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rent or damage and the probable costs of the cause in the
High Court or in the County Coui-t, as the case may be (5).
Probably nearly all actions of replevin would be com-
menced and determined in the County Courts, but
[*509] for the objection as to costs before * mentioned (c).
That however is so serious a drawback, as to render
it generally unadvisable for the plaintiff to bring liis action
of replevin in the County Court where he can possibly avoid
doing so, except where he knows that he is in the wrong,
and will have to pay all the costs of the action.

Fees payable on a replevy. — The fees payable at the County
Court, on making a replevy, are as follows ((/) :

£ s. d.

For a warrant to replevy 2 6

For a replevin bond, where the alleged rent

or damage (e) does not exceed 20^. ... 10 6
For a replevin bond, where the alleged rent or

damage (^) exceeds 20/ 110

For notice to the distrainer 2 6

For delivering the goods 110

Together with 6d. a mile from the court
house to the place where the goods are.
other fees in replevin.

For making a return to a writ of certiorari,
6d. in the pound, so long as total does not
exceed 10

(z) m & 20 Vict. c. 108, s. 55. Sched. (C), as altered by Treasury

(u) Id: 8. CO. Order of October, 1875; Pollock &

(h) Ante, p. 503. Nicol, C. C. Prac. 2()-:]5 (8th ed.).

(r) Ante, p. 471. . (e) The words "or dainafje " apply

('/) 10 & 20 Vict. c. 108, s. 78, to a claim for damage feasant.

788



Ch. XII. S. 1.] REIM.EVIN. *510

X S. d.

For costs out of pocket in the same . . . 15
Tlie fees payable in an action of replevin in

the County Court are the same as those in

other actions (/).
In replevins all poundage, except as aforesaid,

shall be estimated on the amount of the

alleged rent or damage, to be fixed by the

registrar.
The poundage is Is. in the pound ; fractions

of a pound are to be reckoned as one pound.
In every case where the poundage would, but for this

direction, be estimated on an amount exceeding 20^., it

shall be estimated at 20?. only.

(c) Action of Replevin in the County Court.

Replevin without writ — By the County Court Act (9 &
10 Vict. c. 96), s. 119, "all actions of replevin in cases of
distress for rent in arrear, or damage feasant (^), which
shall be brought in the County Court, shall be brought with-
out writ in a court held under this act."

By plaint. — By sect. 120, " in every such action of
replevin the plaint shall be * entered in the court [* 510]
holden under this act for the district wherein the dis-
tress was taken."

Within one month. — By 19 & 20 Vict. c. 108, s. 66, the
action must be brought within one [calendar] month from
the date of the securitj^ (whether by bond or memorandum
of deposit), and must be prosecuted with effect (A), and
without delay (i).

Entry of plaint. — The action is commenced by entering a
plaint in the usual form at the office of the registrar of the
County Court, which is generally open from ten till four,
except on Saturday (Ic)., when the office closes at one
o'clock. •

(/) See Pollock & Nicol, C. C. (/O i.e., with success; ante, 500

Prac. (c).

(«7) Extended to all cases of re- (/) .In^c, 500 (rf).

plevin whatever, by 23 & 24 Vict. c. (A) When Saturday is tlie market-

126, s. 22. day of the town in which the court is

789



*510 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.

C. C. Rules, Order XXII. — By the County Court Rules of
1875, Order XXII., provision is made for the regulation
of actions of replevin.

No other cause of action to be joined. — By Rule 1 of
that order, "• in an action of replevin no other cause of action
shall be joined in the summons " (Z). This operates as a
great protection to landlords and their bailiifs (w), and also
prevents confusion in the subsequent proceedings, wherein
both parties are considered as actors, or plaintiffs, and the
judgment differs from other actions, being frequently for
the defendant with damages for the amount of the rent, or
damage done, and costs.

