the Plaint is removed, the Pone or Recordare is determin'd, and the Court fhall hold Plea on the Plaint,
and not on the Writ of Recordare ; fo that the Pledges firft found Hill remain, and the Pone or Re-
cordare fliall never abate : And for that the Court in this Cafe is feifed of the Plaint, but the Plaintiff
has no Da.
, the Court fhall make a Special Writ to the Sheriff, to warn the Plaintiff to purfue his
Plaint, fit he factum fuit. 3 H. 6. 2. a Plaint is well removed, altho'the Pone bears Date before the
Plaint enter'd. 1 R. 5. 4 So if the Plaint b; removed by Certiorari, where it ought to be Pone or Re-
cordare See 7 E. 4. 2;. So if one Plaint is removed where another ought to have been, ibid. 01?
where there is a Variance between the Plaint and the Writ. 6 E. 3. 55. S E. 3. 71. See 13 E. 1.
Admeafurement 17. ** But if the Defendant will remove the Plea in the County upon a Reple-
vin fued by Wrir, then he ought to put an evident Caufe in the Writ after the Telle of the Writ.
F. N.B. :o. (A)
Eur the Caufe may be traverfable ; for that both are the King's Courts. F. N. B. 70. (A) in the
new Notes there (,b)
And he may fhew any Caufe which induces any Favour that the Sheriff doth, or is like to do unto
the Plaintiff. F. N. B. 70. (A)
And if a Replevin be fued by Writ in any other Lord's Court than in the King's Court, then the
Plaint cannot be removed before tha Jultices by the Plaintiff, nor by the Defendant, without putting
Caufe in the Writ. F. N.B. 70 CA)
It the Plaint be removed by the Defendant by Pone, at the Day in Bank the Plaintiff fhall be called
on a Nonfuit; ..nd if he make Default, a Return (hall be awarded, aid noProcefs; but it the Plaii tiff
appears, and the Defendant makes Default, a Distringas fhall iil'ue, and after that Proccfs of Outlawry]
hut if the Plaint be removed by Pone or Recordare by the Plaintiff, there if be makes Default 'tis a
Nonfuitj if the Defendant Pone per vad. and thereon iffues a Diftrineas &c. and fo Proceis of Out-
lawry. F.N.B 70 C A) in the new Notes there (b) [bis] cites 21 tf.6. 50.
V\ hen the Paint is in the County, by Writ or w ithout W rit, or in the Court of any other, the fame
11 Kj be removed by a Writ of Recordari fac UqucLun. 2 Inft. 339.
^\rd if the Plaint be in the County the Plaintiff may remove the fame without Caufc, as has been
f.: : d ; but the Defendant cannot remove i- (as has been laid) without Caufe. But if the Plaint Le in tie
cr, neither the Plaintiff nor Defendant can remove the Plaint w ithout Cstu^, for the Pre-
judice that may coir.e thereby to the Lord. 2 Inlt ;;9 When the Plaint is in the County, and
the Ret levin fu'd there without Writ, the Plaintiff may remove the Plaint by Recordare without any
Cau'e )Ut in the \\ rit; But the Defendant mull mew Caufe, as before is faid, upon the Pone. F.N. B.
J9- t Li j
Where Beafts were taken in D. in the County of Perks, which was in the Precinct of the Honour of
V\ alii ford, where the Plaintiff had Deliverance without \\ rit ; and the Defendant (bed a Recordari
to the Sheriff of Berks Quod diftrinxerit in Feodo, &c. and at the Day the Plaintiff came, but the De-
fendant made Default: It was adjudg'd, ill, That the Plaint was well removed, altho' the Taking
was in another County, idly, That Proccfs of < (utlaw ry docs rot lie in this Cafe on the Defendant's
Default, as it does in Replevin, jdly, That yet, if he comes in by Procefs of Outlawry, he fhall be
foiccd to anfwer. 4thly, That he may avow for l>.im.i!;-j feafa t, notwithstanding the Special Caufe af-
firmed. Note, The Beafts here were driven inco the County of Berks. F. K. B. 70. (B) in the new
Notes there (a") cites Dyer 168. & 20 E. 3 91.
