this case, Lord Raymond, Powys, and Fortescue, Js., concurred in the propriety of the absolute judgment of ouster, which had been given in the former case; Raymond, C. J. observing, that he believed no precedent could be shown, where the judgment was ever entered in any other manner. And Fortescue, J., added, that a quo warranto was the king's writ of right, and as against the crown want of swearing in was as much as want of an election; the jury, therefore, having found in effect, that he had no title to the office, it was of course, that he should be excluded from it by the judgment of the court. He remarked, also, that he had never heard of any other judgment, and that it was reasonable to exclude a person who appeared to have no title. Reynolds, J., however, expressed an opinion, that there ought properly to have been a judgment of ouster, quousque, only, upon the finding of the jury, in R. v. Pindar. And in the case of R. v. Clarke, (2 East, 75,) who, having been ill sworn in, had afterwards disclaimed upon an information filed against him for usurping the office; and though having submitted to a judgment of complete ouster, he was held to be concluded from setting up again his original right, yet Lord Kenyon intimated, that there might have been a judgment quousque only against him. The same point was again agitated in R. v. Courtenay, 9 East, 246; the court, however, being of opinion, that the defendant had been well elected and sworn in, were not required to pronounce any opinion as to the nature of the judgment; but they said that, after diligent search, they could not find, upon the files of the court, any precedent of a judgment of ouster quousque. In the case of The King v. Biddle, Str. 952, the defendant confessed an usurpation during part of the time charged in the information; and from that time insisted on an election. The prosecutor having entered up judgment of ouster; the court ordered, that all the judgment, except that of capiatur pro fine, might be expunged, observing, that it would be hard that a subsequent good election should be done away, as it would be by the judgment of ouster. And they distinguished it from Pindar's case, where the party had been guilty of an usurpation during all the time charged in the information. A quo warranto information has, of late years, been considered merely in the nature of a civil proceeding; and consequently the court will grant a new trial (s). The office of register and clerk of the Court of Requests, at Bristol, which was created by statute, is not an office within the meaning of the stat. 9 Ann. c. 20: and, therefore, although judgment had been given for the defendant upon a quo warranto for using that office; yet it was holden (t), that he was not entitled to costs. So the office of bailiff (the returning-officer), in a borough sending burgesses to parliament (u), but not a town corporate.

(s) R. v. Francis, 2 T. R. 484. (t) R. v. Hall, 1 B. & C. 237.

(u) Borough of Stockbridge, R. v. M'Kay, 5 B. & C. 640.

CHAPTER XXXIII.

REPLEVIN.

I. In what Cases a Replevin may be maintained, p. 1185.
II. Of the Proceedings in Replevin at Common Law, and the
Alterations made therin by Statute, p. 1187.

III. Of the Duty of the Sheriff in the Execution of the Replevin, p. 1189; Of the Pledges, p. 1189; Bond from the Party Replevying, p. 1189; Sureties under Stat. 11 Geo. II. c. 19, s. 23, p. 1190.

IV. Of Claiming Property, and of the Writ de Proprietate probandâ, p. 1195.

V. Of the Process for removing the Cause out of the Inferior Court, p. 1195; and herein of the Writs of Pone, Recordari facias loquelam, and Accedas ad Curiam, p. 1195, 6, 7.

VI. By whom a Replevin may be maintained, p. 1197.
VII. Of the Declaration, p. 1198.

VIII. Of the Pleadings:

1. Of Pleas in Abatement, and herein of the Plea of Cepit in alio loco, p. 1201.

2. General Issue, p. 1202.

3. Of the Avowry and Cognizance :

1. General Rules, &c. relating to the Avowry, and herein of the New Rules, p. 1203.

2. Of the Avowry for Damage feasant, p. 1204; Pleas in Bar, p. 1205; Escape through defect of Fences, p. 1205; Right of Common, p. 1206; Tender of Amends, p. 1207.

3. Of the Avowry for Rent Arrear, p. 1208; Pleas in Bar, p. 1210; Eviction, p. 1210; Non Dimisit, Non Tenuit, p. 1210; Riens in Arrear, p. 1211; Tender of Arrears, p. 1212.

4. Property, p. 1212.

5. Statutes:

1. Of Limitations, p. 1213.
2. Of Set-off, p. 1213.

IX. Of the Judgment:

1. For the Plaintiff, p. 1214.

2. For the Defendant, p. 1214.

X. Of the Costs, p. 1218.

I. In what Cases a Replevin may be maintained. IT is said, in 3 Bl. Com. 147, that a replevin is founded on a distress taken wrongfully and without sufficient cause (1); whence it may be inferred that the learned commentator supposed that this remedy was confined to a taking by distress. But, (as it was justly remarked by Lord Redesdale, Ch., in Shannon v. Shannon, 1 Sch.. & Lef. 327,) this definition of replevin is too narrow, and many old authorities will be found in the books, of a replevin having been brought where there was not any distress (2). The writ, as was

(1) Although, generally speaking, wherever there is a distress, replevin may be maintained, yet this rule is not universally true; for it appears from R. v. Monkhouse, Str. 1184, that the court directed an attachment to be issued against an under-sheriff, for granting a replevin of goods distrained on a conviction for deer-stealing. So a replevin will not lie upon a distress made for a duty to the crown. R. v. Oliver, Bunb. 14. See note by editor of Willes, in Pearson v. Roberts, Willes, 672. But where the plaintiff brought replevin for goods levied under a warrant of distress, for an assessment made by a special sessions under the Highway Act, 13 Geo. III. c. 78, s. 47, on the ground of the premises, for which he was assessed, being situated without the township which was liable to repair the road; the court refused to set aside the proceedings. Fenton v. Boyle, 2 Bos. & Pul. N. R. 399. Where a party having no stock in trade, is rated as an inhabitant of a parish, his remedy is by appeal to the quarter sessions. Replevin does not lie for a distress under such a rate; for, being an inhabitant, he is within the jurisdiction of the justices, and the rate is a question of amount for the sessions. Marshall v. Pitman, 9 Bingh. 595, distinguishing Milward v. Caffin, 2 Bl. R. 1330, where there was an entire want of jurisdiction. See post, Sibbald v. Roderick, p. 1186.

