Owner of cat

may have writ of replevin.

CHAPTER LXXX.

An Act directing the mode of process, to be adopted in replevying of Cattle or
Beasts distrained, and also of goods and Chattels,

SEC. 1. Be it enacted by the Senate and House of Repretle impounded sentatives, in Legislature assembled, That when any person shall have his cattle restrained or impounded, in order to obtain satisfaction for damages they may have committed, or to obtain a forfeiture, supposed to have been incurred for their going at large out of the inclosure of the owner, in violation of law, in order to have the legality of such distraint or impounding determined, he may have and prosecute a writ of replevin for the liberation of the cattle thus impounded, in the form prescribed by law.

In certain cases judg

ment for de

fendants dam

ages may be

of return, if

SEC. 2. Be it further enacted, That when it shall appear from the plea of the defendant in replevin, that the cattle were taken and impounded, damage feasant, or for the regiven, instead covery of a penalty incurred for their being found going at legally taken. large, out of the inclosure of the owner, in violation of law; and upon the issue it shall be determined that the cause of taking and detaining was lawful and justifiable, judgment shall, instead of a return of the cattle, be rendered for the defendant in replevin, to recover such reasonable damages, as upon a consideration of the circumstances of the case, the Justice (or a Jury in case it comes before one,) shall assess, together with his costs of taking and impounding, and costs of defence but if upon the trial of the issue, it shall appear, that the cattle were taken or detained without sufficient and justifiable cause, the plaintiff in replevin shall recover such reasonable damages for the taking and detaining, as the Justice, (or Jury, in case it comes before one,) shall assess, together with his costs: but when, from the matter of the plea ant may have of the defendant in replevin, damages with propriety canreturn instead not be assessed, or that a restoration of the property reof damages.

If illegally taken, plaintiff shall have damages.

In certain

cases defend

plevied is the best recompense the parties can have, and upon the issue it shall be found, that the cattle were taken and detained lawfully, and for justifiable cause, the judg ment shall be rendered, that the cattle be returned and restored to the defendant, irrepleviable, and for costs, and he be entitled to a writ of return and restitution accordingly.

ed exceed

SEC. 3. Be it further enacted, That when it shall appear When from from the plea or avowry of the defendant in replevin, that that the damplea it appears the sum demanded in damage for the taking and detaining ages demandexceeds twenty dollars, or that the property of the beast $20, taken, is the question between the parties (in case the value exceeds twenty dollars) or that the right to soil and freehold

is coming in question in every such case, the Justice shall what proceedings are to be not proceed to try the issue, but shall order the defendant had. in replevin to recognise in a reasonable sum, with sufficient surety or sureties, to the adverse party, to enter the said action at the next Circuit Court of Common Pleas or the Supreme Judicial Court, to be held in the same county, as the plaintiff in replevin shall then and there elect and choose, and to prosecute the same to effect; and if such defendant in replevin shall neglect or refuse thus to recognise, the Justice shall render judgment against him in the same manner as if he refused to make answer to the same suit. And in case such defendant shall, after recognising fail of entering or prosecuting the same action, the plaintiff may enter and prosecute the action, or have his remedy on the recognisance, at his election.

are taken, dis

ed or detained

son, form of

SEC. 4. Be it further enacted, That when any goods or When goods chattels shall be taken, distrained, attached, or unlawfully trained attachdetained, which shall be claimed by a third person, and the and claimed person thus claiming the same, shall think proper to replevy by third perthem, in case such goods and chattels are of the value of proceeding. more than twenty dollars, he may take out and prosecute his writ of replevin from the Clerk's office of the Circuit Court of Common Pleas, in the county where the goods and chattels are thus taken, distrained or attached in form prescribed by law. And in case the plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may upon complaint have judgment for a return and restoration of the goods and chattels replevied, and the damages for the tak ing to the amount of six per cent. on the bond, with reasonable costs, and a writ of return and restitution thereupon accordingly. And if upon a trial of the issue, judgment shall be rendered for a return and restitution, the interest of six sessing dan per cent. upon the penal sum of the bond, shall be taken as ent cases. a rule for estimating the plaintiff's damages, in case they

Mode of as

ages in differ

mesne process

continued in certain cases.

were taken on execution. And if the taking shall have been upon execution, the goods and chattels returned shall be held responsible for the space of twenty days after the reAttachment on turn; and if on mesne process, until thirty days shall have expired, after final judgment thereon, in case judgment shall not have been given; but if final judgment on the mesne process shall have been given before the return, then for the space of twenty days only after the return, to the end, the creditor, at whose suit they were originally taken, may have a complete remedy, and the benefit of his attachment. Damages re- And the monies recovered by way of damages, by any offificer to be to cer who has taken or attached any goods or chattels, at the use of creditor. suit of a creditor shall be considered and taken as recovered to the use of the creditor;-and when received, be paid over to him accordingly.

covered by of

Court may issue writ of withernam, in

case.

Court may vary form of writs in certain cases.

