Deliverance lies to bring the Matter into Queltion : But in the Cafe oi
a Demurrer and Verdict, the Matter is determined by Law ; and in the
Cafe of a Confellion, it is determined by the Copi iflioti of the Party.
2 L. P. R. 457. cites Mich. 7 \V. 3. B. R. Sec 2 Inft. 340, 341. and
"VYeitm. 2. c. 2.
(P. 3) Fa-
3 levin. 7
(P. 3) ViVr'tancc between Replevin and Second De-
liverance.
1. TN Second Deliverance, the Plaintiff counted vf a Taking in another
J[ Place than where he counted in the Replevin : And yet good ; and
the Defendant maintained the firlt Place, and io thev were at Iffue ;
quod nota. Br. Second Deliverance, pi. 13. cites 17 E. 2. and Fitzh.
Replevin, pi. 22.
2. Replevin of Beajls taken in D. in a Place called S. &c. the De/en- J& ft
(hint [aid that he took them in P. in a Pine called F. and not in S. Prijl ; c j te ' s s.C.—
Judgment of the Writ, and made Avowry to have Return; and after the * The Se-
Plaintiff was Nonfuited, and then the /'/ 'aintiff fucd Second Deliverance ofcond Deh-
his Beads, taken in D. in the Place called IV. and the Defendant pleaded to ve !'. an< T U a
1 ix- r 1 Tr r 1 1 r> ; r, â– r, ; ludicial, and
the l\r it for the Variance, tnajmttch as the Replevin was in D. in a 1 J lace canno t vary.
called S. and now he makes Plaint in D. in a Place call'd W. And per Br. Second
Vaviior, In the Time of E 3. and H. 5. it was fuifer'd to vary in * Se- Deliverance,
cond Deliverance, if it agrees in Subjfance, notwithstanding the Opinion of p £ c „ ltes
Marten in 3 11. 6. and Brian agreed that he may vary. Br. Second De- ~_ Sc.
liverance, pi. 7. cites 12 II. 7. 4. (p. 5) pi *.
3. And by him and Va\ ifor, if a Man brings Replevin, and counts of a
faking in D. -where the faking was in S. and he is Nonfilled , he cannot
havener Replevin, and count of a 'Taking in S. for the Statute is, that in
Rctomo Habendo upon a Nonfuit, there fhallhe Mention made that the Sheriff
Jball not make Deliverance nor Replevin, w it bout Writ Judicial, making
Mention of the Jirfl Judgment, and the Plaintiffin the Second Deliverance
cannot vary from the fir it Number, by them : And per Brian, the
Plaintiff cannot vary from the Place, becaufe the Defendant in the Re-
ple\ in avowed in another Place ; but if they had agreed in the Place at
firlt, they cannot vary in the Second Deliverance. Br. Second Deliver-
ance, pi. 7, cites 12H. 7. 4.
4. Replevin or a Heifer, the Parties were at Iffue upon Claim of Pro- Note, per
perty, and the Plaintiff was Nonfuited, and after brought Second Deliver- Opinionem,
ance of a Cow ; and good ; Per Fitzh. For it may be a Heifer at the Time £ ur, 5.' that
of the Caption, and a Cow at the Time or the Second Deliverance. And y ims ^ f *,/„_
in Second Deliverance he may vary from the Day and Place; quod quaere, ©;», and L-
and iee 3 H. 6. And he may bring it of a leffer IN umber, or of a greater than dares, and is
the Replevin was, as in Replevin of 4 Beajls, the Defendant avowed for 6, s f- l ' :!te f
the Plaintiff is Nonfuit id, he may bring iecond Deliverance of 6. Per ip- "J*l) ori ']â– *'
fum. Br. Second Deliverance, pi. 2. cites 26 H. 8. 7. that Cntah:-
ty may . ap-
pear, and brings Secor.d ~Deliverar.ee, he cannot vary in it in Tear, Day, Place, nor Numher or'Beaib Sec.
quod nota. Br. Second Deliverance, pi. ;. cites 5 H 6. 9. Br. Variance, pi. 2. cites :S.C.
