defendant was seised in his demesne as of fee of and in a certain close called -[or" abutting," &c.], situate in the parish of, in the county of -, and being so seised, he, the defendant, on the day and year last aforesaid, cut down one oak tree then growing and being in and upon the said close, the said tree being the said goods and chattels in the said declaration mentioned; and the defendant further says, that afterwards and before the said time when, [&c.], to wit, on the day and year last aforesaid, he delivered the said goods and chattels to one Richard Roe to be kept by the said Richard Roe to and for the use of the defendant, and the said Richard Roe afterwards and before the said time when, [&c.], to wit, on the day and year last aforesaid, delivered the said goods and chattels to the plaintiff, whereupon the defendant at the said time, when, [&c.], took the said goods and chattels from and out of the possession of the plaintiff, (n) as he lawfully might for the cause aforesaid, which is the conversion in the declaration mentioned; and this the defendant is ready to verify.

ASSIGNEES OF A BANKRUPT.

OBS. The observations made on the effect of the plea of not guilty, ante, 683, and the plea of "not possessed," ante, 686, apply in general to pleas in actions of trover by and against assignees of a bankrupt. In trover by assignees to recover goods claimed by them as having been fraudently assigned by the bankrupt before his bankruptcy, if the defendant rely upon the validity of the transfer to him, he may dispute the title by a simple denial of the allegation, that the bankrupt, or the plaintiff as assignee (as the case may be), was possessed of the goods as of his property, &c.; see instances and cases, ante, 684, notes. In trover by assignees, a plea denying that the plaintiffs are assignees, &c., (see form, ante, 247,) will put in issue the trading, act of bankruptcy, petitioning creditor's debt, fiat and proceedings, provided notice to dispute those facts be also given; Buckton v. Wray, 8 A. & E. 844; Butler v. Hobson, 4 B. N. C. 290; see ante, 246, obs. These facts cannot be disputed under a plea denying that plaintiffs were possessed, &c.; Byers v. Southwell, 9 C. & P. 320. In trover against assignees, a plea that the plaintiff was not possessed, &c., ante, 686, will enable the assignees to contend that the property in the goods has passed to them as being in the reputed ownership of the bankrupt at the time of the bankruptcy, ante, 685; and this plea will also suffice in actions brought against them by the bankrupt to try the validity of the fiat, see further, ante, 683 and 685. Assignees cannot plead the general issue "by statute;" Knight v. Turquand, 2 M. & W. 101.

v. Boyer, Cro. Eliz. 485 (Fancourt v. Bull, 1 Bing. N. C. 689, post, 688, obs.) But if to a similar declaration the defendant were to plead that J. S. was possessed of the sheep as his own property, and sold them to him in market overt, the plea would be bad, because it tends to deny that the property was ever in the plaintiff and gives no colour to the claim; Vin. Abr. Colour, G.; Doct. Pl. 77;"

Steph. Pl. 4th ed. 238.

(n) The allegations in italics state fictitious facts. This is the usual form of giving colour, and is not traversable; see Steph. on Pl. 4th ed. 238. Indeed if the fiction were traversed, the remainder of the plea, which states matter negativing the plaintiff's claim, would be admitted, and thus the plaintiff would appear on the record to be without title.

1. Plea in Trover by Assignees that the Plaintiffs were not possessed as Assignees. (0)

1. Not guilty, ante, 642.] 2. And for a further plea in this behalf, the defendant saith that the plaintiffs were not at the said time when [&c.] possessed of the said goods and chattels in the said declaration mentioned, or either of them or any part thereof, as of their property as assignees as aforesaid, in manner and form as the plaintiffs have above alleged; and of this the defendant puts himself upon the country, &c.

2. Plea to a Declaration by Assignees of a Bankrupt for not redelivering to them Goods with which the Bankrupt had entrusted them; that the Bankrupt transferred them (since 2 & 3 Vict. c. 29) before Fiat, and without Notice on the Part of the Transferree of any prior Act of Bankruptcy.

Tanner v. Scovel, 14 M. & W. 28. See the observations, ante, 685, and 687.

3. Plea of Payment of Money (for Damages) into Court in Trover by the Assignees of a Bankrupt.

Form of plea and replication, Clark v. Nicholson, 6 C. & P. 712, note (a). The form, ante, 376, will apply, describing the plaintiffs "as assignees as aforesaid." See post, 689.

