CHAPTER 123 plaintiff in such action is then lawfully entitled to the possession of the TITLE XXIV, property described in the writ; that the same has not been taken for any tax, assessment or fine, levied by virtue of any law of this state; nor seized under any execution or attachment against the goods and chattels of such plaintiff, liable to execution; and that such goods and chattels are unlawfully detained by the defendant in such writ. SEC. 8. Upon the receipt of such writ, with the affidavit herein be- How writ execufore required annexed, the sheriff shall proceed to seize and take into his custody the property described therein, and for that purpose may break open any house, stable, out-house or other building in which such property may be concealed, having first demanded deliverance thereof at the building or place where the same is concealed. ted. SEC. 9. The officer executing the writ shall cause the property so Property to be seized to be appraised by one or more disinterested persons, on oath appraised. to be administered by him, as soon as may be after the taking thereof on such writ. 6 Wend., 547. SEC. 10. Before the officer shall deliver such property to the plain- Bond to be given before delivery tiff, such plaintiff or some one in his behalf, shall execute a bond to of property to such officer and his assigns, with the addition of his name of office, plainti with sufficient sureties to be approved by such officer, in a penalty not less than one hundred dollars, and at least double the appraised value of such property; conditioned that the plaintiff will prosecute the suit to effect, and that if the defendant recover judgment against him in the action, he will return the same property, if return thereof be adjudged, and will pay the defendant all such sums of money as may be recovered by such defendant against him in the said action. SEC. 11. If the plaintiff shall fail to cause such bond to be executed When property and delivered to the officer, within twenty-four hours after the appraisal of such property, the officer shall return the same to the person from whom he took it. to be returned. to be enmmoned. SEC. 12. The officer shall summon the defendant according to the How defendant command of the writ, by delivering to him personally a certified copy of such writ, if such defendant can be found; and if he cannot be found, then by leaving such certified copy at his usual place of abode, with some person of proper age. SEC. 13. If the goods and chattels specified in any writ of replevin Plaintiff may proceed if prop. shall not be found, or shall not be delivered to the plaintff, he may pro- erty not found, ceed in the action for the recovery of the same or the value thereof. &c. SEC. 14. The sheriff shall return the writ at or before the return Return of sheriff day thereof, with the affidavit thereto annexed, and the names of the to writ. persons who executed the bond taken by him from the plaintiff, and their places of residence; and he shall state in his return in what manner he executed the writ; and if the goods and chattels specified therein shall not have been replevied, he shall state in his return the cause thereof. SEC. 15. If the defendant in any action of replevin shall not be sat- Exceptions to isfied with the sufficiency of the sureties taken of the plaintiff by the sureties. officer, on the delivery of the property to such plaintiff, he may, within twenty days after the return of the writ, serve upon such officer a notice that he excepts to such securities, and such officer shall give notice thereof to the plaintiff or his attorney. sureties, &c. SEC. 16. Within twenty days after the service of such notice on the Justification by officer, the sureties in the bond so executed by the plaintiff, shall justify by making an affidavit that each of them is a householder, with (worth) TITLE XXIV, double the amount of the penalty of such bond, over and above all CHAPTER 124. demands; or within the same time, a new bond, similar to that herein required before delivery to the plaintiff of the property replevied, shall be executed with new sureties, who shall justify in the same manner herein provided. Affidavits, &c., to be filed, and notice given. When judgment of discontinuance to be rendered against plaintiff. Court may allow filed. SEC. 17. Such affidavits, and such bond when executed, shall be filed in the office of the clerk of the court to which the writ shall have been returned, and notice thereof shall be served on the defendant or his attorney, within the twenty days herein specified. SEC. 18. If such sureties shall not justify, or if such new bond shall not be executed and filed, and notice thereof given as herein provided, the court shall, at the next term after such default, render judgment of discontinuance against the plaintiff, and such other jndgment as the state and nature of the case may require in order to restore to the defendant the property replevied, and to compensate him for his damages. SEC. 19. But the court may allow the plaintiff to file such new bond, new bond to be with sureties, who shall justify in the same manner herein prescribed, at the term at which application for such judgment is made, on such reasonable terms as the court shall impose; and upon such bond being filed, the cause shall proceed. When sheriff discharged from liability, &c. Liability of she. rit in certain cases, and his SEC. 20. If no exception shall be taken to the sureties in the bond given by a plaintiff in replevin, as herein provided, the sheriff shall be discharged from all liability for the sufficiency of such sureties; and the bond of the plaintiff shall be held by such sheriff for the benefit of the defendant, and shall be assigned to such defendant or his personal representatives, if judgment be rendered for him in such action. SEC. 21. If such exception shall have been made, and judgment