may, if no question of title to land arise, go on in the County Court; but as the practice of that Court does not come within the object of this work, it will not be touched upon here. The cause may be removed into one of the superior Courts, either by the plaintiff or the defendant; when it is removed by the defendant, the plaintiff will be served with a rule to declare, upon which his attorney must immediately send instructions for declaration to his agent, so that the agent may be able to deliver the declaration within four days from the service of the rule; if it be impracticable to send instructions for declaration in time, the agent will be able to obtain further time to declare, on being instructed so to do, and informed of the name of the cause, the Court iinto which it is removed, and the name of the defendant's London agent, all which will appear from the rule served on the plaintiff.

If, however, the plaintiff's attorney think fit, he may obtain a re. fa. lo. to remove the cause, the necessary instructions for which have before been pointed out (at page 170); and if, as is sometimes the case, the defendant be desirous of delaying the cause, it will be proper for the plaintiff to issue a re. fa. lo., although the defendant may have already done the same thing, for the defendant may neglect to file his re. fa. lo. and return, and so delay the plaintiff ; and in that case the plaintiff also gets a return to his re. fa. lo. at the next County Court, and sends it to his agent, who will take the proper steps to compel the defendant to appear.

The plaintiff's attorney then sends to his agent instructions for declaration, and the necessary instructions are the following:

1st. The names of the plaintiff and defendant.

2ndly. The county, parish, and place where the distress was taken, and whether it were in a dwelling-house, or other building, a field, close, or common; and if a field, close, or common, its name should be given.

3rdly. A list of the articles distrained.

On receiving these instructions, the plaintiff's agent will get the declaration prepared and delivered; and when the defendant has delivered his avowry or avowries, the agent will send the plaintiff's attorney in the country a copy of the declaration and avowries, and will then require instructions for pleas in bar: (the plaintiff's answer to the defendant's avowry is called a plea in bar). These instructions must show the ground on which the plaintiff contends that the defendant had no right to distrain as he did; and when sent, the plaintiff's agent will get pleas in bar prepared and delivered; the cause then goes on like any other, till issue be joined. When issue is joined, either party may give notice of trial, and take down the record, as before explained.

CHAPTER VIII, sa gorros sei

Gded tod to Juotze out o

EXECUTION REPLEVIN

10 220) THIS TIK DING

Execution where Plaintiff obtains Judgment where Defendant takes Judgment on the Statute 17 Car. II. c. 7. Proceedings on Replevin-bondagainst Sheriff When Sheriff liable-Retornos habendo-Capias in Withernam Subsequent Proceedings Where Distress s damage feasant-Indorsing Writs of Execution in Replevin.

WHERE a plaintiff in replevin obtains judgment, he has execution for his damages and costs, in precisely the same manner as a plaintiff in any other case, by fi. fa., ca. sa., or elegit.

Where the defendant in replevin, in case the distress were for rent, obtains judgment, he may (if he have taken judgment for his rent, under statute 17 Car. II. c. 7) have execution in the same manner as the plaintiff, by fi. fa., ca. sa., or elegit; but if the plaintiff have no goods, or be not able to pay the damages and costs, the preferable mode of proceeding will be to take an assignment of the replevin-bond from the sheriff, and proceed against the sureties; or the defendant may first issue a fi. fa. against the plaintiff, and if only a portion of the rent, damages and costs can be levied under the fi. fa., the defendant may proceed on the replevin-bond for the residue. It is the duty of the sheriff to take sufficient sureties, but if they were sufficient (or indeed apparently so) when the bond was taken, the sheriff has done all he can be required to do, and is not answerable if the sureties have become insufficient since the bond was taken; but if the sureties were at the time the bond was taken insufficient, and the sheriff, by reasonable diligence in making inquiries, might have known it, he is then

"

liable to an action, at the suit of the defendant in the replevin suit, for taking insufficient sureties, and the extent of his liability is the amount of the penalty of the bond, and the of the action against him.

If the action be

sureties on the bond, the extent of their liability is also the amount of the penalty of the bond, and the costs of the action against them. An action on a replevin-bond must be brought in the Court in which the re. fa. lo. was returnable

In others cases (that is, cases where the distress was not for rent, as if it were for an annuity, a heriot, &c.), if the defendant have obtained judgment, he obtains his damages and costs from the plaintiff, by fi fa, ca. sa, or elegit; but in these cases (the case of a distress for damage feasant is an exception) the defendant, besides his damages and costs, has to obtain his annuity, heriot, &c., and the means he has of obtaining it is by issuing a writ called a retorno habendo, which commands the sheriff to restore to the defendant the articles distrained; if the sheriff can restore them, of course the defendant holds them until the annuity be paid, or the heriot rendered, or he be otherwise satisfied; but it seldom occurs that the sheriff is able to return the articles, and in that case he makes a return to the writ, that the articles are eloigned: (that is, conveyed to places unknown to him, so that he cannot return them to the defendant :) when this is the case, the defendant may either issue a writ called a capias in withernam, under which the sheriff is to take other articles of the plaintiff, and deliver them to the defendant in lieu of those eloigned; and if that be done, the defendant holds those articles as he would have done the others, till the others be returned to him, or till his annuity be paid, or heriot rendered, or he be otherwise satisfied; or he may proceed by scire facias against the pledges taken by the sheriff on the replevin being made, and if nothing can be had from the pledges, then by scire facias against the sheriff himself; or if the sheriff have

taken insufficient pledges, or have taken none at all, then instead of proceeding by scire facias, an action on the case may be brought against the sheriff.

If the distress were for damage feasant, the only thing the defendant wants execution for is his damages and costs; and for these he may have execution by fi. fa., ca. sa., or elegit; but if the plaintiff have no property on which to levy them, the defendant may proceed by issuing a retorno habendo, afterwards by capias in withernam, scire facias, or action against the sheriff, (where the sheriff has given room for it,) in the manner above directed.

Writs of fi. fa, ca. sa., and elegit in replevin, must be indorsed with the amount to be levied as in other cases. On a fi. fa. or elegit, the plaintiff, when the execution is issued by him, is entitled to levy the poundage and expense of execution; but where the defendant issues the fi. fa. the case seems to be different, as it is not within the statute 34 Geo. III. c. 46, s. 5.