BAILEES.

A bailee having a special title or possessory interest in the goods, if sued by the general or reversionary owner, or a stranger, may defend upon the common plea traversing the property in the plaintiff; ante, 684, obs.

1

BILLS OF EXCHANGE.

OBS. In trover for a bill a special plea must give the plaintiff colour, ante, 686, note(m), and must show, not merely an indorsement to defendant, but also that it was for value and without notice of any defect in a prior party's title, &c; Fancourt v. Bull, 1 B. N. C. 681; Hilton v. Swann, 5 B. N. C. 413; S. C. 7 Dowl. 417; see other forms, Brind v. Hampshire, 1 M. & W. 365; Palmer v. Jarmain, 2 M. & W. 282; but the defence might generally be given in evidence under the plea of not possessed, Brandao v. Barnett, 1 M. & G. 908; S. C. 6 M. & G. 630; or the general issue, Wilkinson v. Whalley, 5 M. & G. 590; S. C. 1 D. & L. 9; and no advantage is gained by more special pleas.

(0) See form, Scott v. Thomas, 6 C. & P. 611, note (a). See obs. supra, and ante, 684.

LIMITATIONS, PLEA OF.

The plea will be in form as ante, 660; see id. note. See the case of Philpot v. Kelley, 3 Ad. & E. 106, in}which this ground of defence in trover was much considered; and Denys v. Shuckburgh, 4 You. & Col. 42.

NEW ASSIGNMENT.

The form will be nearly as in trespass, post, 783, stating that the plaintiff, on, &c., another and different occcasion, &c., converted, &c. the goods; be careful not to state matter amounting only to evidence of a conversion; see Brown v. Copley, 7 M. & G. 570, note (a); S. C. 2 D. & L. 332. Trover for 10 barges and 10 pieces of timber, &c.; plea justifying removing them because they obstructed the navigation of the Thames; held that the plea being general, and apparently answering the whole of a divisible number of things in the declaration, the plaintiff might reply de injuria, and also new assign that he brought his action for other pieces of timber converted on another occasion; Page v. Hatchett, 15 L. J. 68, Q. B. New assignment in an action against a sheriff, justifying under a fi. fa., that the plaintiff sues for converting other goods; Aldred v. Constable, 6 Q. B. 370. It was held in that case that this is the proper mode of replying where the sheriff sells under colour of the writ under which he legally justifies more than sufficient to satisfy that execution. Sed que.? whether a new assignment in trover can in any case be correct; Weeding v. Aldrich, 9 A. & E. 866, per Littledale, J.; and see Hawthorne v. Newcastle, &c. Railway Company, 3 Q. B. 735.

PAYMENT INTO COURT.

See ante, 669. The form will be nearly as in assumpsit, ante, 376, commencing, if the money be paid into Court to part of the cause of action, thus :

As to the said conversion of parcel of the said goods [in the last count mentioned], to wit, [enumerate them], and the said causes of action in respect thereof, [&c. as in the form, p. 377.

The Court would generally stay proceedings upon redelivery of the property and payment of costs, Peacock v. Nicholls, 8 Dowl. 367; ante, 502; and where the cost price only of the goods was paid into Court, the Court refused to disturb a verdict for the defendant, Evans v. Lewis, 3 Dowl. 819.

DECLARATIONS IN REPLEVIN.

OBS. See in general, Bacon's Abridg. "Replevin," 2 Saund. 194 a, 283, 310; Com. Dig. "Pleader," 3 K. 10. Where goods or cattle are distrained for rent, or for a poor-rate, &c. the owner may both obtain restitution and try the validity of the seizure, by making a plaint to the sheriff of the county to have the goods replevied; that is, re-delivered to him:-and upon this occasion the sheriff causes the effects to be redelivered to the owner on his giving the sheriff security that he will forthwith prosecute an action of replerin against the distrainer in the County Court to try the legality of the distress; and will, if its validity be established, return the goods to the distrainer. The party distrained upon accordingly levies a plaint and declares in the County Court; but the suit is frequently removed into the superior Court, wherein the plaintiff declares de novo.

By 9 & 10 Vict. c. 95, s. 119, "all actions of replevin in cases of distress for rent
in arrear, or damage feasant, shall be brought without writ" in the new County
Courts in the district (s. 120) where the distress is taken.

