next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin (1), (2); an institution, which (1) See in general, Com. Dig. Replevin; Bac. Ab. Replevin and Avowry; Vin. Ab. Replevin; Gilbert on Distresses, by Hunt; Bradby on Distresses; Selw. N. P. 1155. and Wilkinson on Replevin; and see, as to distresses, the notes ante, 5 to 10. A replevin in general lies only for goods and chattels, and it cannot be maintained for taking and removing things affixed to the free hold, even though wrongfully separated therefrom by the defendant. Co. Lit. 146. b. 4 T. R. 501. But growing crops may be consider ed in the nature of goods and chattels, being under 11 Geo. II. c. 19. distrainable; therefore where a replevin bond was to prosecute for taking goods, chattels, and growing crops, and in the declaration it was set out as to proseeute for taking "goods and chattels," it was held to be no variance. 7 Moore, 231. I Bing. 6. It is said by the learned Commentator in the text, that the action of replevin obtains only in one instance of an unlawful taking, that of a wrongful distress. But lord Redesdale remarked in 1 Sch. & Lef. 327. that this definition is too narrow, and many old authorities will be found in the books, of a replevin where there had been no distress. See Vin. Ab. Replevin, B. & C. 2. Com. Dig. Replevin. Replevin is now seldom brought but for distresses for rent, damage-feasant, poor's rate, &c. Com. Dig. Action, M. 6. It may certainly be brought to try the legality of a distress for rent, provided there were no sum whatever in arrear, 5 T. R. 248. n. c. 3 B. & P. 348; but if any sum, however small, were due, and the distress were for a greater sum, or excessive, or otherwise irregular, the remedy must be by action on the case. 1 Hen Bla. 13. Replevin lies also for an illegal distress taken damage-feasant; and when the party in possession of the (2) In New-York the remedy by replevin has been greatly enlarged by the Revised Statutes, and it now extends, except in the cases specified in the act, to any wrongful taking or detention of the goods or chattels of another. Executors may maintain this action for goods wrongfully taken, whenever they could maintain trespass by statute. But replevin does not lie for property taken under a warrant for the collection of a tax, assessment, or fine, in pursuance of a statute: nor at the suit of the defendant in an execution or attachment for goods taken by virtue thereof, anless they are exempt by law from execution, c. nor at the suit of any other person, un less he has at the time a right to reduce the goods into his possession. The writ cannot be executed until an affidait is annexed to it, showing that the case does not come within any of the above exceptions, and until the plaintiff and two sureties executes a bond in double the value of the property conditioned to prosecute the suit with effect and without delay, and to return VOL. II. 18 442. land has no title thereto, this action is prefer. able to trespass for seizing the cattle, in order to put in issue the title of the party distrainign. 1 Saund. 346. c. n. 2. So, to try the legality of a distress for poor rates, 3 Wils. 1 Salk. 205. 6 East, 283. 2 Bla. Rep. 1330. 1 Burr. 585. Willes, 672. b; or of one of the several rates where the distress warrant includes a supposed arrear of several rates, 2 Moore, 417; or for sewer's rate, 6 T. R. 522. Hardw. 478. Com. Dig. Pleader, K. 26. Willes, 672. n. b.; or for a heriot, &c. Cro. Jac. 50. But if a superior court award an execution, it seems that no replevin lies for the goods taken by the sheriff by virtue of the execution, and if any person should pre tend to take out a replevin, the court would commit him for a contempt of their jurisdic tion, Gilb. Rep. 161. Willes, 672. n. b. 2 Lutw. 1191. 3 Lev. 204. 2 Stra. 1184; and where goods are taken by way of levy, as for a penalty on a conviction under a statute, it is generally in the nature of an execution, and unless replevin be given by the statute this action will not lie, the conviction being conclusive, and its legality not questionable in replevin, 2 New. Rep. 399. Bac. Ab. Replevin, (C) Com. Dig. Action, M. 6. Willes, 673. n b. 1 Brod. & Bing. 57; but where a special inferior jurisdiction is given to justices, &c. and they exceed it in some cases, re. plevin lies. Willes, 672. n. b. This action is also maintainable for goods distrained under a warrant from commissioners authorized by act of parliament to levy rates for specific local purposes, with power of distress. 1 Swanst. 304. 1 B. & B. 57. The plaintiff ought to have either an abso lute or special property in the goods in ques tion, vested in him at the time of the taking. Bro. Bepl. pl. 8. 