the stranger could have no remedy. But it seems to have been held, that the action lies more properly against the person who shews the goods (a).

The sheriff is to return, that the cattle are eloigned, or that no person came to shew, &c. or a delivery: but he cannot return that the defendant run cepit the cattle, because it is supposed in the writ, and is the ground of it, which the sheriff cannot falsify (a).

of the Declaration.

Although it has been holden by some, that the count or declaration in replevin should be certain and particular in setting forth the num.

(«) B«. Abr. vt ante (E. 7.)

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