When Sheriff discharged from lia. bility. 18 Wend., 581. Llability of Sheriff in certain cases on Bond. shall impose; and upon such bond being filed, the cause shall proceed. (5024.) SEC. 20. If no exception shall be taken to the sureties in the bond given by a plaintiff in replevin, as herein provided, the Sheriff shall be discharged from all liability for the sufficiency of such sureties; and the bond of the plaintiff shall be held by such Sheriff for the benefit of the defendant, and shall be assigned to such defendant or his personal representatives, if judgment be rendered for him in such action. (5025.) SEC. 21. If such exception shall have been made, and and his remedy judgment of discontinuance shall be rendered against the plaintiff for his sureties not justifying, the Sheriff shall be liable for the sufficiency of such sureties, as now provided by law; and such Sheriff shall be entitled to the same remedy on the bond taken by him, as in cases of bonds given on the arrest of a defendant in personal actions; and all the provisions of law respecting the staying of proceedings against the Sheriff, shall be applicable to actions by the Sheriff on such replevin bond, and to actions against him in relation thereto. When Clerk to enter appearance of defendant. Declaring, etc. Form of declaration. 6 Hill, 418. Stating place of detention. (5026.) SEC. 22. If the Sheriff return to the writ of replevin, that the defendant has been duly summoned in either of the modes hereinbefore prescribed, the Clerk of the Court shall thereupon enter the appearance of such defendant; and thereafter proceedings shall be had against such defendant, as if he had actually appeared. (5027.) SEC. 23. The plaintiff shall declare within the same time, and in case he neglect so to do, shall be liable to the like judgment of discontinuance as in personal actions; and upon filing a declaration, the plaintiff shall be entitled to the like rule to plead, and notice thereof shall be given, in like manner as in personal actions. (5028.) SEC. 24. It shall be sufficient for the plaintiff in his declaration, whether the original taking was lawful or otherwise, to allege with requisite certainty of time, place and value, that the defendant received the property to be delivered to the plaintiff when thereunto afterwards requested, and that the defendant, although requested so to do, has not delivered the same to the plaintiff, but hath unlawfully detained the same, to the damage of the plaintiff such sum as he may specify. (5029.) SEC. 25. It shall not be necessary for the plaintiff to state in his declaration, a place certain within the township, city or village, as that where the property was detained. (5030.) SEC. 26. The defendant may plead the general issue Plea and notice. to such declaration, which shall be in the same form as in personal actions, and shall put in issue not only the detention of the property, but also the property of the plaintiff therein, and his right to the possession thereof at the time of the commencement of the suit, and under such plea the defendant may give notice of any special matter of defence to the action. etc. (5031.) SEC. 27. After issue joined in any action of replevin, Notice of trial, either party may give notice of trial, and if neither party shallowend., 497. have noticed the cause for trial, the defendant may move for is Wend., 519. judgment as in case of non-suit, in the same manner as in personal actions. 4 Hill, 27. ges for plaintiff. (5032.) SEC. 28. If, upon the trial of the cause, the verdict Assessing damabe in favor of the plaintiff, the same jury shall assess the dam-2 Mich. Rep., 325. ages which he has sustained by the unlawful taking and detention, or by the unlawful detention of the property; but if judgment pass for the plaintiff by default, or upon an issue of law, the damages may be assessed by the Court, in the same manner as in personal actions. ment in case of in goods, etc. 1 Mich. Rep., 388. (5033.) SEC. 29. When either of the parties to an action of Verdict and judg replevin, at the time of the commencement of the suit, shall special property have only a lien upon, or special property in the goods and 1841, p. 54. chattels described in the writ, and is not the general owner 12 Wend., 11. thereof, that fact may be proved on the trial, and the jury shall find according to such fact by their verdict; and the Court shall thereupon render such judgment as shall be just between the parties. plaintiff, in case livered to him. (5034.) Sec. 30. If the goods and chattels specified in the Judgment for declaration, shall not have been replevied and delivered to the property not deplaintiff, such plaintiff, in case he shall recover upon the whole record, shall be entitled, in addition to his damages and costs, to a further judgment that such goods and chattels be replevied and delivered to him without delay; or in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels, as the same shall have been assessed. (5035.) SEC. 31. The execution to be issued upon such judg- Contents of Exement, shall command the Sheriff to levy the plaintiff's dama- case. ges and costs, of the goods and chattels, lands and tenements of the defendant, as in other executions against property; and also to replevy the goods and chattels described in the declaration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they can be found within his county, and if the same cannot be found, then that he levy the cution is such Powers and duties of Sheriff on Execution. Judgment for defendant on nonsuit, etc. When defendant may take judg property. 