Replevin does not lie where goods are delivered on a contract or taken in and a tender of payment is afterwards made but refused, the tenant may maintain replevin in respect of the unlawful detainer; for after the tender made, the detention was a new taking a. But as replevin lies only where the goods are unlawfully taken, it has been held that it cannot be maintained for goods unjustly detained by a party to whom they have been delivered upon a contract, as goods delivered to a carrier b. And where an act of parliament orders a distress and sale of goods as for a execution. penalty under a conviction, it is in the nature of an execution, and replevin will not lie unless given by the statute; for the legality of the conviction cannot be questioned in replevin ©. Therefore where a magistrate, having competent jurisdiction, adjudges as under the statute of labourers, 20 Geo. II. c. 19. s. 1, and on refusal to pay issues a warrant of distress and sale; the goods taken under it are not repleviable d. So, goods taken in execution awarded by a higher court are not repleviable; and it seems that an attachment would lie for taking out a replevin in such case e. It seems, however, to be doubtful whether goods taken under a warrant of distress granted by the commissioners of sewers f; or under a warrant of distress for an assessment under the highway act, 13 Geo. III. c. 78. s. 47, may not be replevied §. SECTION II. BY AND AGAINST WHOM REPLEVIN MAY BE MAINTAINED. The plain To enable a party to maintain an action of replevin, he must have either a general or special property in the goods at the tiff must have a pro time of the taking. If several persons have separate and distinct interests in the property distrained, as if the goods of several persons be taken, they cannot join in this action, each must sue separately; but copartners, joint-tenants, and tenants in common should join. If the goods of a feme sole be taken and she marries, the husband alone may have replevin, for the property being personal is transferred by the marriage and vests absolutely in the husband d; or the husband and wife may join. Executors may have replevin for the goods of the testator taken in his life-time. This action lies as well against the party who directs the taking of the goods as against the party who has actually taken them, or against both jointly 8. In this action both parties are considered as actors, the plaintiff, in respect of his action, and the defendant in respect of his having made the distress (being a claim of right, and the avowry in the nature of a declaration) 1. perty in the goods. SECTION III. MODE OF PROCEEDING IN REPLEVIN. REPLEVIN may be either by an original writ sued out of the or by plaint, pursuant to the statute of Marlbridge, 52 Hen. 3. C. 21., which enacts, 66 that if the beasts of any person are taken and unjustly detained, the sheriff, after complaint made to him, may deliver them without the hindrance or refusal of the person who shall have taken the beasts." Replevin by writ is now quite obsolete; replevin by plaint is therefore the mode resorted to in modern practice. It has been held, that a distress made for poor's rate is within the statute of Marlbridge, and that the sheriff must replevy goods distrained by plaint1. The usual course is for the owner of * Co. Lit. 145. b. Id. Gilb. Rep. 153. с B. N. P. 53. Gilb. 156. F. N. B. 69. f Gilb. Rep. 156. & Id. 152. h See I Saund. 347. b. Proceedings in the county court. the goods taken to apply to the sheriff or to one of his deputies a to have the goods replevied. The stat. West. 2. c. 2. requires that the sheriff shall take of the party replevying pledges with sureties to prosecute his suit, or return the cattle if awarded. The sufficiency of the pledges being in the discretion of the sheriffs, and much inconvenience having arisen from their negligence in taking securities, it was enacted, by 11 Geo. II. c. 19. s. 23, for the prevention of vexatious replevins of distresses taken for rent, "that sheriffs and other officers having authority to grant replevins, shall in every replevin of distress for rent, before any deliverance of the distress, take in their own names from the plaintiff and two responsible persons, as sureties, a bond in double the value of the goods, conditioned for prosecuting the suit with effect, and without delay, and for duly returning the distress in case a return shall be awarded." The latter statute is confined to distresses for rent. When the distress is not for rent, the security may be a bond pursuant to the stat. of Westminster; and though it is not assignable, the sheriff may permit the defendant to sue upon it in his name. Where the replevin is in respect of a distress for rent, the security must be pursuant to the provisions of the statute, by bond, with two sureties in double the value of the goods distrained; which bond the sheriff is ordered to assign at the request of the avowant, who may sue upon it in his own name. The