Particulars of cattle or goods to be replevied. — By Rule
2, " on entering a plaint in replevin the plaintiff must specify
and describe in a statement of particulars the cattle, or the
several goods and chattels taken and of the distress, or other
taking of which he complains " (w). Such particulars must
have been prepared when an application was made to the
registrar to replevy (o) because the particular cattle or goods
intended to be replevied are mentioned in the warrant to the
bailiff (i?).

Fees. — The registrar, or his clerk, enters the plaint upon
being furnished with such particulars, and upon payment of
the usual fees (p).

Summons to defendant. — Upon the plaint being entered a
summons issues in the usual form, with particulars annexed,
and a copy is served on the defendant by the bailiff, in like
manner as in other actions (^).

Trial and judgment in a summary -wray. — By Rule 3, " all
actions of replevin in cases of distress for rent in arrear, or
for damage feasance (r), shall be tried in a summary way
as other actions in the courts holden under the authority of
the County Courts Act, 1846, and the judgment therein,

lioldcn, some otiier (l;iy is fixed by («) See Fyrni, App. E., Sect. 3 (a)

order of the judj^o. 1, poal.

CO See per Tollock, C. B.. in Mun- (o) Ante, 503.

!?ean v. Wlieatlcy, (> Excli. 8H ; 20 L. {]>) Td.

J., Ex. 100. (7) PoUoek & Nicol, C. C. Prac.

Cm) Ah to j)r:i(:tice in Hif^li (%)urt, 205 C*^tli cd.).

see 613, post. (r) See 23 & 24 Vict. c. 120, a. 22.

790



Ch. XII. S. 1.] REPLEVIN. *511

in ordinary cases, whether for phaintiff or defendant, shall be
according to the forms set forth in tlie schedule" («).

* Right to jury. — By Order XVI., Rule 3, cases [*511]
of replevin may, at the instance of either party, be
tried by jury.

Evidence for plaintiff. — The plaintiff must prove the dis-
tress or taking of which he complains, and that the defendant
was the person who took it or caused it to be taken (^) ; and
that the defendant, or his bailiff or agent, took or had the
goods or cattle at the place within the jurisdiction of the
court mentioned in the plaint. In replevin the alleged place
at which the goods were taken is material («) ; but the plaint
may be amended by leave of the judge, whenever it can be
done without prejudice to the real question intended to be
tried upon the merits (a;). The plaintiff must prove that at
the time of the taking he had an absolute or qualified prop-
erty in the cattle or goods taken (?/). He should also state
the amount of expenses incurred in making the replevy ; but
where no evidence on that point is given, the usual amount
will be awarded if the plaintiff obtain the verdict. No
special damage can he recovered unless it be expressly men-
tioned in the plaint, and sufficiently proved. The plaintiff
may either anticipate by evidence and negative the defend-
ant's right to distrain, or he may reserve his evidence on
that point until after the defendant has adduced his evi-
dence («).

Evidence for defendant. — The defendant may contend that
the plaintiff's evidence is insufficient on some material point ;
ex. gr. — 1. That he, the defendant, was the person who
took or caused to be taken the goods or cattle. He may
dispute or deny any alleged authority given by him for the
distress. If a distress warrant be put in evidence by or on
behalf of the plaintiff, the landlord may contend that it
was not signed by him, nor by any person autliorized to sign

(s) See Forms, App. E., Sect. ?, (.r) 19 & 20 Vict. c. 108, s. 57; C.

(a) 2, 3. C. Rules, 1875, Order XVII. ; Pollock

(0 Ante, 502. & Nicol, C. C. Prac. 170-173 (8th ed.).

(m) Potter V. North, 1 Wins. (//) Ante, 502.

Saund. 347 ; Potten v. Bradley, 2 (2) See evidence in reply, post.
Moo. & Pnvne, 78.

