[sent turn; for he cannot have judgment to remove the clerk, unless he be made a defendant and party to the suit, to hear what he can allege against it. For which reasons it is the safer way to insert all three in the writ (h).] Finally, we may remark, that though in a quare impedit the patron only, and not the clerk, is allowed to sue the disturber, yet there is one species of presentation in respect of which a remedy, to be sought in the temporal courts, is put, by statute, into the hands of the clerk presented, as well as of the owners of the advowson; and this is in the case of a presentation to a benefice belonging to a Roman Catholic patron, which (according to the place in which it is situate) becomes vested by law in the University of Oxford or of Cambridge (i). [For in such case, besides the action of quare impedit which the university is entitled to bring as patron, it was provided, by 12 Anne, st. 2, c. 14, s. 4, that either the university or the clerk presented by them shall be at liberty to take proceedings in equity against any person presenting to such livings and disturbing their right of patronage,—or against his cestui que trust, or any other person whom they have cause to suspect,-in order to compel a discovery of and secret trusts for the benefit of Papists, in evasion of those laws whereby this right of advowson became vested in these learned bodies (j): and also (by the stat. 11 Geo. II. c. 17) to compel a discovery whether any grant or conveyance, said to be made of such advowson, was made bonâ fide to a Protestant purchaser for the benefit of Protestants, and for a full consideration; without which requisites every such grant and conveyance of any advowson or avoidance is absolutely null and void. This is a particular (h) 3 BI. Com. 248. Blackstone's remarks here seem not to be affected by the circumstance, that a quare impedit is now commenced by an ordinary writ of summons. (See 23 & 24 Vict. c. 126, s. 26; 36 & 37 Vict. c. 66, sched. rr. 2, 3.) (i) Vide sup. vol. II. p. 716. (j) In the "Revised Statutes," this Act is printed as 13 Anne, c. 13. [law, and calculated for a particular purpose; and in no instance but this, does the temporal law permit the clerk himself to interfere in recovering a presentation of which he is afterwards to have the advantage.] We are next to consider the injuries to personal property (k); and this, first, as regards things in possession ; next, things in action (1). First, the rights of personal property in possession, are liable to two species of injuries: the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into several branches-such as the taking them away unlawfully-their unlawful detention, though the original taking might be lawful-and such tortious acts. as subject the owner to the loss of them, though the wrong-doer himself may be guilty neither of caption nor detainer. Our present subject will therefore involve four several heads:-1, the injury of unlawfully taking chattels from the owner; 2, that of unlawfully detaining them from him; 3, that of unlawfully depriving him of them, by means other than detention; 4, that of doing damage to them while in his possession. 1. And, first, of an unlawful taking. The nature of this requires no illustration, and our attention therefore is to be chiefly directed to its remedy. The first remedy we shall notice is that of procuring the restitution of the goods themselves, together with damages for the loss sustained by their unjust invasion; and this is effected by action of replevin, an institution which the Mirrour ascribes to Glanvil, chief justice to King Henry the second (m). This action is seldom resorted to in practice, but in one instance of an unlawful taking,-viz. that of (k) Vide sup. p. 385. (7) As to this distinction, vide sup. vol. II. p. 11. a wrongful distress (n); and it is always preceded by an application on the part of the owner, to the proper authority, to cause the goods taken to be replevied (o); that is, re-delivered to the owner, upon his giving such security as the law requires for trying the legality of the distress. An application for this purpose used formerly to be made in the county court which is incident to the jurisdiction of the sheriff (p); but by the Acts establishing and regulating the modern courts of the same name (q), it is now to be made to the Registrar of one of those courts, viz. that one within the district of which the distress was taken (r). The Registrar, on receiving this application, causes the goods to be replevied accordingly by an officer of the court, and delivered to the owner on his giving security, of such amount as mentioned in the Acts, that he will commence in the county court an action of replevin against the distrainor, within one month from the date thereof: that he will prosecute such action with effect and without delay; and that he will make return of the goods, if in the result a return of the same shall be adjudged (s). The owner, (or replevisor,) is also entitled, however, at his option, to give security to commence such action in the superior court instead of the inferior jurisdiction; but in this case the security must be conditioned that he will do so within one week (instead of one month) from its date, and not only that he will prosecute the same with effect and without delay, and make return of the