[PLEADING] ; but inasmuch as an avowant, or a person making cog nizance, is not merely a defendant, but a party seeking to recover some thing, time plaintiff's answer to an avowry or cognizance, which is in the nature of a declaration for the right or duty withheld, i3 called a plea in bar to Poch avowry or cognizance; the defendant's answer to which plea or bar is called a replication.
Whe re there is judgment for the defendant, or the plaintiff is non suited, the judgment directs that the defendant shall have the goods restored to him without being again subject to being replevied, which is called a return irrepkvisable.
If upon a replevin, or upon a writ of retorno habendo after judg ment, the sheriff returns that the cattle,&c., are driven away (cloigned, elongate) a writ may issue commanding the sheriff to make reprisals by taking the cattle, &c., of the diretrainor, and to detain them until he Is ably to replevy the cattle, &c., of the distrainee. This process, which is now nearly obsolete, was called a capias in withernam, or a capias by way of counter-taking, from ,either (against ; in German, wider) and ease, a taking or distress. A special action of trespass also lies for removing a distress so that it cannot be replevied. This latter offence way formerly called a " vee," or " vetitum namium," by which term is to be understood, not, as might be supposed, a forbidden distress, but a distresss forbidden or refused to be replevied." (2' Inst.', 140.) If after goods have been replevied, and before the suit has been decided, the defendant makes another distress for the mune cause, such second distress is called a reception, and the course is to sue out a special writ for the restoration of the goods and for the punishment of the receptor ; since, whether the first taking was right or wrong, the defendant is not justified in thus anticipating the judgment of the court. It is not material whether the second taking be of the same
goods or of other goods, provided they belong to the same party, and are taken for the same cause ; but if the landlord distraiu the goods of A, who replevies, and afterwards, finding the goods of B upon the land, he distrains them for the same rent, no writ of reception lies. B can only replevy or bring an action of trespass or trover.
At common law, if the plaintiff was nonsulted, although the defen dant became entitled to a return of the goods, yet the judgment was not that the return should be irreplevisable, as in a judgment upon a verdict where the right had been tried. The plaintiff might have again sued out a replevin, and so after several successive nonsuits. To put an end to this vexatious proceeding, the statute of Westin. II. c. 2, gave the plaintiff a writ of second deliverance instead of a new replevin, in which, if the plaintiff in any manner Lail in his suit, the defendant will have judgment for a return irreplevisable. In other respects the proceedings in the action of second deliverance are similar to those in the action of replevin.