791



*.512 REMEDIES FOR WRONGFUL DISTRESS. [Cii. XII. S. 1.

it as liis agent — and that he has never adopted or ratified it
in any manner. He may contend (if the fact be so) that the
warrant was expressly confined to the goods of the tenant,
and did not extend to the goods of any other person (where
a subtenant or lodger or third person sues) — or that the
warrant expressly prohibited the taking of anything not
legally liable to be taken as a distress for rent (where the
replevin is for cattle or goods legally exempt from such a
distress). 2. That he neither took nor had the goods or
cattle at the place, witliin the jurisdiction of the court,
mentioned in the plaint ; although this may sometimes be
cured by an amendment, where the defendant took or
had the goods at some other place within the jurisdiction.
3. That the goods or cattle were not at the time of the
taking the property of the plaintiff (a). Upon any
[*512] of * these points he may produce contradictory evi-
dence. He may also prove a right to distrain, either
on his own behalf or as the bailiff or agent of any other
person (6), for all or any part of the rent claimed (c), or for
damage feasant, or for any other lawful cause. He need
not prove a right to distrain for the particular cause alleged
at the time of the taking ; because, as we have seen, a man
may distrain for one thing and afterwards avow or justify
for another (c?). It is therefore sufficient if he prove a legal
right to distrain for any cause whatever. The amount of
rent in arrear, and the value of goods distrained, should also
be proved (e).

The plaintiff may in reply dispute and disprove anything
attempted to be proved by the defendant in justification of
tlie act complained of, but the usual practice (where the lease
or agreement is duly stamped) is for the plaintiff to produce
all his evidence in the first instance, rather than as evidence
in reply.

(a) Ante, 502. 840; 22 L. J., Ex. 16; White v.

(6) Sec Trevillian v. Pine, 11 Mod. (Jreenisii, 11 ( '. B., N. S. 209; 8 Jur.,

112; 1 WiiLs. Saund. :547 d, note; N. S. 66;}.
Trent v. Hunt, 9 Exch. 14 ; 22 L. J., (r/) Ante, 478.

Ex. 318 ; Snell ,: Finch, 13 C. B., N. (e) See Slieape v. Culpeper, 1 Lev.

S. 651 ; 32 L..I., ('. P. 117. 256; .see. too, ('. C. Rule.s 1875.

(c) See Cobb v. Bryan, 3 B. & P. Order XXII., Rule 4, hifra.
.348; Roskrufro r. faddy, 7 Exch.



Cn. XII. S. 1.] REPLEVIN. *513

The judgment in ordinary cases. — The judgment in re-
plevin in ordiuiuy cases, whether for plaintiff or defendant,
is in the usual form, as in other actions. Where the plaintiff
succeeds he is only entitled to a verdict for the expenses of
the replevy (/) as proved or as estimated on the usual
scale (^). His solicitor's charges (if any) connected with
the replevy must be proved, otherwise nothing will be
allowed in respect of them, but only the fees paid to the
registrar (7i). As to the plaintiff's costs of the action it is
provided by County C'ourt Rules, Order XXXVI., Rule 10,
tliat " costs in actions of replevin may, where the fees of
court are paid on 5^. and upwards, be allowed to solicitors
upon the scale applicable to actions on contract where the
amount claimed exceeds 20?. if the judge shall so order."
Unless the fees be so paid on 51. or upwards, the plaintiff it
seems is still left to his position under 9 & 10 Vict. c. 95, s.
91, and can get no costs of professional assistance, as the
damages will be always or nearly always under 51. (i).

Judgment for defendant on distress for rent. — By Order
XXII., Rule 4, of the Rules of 1875, " where the distress is
for rent, or for any other claim for which a distress may be
lawfully taken and the defendant succeeds in the action, if
the defendant require, the court shall, if the action be tried
without a jury, and the jury shall, if the action be tried with
a jury, find the value of the goods distrained, and if the value
be less than the amount of rent or otherwise of money in
arrear, judgment shall be given for the amount of
such value, but * if the amount of the rent or such [*513]
other sum of money in arrear be less than the value
so found, judgment shall be given for the amount of such
rent or other sum of money, and may be enforced in the
same manner as any other judgment of the court" (/c).

Execution. — A judgment for either party in replevin is
enforced in the same manner as in other actions (/).