20. A mere possessory right the property if a return be adjudged, and to pay the amount that may be recovered. The sheriff then delivers the property to the plaintiff, and gives notice to the defendant thereof, and of the time at which he is to ap pear in court to resist the plaintiff's claim. The sheriff, after demand of delivery of the goods, may break open any house in which they are concealed. If he cannot obtain the goods, he arrests the defendant until he enters into bond with two sureties to abide the order of the court, and to put in special bail. If the defendant claims property in the goods, and pays to the sheriff his fees and the fees of a jury to try the claim, he may have his title tried before such jury; and in the meantime the goods remain in the custody of the sheriff. If the jury find for the defendant, he receives back again the goods: if the jury find for the plaintiff, the plaintiff, on refunding the expenses and indemnifying the sheriff, re ceives the goods. See the other proceedings, 2 R. S. 522, &c the miror (c) ascribes to Glanvil, chief justice to king Henry the Second This obtains only in one instance of an unlawful taking, that of a wrong ful distress (3): and this and the action of detinue (of which I shall presently say more) are almost the only actions, in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And, since it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it there[145] fore contents itself in general with restoring, not the thing itself, but a pecuniary equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous (d), in case they were going to the pound, or by writ de parco fracto, or pound-breach (e), in case they were actually impounded. He may also at his option bring an action on the case for this injury: and shall therein, if (c) c. 2, ◊ 6. (d) F. N. B. 101. is not sufficient. 10 Mod. 25. If the goods of a feme sole are taken, and she marry, the husband alone may sue the replevin, or the wife may join, R. T. Hardw. 119; but it must appear on the face of the record that she held an interest in the things taken. 2 New. R. 402. Executors may maintain replevin for the goods of the testator taken in his lifetime. Bro. Repl. pl. 59. And parties who have a joint interest in the distress may join in the replevin, Co. Lit. 145. b.; but where the interest is several, there ought to be several replevins. Bro. Abr. Repl. pl. 12. While the goods distrained for rent remain unsold, the tenant may replevy, although the five days allowed by the act have expired, and although they have been appraised and removed off the premises. 5 Taunt. 451. 1 Marsh. 135. I Chitty R. 196. a. Replevin Bonds.-Two modes have been adopted by sheriffs or other officers making replevins with respect to bonds; the first to take a bond from the pledges or sureties, Dalton's Sheriff, 438, 9. Lord Raym. 278. Lutw, 687; the other method has been to take a bond from the party replevying. In all replevin bonds there are several independent conditions; one to prosecute, another to return the goods replevied, and a third to indemnify the sheriff, and a breach may be assigned upon any of these distinct conditions. 7 Mod. 380. Or the breach may be assigned thus, "that defendant did not prosecute his suit with effect, and hath not made return." 3 M. & S. 180. A plaintiff must succeed in his suit, or he does not "prosecute with effect." 7 Mod. 380. The sheriff may assign the bond to the avowant or cognizor, who may maintain an action (e) Ibid. 100. upon it in the superior courts. 5 T. R. 195. The sureties are liable to the amount of the penalty in the bond and costs of suit thereon. 1 Taunt. 218. They will not be discharged by time being given to the plaintiff in reple vin, 2 Marsh. 81. 6 Taunt. 379. S. C.; nor by the execution of a writ of inquiry, under the 17 Car. II. c. 19. s. 23. 2 Brod. & Bing. 107. When the defendant has obtained judgment, if the sheriff return to the writ de retorno ha bendo, that the cattle are eloigned, the defend ant may, if the sheriff has omitted to take sufficient pledges, Cro. Car. 446. Sir W. Jones, 278. 7 Mod. 387. Bull. N. P. 60. 3 Stark. 168. immediately without any previous pro ceedings, commence an action on the case against him. Ib. But the court will not attach him. 2 T. R. 617. In such action double the value of the goods distrained may be recovered against the sheriff, 2 H. Bl. 547, though it had been held in a previous case, that he should recover a full compensation in damages, though the sum exceeded in amount double the value the amount of the penalty in a replevin bond. 2 H. Bl. 36. See however a later case, 4 T. R. 433, where the value of the goods only was given. The court has, upon the sheriff and his deputy refusing to disclose the names of the pledges taken, made an order on them, to pay the defendant in replevin the damages and costs recovered by him. 2 Bl. Rep. 1220. (3) This position is not correct, replevin lies in other cases of illegal taking. See cases 1 Chitty on Pl. 147 4th ed. ante, 145 notes 1, 2. the distress were taken for rent, recover treble damages (ƒ). The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of res cous (g): or, if the sheriff makes a return of such rescous to the cour out of which the process issued, the rescuer will be punished by attachment (h). An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a re-delivery of the pledge (i), or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him (k): after which the distrainor may keep it, till tender made of sufficient amends. but must then re-deliver it to the owner (1). And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin, replegiarı facias (m); which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and "afterwards to do jus- [*147] sice in respect of the matter in dispute in his own county-court. