,
Part YII.
— Forms
of Action.
43
any other demand. These provisions have been replaced by the Judicature Acts and the Kules of the Supreme Court (r).
Sect.
1.
Old Forms of Action.
72. Replevin (s) lay to recover specific goods {t) which had either been wrongfully distrained from the plaintiff, or had been Replevin wrongfully taken out of his possession {a). It did not lie to recover goods in which the plaintiff alleged merely that he had a right of j)roperty or which had been delivered under a contract (b). At common law also a human being could be replevied, as, for instance, where the defendant had abducted a child (c). If the sheriff', to w^hom the writ was directed, made a return that Writ in the cattle or goods, which he was directed to replevy, were esloigned (or taken far away), or were dead, or that no one showed him where the cattle or goods were, the plaintiff could have a capias in icithernam to have so many of the defendant's cattle etc. delivered The cattle or goods so taken in ivithernam could not be to him {d). replevied so long as the original cattle or goods were not restored {e), nor, if the defendant in a writ of de homine replegiando had been arrested in withernam, could he be bailed (/). The peculiarity of the action of replevin was that if the defendant put in an avowry whereby he acknowledged the taking, but denied the injustice of the caption, and set forth a good cause for taking the distress, both parties became in a sense plaintiffs, the one to have damages for the taking and detaining of his goods and the other to have return of the goods replevied.
withernam.
was the remedy for injuries accompanied by whether to real or personal property or to the person. vi et The writ alleged that the trespass was done armis and "contra pacem nostram. Actions of trespass could
Trespass,
73. Trespass
{g)
immediate violence
(r)
See
title
Chowf
{h),
Practice.
Gilbert on " Distress and Eeplevin." Com. Dig. Pleader (3 Desigmfs Case (1682), Sir T. Eaym. 475. 1) (o) See Com. Dig. Replevin, A Dore v. Wilkinson Buller, Nisi Prius, 52 (1817), 2 Stark. 287; GeorgeY. Chambers (1843), 11 M. & W. 149; Shannon y. Shannon (1804), 1 Sch. & Lef. 324. Me7mieY. Blake (1856) 6 El. & Bl. (/>) Galloway Y. Bird {1821), 4: Bing. 299; 842, 849; Ex parte Chamherlain {180^), 1 Sch. & Lef. 320; Be Wilsons (1804), 1 (s)
Fitz. Nat. Brev. 68
(t)
K
,
Sch. (c)
(d)
& Lef. 320 a. By writ of de homine Com.
replegiando. Dig.^ Pleader (3 Eeg. 1); Fitz. Nat. Brev. 68; Dyer, 189 a If it was a writ de homine replegiando, the defendant was himself
K
- _
Brev. 82 b. arrested under the capias, even though he were a peer of the realm (Fitz. Nat. i v « Brev. 68). (e) Y. B. 7 Hen. 4, 27 Designy's Case, supra. See also " Tho. Mori Yita et Exitus," by J. H. (1652), p. 26. '
(/)_ Lord Grey of Werk was arrested in consequence of a writ of de homine replegiando in 1682, and was bailed on Lady H. Berkeley being produced in Court (State Trials, vol. ix., p. 186). {g) Fitz. Nat. Brev. 85. (A) The Common Law Commissioners (1851) give the following as an instance ^f the difference between an action of trespass and an action on the case
- '
Suppose a person throws a log of wood on the highway, and, by the act of throwing, another person is injured, the remedy in such a case is trespass But II the log reaches the ground and remains there, and a person falls over it and IS injured, the remedy is case, as the iniury is not immediately consequent on
theact"(FirstEeport,
p. 31).