By s. 121- In case either party to any such action of replevin shall declare to
the Court that the title to any corporeal or incorporeal hereditament, or to any
toll, market, fair or franchise is in question, or that the rent or damage in respect
of which the distress shall have been taken is more than 207.," and shall
become bound, with two sureties, &c. "to prosecute the suit with effect and
without delay, (see ante, 436, note (g),) and to prove before the Court by which
such suit shall be tried, that such title as aforesaid is in dispute between the
parties, or that there was ground for believing that the said rent or damage was
more than 20., then the action may be removed" to the superior Courts.
The plaintiff must, as in trover, (ante, 678, obs.,) be the general owner or a
special owner, and must have the possessory right; see in general 3 Bla. C. 147;
Wilkinson on Replevin; 1 Saund. 347 b, note 2; 1 Chit. Pl. Ind. "Replevin;"
2 Stark. Ev. " Replevin;" Selw. N. P. tit. "Replevin." Replevin is the proper
form to recover possession of a specific chattel, Dore v. Wilkinson, 2 Stark. R.
288; and it lies for goods taken by distress under a magistrate's warrant,
George v. Chambers, 11 M. & W. 149; S. C. 2 D. & S. 783; also for an illegal
taking in the first instance, or for an unlawful detention after a legal taking,
Evans v. Elliott, 5 Ad. & E. 142.

As to judgment, damages and costs in replevin, see 2 Chit. Arch. 8th ed. Ind. in

to wit, [venue local (b).] C. D. was summoned to answer A. B. of

a plea, wherefore he took the [" cattle,"] goods and chattels [" and corn," as the case may be,] of the plaintiff, and unjustly detained the same against sureties and pledges, until [&c.], and thereupon the plaintiff, by attorney, complains, For that the defendant on the

his

A. D.

day of -, [the exact day of distress is not material,] in the parish of, in the county of aforesaid, in a certain dwelling-house there [or "in a certain close," or "common"] there called ——, (c) took the ["cattle,"] goods and chattels of the plaintiff, to wit, ten tables, (d) of great value, to wit, of the value of £, and unjustly detained the same against sureties and pledges, until [&c.]; wherefore the plaintiff saith that he is injured and hath sustained damage to the amount of £- -; (e) and therefore he brings his suit, &c.

2. Declaration in Replevin in the old County Court. (ƒ)

In the County Court of the Sheriff of

, to wit. C. D. was summoned, [&c. proceed precisely as in Form 1, except that it is necessary to add after the words, "in the county of aforesaid," the words, " and within the jurisdiction of this Court, took," &c.]

where the distress was originally taken, or in a county in which the goods were in the defendant's custody upon the occasion; Wilson v. Kersop. 2 Wils. 354; 1 Saund. 347.

(c) The place, as whether it was a house, yard or close, must be stated accurately; and it seems the name or abuttals of the close should be specified; 1 Saund. 347, note 1; Potten v. Bradley, 2 M. & P. 78; or the declaration will be demurrable, Banks v. Angell, 7 A. & E. 855; see Form 5, ante, 31. The caption may be stated to be in the place where the original seizure was, or in a close or place wherein the distrainer afterwards led or had the goods or cattle in the way to the pound; 1 Saund. 347, note 1; Walton v. Kersop, 2 Wils. 354. Where different effects are stated in various places the form should be "in a certain dwelling-house there took the goods, to wit, and in a certain yard, [or close,'] there took other

the goods, to wit," or "the cattle, to wit, -," &c.; Com. Dig. Pleader, 3 K. 10. The plea of non cepit disputes the correctness of the declaration as to the place of seizure.

(d) The goods, &c. must be described with at least as much certainty as in trover, (ante, 680, note (c),) see 3 Saund. 74 b; Banks v. Angell, 7 A. & E. 855. The fol. lowing form describes the seizure of standing corn under 11 G. 2, c. 19, s. 8, "in a certain close there called

took the corn of the plaintiff, to wit, acres of standing wheat there then growing." Replevin does not lie for fixtures qua fixtures; Niblet v. Smith, 4 T. R. 504; Amos, Fix. 252, 257.

(e) A sum covering the real damage. (f) This form will probably become obsolete when the new County Courts are established, ante, 690, obs.

PART II.

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