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner to his great loss and damage (2). For which reason the statute of Marlbridge (o) directs, that (without suing a writ out of the chancery) the sheriff immediately, upon plaint to him made, shall proceed to replevy the goods. And, for the greater ease of the parties, it is farther provided by statute 1. P. & M. c. 12. that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. (Upon application therefore, either to the sheriff or one of his said deputies, security is to be given, in pursuance of the statute of Westm. 2. 13 Edw. I. c 2. 1. That the party replevying will pursue his action against the distrainor, for which purpose he puts in plegios de prosequendo, or pledges to prosecute; and, 2. That if the right be determined against him, he will return the distress again, for which purpose he is also bound to find plegios de retorno habendo. Besides these pledges, the sufficiency of which is discretionary and at the peril of the sheriff, the statute 11 Geo. II. c. 19. requires that the officer, granting a replevin on a distress for rent, shall take a bond with two sureties in a sum of double the value of the goods distrained, conditioned to prosecute the suit with effect and without delay, and for return of the goods; which bond shall be assigned to the avowant or person making cognizance, on request made to the officer; and, if forfeited, may be sued in the name of the assignee (4). And certainly, as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such sufficient sureties as by retaining the very distress, which might frequently occasion great inconvenience to the owner; and that the law never wantonly inflicts. The sheriff, on receiving such security, is immediately, by his officers, to cause the chattels taken in distress to be restored into the possession of the party distrained (f) Stat. 2 W. & M. Sess. 1, c. 5. (g) 6 Mod. 211. (A) Cro. Jac. 419. Salk. 586. (i) See page 13. (k) Co. Litt 145. (7) S Rep. 147. (n) 2 Inst. 139. (0) 52 Hen. III. c. 21. (4) See accordingly, 2 R. S. 526, § 27 upon; unless the distrainor claims a property in the goods so ta[148] ken. For if, by this method of distress, the distrainor happens to come again into possession of his own property in goods which before he had lost, the law allows him to keep them, without any reference to the manner by which he thus has gained possession; being a kind of personal remitter (o). If therefore the distrainor claims any such property, the party replevying must sue out a writ de proprietate probanda, in which the sheriff is to try, by an inquest, in whom the property previous to the distress subsisted (p). And if it be found to be in the distrainor, the sheriff can proceed no farther; but must return the claim of property to the court of king's bench or common pleas, to be there farther prosecuted, if thought advisable, and there finally determined (q) (5). : But if no claim of property be put in, or if (upon trial) the sheriff's inquest determines it against the distrainor; then the sheriff' is to replevy the goods (making use of even force, if the distrainor makes resistance) (r), in case the goods be found within his county. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown and thereupon the party replevying shall have a writ of capias in withernam, in vetito( or, more properly, repetito) namio; a term which signifies a second or reciprocal distress (s), in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods of the distrainor, in lieu of the distress formerly taken, and eloigned, or withheld from the owner (t). So that here is now distress against distress; one being taken to answer the other, by way of reprisal (u), and as a punishment for the illegal behaviour of the original distrainor. For which reason goods taken in withernam cannot be replevied till the original distress is forthcoming (v). [*149] *But in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which may be prosecuted in the county-court, be the distress of what value it may (w). But either party may remove it to the superior courts of king's bench or common pleas, by writ of recordari or pone (x); the plaintiff at pleasure, the defendant upon reasonable cause (y); and also, if in the course of proceeding any right of freehold comes in question, the sheriff can proceed no farther (z); so that it is usual to carry it up in the first instance to the courts of Westminster-hall (6). Upon this action brought, and declaration delivered, the distrainor, who is now the defend travels) is said to have puzzled a pragmatical professor in the university of Bruges in Flanders; who gave a universal challenge to dispute with any person in any science; in omni scibili, et da (s) Smith's Commonw, b. 3, c. 10. 