thereupon in his own Name; and the Court where fuch Action frail be brought
may by a Rule of the fame Court give fuch Relief to the Parties upon fuch
Bold as may be agreeable to J a ft ice and Reafou, and fuch Rule fiall have the
Nature andPffdt of a Defeajance to fuch Bond.
(Y) Demeanor of Sheriff ; PunifiabU in what Cafes re-
lating to Replevins.
F the Sheriff upon a 2d Deliverance pall deliver the Beafls to the
Plaintiff; and fhall not return the lint, lo that the ^etendant
cannot have Return, he fhall have his Remedy agamit the. Sheriff j
Ou"re what Remedy and fee Fit,h. Ret. de Avers 20. Anno 20 E. 3.
tStSicut alias was Wd in this Cafe. Br. Second Deliverance, pi. 12.
cites 32 E. 3. Fitzh; Return de Avers, pi. 19. 34> 35- Br. Pledges,
2 Where the Sheriff takes inefficient Pledges de Retorno Habendo, pI . ,. citcs
^nd Return is awarded, and upon this the Sheriff' returns Averia elongata S. Câ€”
f^VL facias lues agliuft fledges, and the %&Â«Â£>*% L^.
hi I â– and therefore the Defendant had Scire facias againjl the Sba iff, Â°uod ^ fc^ *
reddat ei tot Averia & tot Cat alia, and not Action of Detinue â– -, Quod nou ; B Scire &-
and vet the Statute fays where he takes no Pledges; andio fee that iniui- ciu, pI-3-
fkien Pledge; are as no Pledges ; and note, that in this Cale the Party gÂ» JX-
nnv relinquilh the Advantage of Withernam, and betake h.m to J^^
Pledges or to the Sheriff. Br. Retorne de Avers, pi. 2. cites 2 H. pl . ,. citts
i n->u 5 , y H.6. 4.2.
' ? I5 The Sheriff is bound to know at his Peril -whether they are the Beajls And fliall
nt the Plaintiff or not; For otherwife he has not Warranty thereof, and render Da-
rhen he is -i Trelpaiibr. Br. Replevin, pl. 58. cites 21 E. 4. 54- , ST - ?'
the 4 n The Re P Te?m is in Lieu^W-T^\ %*^fi*%2Â£ Â¥%A>
find, and take by the Statute of W. 2. And it he failed to find Pledges Â£ ^
according to that Statute, he would be l.able to the Avowant s Da-
mages to be recovered by Action againit him; and where fuch Pledges
would not be liable, the Obligor that is in Lieu of them would : not be
liable. Et Jud' pro Del ' per Cur. 12 Mod. 380. Pafch. 12 W . 3. JJ.
R Duke of Ormond v. Brierly. _
< Upon the Defendant's having taken a Dilfrefs, the Plaintiff gave
Sccurit/w the Sheriff de Retorno Habendo, and then levied a Plaint m
the Sheriff >s Court ; the Defendants demurred to it, and the Haintitf had
a Rule given him to join in Demurrer; but upon his not doing it, Judg-
ment wSit aÂ«ainfl him by Default. The Goods were removed away, lo
SZlh%f could not make a Return ; but yet Affidavit was made,
that he had gAen up the Replevin-Bond to the Plaintiff 's Attorny, who was
e 7of the Co-obligors. The Court made a Rule upon the Sheriff, and
the Attorney to anhver the Matters of the Affidavit, Barnard. Rep. in
B R. 240. .Mich. 3 Geo. 2. 1729. Petrule v. Beit, cues 2 Init. 340.
*6 It was moved, that an Under-sheriff might anfwer the Matters of
an Affidavit, for in-anting a Replevin upon a Diftrejs after the five Days
Respired appointed by the Stat, of Ann. 8^ 14. tor taking mluffiae.vt
Sureties on the Replevin, and likcwifc for fuffcnng the Plaintiff s Atto,-
nlto fit as Judre in it. But per Cur. neither of thofe Cauies are fuffic.cn
ui on nt the Motion. To the firft they laid, a Replevin may be granted
It ;i,v Time before Sale. To the lecond, that the taking Sureties was
only for the Under-SherifPs own Indemnity. To the third that he
ought not to anhver criminally for the Plaintiff's Attorney'aftin- a-
gainft hts Duty. However, the Court made a Ride upon the Plaintiff's
Attorney, that he fhould anfwer the Matters of the Affidavit z Bar
nard. Rep. 415. in B. R. Pafeh. 7 Geo. 2. Trice v. Ginkins.