Note, The Words (ut dici'ur) are to be in the Writ when brought by a Common Perfon only, and
not when brought by the King. F. N. B, 70. (B) in the new Notes there (a) cites -3 E. 3. 51.
If the Caufe be removed by Plea out of the Lord's Court, (it feems of Ancient Demefne) the Caufe
is traverfable. Contra, if it be out of the Ki lg's Court. 12H.4. 12. & 51 E. 5. Fitzh. Caufe de
Remover 10. and tho' there be no Caufe, yet the Parol fhall not b.- remanded. Contra, if in Ancient
Demefne. 12 H. 4 14. For 01 a Recordari out of Ancient Demefiie, the Plea arifes wholly on the
Caufe and therefore the Plaintiff may be nonfuit in fuch Recordare ; but if it be out of any other
Court, the Plea arifes ui on the mere Matter, and therefore the Plaintiff cannot be nonfuited there.
F.N. B 70 (B) in the new Notes there (b) cites * Kelw. 115. * Kehv. 115. a. pi. 52. Cafus
incerti Tempons Anon.
This niuft Neither is ibis Ac7 prejudicial to the Lata commonly ufed, which did
be under- fWt *, crm!t t fat any Pica fhould be moved before fufiices at the Suit of the De-
ftood without c 5
Caufe fhe 34°-
It was a And to the Intent the Jujliccs may knew upon what frefh Seifrn the Lords
Doubt before ma y av0 rjo the Dijlrefs reasonable upoh 1 their Tenants, from henceforth it is
vritbinv/btt a K ree ^ a "d enac ^ c( i; That a reafouable Dijlrefs may le avow'd upon the Seifin
Limitation of any Ancefior or Predeccffbr //nee the lime that a Writ of Novel I) if Je.fi n
of Time an has run. And becaufe it chanceth fometimes, that the Tenant, after that he
Avowry has replevy d his Bcajis, doth fell or alien them, whereby Return cannot be
m'a'tie*- and ma ^ e tl " t0 tl:w ^°'^ tfi ' dt ( liJ^ raiHe ^i l t lt & e adjudg'd;
by this Act
it is provided, Quod rationabilis diftrictio poterit Advocari de Seifina AntecefTorum, vel Prajdecefib-
rum fuorum a tempore quo breve Novoe Dilleifinac currit; which Limitation in an Alfife appears
in W. 1 cap. 38. which was Poll primam Tran.sfretationem Regis H. 3. in Vafconiam, in the 5th Year
of his Reign. But this Limitation, both in tiie Affile and in the Avowry, is alter'd by a * latter Sta-
tute. 2 Inlt. 340. * Sec 32 H. tJ. cap. 2.
See(U)(W) £.3. It ts provided, f hat Sheriffs or Bailiff's from henceforth pall * not
W~* lftne only receive of the Plaintiffs Pledges tor the purfumg of the Suit before they
yet provided i tj w ^° a
Judiciafuum effectum habere debent ; Judicium non debet effe illuforium. 2 Inft. 340, 341.
In this Cafe fuch Procefs pall be awarded, that fo foon as Return tjf* The Writ
the Beafls Jhall be awarded to the Dijlrainor, the Sheriff fhall be commanded ^ / t . lie Secc " d
ly a * Judicial Writ to make Return of the Beafls unto the Diflrainor; in - ww f thjs
•which Writ it Jhall be cxprejYd, That the Sheriff Jhall not deliver them with- j& is a Writ
out Writ, making Mention of the Judgment given by the Jujlices, which can- Judicial, as
not be without a Writ 1 lining out of the Rolls of the faid fuflices. before whom here 1C a P~;
,; 1,4 , >j J ' J J ' J pears, and
the Matter was mov d, iffues out of
of the Replevin in which the Nonfuit was, and regularly the Judicial Writ ought not to vary from
the Record out of which it iffues ; and therefore, if after Nonfuit the Sheriff return Jverta elongate, anA
the Defendant upon the Withernam has other Beafls deliver d to him, the Plaintiff is to have his Secoi.d De~
liveraue of tie firft Beafls mentioned in the former Record 2 Inft. 341.
