CHAPTER VI. AVOWANT'S PROCEEDINGS IN REPLEVIN. Peculiarity of the Action of Replevin-Avowant's Proceedings if Plaint not entered in County Court-Removal of the Cause-Instructions to Agent-How to compel Plaintiff to declare-Non-Pros-Avowry-Proceedings to TrialTaking down the Record-Judgment-Double Costs. AN action of replevin generally arises out of a distress, which may be either for rent, damage feasant, for a rent-charge, a heriot, or some other demand or duty withheld, to which the remedy by distress is applicable. In this action the person distrained upon seeks to recover damages for an illegal taking of his property; but before bringing the action, he has already obtained his property back again, without rendering to the party who distrained the duty or demand in respect of which the distress was made; and the peculiarity of this action is, that the party complained of, on avowing or acknowledging the taking, justifies it, and seeks to recover, in the same action, damages for being delayed in his remedy by the plaintiff having replevied the distress; he also seeks to have the distress returned to him, and so to be put in the same situation he was in before the plaintiff replevied; and where the distress was for rent, he generally seeks to recover the rent itself; so that in the great majority of cases, the defendant, or, as he is called, the avowant, is the party whose interest it is to prosecute the action, for he has something substantial to recover; but all that the plaintiff has to recover are damages for the temporary taking of. his property, which are generally nominal; for though four guineas are the damages a plaintiff usually recovers when he succeeds, this will only reimburse I him the expense of replevying, and is not an object worth pursuing at any risk. The avowant being therefore in the majority of cases the party who presses on the action, his proceedings will be noticed first. The distress having been made, and the person distrained upon having replevied, and given a replevin-bond to the sheriff, he is bound to enter his plaint at the next County Court. If he fail to do this, the party making the distress may take an assignment of the replevin bond, and proceed against the parties who have entered into it: or if the sheriff have taken no bond, or it be found that he has taken insufficient sureties-that is, if the persons who have entered into the bond are so clearly insufficient that the sheriff with reasonable diligence might have been aware of it, the sheriff is liable to an action for his negligence, at the suit of the party who made the distress. If, however, the plaintiff duly enter his plaint at the County Court, it will, in general, be advisable for the party who made the distress (who then be comes defendant) to remove the cause into one of the superior Courts immediately; for if this be not done the plaintiff may probably go on with the cause in the County Court for some time, and then, after considerable delay and expense, may himself remove the cause for the sake of further delay. To prevent this the defendant should in general remove it himself as soon as the plaint has been entered. With this view his attorney should write to his agent for a writ of recordari facias loquelam, or, as it is always called, a re. fa. lo., and the instructions the agent will require will be the following: The names of the plaintiff and defendant, and the county in which the plaint is levied, (which is always the same as that in which the distress was made,) at the instance of which party the writ is to be issued, the superior Court in which the action is intended to be carried on, and the day on which the next County Court will be held. On receiving these instructions, he will in a few days obtain and send the re. fa. lo., and it should then be sent to the under-sheriff (before the County Court day) with instructions to have it read and returned at the County Court. The attor ney, on or after the County Court day, must then get the writ and return from the under-sheriff, and send it to his agent, who will appear in the Court above and file the return, and give (if so instructed) a rule to declare, and will send the necessary notice or rule to be served on the plaintiff. This notice, or rule, the defendant's attorney must serve on the plaintiff; and he must take care to serve it on the very day his agent directs him to do so; and he must then inform his agent that it has been served, and the day of service. Having received this information, the agent will, if the plaintiff do not declare within four days after the service, sign judgment of nonpros. If, however, the plaintiff do declare, the defendant's agent will send a copy of the declaration, and will require instructions for the avowry (which is the name of the defendant's answer to the plaintiff's declaration); these, which will consist of a statement of the cause of the distress, must be sent, and then the cause proceeds to issue, like any other cause; the difference in the practice in replevin from that in other causes arising chiefly before declaration, and after issue is joined. The difference in the practice after issue joined is chiefly this, that in other actions the plaintiff only can give notice of trial, and take down the record to the assizes; but in replevin (both parties being considered as actors, and indeed the defendant being most frequently the party prosecuting the action), the defendant also may do the same thing. So that in replevin it often happens that both parties give notice of trial, and two records are brought down, and the cause is twice entered in the cause paper at the assizes, though, of course, if the trial takes place on one record, nothing is done on the other. The successful party will be allowed the costs of his record, whether the trial have taken place upon it, or upon his opponent's record. After trial, the proceedings to judgment are the same as in other cases, except that where the distress was for rent, and the defendant succeeds (having formerly been entitled to double costs), he is entitled to have his costs taxed in such a manner as to be a full and reasonable indemnity as to all costs, charges and expenses incurred in and about the action, stat. 5 & 6 Vict. c. 97, s. 2. I zezawi Where the defendant in replevin succeeds, it is sometimes advisable to issue a particular writ of execution, called a retorno habendo; but this will be afterwards explained. PLAINTIFF'S PROCEEDINGS IN REPLEVIN. dijos dt Juods big I 991169 # Replevin-bond-Returning Distress Entering Plaint—Re moving -for Pleasuse-Declaring-Instructions for Declaration Bar-Proceedings to Trial. 750 WHEN a distress has been made on a party who determines to replevy, and he applies to an attorney to take the necessary steps for the purpose, the attorney must direct him to procure two sufficient persons, who will join him as sureties in the replevinbond to the sheriff; and the attorney, that he may be able, if necessary, to explain to the sureties the extent of the liability they are incurring, should be aware that if the plaintiff fail in the replevin suit, the sureties are liable absolutely to the extent of the penalty of the replevin-bond (if the rent, or damages and costs recovered, amount to so much), and cannot get rid of their liability, as in the case of a bail-bond, by rendering the party to prison. Having procured sureties, application should be made to the under-sheriff, or a person appointed for the purpose, to make the replevin, who, on the bond being executed (the penalty of which must be in double the value of the goods distrained, which value is ascertained by an appraisement on oath), and the fees paid, will deliver the distress to the party from whom it was taken; this having been done, the attorney for the person distrained upon (who will now be called the plaintiff) must take care to enter the plaint at the next County Court, for if this be neglected, the replevin-bond will be forfeited. The plaint having been so entered, the action. |