(/) Ante, 507. (k) See Form of such Judgment,

Ig) Ante, 507. post. Appendix E., Sect. 3, (a) 3.

(h) Ante, 507. (/) Pollock and Nico.i, C. C. Prac.

(i) See, however, 19 & 20 Vict. p. 191 e< se?. (8th ed.).
c. 108, s. 36, and 45 & 46 Vict. c. 57,
s. 5.

793



*513 REMEDIES FOE WRONGFUL DISTRESS. [Ch. XII. S. 1.

Appeal on question of law to High Court. — Either party
to an action of rej)levin, "where tlie amount of rent or dam-
age exceeds twenty pounds " (w), who is dissatisfied with the
determination or tlirection of the said court, " in point of hiw,
or upon the admission or rejection of any evidence " (but not
on any question of fact}, may appeal from the same to any
of the superior courts of common hxw at Westminster, upon
the same terms and conditions and in like manner as in other
actions (?i). The party desiring to appeal must within ten
days after the decision give notice of appeal to the other
party or his solicitor, and also give security, to be approved
by the registrar, for the costs of the appeal, whatever be the
event of the apjjeal, and for the amount of the judgment, if
he be the defendant (o). The court cannot entertain any
such appeal where the condition of giving security for costs,
«&c., imposed by 13 »& 14 Vict. c. 61, s. 14, has not been
strictly complied with (jt?). The appeal may be either in the
form of a special case settled and transmitted pursuant to 13
& 14 Vict. c. 61, s. 15, or by motion under the County
Courts Act, 1875, s. 6 (5-), in which case the motion will be
for a rule nisi in the first instance. In either mode of appeal
the matter will be heard by a Divisional Court of the Queen's
Bench Division of the High Court as may be appointed, at
such times as such court sit to hear appeals from inferior
courts (/•). When the appeal is by motion, the application
for a rule nisi may, when no court is sitting for the hearing
of such matters, be made to a judge at chambers (f^).



(m) As a general rule the right to Nicol, C. C. Prac. Chap. XII. (8th

appeal depends on the amount of the ed.). In White, app., Greenisli, resp.,

plaintiff'.s claim for rent and not on 11 C. B., N. S. 209, the ajjpellants

the anioimt for which judgment is succeeded on appeal, although they

given; Pollock r. Nicol, C. C. Prac. were entitled to distrain for only one

2;'') (8th ed.) ; Dreesman *•. Harris, 9 moiety of tlie rent for which the dis-

Exch. 485; 23 L. J., Ex. 210; Mayor tress was taken.

1-. Burgess, 4 E. & B. 055 ; 24 L. J., (o) 13 & 14 Vict. c. Ul, s. 14.

Q. B. G7; Vallance v. Nash, 2 11. & (/>) Norris v. Carrington, 10 C. B.,

N. 712. N. S. 10.

(h) 13 & 14 Vict. c. 01, 8s. 14, 15, (7) 38 & 39 Vict. c. 53, s. 0.

16; 19 &20 Vict. c. 108, ss. 08, 71 C. (r) Jud. Act, 1873, s. 45; U. S. C.

C. Rules, Order XXIX. ; Pollock v. Order LIX., Kule 11.

794



Ch. XII. S. 1] REPLEVIN. *514

(d) Action of Replevin commenced in the High Court.

Jurisdiction of High Court in replevin. — Jiy 11) & 20 Vict,
c. 108, s. 65, "iiu action of replevin may be commenced in
any superior court in the form ai)plicable to personal
* actions therein, and such court shall have power to [*514]
hear and determine the same ; and if the replevisor
shall wish to commence proceedings in any superior court,
he shall, at the time of replevying, give security, to be ap-
proved by the registrar, for such an amount as such registrar
shall deem sufficient to cover the alleged rent or damage in
respect of which the distress shall have been made, and the
probable costs of the cause in a superior court, conditioned to
commence an action of replevin against the distrainer in such
superior court as shall l)e named in the security, within one
week from the date thereof and to prosecute such action ivith
effect (.s), and without delay (f) ; and, unless judgment therein
be obtained by default, to prove before such superior court
that he had good ground for believing either that the title to
some corporeal or incorporeal hereditament, or to some toll,
market, fair or franchise was in question, or that such rent or
damage exceeded twenty pounds, and to make return of the
goods, if a return thereof shall be adjudged."