(P. 4) Withernam. What it is.
1. m
PI I S Word is compounded of two old Saxon Words, viz.. Weder,
which common Speech has turn'd to Oder, or other ; and Naam-
that lignifies a Caption, or Taking; and therefore is as much as a Tak-
ing, or a Rcprifal of other (lads in Lieu of them that were formerly taken,
arid eloigned or vvith-holden ; and thisisCapere in Withernam; whereof
the Register fpeaksand well expounds 2 Inst. 141.
2. In Debt; Per Hank, where a Bailiff or Sheriff takes Beajls in Wi-
thernam 3 he Jball not deliver them to the Plaintiff, but pall retain them as a
Pledge
8 Replevin.
Pledge till the Beafts frft taken are re-deliver'd ; lor the Writ is Capias in
Withernam & Detineas quoufqae 8ac. to which all the Clerks or C. B.
agreed ; i'o that it (hall not be delivered to the Plaintiff * But it was laid,
that otherwife it is in B. R. lor there they ihall be delivered to the Plain*.
tiff&c. And this Replei in in the Principal Cafe was in the County be-
fbrethe Sheriffs quodnota. Br. Wythernam, pi. 3. cites 2 H. 4. 9.
3. When a Defendant comes in upon a Capias in Withernam, and ii
haird, that is but an ealing of the Cuitody he was in upon the Capias till
the .Matter be tried ; and then il the Iflue be againft him, he is, 1 think,
to render himfelf in Cultody again, and then he is in by Virtue of the
Capias in Withernam. Per Holt Ch. J. 12 Mod. 428. Mich. 12 W. 3;
in Cafe of More v. Wats.
Grounded , Withernam is only Mcfne Pro/its. and not an Execution. 2 Salk.
Oh an Lien- I M w
pata re- â– >
turn A. 12 Mod 425. S. C S. P Ard it Cannot be an Execution, becaufe it is granted before
Judgment. Per Holt Ch. J. Ld Raym. Rep. 614. S. C.
Sec(T) ( Qj t Withernam. In what Gifis, and when it fhall
t Tim writ b e granted. And by what Court.
lies where o J
« Man takes
£2? I rf 0r ' it *TJB ECtfCum, if Defendant claims Property, UpCn UlljtCl) ifTues a
another J[ Writ de Proprietate Probanda, iMf Sheriff returns that the Fro-
Man, and pei tv is to the Plaintiff, and that the Delendant has eloigned the Bealts,
£, « * J/ e - a tlDttljcrnam fljaU be panted 3° C 3- 3°-
an
elloinedtkc by reaibn whereof he could not replevy them Sec. then this Writ of Withernam Jball ifut
* cut of that Curt where tie Pluries is returned, returnable in B. R. * or C B. F. N. B. 73. (E)
* But net out of Chancery. F; N, B: 75 (E) in the new Kotes there (b) cites M. 42, 4; Eli?., inter
Grindal and Pound d, in G. B. And yet if ' EUngata be returned on the Alias Ike. into Chancery, then
the Withernam dull i Hue out of Chancery.' Ibid cites 22 H. 6. 21. Per Brown.
2. A(l ion upon the Statute againft bint who diftrain'd in the Highway j
and the Defendant [aid that Ac prift pas, and that he had Procefs of Wi-
thernam before, which is net yet ferved, and prayed Delivery in Wither-
nam. Per Cur. You ihall never have any Withernam, when the Delen-
dant denies the taking till the Party be convicted. Br. Wythernam, pi.
16. cites Itin. Not. 3 £. 3. and 17 K. 3.
Br.Wyther- 3. None Ihall have Delivery of the U ithernam till the other has Delivery
nam, pi. 2. of his Bealts, and if the Plaintiff have not his Bealts, then he ihall have
cites 43 E. ]) c liverance of Withernam, and alio Procefs againlt the Party to recover
K Vhould be his Damages for the Delay, and the Bealts taken in Withernam fhall remain
(26) and fo in the Hands of the Coroners till this Writ be return d: Quod mirum ! ckc.
are the other Br. Replevin, pi. 9. cites 43 E. 3. 26. Per Knivet.