(Z) JJIjo may grant Replevins, or hold Pka of them,
And When, Where and Htm.
t^cH 'â– P Eplevin flK,Il be fued tobete the Beafis are impounded, and not where
in cm County,. A V *.*"*& â„¢ a ? made on! .v 5 For it may be that they were taken
and drives r J"> on e County, and impounded in another Countv ; Quod Nora Br
theC.itcle/Â»- Replevin j pi. 63. cites 29 E. 3. 31. *
F*K% Pa (iTSitH. * C J?Â£. in wl " ch * the Countics he wil1 ' but nor bboth the Counties
v*Â±J& 2 - h W f h S S* a11 the J uftices in B - R - Nearly, that the * Sherif
H. 4 . 9 . *W award a Withernam in the County where Replevin is More him by
PW as it ought to be; For it cannot be without Plaint tnWntin? â€¢ For
it mall be in \ain that he lhall make Replevin, and none may award the
i rocels due ; and yet per Catesby, after the Withernam awarded, //' no-
thing be returned, he cannot award Capias. Br. Wythcrnam, pi. 9. cites
9 t.. 4. 48.
3. The Sheriff- may take Plaint out of the County, and make Replevin im-
mediately^ For it would be inconvenient to ftay till the County Day by
the belt Opinion. Br. Replevin, pi. 46. cites 21 E. 4. 66.
4. Note, per Cur of Replegiare in the County, and Avcria Elongau
flint returned, the Sherirr may award Withernam, tho' the Suitors do not
award it, and well by the SheriiF. Quod Nota, Br. Withernam, pi
18. cites 16 H. 7. 2. 1 â– 3 v
,.>. *Â£ a ^* a be taken vvithin d& Cinque Ports, then he ffiall have a-
Writ de Homme Repiegiando, directed unto the Conftable of Dover
and unto the Warden of the Cinque Ports, or his Lieutenant, in the \V
ture of an Audita Querela. F. N. B. 67. (A).
6. And if a Man be taken by the Officers of the Fore/l, then he mail
have a \\ rit de Homine Repiegiando unto the Keeper of the Foreit. F.
iN. is. 67. (A).
7- Stat. i.&zP &M. cap. 18. Enaas,That the Sheriff '/ball at his firfr
County Day, or within two Months after he receives the Patent, depute
proclaim in the Shire fown four Deputies to mike Replevins, not dwell, n* a-
hove 12 Miles dflant from one another, ,Â» Pain to forfeit for every Month
he wants fuch Deputy or Deputies 5 I. to be divided between the Kim and
S*C PafchÂ°" u 8 - '" Tref P afs Â£Â° T r uki "g &C' The Defendant juftified that the Place
Court mi K ht^ as ' Deca r ule cll f bouncy Court could not hold Plea in ReoJevin at
hold P lca ofGommon Law but were enabled by the * Statute, which ext'ends no?
JhThT' n ^ undred Cou ", which is a Court derived out of the County
tarda, L- C Â° Urt: Btil P er tot Cur ' clearl X S foppolingchey may grant them in Court,
yet thev cannot prefcribe to grant them out of Court. 2 Salk. 580. pi. gine, yet it
1. Hill! 8\V. 3.B. R.Hallcc v.Burc. muftbeasa
â€¢> Court ; And
ask'd how a Tiling can be grafted on a Prefcription; which had its Original by Aft of Parliament
and gave Judgment for the Plaintiff! Skin. 674. S C. adjudged for the Plaintiff. Becaule the De-
fendant having (hewn the Property in .Â» Stranger^ the Plea amounts to a General Illue, and tho* a Hun-
dred Court n.y hold Plea in Replevin, this ought to be in Court, and not out of Court. â€” S C. 5 Mod.
