30 George E. Howard, 



the aid of an officer was required. The whole procedure in 

 making the distress is full of significance for our present pur- 

 pose. Let us avail ourselves of Mr. Maine's vivid description 

 of it : " The person assuming himself to be aggrieved seized 

 the goods (which anciently were almost always the cattle) of 

 the person whom he believed to have injured him or failed in 

 duty towards him. He drove the beasts to a pound, an 

 enclosed piece of land reserved for the purpose, and gener- 

 ally open to the sky. Let me observe in passing that there 

 is no more ancient institution in the country than the Village 

 Pound. It is far older than the King's Bench, and probably 

 older than the Kingdom. While the cattle were on their 

 way to the pound the owner had a limited right of rescue 

 which the law recognised, but which he ran great risk in 

 exercising. Once lodged within the enclosure, the im- 

 pounded beasts, when the pound was uncovered, had to be 

 fed by the owner and not by the distrainor ; nor was the rule 

 altered till the present reign. The distrainor's part of the 

 proceedings ended in. fact with the impounding." ^ The 

 object of the distress was simply to enforce, "extort," pay- 

 ment. Originally the distrainor had no right to sell the chat- 

 tels in order to realize the amount of his claim. But if the 

 owner of the cattle denied the right of the plaintiff to dis- 

 train, he might avail himself of the action of "replevin." At 

 his request or by .command of a writ issued from chancery, 

 the king's officer, the sheriff, took the cattle out of the pound 

 and gave them into the owner's hands, on condition that the 

 latter should give security to abide by the judgment of the 

 court. The replevin was in fact a sort of re-distress — a giv- 

 ing back^ in a new form of a pledge in exchange for the 

 one which the distrainor surrendered. "The comparative 



Ancient Courts of Leet (London, 1641), 33-7; Reeves, Hist, of Eng. Law,\\y 

 305-11; Sullivan, Lectures on the Const, and Laivs of England, 100-105. 



1 Maine, Early Hist, of Inst., 263. 



^ Replevy, from Fr. re (Lat. re"), again; and pkvir, to warrant, give pledges. 

 Plevir is probably from Lat. pracbere, to afford, hence to offer a pledge : Skeat, 

 Etin. Diet., 502. 



264 