(2) Replegiare est, rem apud alium detentam, cautione legitima interpositá redimere. Spelm. Gloss. 485. Quant les biens ou chattels d'aucun sont prises, il avera per common ley un breve hors de Chancery commandant, &c. Doct. Plac. Replevin, 313. Replevin lies of all goods and chattels unlawfully taken. Comyn's Dig. Replevin (A.). A replevin is a judicial writ to the sheriff, complaining of an unjust taking and detention of goods and chattels. Gilb. Repl. 58. Note, by the learned reporters

further remarked by Lord Redesdale, is founded on a taking, and the right which the party from whom the goods are taken, has to have them restored to him, until the question of title to the goods is determined. The person who takes them may claim property in them; and if he does, the sheriff cannot deliver the goods until the question is tried; but this claim of property can be made only where there has been a taking; and it appeared to him that the writ of replevin was calculated in such cases to supply the place of detinue or trover, and to prevent the party from whom the goods were taken being put to those actions, except in cases where the other could show property. In a recent case (a) it was holden, that replevin will lie where goods have been taken under an improper conviction; for as was observed by Parke, B., though in ordinary practice it is applied only to a distress for rent, a replevin is at common law a remedy applicable in all cases where goods are improperly taken.

A replevin lies for goods and chattels only (b); hence it cannot be maintained for things affixed to the freehold. In a replevin for taking goods and chattels (c), to wit, one kiln, &c, of the plaintiff, to which there was an avowry for rent in arrear, the plaintiff, in his plea in bar, said, that the lime-kiln, before and at the said time, when, &c., was affixed to the freehold of the piece or parcel of ground on which, &c., and as such was by law exempt from any distress for the arrears of rent in the avowry mentioned, and ought not to have been distrained for the same, &c. To this plea, the defendant demurred generally. After argument, the court were of opinion, that the plea in bar could not be supported, because it was a departure from the declaration. That the declaration treating the lime-kiln as a chattel, might possibly be true; because lime may be burnt in a portable oven, and the kiln need not therefore necessarily be affixed to the freehold; but as the plea in bar stated it to be affixed to the freehold, it was inconsistent with the declaration.

Where some poor-rates had not been duly published on the Sunday following the allowance, according to stat. 17 Geo. II. c. 3, s. 1, and a warrant of distress issued for a single sum made up of these rates and of others which were regular; it was holden (d), that the warrant did not justify the distress; and the replevin which had been brought for taking cattle under the warrant was (a) George v.Chambers, 11 M. & W. 149. (b) 1 Inst. 145, b.

(c) Niblet v. Smith, 4 T. R. 504.

(d) Sibbald v. Roderick, 11 A. & E. 38 3 P. & D. 106.

of the Irish Chancery Cases, temp. Lord Redesdale.

See also Bull.

N. P. B. 9, c. 4.-"Replevin may be brought in any case where a man has had his goods taken from him by another." See also 1 Inst. 145, b., and George v. Chambers, 11 M. & W. 149.

sustained, although it was objected, that the plaintiff should have appealed.

II. Of the Proceedings in Replevin at Common Law, and the

Alterations made therein by Statute.

Ar the common law (e), the proceedings in replevin commenced with suing out of the Court of Chancery a writ of replevin, directed to the sheriff of the county where the distress was taken. Generally, writs directed to the sheriff gave him a ministerial power only; but the writ of replevin was in the nature of a justicies, not returnable, and gave the sheriff a judicial authority to determine, in the county court, the matter in question between the parties. Thus distinguished from other writs, it was called festinum remedium, a speedy remedy; but, notwithstanding the advantage accruing to the subject, from the circumstance of its being a justicial writ, it was frequently attended with so much delay as to require the interposition of the legislature. This delay arose from several causes: 1. From the necessity of an application to Chancery, when the distress was taken in a distant part of the kingdom. To obviate this inconvenience, it is provided by stat. 52 Hen. III. (commonly called the statute of Marlebridge,) c. 21, that if the beasts (3) 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. This statute extends to goods distrained for a poor-rate, and the sheriff must replevy such goods (f) upon being required; and an action may be maintained against him for refusing to do so. To make this remedy more effectual, and to render the delivery of distresses more expeditious, it is enacted by stat. 1 & 2 Ph. & Ma. c. 12, s. 3, that "Every sheriff of shires, not being cities, or towns made shires, shall, at his first county day, or within two months next after he has received his patent of office, appoint and proclaim, in the shiretown, four deputies at the least, dwelling not above twelve miles one from the other, who shall have authority, in the sheriff's name, to make replevins and delivery of distresses, in such manner and form as the sheriffs may and ought to do. By force of the statute of Marlebridge (g), (52 Hen. III. c. 21,) the sheriff may hold plea in replevin by plaint of any value, and this plaint may be taken out of

(e) 2 Inst. 140.

(f) Sabourin v. Marshall, 3 B. & Ad.

440.

(g) 2 Inst. 139.

(3) The word in the statute is "averia," "beasts;" but it is usual for the sheriff to hold plea of replevin by plaint of other goods and chattels as well as cattle.

VOL. II.

2 K