2^2. accordii gly ; ai d per Cur. it is true, all liicie Courts do hold Plea in Replevins, but it is illegal ;
Forth,- Party ought to go to the Sheriff tor the Purpoie, whofe Court is in Nature of a Court Baron ;
therefore this Cu'ih.m was held to be void, as againft Law and R'eafon. And (b the Plaintiff had Judg-
ment, the Plea being naught. Carth 380. S C. fays, It was agreed, that the Hundred Court, and
other Courts of Lords of Manors may by Prefcription hold Plea in Replevin, and fo may incident!)' have
Power to replevy Goods or Cattle taken, but that muff be by Proccfs of the Court after a Plaint enter-
ed, bur not bv a Parol Complaint out of Court â€” Ld. Kayni. P.ep. 219. Pafch. 9 W. 3. S. C. lays,
That after I'cveral Arguments at the D?.r, it v. as r-efolvcd , That fince the Sheriff could not replevy
bv Plaint at ihe Common Law, but by Writ only, and that in his County Court ; the Hundred Court,
which derives its Authority from the County Court cannot do it by Prefcription. And the Statute of
Marlebridge does not extend to the Hundred Court ; Therefore this Replevin granted out of this Court
is ill, efpccially being granted by the Steward who isn'ot a Judge of the Court, 3nd the Uiage in fuch
Cafe will not alter the Law, therefore Judgment was entered for the Plaintiff.
* Marlebridge cap. 21. and H ejlmiujier 1. cap. 1 7.
9 It was moved to file an Information againft one T. an Attorney, for af-
fuming to himfelf an Authority of granting Replevins, whereby he, in
his own Cafe, granted a Replevin for his own Goods. This was
urged to be a great Mifdemeanor; and that to ufurp an Authority, as to
hold a Leet, and fummons People in, and the like, is punifhable by In-
formation &c. But the Court denied the Motion, at firlT, becaufe there
was another Remedy, viz. by a Parco initio, this beinga Pound-Breach ;
but afterwards they ordered him to ihew Caufe &c. Note, As no Un-
der Sheriff ought to practice as a Common Attorney, fo no Attorney
ought to practice as Under Sheriff in granting Replevins &c n Mod.
32. Mich. 3 Ann. B. R. Trevannian's Cafe.
Pkadh'Ts. See ( T >
i.TFa Man is nonfuited in Replevin, and brings Saeond Deliverance, there
JL the Plea pall be held upon the Jirjl Record ; and yet, per Stouf. the
Belcndant may make new Avowry ; For by the Nonfuit all is gone.
Br. Second Deliverance, pi. 14. cites Fitzh. Recaption 5.
2. In Replevin, Ne ttcnt pas of him is no Plea. Br. Trials, pi. 3.
cites 33 H. 6. 8. by the bell Opinion.
3. Note, that the Tenant in Replevin fhall not plead Hors de fori Fee; But Brook
for he may difclaim. Br. Replevin, pi. 40. cites 5 Â£. 4. 2. trary hath"*
been ufed very often; quod nota. Ibid. â€” Hors de ion Fee is a good Plea. Br. Trials, pi. 3. cites 33 H. 6.
8. by the belt Opinion S. P. Per Cur. Br. Iffues Joines, pi. 26. cites 3SH 6. 26. It is at the
EleBion of the Plaintiff to plead Hors de fo?i Fee, or to difclaim. Per Kingfmil and Fifher J. quod nota.
Br. Replevin, pi. 30. cites 21 H. 7. 20.
4. In Replevin the Defendant jtifti/ied the Taking, becaufe the Plaintiff Br- Reple-
hcld of him by certain Services, and for the Rent An ear the Defendant jujh- V '"'P'- V"
Jied ; and the Plaintiff faid that he did not hold of the Defendant, and a
good Plea ; Per Cur. For if the Juiiification be found for the Defendant,
he fhall not have Return, as in Avowry, and the Plaintiff cannot have
other Plea ; lor he cannot traverfe the Seilin, for no Seilin is alledged ;
-and he cannot difclaim ; for no Avowry is made. Br. Juiiification, pi.
