the defendant cannot be found, the process may be pursued to the exigent and outlawry thereupon; and when fuch accountant fhall appear in court, and fubmit, or be adjudged to account, auditors fhall be affigned to take his or her account; and if he or fhe fhall be found in arrears, and cannot pay the arrears, and the cofts of fuit forthwith, he or she fhall be committed to gaol, there to be kept, under fafe cuftody, living at his or her own cofls, untii he or she shall have fully fatisfied fuch arrears, with the cofts of fuit. And if fuch accountant fhall neglect or refufe to account before the auditors, he or the shall be committed to gaol, there to be kept as aforefaid, until he or she fhall fatisfy the plaintiff of his or her demand, with cofts as aforefaid. And further, That if it shall be found, that there is a furplufage due on fuch account, from the plaintiff to the defendant, then the defendant fhall have judgment to recover fuch furplufage, with cofts of fuit, against the plaintiff, unlefs where the fuit is brought by executors or adminiftrators, in right of their teftator or inteftate; in which cafe the defendant fhall not recover cofts against them: And the defendant fhall or may have fuch execution for the fame, as he or she might have had, if he or she had recovered fuch furplufage by action of debt. And moreover, If any fheriff or gaoler fhall fuffer any fuch prifoner to go out of prifon, without the affent of the plaintiff, he fhall be anfwerable to the plaintiff for the debt or damages done to him or her by fuch accountant, according as it may be found by the country; and the party at whofe fuit fuch prifoner was committed, fhall have his or her recovery, by action of debt, or by bill or plaint, in any court of record.

II. And be it further enacted by the authority aforefaid, That actions of account fhall and may be brought and maintained by one joint-tenant, or tenant in common, his or her executors or adminiftrators, against the other, as bailiff, for receiving more than comes to his or her juft fhare or proportion, and against the executors or administrators of fuch joint-tenant or ten

ant in common.

III. And be it further enacted by the authority aforefaid, That the auditors appointed by the court where any action of account fhall be depending, fall be, and hereby are empowered to administer an oath, and to examine the parties, on oath, touching the matters in queflion; and for their pains and trouble in auditing and taking fuch account, fhall have fuch allowance as the court fhall adjudge to be reafonable, to be paid by the party in whofe favour the balance fhall be found, and to be allowed to him or her, in the cofts to be taxed against the oppofite party, where cofts are recoverable.

I.

CHA P. V.

An ACT to prevent Abufes and Delays in Actions of Replerin. Pafled 6th February, 1788. Be E it enacted by the people of the fate of New-York, reprefented in fenate and affembly, and it is hereby enacted by the authority of the fame, That if the beafts, or goods, or chattels of any perfon, at any time hereafter, be taken and wrongfully detained, the fheriff, by a writ of replevin to be iffued out of the chancery, or upon complaint thereof to him to be made without writ, fhall caufe the fame beafts, or goods, or chattels, to be replevi ed, and delivered, without let or gain faying of the perfon who took them, whether they were taken within liberties or without, and fhall fummon the perfon who took them, to appear, if the fuit be by writ, at the return there

of; and if by plaint, at the next court of common pleas, to be held in his county, to answer the plaintiff of the taking and unjuft detention of the fame beafts, or goods, or chattels. And if any defendant fhall not appear according to fuch fummons, then he or she fhall be attached; and if fuch de fendant fhall not appear upon the return of the attachment, then he or she fhall be diftrained, from time to time, until he or she shall appear to answer the plaintiff And further, That fuch plaint before the fheriff fhall be in writing, and in the following form:

WEST

ESTCHESTER county, to wit: A. B. of Bedford, in the county of Weftchefer, yeoman, complains of C. D. of the manor of Pelham, in the county of Weftchefter, gentleman, of a plea of taking and unjuftly detaining his beafts (or, his beafts, goods and chattels, or, his goods and chattels, or, his certain mare, or, his certain filver bowl) and gives fecurity to profecute his faid complaint, and to return the fame beafts, if return thereof shall be adjudged.

replevin, may be re

into the Court.