Replevin was agairfl a Prior and lis Chancn, and the Second Deliverance ivas againft the Prior and his
Commcigt.e, by which the Court faid, That they fhould commence at this Variance ; and fo lee that the
Second Delivciance Ls judicial and cannot vary. Br. Second Deliverance, pi 9. cites 21 E. 3. 40.
* The Effect therefore when be canes unto the Jufiices, and dejires Replevin of the
6f Second' **&'* be P JaU * >' We a J tldki :/ Wri U That tht Sher 'ff takin g Sure *y f or
Deliverance the Suit, dndalfoof the Beaftsor Cattle to be returned, or the Price of them
is here fct (if Return be awarded) pall deliver unto him the Bcajts or Cattle before re-
down, and turned, and the Diftrainor pall be attached to come at a certain Day before
judicial Re- tbe ./"J^ lces i a f ore li ^ c "' '*'■' ^^ ea zias 'uoved '" Prefence of the Parties.
gifter. 2 Inft. 341. And this Writ // a Supcfedeas in Law to the Sheriff, that he make no Return
to the Defendant upon the former Nonfuit. - Ialt 34'-
Replevin brought in the Hundred Court by Plaint was remov'd into C. B. by Recordari, and upon
Judgment given in C. ". Error was affign'd in 15. R. becaufe it did not appear that Pledges were found
upon the Plaint, and cued 9 Rep. ~ 1. ij ( u2"Cl>'s Cafe ; And all the Court agreed, according to that Cafe,
That it" upon the original Writ Pledges are not return'd (becaufe the Writ commands, that if Pledges
be f und, That then &c. and the not finding them is to the King's Difadvanrage, as the Lofj of his
Fine) it is Error; But whether it be (b in this Cafe was much doubted, becaufe the Sheriff may make
Replevin without finding Pledges ; And here the Error is of the Judgment in C. B. and it is no Error
in them ; and perhaps Pledges were found but not return'd, and it is at the Sheriff's Peril if he does
rot take Pledges according to the Statute Weftm. 2. cap. 2. Cro. C. 594. pi. 10. Mich. 16 Car. B R.
Tregofe v Wennel. Jo. 439 Trin 15 Car. B. k. GrolVe v. Bofcow teems to be S. C. And the
Court held, That there are 2 Sorts of Pledges, one D? Profequendo at Common Law ; and if thofe are
not found the Tudgment is erroneous, and cires (j, llfft]>\s Cale ; but that thofe may be found before the
Sheriff or in Court any Time before Judgment, but not after ; But Pledges Pe Retorno Habendo are
hy the Stature Weftm. 2. cap. t. and an Action is given againft the Sheriff, if not found ; but this make*
not the Proceedings erroneous. And of this Opinion were all the Court ; And fays, That there was a
like Cale between J^icfejS and Jtjfatl), and the lame Judgment given. Mar 46. pi. -2. Trin. 15
Car. Anon. Hems to be S. C. And the whole Court agreed, That Pledges may be found by this Court ;
for the Pledges given by the Statute of Weftm. 2. are only to give P.eir.edy againft the Sheriff ; and if
the Sheriff do not his Duty, but furceafes, we may, as at the Common Law, pur in Pledges ; and yet,
cotwithftanding, Remedy may be againlf the Sheriff upon the Statute for his NeglecL And farther it
was agreed, That Pledges may be found at any Time before Judgment as in JBoutlg and JBouilcf*
Cafe, and Dr J£ufftJ>'s Cafe, it was adjudg'd ; And Judgment was amrm'd.