12 Wend., 134. value of such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the goods and chattels, lands and tenements of the defendant, as above provided. (5036.) SEC. 32. The Sheriff shall proceed in the same manner to collect any moneys directed to be collected upon such execution, as upon executions against property in personal actions, and he shall possess the same powers in respect to the replevying of the property described therein, as are herein provided upon the execution of writs of replevin; and if the goods and chattels described in the execution, are replevied and delivered to the plaintiff, they shall be irrepleviable. (5037.) SEC. 33. If the property specified in the writ shall have been delivered to the plaintiff, and the defendant recover judgment by discontinuance or non-suit, such judgment shall be, that the defendant have return of the goods and chattels replevied, unless he shall elect to waive such return as hereinafter provided; and also that he recover the damages sustained by him by reason of the detention of such goods and chattels, which damages shall be assessed by a jury in the proper Court. (5038.) SEC. 34. Whenever the defendant shall be entitled ment for value of to a return of the property replevied, instead of taking judgment for such return, as above provided, he may take judgment for the value of the property replevied; in which case, such value shall be assessed by the jury on the trial, or upon the assessment of damages, as the case may be. ment of dama ges. Notice of assess- (5039.) SEc. 35. Whenever any damages shall be assessed, pursuant to any provisions contained in this chapter, the same notice thereof shall be given to the adverse party, as is required by law, and the practice of the Court in the like cases in personal actions. When judgment for defendant to (5040.) SEC. 36. If the property specified in the writ shall be for costs only. not have been replevied and delivered to the plaintiff, and the defendant recover judgment, such judgment shall be for costs only. Effect of judgment for return of property. (5041.) SEC. 37. Whenever judgment shall pass against the plaintiff in replevin, whether by default or otherwise, and a return of the property is awarded, no writ of second deliverance shall be allowed, nor shall any second or other writ of replevin be brought for the same cause, but the plaintiff in replevin shall not thereby be barred from bringing an action of trespass or trover for the same property, unless the judg ment in the action of replevin shall have passed against him held subject to certain cases. 44. (5042.) SEC. 38. If any goods or chattels which are Property to be replevied had been attached, they shall, in case of judgment attachment in for a return, be held liable to the attachment, until final judg- 1839, p. 230, Sec. ment in the suit in which they were attached, and for thirty days thereafter, in order to their being taken in execution; and if such final judgment be rendered before the return of the property, or if the property when replevied was seized and held on execution, it shall be held subject to the same attachment or seizure for thirty days after the return, in order that the execution may be served thereon, or the service thereof completed, in like manner as it might have been if such property had not been replevied. Bond. 12 do. 122. 5 Hill, 293. (5043.) SEC. 39. If any writ of return, or other execution, Suit on plaintiff's issued in favor of the defendant in the action, shall be returned 18 Wend., 334. unsatisfied in whole or in part, such defendant or his repre- 10 do. 333. sentatives may have an action upon the bond executed by or on behalf of the plaintiff, to recover against the obligors therein the value of the property replevied, and he tmoneys, damages and costs awarded to such defendant, and such bond shall be assigned to such defendant or his representatives, on their request. damages to be re (5044.) SEC. 40. In such action the plaintiff shall assign Proceedings; breaches of the condition of such bond, as in other cases; and covered. the return of the Sheriff to the execution issued in the action. 1 Hill, 557. of replevin, shall be evidence of such breach; the amount recovered in such action of replevin, and remaining uncollected, shall be the measure of the damages, if the value of the property replevied shall have been so recovered, and if not so recovered, and a return thereof shall have been awarded, such value shall be added to the damages and costs recovered in the action of replevin, and the amount of such value, damages and costs, remaining uncollected, shall form he measure of damages. tain cases. (5045.) SEC. 41. In any action prosecuted on such bond Mitigation in ceriven by the plaintiff in an action of replevin for the delivance of any property, the defendant may show, in mitigation. the damages, that the plaintiff in such action had only a n upon such property and the amount of such lien; and if ch amount, with interest, be less than the value of the operty replevied, a corresponding deduction shall be made a such value. Beasts distrained to be impounded. Fees for distrain ing and impounding. (5046.) SECTION 1. When any beasts are taken up and distrained by any person, for going at large, contrary to law, or contrary to any by-law of a township, they shall be forthwith impounded in the township pound, and the keeper of such pound shall furnish them with suitable food and water, so long as they are detained in his custody. (5047.) SEC. 2. The person so taking up and distraining the same, shall be entitled to fifty cents per head for all horses, mules, asses and neat cattle, and ten cents per head for all sheep, goats and swine, so distrained by him; and the pound keeper shall be entitled to four cents per head for all the said animals so impounded. |