4. In Recordare, Return was awarded for the Defendant by Default of
the Plaintiff, and the Sheriff return' d Quod Averia vendita luntPerlonis
io-notis, ck clongantur. Per Hull, the Delendant may have Withernam ;
per Ludd, No; for none Ihall have Withernam but he who has Property,
and the Delendant has only Pofleffion, and not Property in the Beaits
taken by Diltrefs, which Brook lays leems to be Law. Br. Wyther-
nam, pi. 7- cites s H. 4. 7.
5. In Replevin, the Defendant claimed Property, and they were at
If tie upon the Property; and becaule the Plaintiff had the Defendant's
Beafts in Withernam upon the Return of the Sheriffs and the others were e-
Jloignd at the Time of the Iffuc, the Plaintiff was compelTd to gage Deli-
verance of the Withernam, and the Defendant had Writ to the Sheriff
for the Deliverance of the Bealts ; the Sheriff return '
gate
Replev
in.
gata iant, by which Withernam was awarded againfl: the Plaintiff; and
the hherirf return'd That he had no Goods nor Chatties. Br. Ga^e De-
liverance, pi. 5. cites 11 H. 4. 10.
6. In Homine Replcgiando, if the Sheriff' returns the Plaintiff ejloigned^- P. Br.
Withernam fhall iffue to take the Body oj the Defendants, tho' fome of them Pe P J evin,
are Peers of the Realm. Br. Wythernarn, pi. 6. cites 1 1 H. 4. 15. *£'c 9 ' dt "
7. In Replevin, if the Sheriff can't make Replevin, the Plaintiff fhall If the She-
have a Capias in Withernam. Br. Replevin, pi. 4. cites 9 H. 6. 42. riff upon the
' . . Pluries re-
turns Quod pvadicY B. Averia prsed."- A. cepi' ct ea fagavit <*t Com.' prsd' in Com'. F. per quod ea ei-
dcm A. Rep], nopotuir&c the Plaintiff ftiall have a Writ of Withernam to take as many of the Defen-
dant's Cattle directed unto the Sheriff" F. N . B. 6S. (G)
8. Note, It lies not on a Sttg^e/iion only s that the Beajls art ejloined.
F. N. B. 73. (E) in the New Notes there (a) cites 11H. 6. 1. per
Cotton.
9. Note, That as well the Plaintiff as the Defendant may have Wi- Br - Ga £ c
thernam. Br. Withernam, pi. 17. cites 13 H. 7. 28. Deliverance,
pi. 27. cites.
S C
10. In Replevin, the Pluries was returned Quod Averia elongata, by s p F •
which the Plain; if had Withernam againfl the Defendant, where the De- was returned
fendant appeared in Court ; which was Error, by which Superfedcas iff tied ; before, that
bur before this came to the Sheriff, he returned, that he had delivered the the . Pla in-
Defeudant's Reafts to the Plaintiff who had ejloigned them, by which the \ » a~i
defendant appeared, and pleaded Ne Pnjl pas, and prayed Withernam a- Bealh of die
gaitiji the Plaintiff ; Per Cur. they are your Beafts if the Plaintiff will Defendant;
not gage Deliverance, quod nota. Br. Gage Deliverance, pi. 19. cites and > r & ems
7E 4. 17. thatWi-
' ^ ' thernam doti
not Ik till it be returned, ghjod Averia elongata funt ; Nota. Br. Withernam, pi. 10. cites 7 E. 4. 15. S. C.
11. If the Sheriff returns, that after the Taking 8zc. the Defen-
dant has ejloigned the Cattle out oj his Bailiwick that he cannot deliver them j
or, if he return, that the Defendant has efloigned them into unknown
Places, that he cannot have View of them, to deliver them; or, if the
Sheriff return, that he fent unto the Bailiff of the Liberty, who anfwered
him, that the Defendant had impounded the Cattle within the Reciory of the
Church of C. for which Caufe he cannot deliver them &c. Upon thefe Re-
turns made by the Sheriff, the Plaintiff fhall have a Writ of Withernam
to take as many of the Defendant's Cattle, directed unto the Sheriff.