7. cites 15 E. 4 29.
5. In Replevin, if the Defendant fays that the Place is Ancient Demefne,
he cannot make Avowry to have Return ; and from hence it follows,
that the Plaintiff cannot pray that the Defendant Ihall gage Deliverance.
Br. Replevin, pi. 69. cites 1 H. 7. 11.
6. it a Man diltrains ibr Damage feafant, and the Owner offers fuffi-
cient Amends, and the Dtftrainer rcjttfes it, the other ihall have Replevin,
and this Sufficiency of the Amends fo offer'd, is ijfuable between them ; and
if it be lound tor the Plaintiff, he Ihall recover Damages. And if the
Beafts die in Pound after fucb Offer, this is at the Peril of the Chvncr, if
they die in Pound overt ; but //'they are not in Pound overt, this is at the
Peril or the Dittrainer ; but ifWrit of the King comes to deliver them, and
the Dijtrttintr reftjis it, there if they die, it is at the Peril of the Di-
strainer, and the Owner Ihall recover his Damages in Action upon the
Statute tor difobeying the Writ. Br. Diftrcis, pi. 72. cites DocT:. 8c
Stud. lib. 2.
7. in Replevin for taking and detaining a Mare and Celt, the Defen-
dant pleaded Not Guilty of the taking atorefaid, infra fex annos ultimo
elapfos. And it was mov'd that the Plea was good, becaufe it is in Ef-
fect Non cepit ; and if he did not take, he could not be guilty of the de-
taining; beiides, if this Plea lhould not be good, the Statute of Limita-
tions can never be a Bar in Replevins. But refolv'd, that the Plea is til,
becaufe it doth not anfwer to the Detaining ; for perhaps the Colt was not
taken, but jelded in the Pound ; and one may diltrain a Thing lawfully,
and detain it unlawfully, as by putting it into a Caitle, fo that it can-
not be replevied. Sid. 81. pi. 8. Trin. 14 Car. B. R. Arundell v.
8. Count in a Replevin for Breaking oi his Dcors and Locks, and car-
rying away of his Goods and Cattle : The Defendant avows for a Rent-
charge, and fays nothing of the Breaking of the Dears Sec. Cur. He need
not anfwer it there, but in an Action of Trefpafs he muft. 2 L. P. R.
455,* 456. cites Trin. 7 \V. 3. B. R.
9. in Replevin tor taking live Cattle, and fcveral Stacks of Hay Sec.
the Defendants confefs Captionem averioritm & Catallorum Sec. and juftify
J&uoad averid prsedifta ; but fay nothing as to the Chattels, but pray Judg-
ment Averioritm & Catallorum. Per Cur. This is ill, becaufe tho' they
make Conufanceof the whole, yet they do not anfwer the whole, and
fo juftify as to Part only. If the Diitrefs be entire, and it is wrong in
Part, 'tis wrong in the whole. The Court doubted what Judgment to
give, whether to abate the Avowry, or that the Plaintiff lhould have
Judgment final; but held it certainly ill to confefs the taking of all, and
juftify only for Part, and would conlider what Judgment to give. 5
Mod. 77. Mich. 7 W. 3. Johnfon v. Adams.
10. In 'trefpafs for taking his Beafts, the Defendant juftifies under a
Replevin in the Hundred Court of the Bilhop of S. andjbews that the Bi-
fhop Sec. have upon Complaint to the Steward ufed to grant Replevins in
the Court, or out of it, to replevin Cattle, and that one had taken the
Beafts of J. S. and that he levied a Plaint in the laid Court belore the
Steward, and the Steward commanded him to replevy the Beafts Sec.
the Plaintiff demurs, and adjudged pro 6>uer. For the Defendant having
(hewn the Property in a Stranger, the Plea amounts to the General IJfue.
Skin. 674. Hill. 8 W. 3. B. R. Hallet v. Birt.
1 1. Where in a Replevin a Man juftifies the taking of Cattle in his own
Right, he muft fay, Bene advocat captionem averiorum &c. which is call'd
an Avowry ; but where he juftifies in the Right of another Perfon, then he
favs, Bene cognovit captionem Sec. which is called a Conufance. 2
L".P. R. 4Y4.