Which plaint the fheriff fhall return to the next court of Writs or plaints in common pleas to be held in and for his county, in the fame inoved by either party manner as if it was a writ of replevin, returnable into the fupreme fame court, and the like proceedings fhall thereupon be had in the fame court, as may or ought to be had upon a writ of replevin. And moreover, It fhall be lawful for either party, in any writ or plaint in replevin, to be depending in any court of common pleas, at any time before any juror is fworn, or any judgment obtained, to cause the writ or plaint, and the proceedings thereon, to be removed into the fupreme court, by writ of certiorari; and fuch proceedings fhall be thereupon in the fupreme court, as if the fuit had been originally commenced in the fupreme court.

vin returnable in the

II. And be it further enocled by the authority aforefaid, All writs of reple- That all writs of replevin fhall henceforth be made returnafipreme court, or ble in the fupreme court, or in the court of common pleas, in and for the county where the beafis, or goods or chattels, for the taking whereof the writ fhall be brought, were taken, and fhall be in the form following:

court of common pleas.

HE people, To the fheriff. If A. B. of the city of New-York, merchant, fhall give you fecurity to profecute his complaint, and to return his beafts (or, his beafts, goods and chattels, or, his goods and chattels, or, his certain horfe, or, his certain filver tankard) which C. D. of Gofhen, in Orange county, gentleman, took and unjustly detains againft gages and pledges, as he faith, if return thereof fhall be adjudged; then caufe the fame beafts to be replevied, and delivered to the aforefaid A. B. without delay, and fummon, by good fummoners, the aforefaid C. D. that he be before our juftices of our fupreme court (or, our judges and affistant justices of our court of common pleas, to be held in and for your county) at (fuch a place) on (such a day) to answer the aforefaid A. B. of a plea of taking and unjustly detaining the beafts aforefaid.

III. And be it further enailed by the authority aforesaid, Sheriff may take the That if any perfon fhall take the beafls, or goods, or chatpower of his county, tels of another, and drive and convey and put them into or place of any houfe or place of ftrength, and the perfon from whom the fame beafts, or goods or chattels fhall be taken, fues for

and break open any

houle

ftrength, to make relevin

GEORGE CLINTON, Eq. Governor.

7

a replevin thereof, by writ or plaint, the fheriff fhall folemnly demand deli verance thereof, at the houfe or place where the fame are detained; and if neither the taker, nor any perfon on behalf of such taker, fhall, upon demand, deliver the fame, or if no perfon fhall come upon fuch demand to deliver the fame, the fheriff fhall take the power of his county, and break open fuch houfe or place of ftrength, and make replevin according to the writ or plaint.

IV. And be it further enalled by the authority aforefaid, That every fheriff, before he makes deliverance of any beafts, goods or chattels, by virtue of any writ or plaint in replevin, fhall take of the plaintiff fufficient fecurity to profecute the fuit, and to return the fame beafts, goods or chattels, if return thereof fhall be adjudged; and if any sheriff shall take fecurity other wife, or neglect to take fuch fecurity, he fhall anfwer for the price or value of the beafts, goods and chattels; and the perfon who diftraineth, shall have his or her recovery, by writ that he fhall reftore to him or her fo many beafls, goods or chattels,

V. And be it further enacted by the authority aforesaid, In what cafes plain- That if the plaintiff, in any action, or fuit in replevin, fhall tiff may have a writ of fecond deliverance. make default, and a return of the beafts, or goods, or chattels, is awarded to the diftrainer, the fheriff fall be commanded, by a judicial writ, to make return of the beafts, or goods, or chattels, unto the diftrainer; in which writ it fhall be exprefled, that the fheriff fhall not deliver them without writ, making mention of the judgment, which cannot be without a writ ifluing out of the fame court in which the matter was moved; and if the plaintiff cometh unto them, and defireth replevin of the fame beafts, goods and chattels, he or she fhall have a judicial writ, that the fheriff, taking fecurity for the fuit, and alfo for the return of the fame beafts, goods and chattels, or for the price or value of them, if return fhail be awarded, fhall deliver unto the plaintiff the beafts, goods and chattels before returned; and the diftrainer fhall be attached to come and be at a certain day, at the court in which the plea was moved, in the prefence of the parties; and if the plaintiff make default again, or for another caufe, return of the diftrefs be awarded, being now twice replevied, the diftreis hall remain irrepleviable. But if a diftreis be taken of a-new, and for a new caufe, the procefs aforefaid fhall be obferved in the fame new diftres.

