XVII. PRECEDENTS OF REPLEVY BONDS, &c. Replevy bond to pay the rent at the end of three months, on sect. 1. of 1 Rev. Code, p. 153. Know all men by these presents, that we C D, of &c. and DS, of &c. are held and firmly bound unto A B (the landlord) in the full and just sum of (double the rent) current money of Virginia: to be paid to the said A B, his certain attorney, his executors, adminis trators or assigns; for the true payment whereof we bind ourselves, our heirs, executors, and administrators, firmly by these presents; sealed with our seals; dated this year day of in the The condition of the above obligation is such, that whereas divers goods of the said A B (here express the kind) have been distrained by E F, sheriff (or constable) to satisfy the sum of due to C D, for arrears of rent, the costs of which distress amount to which said goods have been restored to the said A B, on his entering into bond, with sufficient security, to pay the said rent and costs of distress, amounting to at the end of three months, now if the said A B, his executors, or administrators, shall, at the end of three months next following the date hereof, pay to the said C D, his executors, administrators, or assigns, the sum of (the amount of the rent and costs) with lawful interest thereon, then the above obligation to be void, or else to remain in full force. The officer's commission (which is the same as upon a forthcoming bond) may be included in the above bond. See 1 Rev. Code, ch. 270, p. 405. If sold upon three months credit. The bond and condition to be the same as for goods sold by execution; only, in the recital, say, the goods were seized for rent. III. OF THE ACTION OF REPLEVIN. An action of replevin, the regular way of contesting the validity of the transaction, is founded upon a distress taken wrongfully and without sufficient cause: being a re-delivery of the pledge, or thing taken in distress, to the owner, upon his giving security to try the right of distress, and to restore it, if the right be adjudged against him. 3 Bl. Com. 147. It is impossible, on the limited plan of the present publication, to go fully into the law and practice of replevins; I must therefore refer to a very valuable treatise on that subject, written by lord chief baron Gilbert; and conclude this title by a reference to the act of assembly for regulating the suing out writs of replevin; with the addition of some special pleadings. Pleadings in replevin. DECLARATION. county, to wit. BD was summoned to answer A P, of a plea, why he took the goods and chattels of him the said A P, and unjustly detained them, against surety and pledges, until, &c. And whereupon the same A P, by CA, his attorney, complains, that the said B D, on the and in the day of in the year year of the commonwealth, at the county aforesaid, in a certain place there called (describe the place) took the goods and chattels following, to wit (describe the goods very particularly) of the said A P, and unjustly detained them, against surety and pledges, until, &c. whereby the same A P says, that he is prejudiced and hath damage to the value of And there fore he brings suit, &c. Avowry for rent in arrear. BD at the suit of АР In replevin. And the said B D, by F A, his attorney, comes and defends the force and injury, when &c. and well avows the taking the goods and chattels aforesaid, in the said place where, &c. and justly, &c. because he says, that the same place where the taking of the goods and chattels aforesaid is supposed to be, did contain in itself a certain piece or parcel of land, with the appurtenances, in a place called in the county aforesaid; of which said piece or parcel of land, with the appurtenances, the said B D, before the said time when, &c. was seized in his demesne as of fee, and being so thereof seized, the said B D, before the said time when, &c. to wit, on the and in the day of day of in the year year of the commonwealth, at the county aforesaid, demised the same piece or parcel of land, with the appurtenances, to the said A P, to hold to the same A P, and his assigns, from the then last past, before the date of the same demise, for the term of years, from thence next ensuing, and fully to be complete and ended, yielding and paying therefor yearly, and every year, to the said B D, or his assigns, the rent of of lawful money by virtue of which said demise, the said AP entered and was possessed of the same piece or parcel of land, with the appurtenances, and the same piece or parcel of land, with the appurtenances, for year occupied; and because the of the rent aforesaid, after the demise so made, for sum of day of the said year, on the last past, and before the taking of the goods and chattels aforesaid, were to the same BD in arrear and unpaid, the same B D well avows the taking of the goods and chattels aforesaid, in the said place where, &c. and justly, &c. for the said sum of to the same B D, in form aforesaid, being in arrear, as in the piece or parcel of land, with the appurtenances aforesaid, charged and bound; and this he is ready to verify; wherefore he prays judgment, and a return of the goods and chattels aforesaid, to be adjudged to him. Replication that the rent was not in arrear. And the said A P says, that the said B D, for the reasons before alledged, ought not to avow the taking of the goods and chattels aforesaid, in the said place where, &c. just, because he says, that the said sum of of the rent aforesaid, at the said time when, &c. were not in arrear and unpaid to the said B D, nor was any part thereof, at the said time when, &c. in arrear to the said B D, as the said B D, in his avowry aforesaid, hath above alledged; and this he prays may be inquired of by the country: and the said B D likewise, &c. Where the action of replevin is against the bailiff or person taking the distress, instead of an avowry, he makes conusance as bailiff, &c. The forms of the pleadings differ but little from the above, and may be found in almost every practical book. RESCUE. RESCOUS is an ancient French word, coming from rescourer, that is, recuperare, to recover; and signifies a forcible setting at liberty, against law, a person arrested by the process or course of law. 1 Inst. 160. If the party rescued be arrested for felony, and in the custody of a private person, the rescuer must have notice of the arrest: otherwise, if in custody of an officer. 