Commencement of action. — The action must be commenced
ivithin one week from the date of such security, excluding*
the day of such date. And it must be prosecuted " with
effect " (w), and " without delay " (j;), otherwise the bond
or deposit will l)e forfeited.

Writ of summons. — The action is commenced by writ of
summons as in other cases, which will be indorsed thus —
" The plaintiff's claim is in replevin for goods wrongfully
distrained" ( //).

Joinder of other causes of action. — Under the Common Law
Procedure Acts no other cause oi action could be joined
with replevin, but this restriction is no longer in force,

(s) i.e., with success; ante, 500. (r) ^1/;^', .500 (r/).

(i) i.e., with due diligence; ante, (y) R. S. C. Appendix A., Fart II.,

500. s. i."
(k) Ante, 500 (c).

795



*515 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.

altliough separate trials may be ordered if the court or a
judge think the various causes of action cannot conveniently
be disposed of together (2).

Old declaration. — The declaration used to be, as a rule, in
a technical form, which, after alleging the taking of the
goods, &c., in a certain place by the defendant, went on to
allege that he " unjustly detained the same against sureties
and pledges, until, &c., whereby the plaintiff has sustained
damage." This form has been used by some practitioners
since the Judicature Acts, but it would seem very doubtful
whether a statement of claim in such form would be held
good on a summons to set it aside or amend it, as the state-
ment ought to be a narrative of facts and not a mere tech-
nical form (a).

What damages recoverable. — The only damages recoverable
in this action are the expenses to which the plaintiff has been

put to replevy liis goods (6).
[*515] * Defences, avowry and cognizance. — The defences
to an action of replevin were formerly distinguished
as pleas, avowries and cognizances, the two latter of which
terms were used when the defendant justified the taking of
the goods, &c., under a right to distrain, and also claimed
their return and damages ; the former being used when the
person having such right was the defendant, the latter when
the defendant was bailiff or agent of the person having the
right. These terms no longer exist as technicalities, a de-
fence now being a statement of facts, and the defendant
being able to counter-claim the return and damages ; but
they will perhaps be still occasionally used for the sake of
convenience.

Former law of avowry. — In former editions of this work
will be found a full account of the law, statutory and other-
wise, upon the subject of avowry and cognizance. Such
account is now wholly omitted, inasmuch as the statutes
upon the subject, 13 Ed. 1, c. 2 (West. 2), 21 Hen. 8, c. 19,

{:) K. S. C. Order XVIII., Rule 1. 32 L. J., M. C. 121 ; Connor v. »ent-
(a) See R. S. C. Order XIX., Rule ley, 1 Jebb & S. 240. See, too, Wil-
4. kinson on Replevin, 85.

(6) I'ease v. Chaytor, '.] H. & S. O.'M ;

7 OF.



Oil. XII. S. 1.] REPLEVIN. *516

17 Car. 2, c. 7, and 11 Geo. 2, c. 19, ss. 22, 23, are now re-
i:)ealed by the Civil Procedure Acts Repeal Act, 1879, 42 &;
43 Vict. c. 59, and the Statute Law Revision Act, 1881, 44
& 45 Vict. c. 59, as being inconsistent with or superseded by
the practice under the Rules of the Supreme Court made in
pursuance of the Judicature Acts.