F. N. B. 68. (G)
12. Note, That in the Writ of Withernam, the Caufe which the She-
riff returned upon the Pluries &c. ought to he put, and rehearfed in the
Writ of Withernam ; and if the Sheriff returns upon the Pluries, that he
has fent unto the Bailiff of the Liberty, and that he anfwers him that the
Bealls are efloigned &c. then he fhall have a Withernam directed unto
the Sheriff, and the Sheriff iha.ll fend his Bailiff into the Liberty to fue
the Withernam ; and if the Bailiff do not Execution, nor give Anfwer
unto the Sheriff of the Precept directed unto him, then the Plaintiff
fhall have a Withernam directed unto the Sheriff, with Non omittas
propter aliquam Libertatem Sic. quin earn ingrediaris &c. and to take
the Cattle in Withernam ckc. F. N B. 69. (B)
1 3. It appears by the Regiiler, if a Man fucs a Replevin in the County ^ ,-f a jyf an
without Writ, and the Bailiff returns unto the Sheriff that he cannot have diftrainany
View of the Cattle to deliver them, then the Sheriff by Enqueff of Office Plan's Cat-
ought to enquire thereof :, and if it be found by the Jury that the Cattle are * ' and " c
e/loigned &c. then the Sheriff in the County-Court may award a Wither- ^ ev ^ n ^~
nam to take the Defendant's Cattie ; and if the Sheriff will not award a puh,t made
Withernam, then the Plaintiff' fhall have a Writ out of the Chancery di- unto the
reefed unto the Sheriff, rehearling the whole Matter, commanding him j. y ! . v\} r
n to w c ■• * '
i o Replevin.
Sheriff makes to award a Withernam &c. and hemay have an Alias, and after ^.Pluries
a Precept and Attachment againlt the Sheriff, it" he will not execute the kino'*
Bailiff to vc _ Command &c. F. N. B. 69 (C)
plevv them,
and tlie Baihff returns at the next County, that he eanr.ot replevy the Cattle, hecaufc they are ejloived, or
that he canhot havi I iezi- of the Cattle ; then the Sheriff in the lame County-Court ought to make Enquiry
if it he true, which !>â– returned, and //' it be j'o.-tnd fo by the Jury, then the Sheriff E\ Offuhjha'.l make a
Precept unto his Bailiff, in tie Nature of a Withernam, to take as many Cattle of the other Party ; and if
the ihcriff make fuch Precept to take the other's Cattle in VS ithernam, and the Bailiff will not extcute
tit If'rit ; then the fart} may bdfoi aSpecial Writ , tit of the Chamery, directed unto the Sheriff, command-
ing him to make Withernam; and to nuke Execution of the hilt Judgment. F. N.B. 74 {li)
S P. Or if 14. If the Sheriff' returns upon the Pluries Repleg-' that be has fent unto
the Sheriff the Bailiff' of the Liberty, who has Return of \\ rits &C and that the
return, that ]$ a jijff f oas gjVeM Anfwer, That he cannot execute the Writ i becaufe he cannit
tantw/hLe ^avc A V' cW or tne Cattle or Goods which were taken ; then the Court m
Viva of the which fuch Return is made pall award a If'rit of Withernam direcled unto
Cattle to Je- the Sheriff, who mall thereupon make his Precept unto the Bailiff of the
Hzer them. Liberty ; and if the Bailiff of the Liberty docs not make a Return thereof
R^rns'the unto- the Sheriff, then the Sheriff pall return the whole Matter in Courr^
Plaintiff and thereupon the Court Jh all award a Writ of Withernam, and a Non 0-
fh ill have a mittas with the fame. F. N. B. 74. (A)
Writ of
"Withernam directed to the Sheriff to take as irany of the Defendant's Cattle. F. N. B. 6$. (G)
So in fuch 1^ In a Replevin fued by Writ, at the Pluries returnable, the She-
^ aie ' lfthe riff returns, Quod Averia elongata funt&c. Now if the Defendant ap-
appearand pears-, the Plaintiff lha.ll not have a Withernam, becaufe the Defendant
pleads that may gage Deliverance i And if the Defendant's Cattle be taken in Wit her-
bt did net di- nam, they iliall not be delivered to the Plaintiff, but the Sheriff' pall keep
fit aw them; them ®;wufque &lc. And the fame appears by the Words of the Writ j
Plaintiff B" 1 lt ls * a 'd, That it is the Ufage in B. R. that they pall be delivered unto
ihallnot the Plaintiff ; by which it feems that the Form oi the Writ of Wither-
havc vs'i- nam there is in another Manner than it is in the Regifter. F, N. B.
