case more against watts if to a a human being replegiando the sheriff return  elonga and a capias in withernam issue but before its return the party be  bring in upon a habeas corpus he may plead non to take in hand and give bail  for his appearance on the return of the writ S c salk S c holt S c lily Ent S  c ld ray if defendant appear on the pluries no withernam to go Watts be bring  in upon habeas corpus before the return of a capias in withernam upon a elonga  return upon a a human being replegiando and offer to plead non to take in hand  and give bail shower urge that he ought to be receive to do it for that it be  a civil action only for recover of damage for the take and detainer and  likewise to procure the party his modern report liberty and that the capias in  withernam be like process of outlawry upon mean process the end whereof be to  put in bail to the original action and if it be not so this process may be  make a snare for people liberty this writ of capias in withernam be no writ of  execution and we can have no action of false return against the sheriff first  because the withdraw be ground upon a inquisition second if he can repleuie  the party be can make no other return for he be not to take upon himself to  falsify the suggestion of the writ after a presentment of a grand jury the  party still stand rectus in curian and may traverse it a strong the sheriff  return of a elonga ought not to be conclusive and he quote the case in roll ab  that though sheriff return outlawry of felony yet the party may aver that he  appear at the five county but that case be deny to be law by the court  Montague contra this be not a civil action for damage and to have the party  enlarge but be such a prosecution in which the defendant if convict shall be  fine and pillory and the very command of the writ be that the defendant shall  lie in gaol till party be suffer to be replevied by he the word be while pfat  m secundum law et consuetude England replegiari to be able there be no  precedent that we can find of bail in this case there be many in a a human  being replegiando for a villain where the villain be bail and the lord order  to make a return and be quote the Lord grey case in king Charles the second  time a where the defendant upon withdraw return and award of withernam come in  and be fine and have obtain his pardon move to be bail and upon this the judge  assemble and hold that the return be conclusive and that be can not be bail  but may have a false return against the sheriff if he have wrong he and if  that remedy fail by death of sheriff they hold there may a commission issue  for the take a inquisition of the fact which if find against he he may  traverse and try by jury and so he have a mean to discharge himself and he  compare a capias in withernam in this case to a capias ad to give satisfaction  both be with a until what time holt chief justice the case of the outlawry be  much a strong case for that be for a default in he in not appear before and  sure the case you cite be very hard to maintain and the reason they ground  themselves upon wrong videlicet that the party be conclude by the sheriff  return of a withdraw and modern report we have two record of a non to take in  hand plead after a elonga and so have the law be hold several time since and  issue try thereupon and this be no criminal prosecution for the king can have  it and damage be always give in it gold justice say ac etians have be add to  such writ suppose he have come before the withdraw return and enter a  appearance and a state trial App raym skin modern report er p after elongathad  be return there ought to be no withernam and if one have go it ought to be  supersede upon plead non to take in hand without any bail and it be against  all reason that they shall be estopped by the return to say that they have not  take he there be no diversity between a a human being replegiando and a common  replevin for cattle and if upon withdraw in replevin for cattle the defendant  come and plead a non to take in hand it shall supersede a withernam and so be  f n b and if we consider upon what matter the writ be ground it will appear to  be a matter within the sheriff knowledge for the writ suppose the cattle or  party to be take and the sheriff do not know whether it be so or not and if he  find they not to repleuie he can make no other return but a elonga and that  put a obligation upon the defendant to come into court and discharge his  person or cattle from a withernam by plead non to take in hand and it have be  resolve since my Lord g s time that one may plead a non to take in hand after  withdraw return and a withernam be but a mean process ground upon the return  of withdraw and the issue of it can make the thing worse than the return have  make it and there never be any law against bail one on mean process but here  you come in too soon for you can plead till the writ be return nor bail till  after plea plead when you appear on the return you ought to move for they to  declare for they be demandable at the return as upon a appeal and if they do  not appear they shall be nonsuit and the defendant discharge and the plaintiff  put to a new writ if defendant in replevin come in on the replevin he need not  gage deliverance but if be come not in upon the replevin but upon a further  process he must gage deliverance in some case and he utter condemned the case  in Raymond before cite here be a charge and a denial so the matter be  indifferent and if the defendant appear on the pluries a human being  replegiando and plead non to take in hand he shall not need to give bail but  if he come upon the withernam he may plead non to take in hand but must give  bail which be in the modern report nature of gage deliverance vide Edward upon  a non to take in hand on return of the replevin the defendant be in court  without bail but if be come in custody there must be bail the word of the book  be he must continue in custody and that be in bail and here because be can not  be bail before plea and that he can not plead before a declaration which can  not be till the writ be return it be offer for the defendant to accept a  declaration as of the return of the writ but deny and here they hold clear  that no action of false return will lie against the sheriff for return a  withdraw in any case where he can have sight of the thing to be replevied  because he can make no other return but if such a action can have lie the take  a inquisition will not have prevent it for it be not a sheriff take a  inquisition where it do not lie will protect