2 Inst. 141. quolibet ente. Upon which Mr. More sent him this Hickes's Thesaur. 164. (t) F. N. B. 69. 73. (u) In the old northern languages the word withernam is used as equivalent to reprisals. (Stiernhook, de jure Sueon. 1. 1, c. 10.) (v) Raym. 475. The substance of this rule composed the terms of that famous question, with which sir Thomas More (when a student on his (5) See note 2. p. 145: the return of an eloignment would not be allowed under the Revised Statutes and the capias in withernam is abolished, (2 R. S. 533, 63,) as also all writs of second deliverance. Id. (6) In New-York. writs of replevin issue question, "utrum averia carucae, capta in velito namio, sint irreplegibilia," whether beasts of the plough, taken in withernam, are incapable of being replevied. (Hoddesd. c. 5.) (w) 2 Inst. 139. (y) F. N. B. 69, 70. from, and are returnable only into the Supreme Court or Common Pleas Court: and are remov able by either party from the Common Pleas to the Supreme Court by certiorari as other per sonal actions. (2 R. S. 533, § 68. 381 ò 4: 523, § 6.) ant, makes avowry; that is, he avows taking the distress in his own right. or the right of his wife (a); and sets forth the reason of it, as for rent arrere damage done, or other cause: or else, if he justifies in another's right as his bailiff or servant, he is said to make cognizance; that is, he acknow ledges the taking, but insists that such taking, was legal, as he acted by the command of one who had right to distrain; and on the truth and legal merits of this avowry or cognizance the cause is determined. If it be determined for the plaintiff'; viz. that the distress was wrongfully taken; he has already got his goods back into his own possession, and shall keep them, and moreover recover damages (b). But if the defendant prevails, by the default or nonsuit of the plaintiff, then he shall have a writ de retorno habendo, whereby the goods or chattels (which were distrained and then replevied) are returned again into his custody; to be sold, or otherwise disposed of, as if no replevin hath been made. And at the common law, the plaintiff might have brought another replevin, and so in infinitum to the intolerable vexation of the defendant. Wherefore the statute *of Westm. 2. c. 2. restrains the plaintiff, when nonsuited, from [*150] suing out any fresh replevin; but allows him a judicial writ, issuing out of the original record, and called a writ of second deliverance, in order to have the same distress again delivered to him, on giving the like security as before. And, if the plaintiff be a second time nonsuit, or if the defendant has judgment upon verdict or demurrer in the first replevin, he shall have a writ of return irreplevisable; after which no writ of second deliverance shall be allowed (c). But in case of a distress for rent arrere, the writ of second deliverance is in effect (d) taken away by statute 17 Car. II. c. 7, which directs that, if the plaintiff be nonsuit before issue joined, then upon suggestion made on the record in nature of an avowry or cognizance; or if judgment be given against him on demurrer, then, without any such suggestion, the defendant may have a writ to inquire into the value of the distress by a jury, and shall recover the amount of it in damages, if less than the arrear of rent; or, if more, then so much as shall be equal to such arrear, with costs: or, if the nonsuit be after issue joined, or if a verdict be against the plaintiff, then the jury impanelled to try the cause shall assess such arrears for the defendant: and if (in any of these cases) the distress be insufficient to answer the arrears distrained for, the defendant may take a farther distress or distresses (e) (7). But otherwise, if, pending a replevin for a former distress, a man distrains again for the same rent or service, then the party is not driven to his action of replevin, but shall have a writ of recaption (f), and recover damages for the defendant the re-distrainor's contempt of the process of the law. In like manner, other remedies for other unlawful takings of a man's goods consist only in recovering a satisfaction in damages. And if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury; which, though it doth not amount to felony unless it be done animo furandi, is nevertheless a trans (a) 2 Saund. 195. (b) F. N. B. 69. (c) 2 Inst. 340. (7) See 2 R. S. 531, 56: similar to 17 Cer. II. c. 7. But by the Revised Statutes, 2 vol. 532, § 62, when judgment passes against the plaintiff in replevin by default or other wise, and a return of the property is awarded; (d) 1 Ventr. 64. (e) Stat. 17 Car. II. c. 7. no writ of second deliverance, nor other wr of replevin, is allowed: but the plaintiff may bring an action of trover or trespass, unless the judgment was on the merits. |