On claim of proper

replevin before it is

VI. And whereas frequent abufes have been committed in the execution of writs of replevin, by fheriffs making deliverance, notwithstanding dre notice and claim of property have been interpofed by the defendant or poffeffor; For the more effectual prevention whereof, Be it further enacted by the authority aforefaid, That if at any time hereafter, on a ty, if theriff makes Writ or plaint of replevin, the defendant in replevin, or tried, he forests tool. poffeffor, fhall claim property in the thing whereof deliverbefides being anfverance is fought, and the Theriff, either by himself, his under able for the trefpais. fheriff, or bailiff, having due notice, fhall nevertheless proceed to make deliverance, and difpoflefs fuch defendant thereof, before the claim of property fhall be enquired into, or tried according to law; fuch fre riff, for every fuch offence fhall, befides being answerable to the defendant for the trefpafs, forfeit the fum of one hundred pounds, to be recovered by any perfon who fhall fue for the fame, in any court of record, by action of debt, bill, plaint or information; the one moiety thereof to the ufe of the perfon who fhall fue for the fame, and the other moiety thereof to the use of the people of this flate.

County.

different places.

VII. And be it further enacted by the authority aforefaid, That no diftress of beafts fhall be driven out of the town, manor, diftrict, or precinct, where Beafts diftrained, not fuch dittress is or fhall be taken, except that it be to a poundto be driven out of the overt, within the fame county, not above three miles difNor impounded in tant from the place where the faid diftrefs fhall be taken; and that no beails,or goods or chattels, diftrained or taken by way of diftrefs, for any cause whatfoever, at one time, fhall be impounded in feveral places, whereby the owner or owners of fuch diftrefs. fhall be conftrained to fue feveral replevins for the delivery of the faid diftrefs, fo taken at one time, upon pain that every perfon offending therein, fhall, for every fuch offence, forfeit to the party grieved, ten pounds, and treble damages; to be recovered in any court of record, by action of debt, bill, plaint or information.

trefs for rent, the the

VIII. And be it further enacted by the authority aforefaid, In replevin of dif. That every sheriff fhall, in every replevin of distress for rid to take a bond of rent, take, in his own name, from the plaintiti and two plaintiffs. fureties, a bond in double the value of the beafis, or goods or chattels diftrained (fuch value to be afcertained by the oath of one or more witnefles not interested, and which oath fuch fheriff is hereby authorised to adminifter) and conditioned for profecuting the fuit with effect, and without delay, and for returning the beafts, or goods and chattels, in cafe a return fhall be awarded, before any deliverance be made of the diftreis; and the fheriff thall, at the requeft and cofts of the defendant, avowant, or perfon making cognizance, aflign fuch bond to the defendant, avowant, or perfon making cognizance, by endorfing the fame, and attefting it under his hand, in the prefence of two witneffes; and if the bond be forfeited, the defendant, avowant, or perfon making cognizance, may bring an action thereupon, in his or her own name; and the court may, by rule, give fuch relief to the parties upon fuch bond, as fhall be agreeable to juftice; and fuch rule fhall have the nature and effect of a defeazance to fuch bond.

IX. And be it further enacted by the authority aforefaid, That where foever any lands, tenements or hereditaments, are or shall be held by any person or perfons, by rents, cuftoms or fervices, if the perfon of whom any fuch lands, tenements or hereditaments, are or fhall be held, fhall diftrain upon the fame lands or tenements, for any such rents, customs or fervices, and replevin thereof be fued, the perfon of whom the fame lands, tenements or hereditaments, are or fhall be fo holden, may avow, or his or her bailiff, or fervant make cognizance or justify for taking the faid diftrefs, upon the fame lands, tenements or hereditaments, fo holden as in lands or tenements within his or her fee, alledging in the faid avowry, cognizance and juftification, the fame lands and tenements to be holden of him or her, without naming any perfon certain to be tenant of the fame, and without making any avowry, cognizance or juftification upon any certain perfon. And that the diftrainer, or his or her bailiff or fervant, may make avowry, cognizance or juftification, in like manner and form, upon every writ of fecond deliverance.