13. A Declaration in Replevin was brought by Bill, which is naught
upon a Demurrer., becaufe noSecond Deliverance can go, if the Plaintiff
be nonfuitcd. 2 L. P.R.455.
14. Pleading of a Seijin in Replevin, without faying of what Eftate,
is naught. 2 Lutw. 13 16. in the Cafe of Payne v. Brigh.'.m, cites
St as refolved Trin. 8 \V. 3. in C. B. in the Cafe of Saunders v.
14. 'in Replevin, the Defendant pleaded that the Plaintiff ccpit & im-
farcavit the 3 Cows being the Cows of J. S. in the Piace where Sec,
The Queftion was, Whether the Defendant had confefs'd PoffeJJion in the
iPlaintttf, which is a fufficient Colour in Trefpafs : But per HoltCh. J.
& tot.' Cur. The Defendant has not confefs'd here any Poifeffionin the
Plaintiff; For the Defendant having pleaded that the Plaintiff Cepic
ec imparcavit the Cows of. J. S. who is a Stranger, though Imparcare
lignihes to indole only, yet that will not aid^ it ; For whether the
Pound be private or pubiick, he who puts them in, has diverted him-
felf of the Ppfleffion and Property of the Cattle ; then lince the Defen-
dant has alledged the Property to be in J. S. before and until the Im-
pounding, and at the Time of the Impounding they became in Cultody
of the Law, the Defendant has not given any good Colour to the Plain-
tiff, becaule it is not continued. But the Defendant ought to have
pleaded that the Plaintiff Cepit & Detinuit the Cows; and then he had
given furficient Poiielhon to the Plaintiff: Ld. Raym. Rep. 219. Ealt. 9
W. 3. Hallet v. Birt.
16. After Elongata retum'd, and Withernam awarded, the Defendant
may plead Nou cepit, or he may claim Property, if it were a common Re-
plevin de Averiis; for the Sheriff can do no otherwife than return an
Elongata, if he cannot make a Deliverance ; and Withernam is the meer
Conlequence of the Return of the Elongata. 2 Salk. 581. Mich. 12 W. izMoA.kiÂ£\
3. B. R. Moor v. Watts. s - c - & p -
12. $iÂ§ S Ann, 16. S. 4. Ena&s, That it pall he lawful for any Defen-
dant or Tenant in any del ion, or for any Plaintiff' in Replevin in any Court
of Record, with Leave of the Court, to plead as many Matters, as he pall
(B; a) Pleadings. Place iffuabk, in what Cafes, and how. p [
See (E a)
Eplevin of 'Taking in T. in a Place called L. the Defendant faid that S P. Br.
v L. is in S. and not in T. and made Avowry to have Return, and Jf^f^'
the Plaintiff was compell'd to maintain his Writ, viz. that L. is in T Â£j E ; . 4
tho' they agreed that the taking was in L. and well; for there may be
two L's. Br. Maintenance de Brief, pi. 23. cites 42 E. 3. 18. and 41 E.
' 2. Replevin againft * two, of a taking in P. in the Fill of B. the one faid * But one
that t P. Â« Â«* T. and not in B - and for l^ e "rn of the Bealts he avowed for "â„¢^ nt
Damage teafant in his J ever al Soil, and the other [aid, that at the Time of thaf the Fro ,
the taking the Property was in another, % and not in the Plaintiff'; and both p er ty is wan-
are trcod Pleas. Br. Replevin, pi. 1. cites 2 H. 6. 14. ***n ***
â– * t? â€¢â– that he took
them in wether I'M ; For it is double. Ibid. pi. 8 cites 41 E. 3. 18. f S. P. And the Plaintiff was
compelled to maintain that P is in B. and the other econtra. Ibid. pi. 7. cites 41 E. 9. 4. $ S. P.