goods if a return shall be adjudged, but also that, (unless he obtains judgment in such action by default,) he will (n) As to other cases of wrongful taking in which replevin will lie, sce Co. Litt. 145 b; Vin. Ab. Replevin (B.); Com. Dig. Action (M. 6); George v. Chambers, 11 Mee. & W. 149; Morrell v. Martin, 3 Man. & Gr. 581; Mellor v. Leather, 1 Ell. & Bl. 619. (0) Vide sup. p. 256. prove before the superior (p) Vide sup. p. 282. (r) See 9 & 10 Vict. c. 95, s. 119; 19 & 20 Vict. c. 108, ss. 63, 64; 23 & 24 Vict. c. 126, s. 22. (8) 19 & 20 Vict. c. 108, s. 66; County Court Rules and Orders, 1867, Sched. of Forms, No. 156. court that he had good ground for believing, either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise, was in question; or that the rent or damage, in respect of which the distress was made, exceeded 207. (t). Security in one or other of these forms having been given, the replevisor proceeds accordingly to commence his action of replevin either in the county or superior court, as the case may be but if he brings it in the former, it may be removed, by the defendant, (or distrainor,) into the superior court by writ of certiorari. To obtain such writ the defendant must apply to the superior court or to a judge thereof, and must give security, (not exceeding £150,) to defend such action with effect, and-unless the replevisor shall discontinue, or shall not prosecute such action, or become nonsuit therein-to prove before the superior court that he, the defendant, had good ground for believing to the effect already set forth in the case of an action brought in the superior court by the replevisor (u). And so much, for the present, with respect to the action of replevin:-the subsequent progress of which in the superior court (and that in the county court is precisely analogous) will be explained hereafter (x). (t) 19 & 20 Vict. c. 108, s. 65; County Court Rules and Orders, 1867, Sched. of Forms, No. 155. (u) 19 & 20 Vict. c. 108, s. 67. (x) Vide post, c. XI. It has been thought undesirable to encumber the text with any statement of the law of replevin by the act of the sheriff, as it existed before the introduction of the county courts in the year 1846. But the following notices of it may be useful. By the old common law, the only remedy for the party wishing to replevy his goods was by a writ of replegiari facias, issuing out of Chan cery, and commanding the sheriff to replevy. Afterwards by 52 Hen. 3, c. 21; 13 Edw. 1, c. 2; 1 Ph. & M. c.12; and 11 Geo. 2, c. 19,-the sheriff was directed, for the more speedy relief of the owner, to replevy without writ, upon his levying a plaint and finding plegii de prosequendo, and also de retorno habendo in the event of the right being determined against him; and (in case of rent) security also to prosecute the suit with effect and without delay. Either party, however, might remove the plaint from the county court to one of the superior courts of law by writ [Another action for the unlawful taking of a man's goods, and one of much more extensive use, being applied to every injury of that description, is the action of trespass (y). As if a man takes the goods of another out of his actual or virtual possession, without having a lawful title so to do, it is an injury, which (though it doth not amount to felony unless it be done animo furandi) is a transgression, for which an action of trespass will lie; and herein the plaintiff shall not recover the thing itself, but only damages for the loss of it. Or the party aggrieved may, at his choice, have another remedy in damages, by action of trover and conversion, of which more will presently be said. 2. Deprivation of possession may also be by an unjust detainer of another's goods, although the original taking was lawful. As if I distrain another's cattle damage feasant, and before they are impounded he tenders me sufficient amends; now though the original taking was lawful, my subsequent detainment of them, after tender of recordari; and as, if any right of freehold came into question, the jurisdiction of the sheriff was at all events at an end, it was usual to remove it in the first instance. Again in any case of distress, it might happen that the distrainor claimed a property in the goods taken. If he did, the party, distrained upon might sue out a writ de proprietate probandâ; which was inquired into before the sheriff prior to any replevin. It might also happen that the distress was carried out of the county, or concealed. In this case the sheriff might return to a writ of replegiari facias, that the goods were eloigned (elongata) to places to him unknown; and thereupon the party distrained upon was to have a writ of capias in withernam, in vetito (or, more properly, repetito) namio; by which the sheriff was commanded to take a second or reciprocal distress, in lieu of the first which was eloigned; so that there was thus distress against distress, one being taken to answer the other, by way of reprisal, which seems to be the meaning of the old word withernam. And for this reason it was held, that goods taken in withernam could not be replevied, until the original distress was forthcoming. (For a fuller exposition of the antient law on these points, see 3 Bl. Com. pp. 147-150.) (y) This action, in other applications of it, has already been considered, vide sup. p. 398. |