SEC. 5. Be it further enacted, That when the Sheriff or other officer, unto whom the writ of return and restitution shall be directed, shall not be able to find the beast or other property in his precinct, which shall, by the same precept, be directed to be returned and restored irrepleviable, and the same shall appear in writing by the return of the officer thereon, the Court from whence the same issued, may, upon motion, grant a withernam against the plaintiff in replevin, to compel a complete and specific performance of the judgment, which writ of withernam shall be in form prescribed by law.

SEC. 6. Be it further enacted, That when the writ of return and restoration or writ, in withernam, shall issue from any other Court of law, or for any other property than beasts, the Court from whence the same shall issue, shall so vary the form as to them shall appear expedient to carry the same into full force and effect, as the nature and circumstances of the case shall require.

[Approved January 27, 1821.]

CHAPTER LXXXI.

An Act prescribing the mode of recovering Forfeitures of Personal Property liable thereto by law.

seized as for

it may be re

owner, he giv

value,

to be ascer

SEC. 1. Be it enacted by the Senate and House of Repre- When person sentatives, in Legislature assembled, That whenever any per- al property is sonal property shall be liable to forfeiture for any offence, feited," any person or persons entitled thereto, or interested therein in whole or in part, may seize and shall safely keep the same till a final decree be had thereon, unless the owner or person from whom it was taken, claiming the same for himself, stored to the or some other person, shall give bond, with sufficient surety in bonds, &c. to the party seizing, to pay the appraised value thereof, for appraised when and if it shall be finally decreed forfeited; which value shall be appraised upon oath by three judicious and disinterested men, mutually chosen by the parties, or (incase of disagreement or refusal of the party seizing) appointed by Justice of the Peace in the county where the property was scized; but upon the giving or tendering such bonds, the property shall be delivered to such owner or claimant, and if no claimant shall appear, the party seizing shall be held to cause an inventory and appraisement of the property seized, to be made by three disinterested persons under oath, who property, it shall be appointed by a Justice of the Peace in the county appraised on where the property shall be seized; which appraised value shall be the rule by which to determine where the libel shall be commenced.

a

tained by men by the parties,

on oath, chosen

or appointed by a Justice.

And if no perclaim the

son appear to

must be also

oath.

If property

the value of

it within 20

days in C. C.

Com. Pleas.

SEC. 2. Be it further enacted, That if the property seized exceed twenty dollars in value, the party seizing the same seized exceed shall within twenty days after the seizure, but not after- $20, the party wards, file a libel in the Clerk's office of the Circuit Court seizing to libel of Common Pleas in the county where the offence was committed, stating the cause of seizure, and praying for a decree of forfeiture; whereupon the Clerk shall make out a notification to all persons to appear at such Court, and show Court to give cause, if any they have, why such property should not be decreed forfeit for such cause of seizure; which notifications the libellant shall cause to be inserted in some newspaper printed in the same county, if there be one, otherwise in some newspaper printed in the next or nearest county, or in

notice.

Manner.

If property is claimed, Court may try the

and for good forfeiture.

Portland, fourteen days at least before the sitting of the Court at which the libel is to be tried; and upon entry of such libel, at the time when civil actions are to be cause by Jury, entered in such Court, the Court shall have power to hear and determine the cause by a Jury, where there is a cause decree claimant, but without one, if, upon proclamation made, no claimant appears, and to decree the forfeiture and disposition of such property according to law, and may decree a sale and distribution of the proceeds, deducting charges where they think proper, and may also award costs against the claimants: and if such libel be not supported, or be discontinued, restitution of the property shall be deIf Jury find the creed to the claimants, with costs. And if the Jury on the trial, where the libel is tried by a Jury, find the seizure damages may groundless and without probable cause, they shall assess, and the Court shall decree reasonable damages for the claimant with costs. And either party aggrieved at the decree may appeal. of such Court, may appeal therefrom to the Supreme Judicial Court next to be holden in the same county; who shall have power, upon such appeal, finally to hear and determine the cause, and decree thereupon in manner aforesaid.

seizure

groundless,

be decreed to claimant.

Either party

SEC. 3. Be it further enacted, That when the property seized shall not exceed the value of twenty dollars, the libel shall be preferred to some Justice of the Peace in the same county where the offence was committed, within the time aforesaid; who shall have power to hear, determine and decree thereupon as aforesaid, having first caused a like notification to be posted up, and which the libellant shall be held to do at some public place in the same county, seven days before the time of trial; saving to either party aggrieved liberty to appeal from the decree of such Justice to the next Circuit Court of Common Pleas to be held in and for said county; who shall have power finally to hear, determine and decree in the cause aforesaid; and depositions taken for legal cause, and according to law, may be used on the trial, as well before said Justice as before said Courts. And if any such appeal is not entered and prosecuted, the Court to which the same was made, upon complaint, may affirm the decree appealed from, with additional damages and costs, or with additional costs only, as the case may require.

[Approved March 5, 1821.]