2 H. II. 606. It is not felony to rescue a person taken on a general warrant. (1 H. H. 578) Nor unless a felony hath been actually committed. Hale's Pl. 116. Although a prison breaker may be arraigned for that offence, before he be arraigned of the crime for which he was imprisoned; yet he who rescues one imprisoned for felony cannot, according to the better opinion, be arraigned for such offence, as for a felony, till the principal offender be attainted; but he may be immediately proceeded against for a misprision. 2 Harv, 140. And therefore, if the principal die before the attainder, he shall be fined and imprisoned. Hale's Pl. 116. Also, if the principal be found not guilty, or guilty of a crime not capital, the rescuer ought to be discharged of felony; but he may be fined for the misdemeanor. 1 H. H. 598, 599. An indictment of rescous must set forth the nature and cause of the imprisonment, and the special circumstances of the fact in question. 2 Haw. 240. A hindrance of a person to be arrested, that has committed felony, is a misdemeanor, but no felony; but if the party be arrested, and then rescued, if the arrest was for felony, the rescuer is a felon; if for trespass, fineable. Hale's Pl. 116. 2 Haw. 140. Although the felony for which a man is arrested be not within clergy, yet the rescuing him is within clergy. 1 H. H. 599, 607. Process of outlawry lies on all returns of rescous. 27, sect. 113. Haw. B. 2, C. Indictment for a rescue. The jurors for, &c. upon their oath present, that on the in the year and in the day of year of the commonwealth, JP, one of the justices of the peace for the said county of did make, direct, and deliver a warrant or precept, in the said county, constable of in writing, to A C, of in the county aforesaid; by which said warrant, he the said A C, the constable aforesaid, was commanded to take the body of A O, late of yeoman, and bring and have him the said A O before the said JP (or some other justice of the peace for the county of aforesaid, if the warrant was so) to be examined by the said justice concerning (state the offence according to the fact) which said AC, the constable aforesaid, afterwards, to wit, on the at day of in the year in the county aforesaid, by virtue of the said warrant, did take and arrest him the said A O, for the cause aforesaid, and him the said A O, in his custody, by virtue of the said warrant, then and there had; and that the said A O, late of aforesaid, in the county aforesaid, yeoman, and B O, late of the same county aforesaid, yeoman, well knowing the said AO so to be arrested as aforesaid, afterwards, to wit, on the said day of in the year aforesaid, at aforesaid, in the county aforesaid, with force and arms, in and upon the said A C, the constable aforesaid, then and there being in the peace of God and of the commonwealth, and in the execution of his said office then and there being, did make an assault, and him the said A C then and there did beat, wound, and ill treat, and that the said BO him the said A O out of the custody of the said A C, and against the will of the said A C, then and there, with force and arms, unlawfully did rescue, and put at large, to go where he would; and that the said A O himself, out of the custody of the said A C, and against the will of the said A C, then and there, with force and arms, unlawfully did rescue, and escape at large, where he would go; in contempt of the laws of the commonwealth, to the great damage of the said A C, to the evil example of all others in the like case offending, and against the peace and dignity of the commonwealth. RESTITUTION OF STOLEN GOODS. "IF any felon or felons do rob or take any money, goods, or chattels, from any person within this commonwealth, whether from their person or otherwise, and thereof the said felon or felons be afterwards convicted or attainted, then the party so robbed shall be restored to his said money, goods, or chattels; and the court before whom such felon shall be convicted or attainted shall have power to award, from time to time, writs of restitution accordingly." 1 Rev. Code, ch. 75, p. 107. On a similar law in England (stat. 21 Hen. 8. c. 11.) the following determinations have been made. If the owner prefers a bill of indictment, which is found, and the felon flies, and is outlawed, the owner shall have restitution; for he gave evidence upon the indictment, which, though it be not a conviction, is the ground of the outlawry, which is an attainder. 1 Hale 545. So, if the offender is convicted on the evidence of the servant, the master shall have restitution. Ibid. If the testator is robbed, and the thief is convict upon the procurement of the executor, such executor shall have restitution. S Inst. 242. A man stole cattle, and sold them in open market; the sheriff seized the thief and the money, and he was convicted and hanged at the prosecution of the owner of the cattle, and he had restitution of the money; for though the statute gives power to the justices to award restitution of the money or goods stolen, and though the money in this case was not stolen, yet because it did arise by stealing, it shall be within the equity, though not in the very words of the statute. (Voy. 128. See Loffi's Rep. 88.) where it was held, that the proceeds of a bank note stolen might be recovered by the party robbed, in an action of trover. See also, 1 Hale 542, 3, 4. 2 Haw. 170. Kely. 48. Cro. Eliz. 661. 2 East's Cr. L. 787. If the offender be convict upon the evidence of the party robbed, or owner, he shall have restitution, though there were no fresh suit, or any inquiry by inquest touching the same; and this is the constant practice 1 H. H. 545. Yet, if it shall appear to the court that the party hath been guilty of gross neglect in prosecuting; it seemeth that in such case he shall not be intitled to restitution. 2 Harv. 171. If the owner takes his goods again of the offender, to the intent to favour him, or maintain him, this is unlawful, and punishable by fine |