thernam. _, f\y\
And fi it is 74- i D )
if the Defendant at the Pluries returned appears, and pleads that the Cattle are dead, in tin Default of thi
Plaintiff, the Plaintiff ihall not have Withernam. F N. B. -4 (E) [The laft Edition cites Brq,
Vouch, cap. 7. but it feems mifprinted, and Brook is not mentioned in the French Original]
16. Wells was charged with having conveyed his elder Brother away f
and by that Means enjoyed his Rjlate, lor which he was committed to New-
gate without Bail, as in Withernam, till he produced his Brother ; and a-
bout a Year afterwards he moved for an Homine rcplegiando, which
was denied lor the Reafon before-mentioned ; but the Court being now
as it were latisfied that \V. was not Guilty, granted a Hab. Corp. intend-
ing thereupon to bail him. Sid. 210. pi. j. Trin. 16 Car. 2. B. R. The
King v. Wells.
Where the r ^_ jf Defendant appears on the Pluries no Withernam mail go j and
» *? "*tf. wnere tne Defendant appears, and pleads Non cepi, or claims Property,.
Day, where- there never ought to go a \V ithernam ; but that Writ only goes where th*
on the Thing cttnnot be replevied-, and Defendant will not come and plead. Per
Proccfsis Holt Ch. T. 12 Mod. 427. Mich. 12 W. 3. B. R. in the Cafe of
returnable, Moore v. Wats.
mnd pleads
Non cepit, there is no Need of Bail ; wherefore per Cur a Superfedeas to Withernam was granted without
Bail. 12 Mod. 56. De la Baftile v. Kcignold. 12 Mod. 425. Moore v. Watts.
If on Elongata returned, the Defendant deads 'Afaf Cepit, no Withernam fliall ifTue. 2 Salk. 5SZ.
Moore v. Watts. — - 12 Mod. 42 s. S. C. Kclw. ; 1 pi. 10. S. P. but adds a Quxre.
ButifNonCepi be pleaded, and found again fl him, Judgment fliall be, and Withernam. Per Holt
Ch. J. 12 Mod 429- in the Cafe ot Moore v. Watts.
HoltCh. J. jg. There may be a new Withernam after the Defendant has been
thought the bailed the £ rft> 2 Sa j k 582 Moore Vi \Yaaa.
Court might r
award a ftcond Withernam, 12 Mod. 428. Moore v. Watts.— 429. „...,..
(K) Wither.
Rep]
evin. 1 1
(R) Withernam. Cattle, Hozv to be ufed, and in
what Cafes, and on tuktt Terms to be rejlored.
i. T N Replevin &c. the Defendant avowed for Damage- feafant, and,
' JL u P on ^ ue j°i nec i it vvas found for theAvowant, and Damages allelled,
and a Retorn. Habend. ijfued. The Sheriff' returned Averia elongata, and
thereupon a Capias in Withernam was awarded. The Plaintiff' camo
into Court, and tendered the Damages affejfed by the Jury, and pray'd Stay
'of the Withernam, and threw the Money into Court ; But the whole Courr.
was clear againlt it, becaufe he ought to pay a Fine for his Contempt in e-
loigning the Cattle, and fo they allelled a Fine of 3 s. and 4 d. and then
the Plaintiff had his Prayer. 2 Le. 1.74. pi. 211. Mich. 29 & 30 Eliz.