If the Plain- j$ ;! d jf fr e that rcplcvy'd make Default again, or for another Caufe Return
Dtli" thC Zd °f the Viftrcfs be awarded, being now twice replevy d, the Diflrefs pall re~
bz nonfuit, or main irreplevifable.
be difcontmued, or the Writ abate, or if he prevail riot in lis Suit Return irreplevifable fhall be granted.
z Lift. -,41.
But if Return irreplevifable be granted, the Owner of the Cattle or other Goods diftrained may come
to the Defend Kit, and offer the Arrearages &j. and if the Defendant ref'ufe to deliver the Diftrefs, the
Plaintiff may have an Action of Detinue, and by that Means recover them, for they are in Nature of a
Gage. 2. Inft. 341.
The 2d De- 2ut if a Diflrefs le taken of new, and for a new Caufe, the Procefs abeve-
ZTbe Ci fed pall be obferved in the fame new Dijtrefs.
brought for the fame Dijlrefs, but it the fame Lord diftrain the fame Tenant for a Rent or other Service
behind at another Day, or for another Caufe, there the Replevin does lie, and fuch Proceeding as is
abovelaid. 1 Inft. 341.
Br. Jours, 2 In Replevin the Plaintiff' after Iffue was nonfuited, and Return
pl. 25. cites awarded, a nd the Plaintiff fued Second Deliverance, and at the Pone per
vadios the Writ was not fervd; and the Defendant pray'd, Tnat the Plain-
tiff might count againft him, becaufe he had Day in Court by the Roll
tho' he had no Day by the Writ, and if the Plaintiff has Deliverance he
will not count againft the Defendant. And Per Wil'oy, You cannot fac-
to the Sheriff to have the Writ return'd if the Plaintiff will not ; and if the
Sheriff has made Deliverance and not return'd the Writ, you fhall have
Remedy againft the Sheriff, by which he was put to fue Sicut alias &e.
Br. Averment contra &c. pl. 10. cites ci E. 3. 43.
If Return is 3. Where Return is awarded by Judgment the Plaintiff fhall not have
awarded in ot h er Action but a Second Deliverance, which is by the Statute Welt. 2.
Deliverance ca P- 2 - -^ r - Second Deliverance, pl. 11. cites 21E. 4. 6.
this is irre-
pleviable always. Per Cur. Br. Second Deliverance, pl. 11. cites 21 E. 4. 6.
4. Second Deliverance is only a Writ Judicial depending upon the firft
Original; quod nota. Br. Aid, pi. 147. cites 10 H. 7. 29.
5. Avowry was made for Damage feafant in B. where the Plaintiff in Br.Peremp-
Replevin had counted of a taking in C. and fd were at ifj'ue upon the pkace, tory, pi. S2i
and it was found for the Defendant, by which Vie had Return ; andjretf the cltss S-C>
Plaintiff had Second Deliverance by Award, as well as if it had been upon
Nonfuit : For the Statute Weft. 2. cap. 2. does not fay more but that when
Return is awarded, he Jhall have it by Writ, which fhall command him,
That he lhall not make Deli verance alter without Writ illuing out of the
Rolls, making mention of the Judgment ; and that if Return be twice
awarded, then at the 2d Time this lhall be irrepleviable. Br. Second
Deliverance, pi. 8. cites 13 H. 7. & Fitzh. Return de Avers 27.
6. The Statute of Weltminfter 2. cap. 3. gives Writ of Second Dell-
verance out of the Court where the firft Replevin was granted, and a Man
cannot have it elfew here; for il he may, then he ihaJl vary from the
Place limited as to this by the Statute. Per Saunders Ch. B. PL C. 206.
b. Pafch. 2 Eliz. in the Cafe of Scradling v. Morgan.