And this pes to the ABian; per Pallon ; quod Nora. Ibid. pi. 5. cites 9 H. 6. 39. S. P. but Contra in
Trefrafs;'and Brcok lays, the Diverfity feems to be inafmuch as in Trefpafs, he may give this .Matte*
in Evidence upon the General Iflue, contra upon a General Iflue in Replevin, Cmod non cepit. Ibid,
pi. 5. cites 20 H. 6. 1S. S. P. Ibid. pi. 47 . cites 2 H. 6. 14.
3. And fee lib. Intr. that the firfr Plea Hull be concluded. Judgment of
the Count, and the laft, judgment of the Writ. Ibid.
4. Rcple\in of a Taking in Sale, the Defendant Jkall not fay that the * S.P.G.*-
Place is named 'Dak, and not Sale; For he cannot plead Miihofmer tfJJ/JJJ
the Place, as he may do of the Place of which the Defendant is named ttryi Yovin
in Trefpafs, but he may fay in Replevin,, that the Taking was in * ano- theme Cafe
2 4- Replevin.
tem- t her -Place, and not in the Place in the Writ. Br. MIfaofrher, pi 36
cites io H. 7. 5.
the c:\tr. Br. Re] levin, pi. 4; cites 2 H. 6. 14. Br Replevin, pi. 5 cites H. 6.
ontra, That :: i> no Plea toy.r. il-.u be took them it. C. ,:>:d not in D by winch he added al-j- â–
then well. S. P. 1 hat it is no Plea to fay that he took them in ;: 01
Place than where the Plaintiff counted, unlefs he Jbews Caufe oj tic taking â– â– â– â€¢â– t.i make Avou ry &c. and
the Caufe or Matter of the Avowry pail not be traverfed; but thelffue fli.dl be takeu upon the
Place; i]Uod"iNota, Iflue tender'd which fhall not be tried. Ibid. p). 45. cites 21 E. 4, 64.
5. Replevin for taking his Cattle in qtiodam Loco vecat. the Brills in
quid::;)) alio Loco ibidem vocat' the Boggs, the Defendant avew'dthe Taking
in jwcditlo Loco in quo Â£?V.for that H. was feifed thereof in Foe of the Lo-
cus in quo ckc. The Plaint ill' demurred, becauie here were two Places
"alledged, and the Defendant had only ani'wered to the Locus in quo &c.
which is but one of the two Places ; and per Curiam, it is a Difcontinu-
ance. 1 Salk. 94. pi. 5. Mich. 13 \V. 3. B. R. Weeks v. Speed.
"â– pi- 6. Replevin tor taking his Mare at H. in que dam Loco - ' e King's*
Â°- S i ac 2_ Highway ; the Deiendant made Cognilance, and jujh fit d the taking in a
2Â°Ld. Ravm. ^ ace called the J^iieen's Highway, tor that it was the Freehold of the
Rep. 1 if.. Lord Lemiter, and traverjed the taking in the Place called the Ki fig's
S.C. accord. Highway , unde petit Judicium & Retorn' EquaBj the Plaintiff replied,
| n Â£ -,' :l â„¢* Quod cognofcere non debet ; For that the taking was in the King's High-
batfd/ C wa yj & kÂ° c V QZil quod inquiratur per Patriam. The Defendant demurred,
and concluded, Et ut prius petit Judicium, & quod Narratio prad' caffctur ;
and the Plaintiff joined in Demurrer. The whole Court agreed, That
all the Matter of Conufance in the Plea was v. aived bv the Abfque hoc,
and the Conufance in a different Place from w here the Declaration lays
the taking is in Truth Matter only proper in Abatement ; but theCon-
clulion turning it into an Avowry makes it a Ilea in Bar, as all Avow-
ries are, and final Judgment is always given upon them, if they go lor
the Avowant. They alfo agreed, That where Matter in Abatement is
pleaded in Bar, and concluded in Bar, Judgment final ought to be given.
And that the Conclulion to the Demurrer, viz. Unde petit Judicium (ut
prius) was well enough, and according to the Conclulion of the Plea in
Bar; and that the iublequent Words viz. (Etquod Narratio caifetur)
being inconfiftent, fhall be rejected ; And lo Judgment in C. B. was af-
firmed in B. R. 6 Mod. 102. Hill. 2 Ann. Croile v. Billon.