C. B. Anon.
2. Upon a Second Deliverance, the Sheriff returned Averia elongata jCroE.ifi^
whereupon he moved for a Withernam of the Cattle lor the Plaintiff, and Jj^. 1, ^ ^
it was granted ; afterwards the Plant iff fat is fed the Defendant his Da- „ E i£ c
mages and Charges, and moved for a Rcjlitution of his Cattle taken in Wi- B. accord-
thernam. The Court held the Cattle were not replevifable, but having i"gly by
fatisfied the Damages, he fhall have Reltitution of the Cattle, and that la ^ a fl me v ot Atl *
was the Courfe which the Clerks affirmed. And Walmfley cited 16 H 6. johnfon.
to this Purpofe ; And as to being paid for the Meat the Cattle had eat, he In fuch a
faid the Defendant had the Ufe of the Cattle, and fo it was Reafon .he Ca( e the
ihould fultain them ; and a Writ oi" Reltitution was granted. Ow. 46. ^X fS"
Almesky v. Johnfon. tiff a Special
Writ to re â–
fort his Cattle, reciting the whole Matter without any Allowance for the Keeping of the Cattle ; for it is
intended their Labour and other Profits by them countervails fuch Charge. 3 Le. 235. pi. 323. Mich,
32 Eliz. C. B. Anon.
3. It was faid by the Court, That Beajrs dijlraincd, as Cows, could
not be milked, nor Horfes wrought, but they ought to be put in the Pound
openi, and there the Owner might milk them and fodder them ; But if
Cows be taken in Withernam, becaufe they are deliver'd to the Party in
Lieu of his own Cattle he may milk them, or if they be Oxen or Horfes,
he may reafbnably work them, otherwife he mould be at great Charges
of keeping and palluring of them, and no Profit or Conlideration for it,
Anderfon laid it ihould be a great Inconvenience to the Commonwealth j
For if the Cows are not milk'd the Milk is loll, and alfo the Cows im-
paired thereby. Le. 220. pi. 302. Mich. 32 & 33 Eliz. C. B. Cham-
berlayn's Cafe.
(S) Withernam. TFrit, Proceedings, Pleadings, and
Judgment.
1. TN Replevin the Plaintif had the Beajfs of the Defendant in Wi- W- Re f ] \\
X thernam, and the Plaintiff was compelled to the Deliverance there- â„¢^ ^ c,-L
'of, and Writ ijfued to the Sheriff to make Deliverance, and the Sheriff : f. N. B. 74.
returned, Quod elongata funt, by which the Defendant had Withernam a- (A) in the
gainlt the Plaintiffs Quod Now» and fo fee Withernam upon Withernam ; New Nots *
and,
1 2 Replevin.
there (ascites an d che Sheriff ' returned Qaod nulla habet Bona nee Cat. ilia unde poceit facere
S.C. but %s Withernam j by which Capias iffued, and the 111 ue was found lor the
jT* i >. pj a i nt i^ an j Damages taxed to 20 Marks ; And per Tirwhit, the De-
fendant in this Cafe ought to recover Damages againft the Plaintiff for
the Detinue of the \\ ithernam, Quaere inde: But bv the Reporter he
cannot recover Damages without Original; and that he may have Writ
of Detinue of the Withernam ; and alio three Capias's, illued in the Cafe
fupra againil the Plaintiff to deliver the \\ ithernam, and upon the Plu-
ries Capias returned, Exigent illued, and fo fee that the Plaintiff" may
be outlawed, as here in his own Suit. Br. Wythernam, pi. 5. cites 11
H. 4. 10.
Br Wyther- 2 - * c was admitted that the Sheriff' may award Withernam in the County.
nam, pi. 9. Br. Gage Deliverance, pi. 9. cites 21 H. 6. 40.
cites S. C. —
The Sheriff may award U 'ithernam on Replevin filed by Plaint, //" it be found by Enquejl in the County
t' at tic Cattle are ejloined according to the Bailifi 's Return, &c. tut upon the li ithernam awarded in the
C unty, if the Bailiff do return that the ether Party has hit any 11 ing &c. he Jhall have an Alias and a Plu-
rtes, and fo infinite, and has no other Remedy there. F. K. B. 74. (C).
