Page:The American Cyclopædia (1879) Volume XIV.djvu/289

KEPLEYIN REPTILES 273 it was taken, unless the distrainor himself claimed the goods as his property ; for if they were, the law permitted him to keep them, ir- respective of the manner in which he had re- gained possession. If therefore the distrainor claimed any such right or property, the party replevying was obliged to sue out another writ called a writ de proprietate probanda, by which the sheriff was to determine, by an inquest, who was really the owner of the property be- fore the distress was levied thereon. If it was decided against the claim of the distrainor, the sheriff proceeded to replevy as if no such claim had been made ; but if his claim was found to be good and valid, the sheriff could proceed no further, but was to return the claim to the court of king's bench or common pleas, to be there prosecuted and finally decided. The goods, in ordinary cases, being delivered back by the sheriff to the party replevying, he was then compelled to prosecute his suit or action of replevin in the county court, though either party might remove it to the superior court of king's bench or common pleas ; and indeed, to save trouble and delay, it was usually carried up in the first instance to the courts of West- minster hall, because if, in the course of pro- ceeding in the county court, any right of free- hold came in question, the sheriff could proceed no further. Upon action being brought, the distrainor, who was now the defendant, made avowry ; that is, he avowed taking the dis- tress, and set forth the right in which and the cause for which he took it, as for rent in ar- rears, damage done, or other cause ; or if he justified in another's right, as bailiff or servant, he was said to make cognizance ; that is, he acknowledged the taking, and claimed that it was legal as being done at the command of one who had a right to levy the distress ; and upon the legal merits of this avowry or cognizance the cause was determined. If the action was decided in favor of the plaintiff, and the dis- tress declared to be wrongful, he was entitled to keep the goods which he had already got back into his possession, and in addition should recover damages for the wrongful seizure and detention ; but if the defendant prevailed, he should have a writ de retorno habendo, by which the distress was returned into his possession irreplevisable, to be sold or otherwise disposed of, as if it had never been replevied. If the debtor had in the mean time disposed of or concealed the distress, so that it could not be found, execution issued against his other goods, and for want of them against his body in the nature of a writ of capias. While distresses continued to be held as mere pledges, if the former owner, after judgment against him, of- fered the distrainor the arrearages or other damages due, and he refused thereupon to de- liver up the distress, the plaintiff might bi'ing an action of detinue, and by that means re- cover its possession. If, while a replevin for a former distress was pending, a man distrained again for the same rent or service, the party was not obliged to bring another action of re- plevin for the second distress, but could have a writ of recaption and recover the goods with damages for the distrainor's contempt of the process of the law. Formerly a mere posses- sory right was not sufficient to entitle a party to maintain replevin ; but now it is sufficient if the plaintiff can prove a general or special property in the goods, with the right of imme- diate and exclusive possession, either as mort- gagee, owner, agent, or bailee, without actual- ly having such possession at the time. Though replevin was formerly confined to cases of wrongful distress, it is now the proper form of action by which to recover the specific thing taken, in all cases where goods have been tor- tiously taken or detained, whether by distress or in any other manner, together with damages for the detention, unless the taking and deten- tion can be justified or excused ; and it is one of the most important and frequently used modes of legal remedy. The forms and man- ner of proceeding, with some slight alterations, remain the same now as formerly, as far as the redelivery of the goods to the party claiming them, the giving of bonds with sureties in double the value of the goods, the prosecution of the action, and the final judgment and exe- cution are concerned. This action will lie for goods taken in execution, provided the person bringing it against the officer who takes the goods from another by virtue of the execution has a property, general or special, in them, and a right to reduce them into his actual posses- sion ; but no replevin will lie in favor of the defendant in execution or attachment, to re- cover possession of goods seized under such execution, unless they are exempted by law from being so taken. In some cases replevin for property taken for taxes is forbidden. REPTILES (Lat. sing, reptilis, from repere, to creep), a class of vertebrated animals interme- diate between fishes and birds. Linna3us uni- ted the oviparous quadrupeds and the serpents of Aristotle under the erroneous name of am- phibia ; until within a recent period batrachi- ans, as well as serpents, lizards, and tortoises, were included among reptiles, but now the first are regarded as a distinct class. As thus limited, reptiles do not undergo metamorpho- sis, are always air breathers, though cold- blooded, and have neither mammae, hair, nor feathers. By the first two peculiarities they are distinguished from fishes and batrachians, and by the third from mammals and birds. Although they breathe air by lungs like birds and mammals, the pulmonary circulation is in- complete, only a part of the blood being sent to them, and, from the communication of the ventricles of the heart or the great vessels, a mixed arterial and venous blood, principally the latter, is sent to the organs. Eeptiles have been divided into chelonians or tortoises, saurians or lizards, and ophidians or serpents, whose char- acters are given under their respective orders, families, and popular names. The various sys-