CHAP. IX. Of Injuries to Personal Property. 52 Hen.3.c.21. E. & 1. 3 Edw. 1. c. 17. FIRST, as to the injury of an unlawful taking or detain- Jurisdiction giing:* A jurisdiction was given to sheriffs to hold pleas in re-ven to sheriff's to hold pleas in replevin, by plaint, of any value, by the 52 Hen. 3, c. 21, plevin by plaint. E. & I. which enacts, that if the beasts of any man be taken, and wrongfully withholden, the sheriff, after complaint made to him, may deliver them, if they were taken out of liberties; and if the beasts were taken within any liberty, and the bailiffs of the liberty will not deliver them, the sheriff shall cause them to be delivered. And the 3 Edw. 1. c. 17. E. & I. further provides, that if any take the beasts of other, and cause them to be driven into a castle or fortress, and there withhold them against tress impounded Remedy if disgages or pledges, (whereupon the beasts be solemnly de- in a castle, &c. manded by the sheriff, or by some other bailiff of the king, at the suit of the plaintiff,), the sheriff or bailiff, taking with him the power of the shire or bailiwick, do essay to make replevin; and if any deforce him of the deliverance, or that no man be found for the lord to make deliverance, after such time as the taker shall be admonished to make deliverance by the sheriff, &c. the king, for the trespass and despite, shall cause the castle, &c. to be beaten down; and all damages that the plaintiff hath sustained in his beasts or otherwise, (after the first demand made by the sheriff, &c) shall be restored to him double, by him that took the beasts, if he have whereof, and if he have not he shall have it of the lord., And when the sheriff ought to return the king's writ to the *The provisions of the 2 W. & M. st. 1. c. 5. Eng. which have been stated (pages 3 & 11) may be referred to this head, but it was thought a more convepent arrangement to state them in that place. bailiff e. 2. s. 1 & 2. E. & I. Where plea of hors de son fee in county court, pone or recor dari to remove cause. bailiff of the lord of the castle, &c. or to any other to whom the return belongeth, if the bailiff of the franchise will not make deliverance, the sheriff shall do his office. And in like manner deliverance shall be made by attachment of plaint made without writ. And if it be done in any place where the king's writs be not current, the king, 13 Edw. 1. st.1. which is sovereign lord, shall do right. The 13 Edw. 1, st. 1. c. 2. s. 1 & 2. E. & I. recites, that lords of fees distraining their tenants for services and customs due, were many times grieved because their tenants replevied such distress; and when the lords came to avow the taka ing, their tenants disclaimed to hold of them that took such distress, and so they that distrained were amerced, and the tenants went quit; and therefore provides, that where such lords cannot obtain justice in the counties, or in such courts, as soon as they shall be attached at the suit of their tenants, a writ shall be granted to put the matter before the justices; and the cause put in the writ shall be this because such a man distrained in his fee for services and customs to him due. And because the tenant after that he hath replevied his beasts, doth sell or alien them, whereby return cannot be made unto the lord that distrained if it be adjudged; this statute (s. 3) further provides, that sheriffs or bailiffs shall not only receive of the plaintiffs pledges de prosequendo, before they make deliverance of the distress, but also de averiis retornandis, if return be awarded: and if any take pledges otherwise, he shall answer for the price of the beasts; and the lord that distraineth shall have his recovery by writ quod reddat ei tot averia, vel tot catalla; and if the bailiff be not able to restore it, his superior shall. And forasmuch as after the return so awarded, and the beasts returned, yet the party distrained used to replevy again, and so in infinitum; · it is hereby further provided, that so soon as the return of the beasts shall be awarded, the sheriff shall be comnranded by a judicial writ to make return unto the distrainer, in which writ it shall be expressed, that the sheriff shall not deliver them without writ making mention of the judgment given by the justices; which cannot be without a writ issuing out of the rolls of the said justices before whom : the s. 3. Sheriffs to take pledges de retorno habendo. Writ of second the matter was moved. Therefore when he cometh unto the justices, and desireth again replevin of the beasts, he shall have a judicial writ, that the sheriff, taking surety deliverance. of him for the prosecution of the suit, and also for a return of the beasts, &c. (or the value of them) if a return be awarded, shall deliver unto him the beasts, &c. before returned; and the distrainer shall be attached to come at a certain day before the justices, afore whom the plea shall be moved in the presence of the parties: And if he that replevied make default again, or for another cause a return be awarded, the distress shall remain irreple- Return irreples visable. But if the distress be taken of new and for a new cause, the above process shall be observed in the new distress. visable. appoint 4 deputies to make reins plevins. 