dants in replevin, or

X. And be it further enaded by the authority aforesaid, Plaintiffs and defen- That the plaintiffs and defendants in all writs or plaints of in writs of fecond de- replevin, or writs of fecond deliverance, and in every of liverance, to have like them, fhall and may have like pleas, and like aid-prayers as at common law, in all fuch avowries, cognizances and juftifications (pleas of disclaimer only excepted) as they might have had before the making of

pleas and aid-prayers

making of this act, and as though the faid avowry, cognizance or justification, had been made after the due order of the common law; and that all fuch perfons, as, by the common law, may lawfully join to the plaintiffs or defendants in the faid writs or plaints of replevin, or fecond deliverance, as well without procefs as by procefs, fhall or may, from henceforth, join unto the faid plaintiffs or defendants, as well without process as by procefs, and have like pleas, and like advantages in all things (pleas of disclaimer only excepted) as they might have done by the order of the common law, before the making of this act.

defendant inay make

&c.

XI. And be it further enacted by the authority aforefaid, If plaintiff in re That whenfoever any plaintiff in replevin fhall be nonfuit, plevin is non fuit be fore iffue joined, the before iffue joined in any fuit of replevin, by plaint or writ avinry, it the dir lawfully returned, removed or depending in any court of trel's was for rent, and record, the defendant, if the diftrefs was made for rent, have a writof inquiry, making a fuggeftion in nature of an avowry or cognizance for fuch rent, to afcertain the court of the cause of diflrefs, the court, upon his or her prayer, instead of awarding a return of the distress, shall award a writ to the fheriff of the county where the diftrefs was taken, to enquire, by the oath of twelve good and lawful men of his bailiwick, touching the fum in arrear at the time of fuch diftrefs taken, and the value of the beafts, or goods and chattels diftrained; and thereupon fifteen days notice fhall be given to the plaintiff, or his or her attorney, in court, of the fetting of fuch enquiry; and thereupon the fheriff fhall enquire of the truth of the matters contained in fuch writ, by the oath of twelve good and lawful men of his county; and upon the return of fuch inquifition, the defendant fhall have judgment to recover against the plaintiff the arrearages of fuch rent, in cafe the beafts, goods and chattels diftrained, fhall amount unto that value; and in cafe they shall not amount to that value, then fo much as the value of the faid beafts, goods and chattels fo diftrained, shall amount unto, together with his or her full cofts of fuit, and shall have execution thereupon for the fame, by capias ad fatisfaciendum, fieri facias, or otherwise, as the law fhall require; and in cafe fuch plaintiff fhall be nonfuit after avowry or cognizance made, and iffue joined, or if the verdict shall be given against fuch plaintift, then the jurors impanelled, or returned to enquire of fuch iffue, fhall, at the prayer of the defendant, enquire concerning the fum of the arrears, and the value of the beafts, or goods and chattels diftrained; and thereupon the avowant, or the perfon who makes cognizance, fhall have judgment for fuch arrearages, or fo much thereof as the beafts, goods and chattels diftrained, amount unto, together with his or her full coffs, and fhall have like execution for the fame as aforefaid. And further, That if judgment be given upon demurrer for the avowant, or the perfon who makes cognizance for any rent, the court, instead of awarding a return of the diftrefs, fhail, at the prayer of the defendant, award a writ to enquire of the value of fuch diftrefs, and upon the return thereof, judgment fhall be given for the avowant, or perfon who makes cognizance as aforefaid, for the arrears alledged to be behind in fuch avowry or cognizance, if the beafts, or goods and chattels fo diftrained, fhall amount to that value; and in cafe they shall not amount to that value, then for fo much as the faid beafts, or goods and chattels fo diftrained, amount unto; together with his or her full cofls of fuit, and fhall have like execution for the fame as aforefaid. Provided always, That where the value of the beafts, goods and chattels diftrained as aforefaid, fhall not be found to be of the full value of the arrears diftrained for, the party to whom fuch arrears,

Vol. II.

B