he from a action and in a appeal  for murder after return of the writ we bail nay and give time to plead  sometime at the day of the return of the writ the defendant be bring in again  and holt chief justice say he must plead a non to take in hand in person in  court and the bail must be in a sum certain and in the nature of gage  deliverance videlicet that the defendant shall appear de die in diem till  judgement and in case return be award that he shall restore the party to his  liberty and pay all cost and damage or surrender his body to prison and he  quote the case of Dela Bastille a who come in on the return of elonga whereby  the withernam be adjudge supersede and that of Sturville who come in on the  very day on which the a human being replegiando be returnable and I never  doubt but a defendant may plead a non to take in hand on the return of a  withernam for otherwise he will be in perpetual imprisonment and that will be  hard it be object that the plaintiff ought to declare in person and that be  can now do because we say the defendant keep he his prisoner I answer in this  case they that sue the writ for he may for necessity declare for he and the  declaration be always thus far to hold off and if in any case the plaintiff  declare in person it must be where he be replevied or where the defendant  bring he with he into court as his villain it be object that he ought to be in  custody till the issue be try as where cattle a ante Carth comb modern report  er p be replevied the plaintiff have they in his possession till the cause be  determine h modern report I answer Edward upon the pluries withdraw be return  the defendant appear a withernam be award and that shall not have be and  therefore a supersedeas be send to the sheriff because the withernam issue  erroneous upon the supersedeas the sheriff return that before the come thereof  he have deliver the defendant cattle to the plaintiff in withernam and that as  soon as he receive the supersedeas be come to the plaintiff to make  restitution but that he have eloined the cattle and thereupon the defendant  pray a withernam against the plaintiff and have it and where the defendant  appear and plead non to take in hand or claim property there never ought to go  a withernam but that writ only go where the thing can be replevied and  defendant will not come and plead it be object that the writ in the register  Orig command the sheriff to enlarge the lord take in withernam upon his  produce the villain to be replevied will be useless if that be so I answer  that writ be to enlarge the lord upon his suffer the villain to be replevied  before the day of return be to be enlarge by that writ which otherwise the  sheriff can not do as he think or at least will not indeed if the defendant  come in upon the day of pluries returnable or return of withdraw and avow or  plead other plea which put not a end of the matter there may be room for a  withernam but if he plead non to take in hand or claim property which put a  end to the matter such plea be a supersedeas of the withernam and acre he deny  the take there be no reason why he shall be imprison till that be try for  there be only a bare affirmation to charge and there be his negation against  it so the matter stand indifferent and the sheriff return do not strengthen  the matter a whit for he can help make such a return where he find not the  thing to repleuie it be object the command of the writ be to detain until what  time be suffer plaintiff to be replevied I answer true the sheriff can  discharge he until what time that be do the first and alias in replevin be  only in nature of a justice empower the sheriff to hold plea of the matter by  replevin in the county and the pluries be the original on which plea be hold  in the court above and the first and second be not returnable but the three be  returnable upon the sheriff default of hold plea upon the justice and that  after withdraw return the defendant modern report may plead a non to take in  hand vide Kel n b and if cattle be take in withernam by way of execution in  replevin the plaintiff thereby gain a absolute property in they in lieu of his  own but not so where the withernam be a process if one declare in replevin for  cattle with a thus far to hold off and defendant have judgement against he for  damage by payment thereof the property of the distress shall be vest in he but  in a a human being replegiando though he plead a non to take in hand and upon  that find against he judgement be for damage against he yet the liberty of man  be such that thereby he can gain no property therein but a capias will go  against he and he thereupon shall be keep in withernam and the precedent in  rastall upon this head be not to be depend on if a a human being replegiando  be bring and the defendant claim the party as his villain that will be a good  return for the sheriff to make and there shall be no replevin till plaintiff  give security and that in court and then there shall go a writ recite the  security enter into in court to the sheriff to deliver the plaintiff and when  the plaintiff come in upon that security so enter into in court he be not at  large but to find new security that he shall appear from day today pen the  cause and that if judgement go against he he shall render himself to the  defendant and he take he out of court vide Henry f Mairipernor Henry when a  defendant come in upon a capias in withernam and be bail that be but a ease of  the custody he be in upon the capias till the matter he try and then if the  issue be against he be be I think to render himself into custody again and  then he be in by virtue of the capias in withernam like the case of hearing  complaint by one in execution if it be upon a deed nonage or the like the  court do bail the plaintiff upon condition of a recognizance to pay damage or  render his body to prison and if the matter be against he and he render  himself to prison he shall be in upon the first execution and so be will here  by virtue of the capias in withernam modern report er p but suppose he do not  render his body in execution can the court award another withernam and I think  it can and it be like where a man be bail upon a appeal of murder to appear  from day today if be make default it shall be record and process shall go  against his bail and a copy against himself and if he do not make default but  come in discharge of his bail he shall be commit as at first but suppose in  replevin defendant appear at the withdraw return modern report and plead non  to take in hand which be find