These rules make no distinction between replevins and
ordinary actions. The following special points, however,
should still be mentioned : —

Judgment for plaintiff ; damages recoverable. ^ If a verdict
be found for the plaintiff he is not entitled to damages for
the value of the goods or cattle taken, if they were returned
to him when the replevin was made (as is usually the case) ;
nor to any special damage for their wrongful taking or de-
tention ; nor to any compensation for the insult, annoyance
and inconvenience to the plaintiff and his family by the dis-
tress ; nor for any injury thereby occasioned to his trade or
business, credit or reputation ; but only the costs and ex-
penses incurred by him on obtaining the replevy, including
the fees paid at the County Court (c). Now, however, as
other causes of action may be joined with the replevin (c?),
the plaintiff should claim further damages in the first in-
stance as for a substantive cause of action. The expenses of
the replevin were formerly 21. 2s, in London and Middlesex,
and in some other places, and 2Z. 10s. elsewhere, being the
supposed expense of the replevin bond ; but now the amount
varies according to the sum distrained for. And if the
plaintiff incurred further expenses than the fees paid at the
County Court (his own solicitor's charges, for instance) he
should prove them and also the fees so paid ; otherwise
the lowest usual amount will be awarded.

* If the goods or cattle have not been delivered to [*516]
the plaintiff on the replevy, he is entitled to recover
the value of the goods or cattle distrained (t?), and also his
damages for their detention, &c. (as in an action of detinue),
together with the costs and expenses of the replevy ; and

(c) Wilk. Repl. 85 ; Gibbs v. Oruik- {d) R. S. C. Order XVIII., Rule 1.

shank, L. R., 8 C. P. 454; and 51U, (e) 2 Chit. Arch. 1082 (11th cd.).

post.

797



*516 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1.

perhaps also any special damage occasioned by the distress,
which is properly alleged in the declaration and sufficiently
proved. In such case the jury should by their verdict sepa-
rate the damages, and find so much for the value of the
goods or cattle, and so much for the detention, &c. (/).
The jury may find a special verdict in an action of re-
plevin (^).

Proof of special reason. — By the condition of the replevin
bond, where the action is brought in the High Court, unless
judgment be obtained by default, the plaintiff must "prove
before such superior court that he had good ground for be-
lieving either that the title to the same corporeal or incor-
poreal hereditament, or some toll, market, fair or franchise
was in question, or that such rent or damage exceeded
20Z." (/i)- It would seem that the plaintiff should apply
upon affidavit to the court or a judge in chambers (/) for
leave to enter a suggestion on the roll, that the plaintiff has
proved before this court that, &c. And when the rule abso-
lute or order for such leave is obtained to make an entry ac-
cordingly on the roll ; otherwise, perhaps, the plaintiff and
his sureties may be troubled with an action on the replevin
bond, notwithstanding he obtained a verdict and judgment
in his favour.

When judgment a bar to other action. — A judgment for
the plaintiff in replevin is a bar to an action for damages for
the same taking of the goods in respect of which the replevin
was brought (/c).

Costa. — Under 11 Geo. 2, c. 19, s. 22, where a defendant
avowed or made cognizance upon any distress for rent, quit-
rents, reliefs, heriots or other services, and the plaintiff be-
came nonsuit, discontinued his action, or had judgment
against him, the defendant in re})lcvin recovered double costs.

(/) Ash V. Wood, Cro. KHz. T)!*. hut in this case a certificate was re-

((/) Sec tlie case of .Jones r. .Jolin- fused hecause the plaintiff had not

son, 5 Excli. 802; 7 Exch. 452. obtained the verdict.

(A) 19 & 20 Vict. c. 108, s. (55; (/-) Gibhs ;;. Cruii<shank, L. R., 8

ante, 504. C. 1'. 4.54 : 42 L. .1., C. P. 273; 28 L.

(/) Not to the Judfje at nisi prius; T. 7.'55 ; 21 VV. R. 734.
Tunniclitfe v. Wilmot, 2 C. & K. G2(i,

70K



Cn. XII. S. 1.] liEPLEVlN. *517

But now in lieu of such double costs he is entitled to receive
such full and reasonable indemnity as to all costs, charges
and expenses incurred in and about the suit as shall be taxed
by the proper officer in that behalf (?).

Costs of distress not recoverable. — Under 17 Car.
2, c. 7, a successful defendant in replevin is not * en- [*r)17]
titled to the costs of making the distress (m) ; and



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