case joseph mill vers mat davies evan watts and selby price alias reef in  scacc the sheriff may justify by grant of a replevin without show the property  of the good to be in the plaintiff in replevin this be a action of trespass  for take two bullock c of the plaintiff the defendant as to all but the take  of the say bullock plead not guilty and as to the take of they he justify for  that before the take the other defendant Evan Watts come before he then  sheriff come Radnor and make his complaint against the plaintiff in a plea of  take and unjust detain the cattle and find pledge to prosecute the say plaint  and to return the cattle if a return shall be adjudge and pray a warrant to  repleuie the same whereupon he make his precept to the other defendant Selby  price his special bailiff to repleuie the same and a attachment to the  plaintiff to appear at the next county court to answer the say Evan Watts in  the say plea which precept before the return and before the take he deliver to  the say S price who by virtue of it at the time and place mention in the  declaration take the cattle and comens the plaintiff not claim property  deliver they to the defendant and summon the plaintiff to appear at the next  county court to answer Watts in the say plea for take and distrain his cattle  and then return his precept execute as aforesaid he be sheriff at the take and  at the return of the precept which be the same take c the defendant Evan Watts  plead not guilty general the defendant Selby price as to all but the take  plead not guilty and as to that justify by virtue of the precept ut above the  plaintiff demurrer to both plead and show for cause that the defendant do  comens er p not allege that the cattle be the proper cattle of the say Evan  Watts or that he claim property or title to they or that they be in his  possession or show by he to the sheriff or bailiff or be distrain by the  plaintiff out of his possession second that the plea do not mention what  pledge by name be find three that it be not allege that the plaintiff have  notice of the plaint or replevin fourthly that the plea amount to the general  issue the defendant join in demurrer as to the first cause of demurrer the  defendant who justify be officer who can know in who the property of the  cattle S by the stat Marl Henry c si averia to take in hand sheriff post  complaint Himself fact deliberate posset and therefore it be agree that it  become the sheriff duty upon such complaint by parole or by precept to his  bailiff to repleuie they per Litt Edward b f n b e Inst and such precept may  be give before any countycourt   light b it be true such plaint ought  afterward to be enter but who be to enter it he that make the complaint not  the sheriff if then the plaintiff comens do not enter it shall his neglect  subject the sheriff to a action the sheriff may lawful make such precept  before the plaint enter suppose he do so and the party from who the cattle be  take before the next countycourt bring his action shall the sheriff be liable  for do what he lawful may and ought to do in case the person from who the  cattle be take have property the law give he a proper remedy if he claim  property before the sheriff he must return it and on such return a writ de  quality to make good issue and if find for the claimant the sheriff can  proceed no further   Litt b dyer but if the the plaintiff in the present  action be intend by the text who will be the defendant in the action of  replevin and may as such plead property in himself or a stranger either in bar  or in abatement plaintiff have property and omit to claim it before the  sheriff he may plead property in himself or in a stranger either in abatement  or in bar h h b h a r cro Elizabeth salk ld raym Mod holt S c a Carth show SC  ld raym b and many other book now here the plea express say that the plaintiff  claim no property before the sheriff and that he be summon to answer the other  defendant Evan Watts in a plea of take and detain his cattle whereby although  he do not make his claim before the sheriff he may have appear and insist on  it by his plea as to what be say that the sheriff do not show by his plea that  the defendant Evan Watts be possess of the cattle or have distrain they the  sheriff have no authority and consequent no cause to inquire into the  defendant right or title to the cattle if the plaintiff have claim property he  can not have determine it without a writ of quality to make good and upon such  a writ if it have appear that the say Watts have no property though he have  possession he can not have replevied the cattle as to the second cause of  demurrer that the plea do not allege what pledge be find and who by name it be  true in replevin by writ the sheriff must take pledge and those pledge be  liable for if a return be adjudge and the cattle not return a to know facias  lie against the pledge comens and if the sheriff return nothing a writ shall  be sue out against he to answer the value of the cattle Inst and therefore if  the sheriff do not take pledge in replevin by writ it be error resolve cro car  and a action on the case lie against he for his default resolve cro car and  therefore in such a case there may be a reason why the sheriff shall show what  pledge he have take but in a replevin by plaint the sheriff be not bind to  take pledge it be lie down in gilbert law of replevins d edit p that whether  the replevin be by plaint or writ the sheriff before he grant the one or  execute the other ought to take from the plaintiff pledge de pro and pledge de  retorno to have the first be at commonlaw to answer the amerciament to the  king pro falsely warcry in case the plaintiff do not prevail in his suit the  other pledge be introduce by the stat Westminster c for the security of the  avowant in case he shall have judgement for return of the beast the omission  of the pledge of the first description be error but the omission of pledge de  retorno to have do not vitiate the proceed but subject the sheriff to a action  Jon cro car resolve cro car and therefore his omission to take they be not  error resolve Jon march S c a yet if the sheriff do take pledge a to know  facias lie against they if the cattle be not return resolve Mod Skinn comb  show S c b resolve in c b h Geo inter honeyed wine and sheer fort c but  whether the sheriff be oblige to take pledge or not what need have the  defendant to set forth the name of the pledge in his plea for the defendant  only justify the take of the cattle which the plaintiff claim to be his  because he be sheriff of the county of Radnor and as such be bind to give  replevins super querimon Himself fact and he do so accord and be require by  the stat W to take pledge on