3. In the Writ of Withernam he ought to rehearfe the Caufe which the
Sheriff returns, for which he cannot replevy them. F. N. B. 73. (G)
4. But upon a Withernam returned in B. R. or C. B. if the Sheriff do
return that the Party has not any Thing, &x\ there a Capias Jball be a-
warded againft him, and Exigent, and Proeels or tltlagary. F. N. B.
74- (D)-
5. F. N. B. 73. (F) in the new Notes there (c) fays That it feems
the Defendant mall have a Day in this Writ, if be comes in by Attachment,
but not otherwife, and cites 7 H. 4. 27. 43 E. 3. 26. 35 H. 6. 47. As if
Elongata be returned on the Pluries Replevin, then there is this Caufe in-
fertcd'm this Writ. Etji the Plaintiff fecetit &c. tunc pone the Defendant
* This is & c _ a( { Rtfpondend' tarn Domino Regi de contemptu quam prafato jShterenti
and^^ld de Captione & injujia DetcntioncCatallorum pradiclor. 2 Eliz. * i&o. For
be Mich.; il feems there had not been any fuch Claufe in the Withernam, if it had!
& 5 Eiiz D. been on a Plaint in the County. Vide ibid, and 44 Aff i_y. But then
^ss. b. pi. 12. the whole ought to be removed by the Pone, and a Special Return there-
of, viz. jQtiod nullum aluii breve eft &c.
6. F. N; B. 74. (A) in the new Notes there (a) fays, Note the Writ of
Withernam is ad Refpcnd' Domino Regi de Contempt & parti de Damno
i3 Injur and cites R. Entr. 701. and 35 H. 6. 47. Per Danby and Moyle.
The Defendant ihall recover Damages in Withernam, on Elongata return-
ed, in a W r rit de Returno habend 1 ; but others contra, and cited Dyer
41. That if the Plaintiff be nenfuit, he may have a fecond Deliverance
injlantcr, and it [hall be a Superftdeas to the Retorri habend', and if a Re-
torn' habend' be filed after a fecond Deliverance granted, the Sheriff ought
not to execute the fecond Deliverance. Note, this prevents the Mifchiei of
a Withernam againlt the Plaintiff.
(T) Procefs and Proceedings in Replevin.
S. P. Br. 1. TN Replevin againft two, the one avowed for kimfelf, and j 11ft ifted for
Procefs, pi. J^ fi s Companion, and the Plaintiff prayed Procefs agatnjt his Compa-
^ S. cites 2i n j 0fJ ^ an( j cou jd not have it ; per Cur. For by this Jultihcation of the o-
Butby 21 H. ther, he is out of Court, Nota. Br. Procefs, pi. 26. cites 21 E. 3. 2.
f. 22 in Re-
plevin againft two, the one avow'd, and the other jultify'd/i>r coming in Aid of him, there norwithitand-
mg they are at IiTue upon the Avowry, the Procefs ihall be continued againft the other, and other-
wife the Writ fliall abate ; For there the other has pleaded cf Record ; mod nota. Br. Procefs, pi. 2.6.
. 1 fir. Brief) pL 184. cites S. C per Cur-— — Br. Brier, pi. 43;. cites S. C»
2. la
Anon.
Replev
in. 1 3
2. In Replevin, at the Alias and Pluries the Sheriff Hid net make Re- Br.'Reple-
turn, by which Writ iffucd to the Coroners to attach the Sheriff, and to make v . ln >E \'A\^
Replevin returnable in B. R. and the Coroners returned that they had attached p n . S (S on f~
the Sheriff., and had net made Replevin, becatife they cannot have the View tempts, P l. i.
cf the Beafts-, and the Sheriff' did not come, by which Writ tffued to diftram cites S. C—
the Sheriff', and to make Withernam to the Plaintiff' of the Beafts of the Be- Br.Wyther-
fendant, and none came of the Part off the Plaintiff' to receive the Wither- "f^'J^ E •;
'nam, and /// the Writ to the Coroners was net any Summons to make the Party 46. [But it