7. Error of a judgment in C.B. in a Second Deliverance, upon Dc- Hob - So - P'-
murrer in Pleading. The Error alfigncd was*, Becaufe there was not any , 105 * S " 9„
Writ of Second Deliverance certified, and In nullo ell Erratum beim>- utnot ' '
pleaded, it was mov'd not to be material, becaufe it is awarded on the
Roll, and the Parties h?A appear d and pleaded to it ; But it was adjud°-'d
ill, and revers'd for that Caufe ; for there ought to be a Writ, and if it
* vary from the Declaration in the Replevin it fhall be abated. Cro. J. * See (P. •)
424. Pafch. 15 Jac. B. R. Newman v. Moor.
8. 17 Car. 2. 7. has taken away the Writ of Second Deliverance in Avowry SP. Per Cur.
for Rent, but in all other Cafes is left as it was before. Introd. to Vidi- Vcnt 6 4 ia
an's Entries. the Cafe of
9. In Replevin the Defendant avow'd, and the Plaintiff pleaded in Barsh^rinsT
to the Avowry ; and after Iiiue join'd and Notice of Trial, the Plaintiff
came into Court and pray 'd that he might conlefs the Avowry with a
Relicta verificatione, the which the Court thought to be reafonable and
gave Rule to fhevv Caufe on the other Side ; Upon which, at another
Day, it was objected, That this being in the Difcretion of the Court
the Court would not do it to the Prejudice of the Party, and this
would be a Prejudice to the Defendant ; for here, this being upon aConfeffwn
he could net have Cofts upon the Statute of 1 7 Car. 2. as they might upon a
Nonfuit or Demurrer; and likewife, it being by Confeffion, the Plaintiff
might have a Second Deliverance ; lor Return irrepleviable fhall not be
awarded upon the Statute of Weft. 2. as it is held 34 E. 6. 37. And by
this the Defendant lhall be without any Fruit of hisDiitrefs, lor he may
bring Second Deliverance, and after confefs the Avowry, and fo in infinitum ■
and therefore the Court would not admit him to confefs the Avowry.
Then it was mov'd, That they might waive their Plea and Demurrer, in
which Cafe Return irreplevifable ought to be awarded upon the Statute
of Weft. 2. fed non Allocatur. After, by Confent, he brought the Mo-
ney into Court. Skin. 594. Mich. 7 W. 3. B. R. Anon.
10. Second Deliverance is given by the Statute ot~W.2. 2. in lieu of a
Second Replevin ; tor at Common Law, if the Plaintiff in Replevin
had been nonluited, he could have a new Replevin toties qttoties ; but the
Statute in lieu thereof gives a 2d Deliverance, which is a judicial Writ
of the Court where the Replevin was before brought; and if he is non-
luited in that, he is gone. And this was agreed to by all. 12 Mod. 547.
Trim 13W. 3. B. R. Prat v. Rutleis.— cites 2 Inft. 340, 341. D 41. b.
11. If Second Deliverance be brought before Retumo habendo executed,
it fhall fuperfede the Execution, if alter 'tis executed j it lhall notwith-
ftanding fetch back the Diftnfs. Per Holt Ch. J. \ 2 Mod. 547. Prat
C (P) Second
(P) Second Deliverance. Ho-w it jhall be granted.
The Opinion i. T f Defendant in EcpICtmt I,V.3 Return awarded upon Nonfuit'of
of the Court j[ tije pamttlf, IWUHJlCi) De faes a l®rit De Rcturno habendo;
Shelley Tnd «P0n tUljI CO !©tlt tf)C Sheriff returns Avc.ia eion; ra per SUlfltfntCm,
Browne) iUlQ UpGIl tijtg Q W ithernam t$J aUuttCCO, OttU UpOlt tljC fl£'lti}Crnam
was, That ti}€ Defendant has tot Catalla to him delivered of tljC