grant such replevin to make return as well as to  prosecute he say that he do so whereby the plaintiff be secure of have his  cattle again if a return shall be adjudge but who those pledge comens er p be  be not at present material since here appear as yet no cause why a to know  facias shall be award against they as to the three cause of demurrer it be  express say by the plea that the precept require the officer to summon the  plaintiff to appear and answer the other defendant Evan Watts at the next  countycourt in a plea of take and detain his cattle and that Selby price the  officer summon he accord what other notice shall the sheriff give of such  plaint or replevin as to the four cause of demurrer that the plea amount to  the general issue it do not appear but that the plaintiff may have the  property of the cattle for which this action be comens now bring it be admit  that the plaintiff have the possession of they and that upon the defendant  Davis his command they be take out of his possession by the other defendant  price and consequent if they have plead not guilty the plaintiff must recover  for it have be sufficient for he to prove that the plaintiff have the cattle  in his possession and the defendant take they unless the defendant can show  some matter to justify or excuse the take but such justification or excuse  must be plead and can not be give in evidence upon not guilty in the case of  Hallet v Birt pasch W in b r salk ld raym salk Carth Mod Mod skin S c a which  be trespass for a horse the defendant plead that the bishop of Sarum have a  right to grant replevins in such a manor that the horse be a s that the  plaintiff impound he and that the defendant take he by virtue of a replevin it  be hold very right that the plea amount to the general issue for the plea  admit no property or possession in the plaintiff who consequent have no colour  of action for by the plaintiff take and impound the horse the horse be not in  his possession but in the custody of the law and consequent no justification  be needful if it be say that the plea admit property in the plaintiff and that  then the cattle can not be take from he by a replevin without show some cause  for it it be tantamount as to say that the sheriff ought not to grant a  replevin unless the party pray it bath just ground of action but what  authority be to examine into or determine that point if the party who bath the  cattle claim property the sheriff can determine it without a writ de quality  to make good and then if the property be find for the party claim it it be but  a inquest of office and the party who make the plaint may afterward sue a writ  of replevin to which property may be again plead h a   light b and this appear  by the case of Meres v solebay Trin car in c b Mod which be trover for take  plaintiff sheep the jury find that a agree to depasture his sheep for some  time with b and then if b will give such a price he shall have they before the  time a sell they to the plaintiff b afterward sell they comens to c who bring  a replevin for they and the defendant his servant in assistance of the sheriff  officer drive they to his master ground and though the plaintiff demand they  refuse to deliver they and though the court hold that the property be in the  plaintiff yet they give judgement for the defendant for be enter in execution  of the legal process whichis a justification to he as well as to the officer  these thing occur on read the paperbook but it be again argue by sergeant  draper for the plaintiff and Mr Bootle for the defendant sergeant draper  insist that the plea be ill for it ought to have show that Watts who sue the  replevin have property in the good replevied for although the defendant Davis  be a officer he ought to show that he have authority to take the good and that  his authority be duly execute now his authority be by the stat Marlb which  require si averia alicuj to take in hand injust to hold off sheriff  redeliberare posset so there must be a person who cattle be take there must be  a unlawful take otherwise the sheriff have no authority Watts appear not to  have any right to the cattle or that he so much as claim the property of they  the plea shall say that they be averia svan so it be in Hallet and Birts case  Carth Mod though the court indeed give no judgement as to that point so Reg  therefore in trespass a replevin pen for the same trespass be a good plea bro  title Tresp second the party ought to show the cattle to the sheriff till when  he be not bind to repleuie they for it be a good return quod nullus go for  sale ex part quer ad comens er p monstrand averia dal Sher kelw b so the  sheriff shall not return till the pluries till then he be excuse on the  pluries be may return the claim of property till such return the writ de  quality to make good lie not for it recite the pluries Reg a b and such writ  must be bring by the plaintiff in the suit for it can be by a stranger   light  b roll Abr h comens if the sheriff be show a stranger good and take they  trespass lie against he Lord holt in the case of Hallet v Birt report by  Carthew declare that no action of trespass will lie against the officer for  take good or cattle by virtue of a replevin unless be who have the possession  claim a property when the officer come to demand they and they take they  notwithstanding such claim of property and that such special matter must come  in by way of replication by the plaintiff p roll and otherwise a stranger can  have no remedy though all his good be take away and it will be the most  mischievous thing possible for the sheriff may strip a man house and he will  have no remedy be can have quality to make good because a stranger nor do it  lie on replevin by plaint Fitzherbert quality to make good fol dal Sher Reg  the Br three the defendant ought to have show when the countycourt be hold for  otherwise bow can the plaintiff against who the plaint be sue know when or  where to appear in inferior court it be not enough to say that the party be  adjourn to the next court unless it be likewise show at what time and before  who such court be to be hold in answer to which it be argue that it lie not in  the knowledge of the sheriff in who the right of the cattle replevied be and  if he shall say that the property of the good do belong to Evan Watts it will  make the plea amount to the general issue as be hold in the case of dale and  Philipson Lutw upon which the court incline to think that the plea be good  notwithstanding the objection insist on but as many case have be cite by the  counsel time be take to consider they to a further day in the same term when I  deliver the judgement of the court for the defendant comens de term sanct hill  geo two