sheriff is not liable to an attachment for neglecting to take a replevin bond; the only remedy against him, is by an action on the case b Upon the plaint being made, and the requisite securities given, the sheriff is obliged to replevy the goods, which he does either by granting his warrant, or directing his bailiff to deliver them. When the replevin is executed, the defendant should be summoned to appear the next court day, in the county court, in a The stat. 1 P. & M. c. 72. enacts, that the sheriff shall appoint at least four deputies in each county for the purpose of making replevins. Evans v. Brander, 2 H. Bl. 547. Tesseyman v. Gildart, I N. R. 292. Rex v. Lewis, 2 T. R. 617.; but see Richards v. Acton, 2 Bl. 1220. which the sheriff is authorized by stat. 52 Hen. 3. c. 21. to hold pleas on replevin whatever may be the value of the subject in dispute. Regularly the plaint should be entered in that court before the replevin is issued, for before the entry of the plaint there is no cause in court a. The entry of the plaint is, however, the act of the sheriff, and the court of King's Bench will not on motion compel the sheriff to enter the plaint, though perhaps they might do so by mandamus b. When the defendant claims the beasts or goods as his own property, the jurisdiction of the sheriff is at an end, he cannot replevy them; the course which the plaintiff should, under such circumstances pursue, is to sue out a writ de proprietate probanda, on which the sheriff may hold an inquest of office; and if the inquest find for the defendant, there is an end of the replevin by plaint; if for the plaintiff, the sheriff is to make deliverance". When the plaint is entered, the subsequent proceedings in the county court are analogous to those in the courts above. It rarely, however, happens that any suit of importance is determined in an inferior court, as it may be removed without any cause shewn by either of the parties, into the superior courts, at any time before final judgment. If the replevin be commenced in a county court, it may be Removing removed by a writ of re. fa. lo., (recordari facias loquelam,) when the plaint. the suit is by plaint; or by a pone loquelam, when the suit is by writ, which is now obsolete; when the suit is commenced in any other inferior court, not of record, including courts in ancient demesne, it is removable by a writ of accedas ad curiam, which is a species of recordari; and when in an inferior court of record, it is removed by a certiorari. A plaint in replevin cannot be removed from a county court to a superior court, by certiorari, the proper mode being by a re. fa. lo. A re. fa. lo. stays a Tesseyman. Gildart, supra. Ex parte Boyle, 2 D. & R. 14. See Wilkinson on Rep. 16. Woodf. L. & T. 706. 4 It does not fall within the design of this work to enter minutely into the proceedings in replevin in inferior courts. The reader who is desirous of further information 206. Edwards v. Bowen, 5 B. & C. all further proceedings in the county court, though delivered after interlocutory judgment, if before final judgment a. When the replevin is removed to the court above, and an appearance entered, the plaintiff must declare in due time, or he will be liable to be non-prossed, as in any other action b. Venue. SECTION IV. THE DECLARATION. THERE are two modes of declaring in this action: namely, in the detinet or the detinuit. The former, where the goods are still detained by the party who took them, wherefore he detains the goods, &c., in which the plaintiff sought to recover back the goods detained, as well as damages for the detention and unlawful taking; the latter, where the goods have been redelivered to the plaintiff upon replevin, and he seeks damages for the taking. The former mode is, however, now obsolete, no proceeding in replevin appears in any of the books which has not commenced either by writ requiring the sheriff to cause the goods of the plaintiff to be replevied to him, or by plaint in the sheriff's court, the immediate process upon which is a precept to replevy the goods of the party levying the plaint; both which proceedings are in rem, i. e. to have the goods again, and not for the recovery of damages only." e 66 The uniformity of process act, 2 W. IV. c. 39, does not extend to actions of replevin removed to a superior court. The declaration must be entitled either of the term in which the writ is returnable, or of that in which the declaration is delivered; if entitled of an intermediate term, it will be irregular, and the defendant may sign judgment, though it seems that he cannot set aside the proceedings d. The venue in this action is local and material, but it may be laid in the county where the chattels were originally taken, or in any other county in which they were in the de a Bevan v. Prothesk, 2 Burr. b See 1 Tidd, 419. 2 Arch. Pr. 79. Fletcher v. Wilkins, 6 East, 283. Smith v. Muller, 3 T. R. 624. Topping v. Fuge, 5 Taunt. 774. Stork v. Herbert, 1 Wils. 242. |