the plaintiff in replevin, give to the defendant a bond with sufficient surety or sureties in a sum equal to twice the value of the beasts, or the goods replevied, to prosecute his suit to judgment; to pay the damages and costs that may be recovered against him, and also, to restore the property replevied in case such be the judgment.

This bond must be taken in all cases, or the process may be avoided by the defendant, by plea in abatement or on motion. And it must be given to the defendant, and not to the officer serving the writ, or it will be illegal and void.2 But it has been decided, that though the bond taken be for a larger sum, than the precept requires; or though signed by a part only of several plaintiffs; or though bearing date after the service of the writ;5 or though not following verbatim in the condition, the words of the statute, the service will be good.

4

Cases, where proper. The statute gives this form of proceeding to any person, who has a general or special property in the goods, and the right to their immediate possession, and against any person whose possession is unlawful, unless the goods are in the custody of the law, or unless they have been before replevied by the party in possession."

7 Waterman v. Robinson, 5 Mass. Rep. 303. Ludden v. Leavitt, 9 Mass. Rep. 104. Ladd v. Billings, 15 Mass. Rep. 15. Ilsley et al. v. Stubbs, 5 Mass. Rep. 280. Portland Bank v. Stubbs et al. 6 Mass. Rep. 422. Gates v. Gates, 15 Mass. Rep. 310. Badger v. Phinney, Ib. 359. Walcott et al. v. Pomeroy et al. 2 Pick. Rep. 121. Wheeler v. Train, 3 Pick. Rep. 255 4 Ib. 168.

By Stat. 1822. ch. 110. s. 1. suits in replevin survive to, and against the executors or administrators of either party.

At common law the action of replevin did not lie, unless there had been a tortious taking, or some act by which the possession of the goods made the party a trespasser ab initio, and in the case of Meany v. Head,1 it was held, that the Stat. of 1789. ch. 26. had not in this respect varied the principles by which the action should be governed. It is, however, well settled in our courts, that the action will lie for goods, which are unlawfully detained though the taking were lawful.2

A writ of replevin is sued out and indorsed in the same manner as other original writs.

3

It may be here remarked, that the writ of replevin affords the only method in our practice by which a party can under process of law receive back, in specie, the property demanded. If the property demanded be owned by several in common, one part owner cannot maintain replevin for it, and the plaintiff must resort to another form of action; all the part owners must join in replevin, and if they do not the court will ex officio abate the writ.*

SECT. X. DE HOMINE REPLEGIANDO.

The forms of this writ are prescribed by the Stat. 1786. ch. 58. By this writ, "every person within this

2

1 1 Mason, Rep. 319.

Buffington et al. v. Gerrish et al. 15 Mass. Rep. 156. Badger v. Phinney, Ib. 359. Marston v. Baldwin, 17 Mass. Rep. 606. Baker et al. v. Fales 16 Mass. Rep. 147. Hussey et al. v. Thornton, 4 Mass. Rep. 405. 3 Gould v. Barnard, 3 Mass. Rep. 199.

♦ Hart v. Fitzgerald, 2 Mass. Rep. 509. Portland Bank v. Stubbs et al. Gardner v. Dutch, 9 Mass. Rep. 427. Page v. Weeks,

6 Mass. Rep. 422.

13 Mass. Rep. 199.

Ladd v. Billings, 15 Mass. Rep. 15.

commonwealth, who shall be imprisoned, confined, or held in duress, shall be entitled, as of right, to the writ de homine replegiando, and to be thereby delivered; unless, while the writ of habeas corpus is suspended by the legislature, he shall stand committed by the special order of the supreme executive power of the state, as dangerous to the public safety; or by the same, or by some subordinate authority of the government, for treason, the death of man, counterfeiting the common currency, house burning, burglary, robbery, or some other offence, for which, if he is convicted, he may suffer death, or banishment; or unless, he is held in execution upon judgment of debt, forfeiture, withernam, or by distress for taxes, or under sentence after conviction, for fine, costs, or in punishment."

Forms. The Statute, (sec. 1.) prescribes two distinct forms of writ; one for the case "where any person stands committed by lawful authority for any crime for which he may not suffer death or otherwise, than is above in this act specified;" and the other "where the plaintiff is held without order of law.”

From what courts the writ issues. In the first case, and by sect. 2, in all cases, except the last, the writ issues from the Supreme Judicial Court, and must be made returnable at the next term thereof, holden in the county, where the plaintiff is in custody, having been served fourteen days at least, before the return day. In the last case only, where the plaintiff is held, without order of law, the writ issues from the Court of Common Pleas, and must be served and made returnable in the like manner.

Under this provision, it has been decided, that wherever the commitment is by lawful authority, though exercised in an unlawful manner, the person aggrieved must sue out his writ, returnable to the

Supreme Judicial Court. And whenever it arises from an unlawful restraint, to the Court of Common Pleas.1

This form of proceeding is very rarely resorted to in practice, and the course prescribed by the statute is perfectly plain and intelligible.

Recognizance bond. Where the plaintiff is delivered by this writ, returnable to the Supreme Judicial Court, before he is delivered, he shall recognize before the sheriff of the county in person, with sufficient surety or sureties in a reasonable sum, for his appearance at the same court to answer, abide and perform the order and sentence of the same; which recognizance shall be returned into court by the sheriff. And when the plaintiff shall be delivered by the writ, returnable into the Court of Common Pleas, he shall before his deliverance, give a bond to the use of the defendant, with sufficient surety or sureties, at the discretion of the sheriff, to appear at the court to which the writ is returnable, and there to prosecute his replevin against the defendant, to have his body there ready to be re-delivered, as the court shall order, and to pay all damages and costs that may be awarded against him; and the sheriff shall be answerable, if the sureties prove insufficient, unless they are such as the defendant agrees to. If the plaintiff do not pros

ecute or is unable to sustain his writ, then the defendant shall recover his costs; and if it is found on trial that the plaintiff is the ward or infant of the defendant, or that the defendant is entitled to the service of the plaintiff, or is bail to the plaintiff, then the defendant shall have judgment against the plaintiff for a redelivery of his body, and for such damages as the jury

1 Williams v. Blunt, 2 Mass. Rep. 207.

shall assess against the plaintiff, with reasonable

costs.

By the fourth section of the statute, it is provided, that if the sheriff shall return upon the writ, de homine replegiando, issuing from the Court of Common Pleas, that the defendant hath claimed the plaintiff's body, so that he cannot deliver him, the plaintiff, on motion to the court, shall have a writ of capias in withernam against the defendant, to take the body of the defendant, and to keep him in the custody of the sheriff until he shall produce the plaintiff according to the commandment of the original writ. Provided however, if the defendant will give sufficient bail to the sheriff for his appearance at the court to which the writ is returnable, then and there to traverse the sheriff's return upon the writ de homine replegiando, that the sheriff shall take such bail: or if he cannot give full and sufficient bail, and is thereupon committed by the sheriff, he may at the next term of the court and not afterwards, traverse the sheriff's return, or plead any matter in justification, in the same manner he might have done to the original replevin. If the jury find that he is not guilty of eloigning the plaintiff, as set forth in the return, or if they find that his plea of justification is supported, he will be discharged and costs allowed him against the plaintiff, but if the defendant will not traverse the return or plead in justification, or if he cannot support his traverse or plea, then the court will order him into the custody of the sheriff, and will issue an alias writ of withernam to hold him, until he shall produce the body of the plaintiff, or until he can prove that the plaintiff is dead, which fact may be tried at any term of the same court,