given for the defendant, in such information, he shall recover his costs against such relator; such costs to be levied in manner aforesaid. In an information against defendant for exercising the office of mayor of Penryn, it appeared, that by the letters patent of incorporation it was directed, that the mayor elect, before he should be admitted to execute his office, should take a corporal oath, before the last mayor, for the faithful execution of his office. The defendant pleaded, that he was elected and duly sworn mayor; and issue being taken in the replication, both as to his being elected and sworn, upon the trial, the jury found that he was elected, but that he was not sworn; and thereupon judgment of ouster was given" in B. R. Upon writ of error brought in D. P. it was insisted, that the judgment was erroneous; for it appeared upon the record, that his right to the office was established by the verdict, which found.that he was elected; and yet, whilst this judgment of ouster stood, the plaintiff could not have the effect of a mandamus to be sworn in, though the legality of his election was not disputed, and though no time was limited by the charter for his being sworn in, nor was he by law debarred from having such mandamus, although he acted before he was sworn in. For the defendant, in error, it was contended, that it being expressly required by the charter of incorporation, that the mayor elect should take the oath of office, before he should be admitted to execute such office, it became necessary for the plaintiff, in order to make his justification complete, to allege, that he did accordingly take such oath; and this allegation having been falsified by the verdict, the justification being entire was destroyed, and he was found to be an usurper, and consequently subject to the judgment of ouster, as being the only legal judgment in this case. The judgment of the court of King's Bench was affirmed (15). In a subsequent term, viz. E. 11 Geo. Str. 625. Pender having applied for a mandamus to swear him into the office to which he had been elected, the court refused to grant it, in consequence of the judgment of ouster, which, according to the opinion of Raymond C. J. did away the election, and, he thought, that without a new election, since the judgment, n R. v. Pender, Str. 582. Ld. Raym. 1447. S. C. cited per Curiam. o 2 Bro. P. C. 294. Tomlin's edit. (15) The judgment was affirmed without costs; the judges having delivered it as their opinion, that costs were not recoverable in this case. the party was not entitled to a mandamus. In this case, Lord Raymond, Powys, and Fortescue Js. concurred in the propriety of the absolute judgment of ouster, which had been given in the former case, Raymond C. J. observing, that he believed no precedent could be shewn, where the judgment was ever entered in any other manner. And Fortescue J. added, that a quo warranto was the king's writ of right, and as against the crown want of swearing in was as much as want of an election; the jury, therefore, having found in effect, that he had no title to the office, it was of course, that he should be excluded from it by the judgment of the court. He remarked also, that he had never heard of any other judgment, and that it was reasonable to exclude a person who appeared to have no title. Reynolds J., however, expressed an opinion, that there ought properly to have been a judgment of ouster quousque only, upon the finding of the jury, in the R. v. Pender. And in a late case of R. v. Clarke, (2 East, 75.) who having been ill sworn in, had afterwards disclaimed upon an information filed against him for usurping the office, and though having submitted to a judgment of complete ouster, he was held to be concluded from setting up again his original right, yet Lord Kenyon intimated, that there might have been a judgment quousque only against him. The same point was again agitated in the R. v. Courtenay, H. 48 Geo. 3. 9 East, 246. the court, however, being of opinion, that the defendant had been well elected and sworn in, were not required to pronounce any opinion as to the nature of the judgment; but they said, that after diligent search, they could not find any precedent of a judgment of ouster quousque upon the files of the court. In the case of the King v. Biddle, Str. 952. the defendant confessed an usurpation during part of the time charged in the information, and from that time insisted on an election. The prosecutor having entered up judgment of ouster, the court ordered, that all the judgment, except that of capiatur pro fine, might be expunged, observing, that it would be hard that a subsequent good election should be done away, as it would be by the judgment of ouster. And they distinguished it from Pender's case, where the party had been guilty of an usurpation during all the time charged in the information. A quo warranto information has, of late years, been considered merely in the nature of a civil proceeding; and consequently the court will grant a new trial. p R. v. Francis, 2 T. R. 484. CHAP. XXXIII. REPLEVIN. I. In what Cases a Replevin may be maintained. II. Of the Proceedings in Replevin at Common Law, and the Alterations made therein by Statute. III. Of the Duty of the Sheriff in the Execution of the Replevin.