of discontinuance shall be rendered against the plaintiff for his sureties remedy on bond. not justifying, the sheriff shall be liable for the sufficiency of such sureties, as now provided by law; and such sheriff shall be entitled to the same remedy on the bond taken by him, as in cases of bonds given on the arrest of a defendant in personal actions; and all the provisions of law respecting the staying of proceedings against the sheriff, shall be applicable to actions by the sheriff on such replevin bond, and to actions against him in relation thereto. When clerk to enter apearance of defendant. Declaring, &c. Form of declaration. SEC. 22. If the sheriff return to the writ of replevin, that the defendant has been duly summoned in either of the modes hereinbefore prescribed, the clerk of the court shall thereupon enter the appearance of such defendant; and thereafter proceedings shall be had against such defendant, as if he had actually appeared. SEC. 23. The plaintiff shall declare within the same time, and in case he shall neglect so to do, shall be liable to the like judgment of discontinuance as in personal actions; and upon filing a declaration, the plaintiff shall be entitled to the like rule to plead, and notice thereof shall be given, in like manner as in personal actions. SEC. 24. It shall be sufficient for the plaintiff in his declaration, whether the original taking was lawful or otherwise, to allege with requisite certainty of time, place and value, that the defendant received the property to be delivered to the plaintiff when thereunto afterwards requested, and that the defendant, although requested so to do, has not delivered the same to the plaintiff, but hath unlawfully detained the same to the damage of the plaintiff, such sum as he may specify. CHAPTER 124. SEC. 25. It shall not be necessary for the plaintiff to state in his de- TITLE XXIV. claration, a place certain within the township, city or village, as that where the property was detained. SEC. 26. The defendant may plead the general issue to such declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defence to the action. Stating place of detention. Plea and notice. &c. SEC. 27. After issue joined in any action of replevin, either party Notice of trial, may give notice of trial, and if neither party shall have noticed the 9 Wend., 497. cause for trial, the defendant may move for judgment as in case of non-suit, in the same manner as in personal actions. SEC. 28. If, upon the trial of the cause, the verdict be in favor of the Assessing damaplaintiff, the same jury shall assess the damages which he has sustain- ges for plaintiff. ed by the unlawful taking and detention, or by the unlawful detention of the property; but if judgment pass for the plaintiff by default, or upon an issue of law, the damages may be assessed by the court, in the same manner as in personal actions. SEC. 29. When either of the parties to an action of replevin, at the time of the commencement of the suit, shall have only a lien upon, or special property in the goods and chattels described in the writ, and is not the general owner thereof, that fact may be proved on the trial, and the jury shall find according to such fact by their verdict; and the court shall thereupon render such judgment as shall be just between the parties. Verdict and judg special property goods, &c. ment in case of in 1841, p. 54. property not de SEC. 30. If the goods and chattels specified in the declaration, shall Judgment for not have been replevied and delivered to the plaintiff, such plaintiff, in plaintiff, in case case he shall recover upon the whole record, shall be entitled, in ad- livered to him, dition to his damages and costs, to a further judgment that such goods and chattels be replevied and delivered to him without delay; or in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels, as the same shall have been assessed. cution in such SEC. 31. The execution to be issued upon such judgment, shall Contents of exe command the sheriff to levy the plaintiff's damages and costs, of the case. goods and chattels, lands and tenements of the defendant, as in other executions against property; and also to replevy the goods and chattels described in the declaration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they can be found within his county, and if the same cannot be found, then that he levy the value of such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the goods and chattels, lands and tenements of the defendant, as above provided. ties of sheriff on SEC. 32. The sheriff shall proceed in the same manner to collect Powers and duany moneys directed to be collected upon such execution, as upon execution. executions against property in personal actions, and he shall possess the same powers in respect to the replevying of the property described therein, as are herein provided upon the execution of writs of replevin; and if the goods and chattels described in the execution, are replevied and delivered to the plaintiff, they shall be irrepleviable. SEC. 33. If the property specified in the writ shall have been de TITLE XXIV, CHAPTER 124. Judgment for de fendant on nonsuit, &c. When defendant 12 Wend.. 134. Notice of assessment of dama ges. When judgment for defendant to livered to the plaintiff, and the defeddant recover judgment by discontinuance or non-suit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return as hereinafter provided; and also that he recover the damages sustained by him by reason of the detention of such goods and chattels, which damages shall be assessed by a jury in the proper court. SEC. 34. Whenever the defendant shall be entitled to a return of the property replevied, instead of taking judgment for such return, as above provided, he may take judgment for the value of the property replevied; in which case, such value shall be assessed by the jury on the trial, or upon the assessment of damages, as the case may be. SEC. 35. Whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the court in the like cases in personal actions. SEC. 36. If the property specified in the writ, shall not have been be for costs only. replevied and delivered to the plaintiff, and the defendant recover judgment, such judgment shall be for costs only. Effect of judg ment for return of property. Property to be held subject to attachment in certain cases. 