against he what shall be do then there shall be  judgement and a withernam thereupon and the reason be because a plead a non to  take in hand upon the withdraw be a supersedeas of the withernam at first and  that be after falsify by the verdict which thereby take off the supersedeas  and then the matter be open for a withernam and it be like the case of W c  whereby a writ of inquisition issue out of chancery returnable here to inquire  of malefactor throw down enclosure noctanter c and upon return thereof a  distringa shall go to summon the adjacent will to repair and to inquire of the  mischief and to command the say will to make restitution and the writ in that  case have word of execution in it to levy the damage find and to bring they  into court yet because it give a day to the adjacent will to come in and plead  they may come and either traverse the inquisition or demurrer to it and till  that be try proceed shall stop but after judgement they be let lose again and  a distringa in infinitum shall go Cr this be devise by Noy then  attorneygeneral upon the reason of the law though there be no proceed upon  that statute since the Edward till that time in like manner in our case by  appear and plead upon the withernam anon to take in hand proceed be stop till  that issue be determine and when that be do they shall be open again but there  be no precedent for this but the reason of the commonlaw and if be do not  appear be forfeit his recognizance and beside a new withernam shall go against  he and if he do not make default you have he in execution upon the old process  revive indeed we be in a untrod path but go upon the reason of the law in like  case and here he shall not gage deliverance because he plead he have he not if  he have confess the take he must have do it or if he have plead in abatement  be must have gage deliverance conditional that be if he have take he and  thereupon a writ shall go to the sheriff to which he may return that he have  he riot and upon non to take in hand there shall be no gager of deliverance in  replevin for cattle a b and be say they shall have the writ in court and be  ready to declare for they be demandable at the returnday in this case and in  replevin for cattle as well as upon a appeal modern report and though here we  take bail yet some entry be et statin To bring together guard maresch there  remansur until what time he suffer the plaintiff to be replevied vide h rot  hom frame to the sheriff of Devon and on withdraw return a suggestion of a  latitat to somersetshire and a capias in withernam and after party come in  person lord ring at W and several manuceperunt he to keep he until what time  replegiari volveri c hill r rot we be also of opinion that the pluries repleg  give a day in court for there be no day in common replevin but as here to  deliver cattle or show cause to we such a day why he do not or can not and  there be no express summons of the party but only a imply one and if he appear  not then a pone shall go and if be make default to that a copy indeed in  rastall the entry in a a human being repleg be attachiat to be and the reason  be because the party himself ought to appear and if a writ be return  unexecuted as nil to have per quod summoner to be able he may notwithstanding  appear to prevent a capias and what day have the neighbour will S upon the  distringa accord to the statute but the return of the writ and yet there they  may come and traverse the fact be do noctanter or that they be the next will  or even the damage and what day have the plaintiff in any case but the return  of the writ and in consequence of law the party may be say attachiat in  replevin and so in this case with a witness where he be bring in in withernam  but you must riot take notice of his be in custody in any case but where he be  in custodian mareschalli though he be actual in gaol but the clear and better  way of declare will be to say thus dominus king to put in hand viscount breve  suum c and so set forth the whole replevin return withernam and the return  thereof of which see a precedent in raze in replevin for cattle and this be  the better way because the whole matter will modern report er p appear on  record in the common plea they only recite the substance of the writ but here  in this court it be set forth in hc word it be object that here they can make  a attorney for the plaintiff and be be not to be find to make one foe himself  I answer since the law enable he to sue this writ by friend it will of  consequence enable they to make a attorney for he but another doubt be whether  the plaintiff be a infant he shall prosecute by attorney or prochein modern  report any ad quod non to be responsum and here the writ be against three one  whereof only be bring in it be doubt by the plaintiff how they must declare to  which it be answer they must do as if it be in a appeal declare against he  that appear and continue process against the other and holt chief justice say  it will be a question whether the plaintiff shall not be put to find pledge  but at last the plaintiff be demand and will not declare and so be nonsuit and  the defendant discharge note while this case be under consideration holt chief  justice order Mr clerk the secondary to prepare a draft of the recognizance  which the bail be to give which he do and after great consideration holt chief  justice et curian approve of this as follow et super hoe sexual activity hic  in cur dict domini king in person Self ring a b et d et manuceperunt et who  the dawn manucepit pro say beforehand advance d Watts ad habend corpus he in  person lord ring at a saying beforehand true et such de die in they until what  time judgment ind To give back to be et si to touch quod idem d W convince  quod tune ipse say beforehand advance d Watts see prison mareseb maresch  speech domini king in person Self ring in withernam To give back ibidem to  delay donee a saying beforehand W m e custodian svan to weigh well et ad grant  quo volveri ire to let pass with who manucaptorum pillage in here part sub pna  five hundred a balance how indeed top five hundred a balance the same  manucaptores to go away et who the dawn to go away de terris et catallis nest  et the dawn pron  interrog  become et ad opus prood the m to lift up si to  touch pillage d Watts ad a saying beforehand true seu once other they per cur  domini king hic in send ahead or forward prefix or proeaefigend of non to be  evident or si to touch judaic versus proof d Watts in here part To give back  et proof d see dict prison mark marisch she occasion non reddere