1 & 2 Phí & M. c. 12. s. 3. Eng. For the more speedy delivery of cattle taken by The sheriff shall way of distress; the 1 & 2 Ph. & M. c. 12. s. 3. Eng. enacts, that every sheriff of shires, (being no cities nor towns made shires,) shall, at his first county-day, or within 2 months after he hath received his patent of office, appoint and proclaim in the shire-town, 4 deputies at the least, dwelling not above 12 miles distant from each other; which deputies shall have authority in the sheriff's name to make replevins, and deliverance of distresses; upon pain that every sheriff, for every month that he shall lack such deputy, shall forfeit £5; one half to the king, and the other to him that will sue for the same by action And the same pro c. 25. s. 3. Ir. of debt, &c. in any court of record. vision is contained in the 10 Car. 1. st. 2. c. 23. Ir: But 10 Car. 1. st. 2. the 3 Geo. 2. c. 9. s. 4. Ir. further provides, that the she- 3 G. 2. c. riff of every county (not being a city) shall, within one s. 4. Ir. month after his entering upon his office, appoint 4 deputies at the least in the most convenient parts of the county, who shall have authority in the sheriff's name to make replevins, &c.; upon pain of forfeiting for every month that he shall not have such deputies, £10. to such person as shall sue by civil bill. Provided (s. 5.) that no sheriff or sub-sheriff, shall take any fee or reward for appointing such deputies; upon pain of forfeiting 450. to be recovered by such person who shall first sue for the same by action of debt, &c. in any of the four courts in Dublin; *. 5. In distresses for rent, bond with taken. 11 Geo. 2. c.19. Ir. Such bond assignable to avot ant, &c. Dublin; one moiety to the king and the other to the in former. To prevent vexatious replevins of distresses taken for 2 sureties to be rent, the 11 Geo. 2. c. 19. s. 23. Eng. provides, that all sheriffs, and other officers having authority to grant res. 23. Fng. plevins, shall in every replevin of a distress for rent, take 36Geo. 3. c.38. in their own names, from the plaintiff, and 2 responsible persons as sureties, a bond in double the value of the goods distrained, (such value to be ascertained by the oath of one witness, or more, not interested in the distress, which oath the person granting the replevin is to administer) and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods distrained in case a return shall be awarded, before any deliverance be made of the distress: And such sheriff, &c. shall at the request and costs of the avowant, or person making conusance, assign such bond to the avowant, &c. by indorsing the same, and attesting it under his hand and seal, in the presence of 2 witnesses; which may be done without stamp, provided the assignment so indorsed be duly stamped before action brought thereon; and if the bond be forfeited, the avowant, &c. may bring an action and recover thereon in his own name; and the court where such action shall be brought may, by a rule, give relief to the parties upon such bond; and such rule shall have the effect of a defeazance to such bond. The 36 Geo. 3. c. 38. Ir. contains a provision precisely 8 Geo. 1. c. 6. similar. And the 8 Geo. 1. c. 6. s. 5 & 6. Ir. previously provided, that all seneschals, judges, or offiBond to be taken cers of inferior courts, having power to grant replevins, from all plain- should take, in their names, from the plaintiffs, a bond tiffs in replevin in inferior courts, with sufficient sureties for prosecuting of the suit, and s, 5 & 6. Ir. also for returning of the goods so replevied, if a return be awarded, before they make deliverance of the distress. And that such seneschals, &c. at the request and costs of the avowant, &c. should assign to the avowant, &c. such bond, by indorsing the same under their hands and seals; for which 6d. should be paid; and if such bond should be forfeited, the avowant, &c. might bring an action in his own name thereupon. made without tenant. s. s. 4 common law, With respect to the pleadings in replevin: The Acowry may be 21 Hen. 8. c. 19. s. 1 & 2. Eng. recites, that persons by naming the fines, &c. and secret feoffments, and leases made by their tenants to persons unknown, have been put from the 21 Hen. 8.c.19. knowledge of their tenants, upon whom they should make s 1 & 2, Eng. their avowries for their rents, &c.; and therefore provides, that wheresoever lands, &c. be holden by rents, customs, or services, if the lords distrain upon the same lands, &c. for such rents, &c. and replevin be sued, the lord may avow, or his bailiff or servant make conusance, or justify such distress upon the same, as in lands, &c. within his fee or seigniory, alleging in the said avowry, &c. the same lands, &c. to be holden of him without naming of any person certain to be tenant of the same, and without making avowry, &c. upon any person certain: And in like manner upon writ of second deliverance. And by s. 4. the said plaintiffs and defendants in writs of replegiare or second deliverance, shall have like pleas, and like Like pleas and aid-prayers (pleas of disclaimer only excepted) as though aid-prayers as at the avowry, &c. had been after the order of the common law. And by s. 5. such persons as by common law may join to the plaintiffs or defendants in replegiare, or second deliverance, as well without process as by process, shall in aid. join unto the said plaintiffs or defendants, and have like pleas and advantages (disclaimer only excepted) as they might have done by the common law. The 33 Hen. 8. 33 Hen. 8. st.1. st. 1. c. 7. Ir. is a transcript of this statute. The 11 Geo. 2. c. 19. s. 22. Eng. further provides, that all 116eo. 2.c. 19. defendants in replevin may avow, or make conusance generally, that the plaintiff in replevin, or other tenant General avoter of the lands or tenements whereon such distress was made, enjoyed the same under a grant or demise at such a certain rent, during the time wherein the rent distrained for incurred, which rent was then and still remains due; or that the place where the distress was taken was a parcel of such certain tenements held of such lordship, honor, or manor, for which tenements the rent, relief, heriot, or other service distrained for, was at the time of such distress, and still remains due; without further setting forth the grant, tenure, demise, or title s. 5, And like joinder c. 7. Ir. s. 22. Eng. for rent. of |