7. In Replevin, if Defendant will take Advantage of a Variance in
the Place where the taking is laid, from that in w hich really it was, he
muff plead it in Abatement, and begin either Petit Judicium de breve,
or deNarr' quia dicit, the Cattle were taken in fuch a Place, abfque hoc,
that they were taken in the Place in the Declaration. And where he
comes, Â£t pro Return habendo, diltincltly lays, he avows the taking in
the Place mentioned in the Inducement ol his 1 raverfe, Damage feafant,
or for Rent ckc. to this no Anfwer is to be given, but all is to de-
pend on the Plea in Abatement, and it is a proper Conclulion in Reple-
vin to fay, Unde petit Judicium & Return' Averior', without faying
any Thing of Damages, for they are given by the Statute; per Hole
Ch. J. 6 Mod. 103. Hill. 2 Ann. B. R. in Cafe of Croile and Bilfon.
(F^ce -)(Â£* a ) Fadings. Property pleaded in the Plaintiff or
â€”(a. a) pf. a Stranger, in what Calcs, and claim d at izhat 'Time.
AFter Avowry made by the Deiendant in Replevin, he cannot claim-
Property. Br. Gage Delherance, pi. 24. cites 20 Â£. 4. 11.
pi. 2. 5.
2 Ic is no Plea in frefpafs that Property of the Goods was to the rh-.Trefpafsj
Plaintiff &c Contra in Replevin, quod Minim ! For it teems to be noPU-cites^
Plea in the one nor the other j but it is a good Plea for the Defendant in G __ ln Re _
Replevin to claim Property, but to lay that it is in the Plaintiff, is no p i ev i n \ x ; s A
Plea as I think â€¢ For lie cannot have Replevin without Property or Spe- good Plea to
cial Polleihon. ' Br. Property, pi. 3 - cites 27 H. 8. 25. g^*Â« **,
the Plaintiff, and to a Strang** and where there be two Plaintiffs, thai the Property is to one 0} them. Co.
Litt. 145. b.
3 In Replevin, the Defendant pleads Property in himfelf\ and not tf Wildnan v
the Plamtt [f y upon which the Plaintiff, demurred, luppoling this Plea J* Â£ ^
amounted to the General Iiiue, as in Trefpais fuch Plea does. Per Hale, therc tne
This may be pleaded in Abatement, or in Bar. The General TJfae in Re- Plea was that
pievin isNon cepit, and upon that J flue, Property cannot be given in Evidence;^ Property
But if Defendant pleads Property in a Stranger, then it is proper to ^ " * ^
conclude in Abatement. But in this Cafe, the Defendant lhould regu- que hoc,' that
_Proprietate probanda; but yet this flea lerves as an Avowry, anQ J col .^ intrlyfoi .
the Defendant lhall have a Return. Vent. 249. Mich. 25 Car. 2. B. R. the Dc T fen _
W'ildman v. Norton. dant â€” 2LA
9 S 5 It is faid, that in the Cafe of ftltiltiman Si. ifiortl), the Plea was Property in the Defendant, as
it is reported in Vent. 249- and not Property in a Granger, as Levins reports. : , ' _
In Peplevin &c. tor taking two Heifers. The Defendant pleaded that at the Time of the taking &c.
the Property of them was in one f B. abfyue hoc that the Property of them was in the Plaintiff, Et ho*
taratJeftVe.rif.care unde petit -Judicium li prsedicT." R. P. Actionem iuam predict* inde ycrfus eos habere
leu manutenere debeat, et petunt etiam Retorn* avenorum dbi adjudican &c. Upon Demurrer, it wa*
admd<*ed that this was a good Plea in Ear, and that the Defendant mould have Return without any Spe-
cial Suggepw for that Purpofe. Carth. 3 o3. Patch, y W. 5. B.R.Parker v. Mellor â€” 12 Mod.
122 S C And the Court at firft held, that if the Defendant pleads Property 111 hirnfelf, he may pray
a Return but if it be in a Stranger, unlel's he has the C.ultody by Bailment, and fo makes a Special