1839, p. 230, § 44. Suit on plaintiff's bond. 18 Wend., 334. 12 do,, 122. Proceedings; damages to be recovered. SEC. 37. Whenever judgment shall pass against the plaintiff in replevin, whether by default or otherwise, and a return of the property is awared, no writ of second deliverance shall be allowed, nor shall any second or other writ of replevin be brought for the same cause, but the plaintiff in replevin shall not thereby be barred from bringing an action of trespass or trover for the same property, unless the judgment in the action of replevin shall have passed against him on the merits. SEC. 38. If any goods or chattels which are replevied, had been attached, they shall, in case of judgment for a return, be held liable to the attachment, until final judgment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property when replevied, was seized and held on execution, it shall be held subject to the same attachment or seizure, for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied. SEC. 39. If any writ of return, or other execution, issued in favor of the defendant in the action, shall be returned unsatisfied in whole or in part, such defendant or his representatives may have an action upon the bond executed by or on behalf of the plaintiff, to recover against the obligors therein the value of the property replevied, and the moneys, damages and costs awarded to such defendant, and such bond shall be assigned to such defendant or his representatives, on their request. SEC. 40. In such action the plaintiff shall assign breaches of the condition of such bond, as in other cases; and the return of the sheriff to the execution issued in the action of replevin, shall be evidence of such breach; the amount recovered in such action of replevin, and remaining uncollected, shall be the measure of the damages, if the value of the property replevied shall have been so recovered, and if not so recovered, and a return thereof shall have been awarded, such value shall be added to the damages and costs recovered in the action of replevin, and the amount of such value, damages and costs, remaining uncollected, shall form the measure of damages. TITLE XXIV. CHAPTER 125. SEC. 41. In any action prosecuted on such bond given by the plaintiff in an action of replevin for the deliverance of any property, the defendant may show in mitigation of the damages, that the plaintiff Mitigation in cer in such action had only a lien upon such property and the amount of tain cases. such lien; and if such amount, with interest, be less than the value of the property replevied, a corresponding deduction shall be made from such value. CHAPTER 125. OF DISTRAINING AND REPLEVYING BEASTS. Of Distraining Beasts. beasts are taken any up and distrained by any Beasts distrained SECTION 1. When person, for going at large, contrary to law, or contrary to any by-law to be impounded. of a township, they shall be forthwith impounded in the township pound, and the keeper of such pound shall furnish them with suitable food and water, so long as they are detained in his custody. ing. SEC. 2. The person so taking up and distraining the same, shall be Fees for distrainentitled to fifty cents per head for all horses, mules, asses and neat ing and impoundcattle, and ten cents per head for all sheep, goats and swine, so distrained by him; and the pound keeper shall be entitled to four cents per head for all the said animals so impounded. delivered until SEC. 3. The pound keeper shall not deliver to the owner any beasts Beasts not to be so impounded, until such owner shall pay him his fees and the ex- fees and expen pense of keeping such beasts, and also the fees due the person dis- ses paid. training said beasts, which last mentioned fees he shall pay to such person. beasts. SEC. 4. When any person is injured in his land, by sheep, swine, Proceedings in horses, asses, mules, goats or neat cattle, he may recover his damages case of injury by in an action of trespass, or trespass on the case, against the owner of the beasts, or against the person having the care and control of such beasts, or by distraining the beasts doing the damage, and proceeding therewith as hereinafter directed; but if the beasts shall have been lawfully on the adjoining lands, and shall have escaped therefrom in consequence of the neglect of the person who has suffered the damage, to maintain his part of the division fences, the owner or person having the control of the beasts shall not be liable for such damage. age. SEC. 5. The beasts so distrained for doing damage, shall be impound- Impounding ed in the township pound, if there be one, and the distrainer shall beasts doing damleave with the pound keeper a memorandum in writing, signed by him, stating the cause of distraining, and the sum that he demands from the owner, for the damages done by the beasts. delivered until SEC. 6. The pound keeper shall not deliver the beasts to the own- Beasts not to be er, until such owner shall pay him his fees, and the expense of keep- damages, fees and ing such beasts, together with the sum so demanded by the distrainer, expenses paid. and the expense of advertising such beasts, if they shall have been advertised, and all other legal costs and expenses. SEC. 7. If there shall be no public pound within the township, the When person beasts shall be impounded in some suitable place under the immediate impounding beasts to have care of them. |