-Of the Pledges.-Bond from } the Party Replevying.-Sureties under Stat. 11 G. 2. c. 19. s. 23. IV. Of claiming Property, and of the Writ de Proprietate probandá. V. Of the Process for removing the Cause out of the inferior Court, and herein of the Writs of Pone, Recordari facias loquelam, and Accedas ad Curiam. VI. By whom a Replevin may be maintained. VII. Of the Declaration. VIII. Of the Pleadings: 1. Of Pleas in Abatement, and herein of the Plea of Cepit in alio loco. 2. General Issue. 3. Of the Avowry and Cognisance: 1. General Rules, &c. relating to the Avowry. 2. Of the Avowry for Damage FeasantPleas in Bar-Escape through Defect of Fences-Right of Common-Tender of Amends. 3. Of the Avowry for Rent Arrear-Pleas in Bar-Eviction-Non Dimisit-Non Tenuit-Riens in Arrear-Tender of Arrears. 4. Property. 5. Statutes: 1. Of Limitations. IX. Of the Judgment: 2. For the Defendant. X. Of the Costs. I. In what Cases a Replevin may be maintained. IT is said, in 3 Bl. Com. 147. that a replevin is founded on a distress taken wrongfully and without sufficient cause (1); whence it may be inferred that the learned commentator supposed that this remedy was confined to a taking by distress. But, (as it was justly remarked by Lord Redesdale, Ch. in Shannon v. Shannon, 1 Sch. & Lef, 327.) this definition of replevin is too narrow, and many old authorities will be found, in the books, of a replevin having been brought where there was not any distress (2). The writ, (1) Although, generally speaking, wherever there is a distress, replevin may be maintained, yet this rule is not universally true; for it appears from R. v. Monkhouse, Str. 1184. that the court directed an attachment to be issued against an under-sheriff, for granting a replevin of goods distrained on a conviction for deer stealing. So a replevin will not lie upon a distress inade for a duty to the crown. R. v. Oliver, Bunb. 14. But where the plaintiff brought replevin for goods levied under a warrant of distress, for an assessment made by a special sessions under the highway act, 13 G. 3. c. 78. s. 47., on the ground of the premises, for which he was assessed, being situated without the township which was liable to repair the road; the court refused to set aside the proceedings. Fenton v. Boyle, Feb. 12th, 1807. C. B. 2 Bos. & Pul. N. R. 399. (2) Replegiare est, rem apud alium detentam, cautione legitimâ interposità, redimere. Spelm. Gloss. 485. Quant les biens ou chattels d'aucun sont prises, il avera per common ley un breve hors de Chancery commandant, &c. Doct. Plac. Replevin, 313. Replevin lies of all goods and chattels unlawfully taken. Comyns' Dig. Replevin (A). A replevin is a judicial writ to the sheriff, complaining of an unjust taking and detention of goods and chattels, Gilb. Repl. 58. Note by the learned reporters of the Irish as was further remarked by Ld. Redesdale, is founded on a taking, and the right which the party from whom the goods are taken, has to have them restored to him, until the question of title to the goods is determined. The person who takes them may claim property in them; and if he does, the sheriff cannot deliver the goods until that question is tried; but this claim of property can be made only where there has been a taking; and it appeared to him that the writ of replevin was calculated in such cases to supply the place of detinue or trover, and to prevent the party from whom the goods were taken being put to those actions, except in cases where the other could shew property. A replevin lies for goods and chattels only, hence it cannot be maintained for things affixed to the freehold. In a replevin for taking the goods and chattels, to wit, one lime-kiln, &c. of the plaintiff, to which there was an avowry for rent in arrear, the plaintiff in his plea in bar, said, that the lime-kiln, before and at the said time, when, &c. was affixed to the freehold of the piece or parcel of ground on which, &c. and as such was by law exempt from any distress for the arrears of rent in the avowry mentioned, and ought not to have been distrained for the same, &c. To this plea, the defendant demurred generally. After argument, the court were of opinion, that the plea in bar could not be supported, because it was a departure from the declaration. That the declaration, treating the limekiln as a chattel, might possibly be true; because lime may be burnt in a portable oven, and the kiln need not therefore necessarily be affixed to the freehold; but that as the plea in bar stated it to be affixed to the freehold, it was inconsistent with the declaration. II. Of the Proceedings in Replevin at Common Law, and the Alterations made therein by Statute. Ar the common law, the proceedings in replevin commenced with suing out of the Court of Chancery a writ of a 1 Inst. 145. b. b Niblet v. Smith, 4 T. R. 504. c 2 Inst. 140. Chancery Cases, temp. Ld. Redesdale. See also Bull. N. P. B. 2. c. 4.-"Replevin may be brought in any case where a man has had his goods taken from him by another." See also 1 Inst. 145. b. |