common, as joint tenants, tenants in common, coparceners or joint owners, and one or more of the owners of such common property shall take, receive, use or have benefit thereof, in greater proportion than his or their interest therein, such owner or owners, his or their executors and administrators, shall be liable to render his or their account of the use and profit of such common property, to his or their fellow commoner or commoners, jointly or severally; and such the fellow commoner or commoners, or any or either of them, their executors or administrators, may and are hereby authorized to have his or their action of account against such receiver or receivers, or either of them, as his or their bailiff or bailiffs, for receiving more than his or their part or proportion as aforesaid.

SEC. 2. Any defendant in such action may appeal to the next term of the supreme court to be holden in the same county, from a judgment of the court of common pleas against him that he shall account; but if no such appeal be prayed in open court, within two days next after such judgment, the same shall be final.

SEC. 3. Upon rendering final judgment against the defendant in such action that he shall account, the court rendering the same shall appoint not exceeding three auditors; who, upon being sworn by said court or any justice of the peace or public notary, to a faithful and impartial discharge of their duties, shall appoint a time and place to meet the parties in said action, and to take the account as required in said judgment, and give notice thereof to said parties.

SEC. 4. When any defendant shall unreasonably refuse or neglect to appear at the time and place assigned by said auditors, or after appearing shall refuse or neglect to render an account, the auditors may award to the plaintiff the whole of his demand; and it shall be in the power of the auditors to administer an oath to the parties respectively, and to examine them respecting their accounts and the matters submitted to them; and upon either of the parties refusing to take an oath, truly to answer such questions as shall be asked, or to answer directly to the interrogatories put to him, it shall be in the power of the auditors to commit him to jail, there to remain at his own charge until he consent to take such oath and answer such interrogatories.

SEC. 5. When the auditors appointed in any case shall have made their report or award concerning the matters submitted to them to the court from whence they shall have received their appointment, if no legal cause shall be shown for

setting aside such award or report, judgment shall be rendered in conformity thereto, and also for costs, including such reasonable allowance to the auditors for their service as the court shall judge proper to make; and the said compensation to the auditors shall be paid down by the party in whose favor final judgment shall be rendered, before he shall have execution on said judgment.

SEC. 6. A major part of the auditors appointed in any case agreeing and signing said report or award, the same shall be equally binding and conclusive as if agreed to and signed by all of them: provided always, that it shall be necessary in order to give validity to such report or award, that all the auditors shall accept of their appointment, and meet on the subject matter thereof.

It is enacted by the General Assembly, as follows:

SECTION 1. When any goods or chattels of more than twenty dollars value, shall be unlawfully taken or unlawfully detained from the owner or from the person entitled to the possession thereof, and when any goods or chattels of that value, which are attached on mesne process or execution, or warrant of distress, are claimed by any person other than the defendant in the suit or process in which they are attached, such owner or other person may cause the same to be replevied.

SEC. 2. The writ in such case shall be substantially as follows:

The State of Rhode-Island and Providence Plantations. [SEAL.] SC. To the sheriffs of our several counties and to their

deputies,

greeting: We command you, that you replevy, if to be found within your precinct, the goods and chattels following, viz: (here enumerate and particularly describe them) belonging to

of now taken (detained or attached as the case may be) at in the county of

by

of deliver unto the said

and the m

provided the same are not taken, attached, or detained upon mesne process, warrant of distress, or upon execution as the property of the said mon the said

and sum

that he appear before our court of common pleas next to be holden at within and for the

county of the said the

on the Monday of to answer unto

in a plea of replevin; that the said

at said

on

day of unlawfully, and without justifiable cause, took the goods and chattels of the said as aforesaid, and them unlawfully detained unto this day, (or unlawfully detained the goods and chattels aforesaid, as the case may be,) to the damage of the said as he says,

dollars. Hereof fail not, and make true return of this writ with your doings thereon, together with the bond you shall take of the plaintiff.

Witness,

the year

Esq. at

this

day of

in

Clerk.

SEC. 3. If any sheriff or deputy sheriff be party to such suit, then the writ shall be directed to and served by either of the town sergeants in the county in which the same is to be served.

SEC. 4. The officer charged with the service of any such writ shall, before serving the same, take from the plaintiff or from some one in his behalf, a bond to the defendant, with sufficient sureties in double the value of the goods and chattels to be replevied; with condition to prosecute the said writ of replevin to final judgment, and to pay such damages and costs as the defendant in said writ shall recover against him, and also to return and restore the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment on said writ.

SEC. 5. In case the defendant shall, at any time pending the writ of replevin, be dissatisfied with the amount or the sureties in such bond, the court before which the same shall be pending may, on his motion, and for cause shown, in their discretion, order the plaintiff to give further bond or further

surety; and if the plaintiff do not comply with said order, his action shall be dismissed, and judgment shall be rendered for the defendant for a return and restoration of the goods and chattels replevied, and for damages and costs, the same as if the plaintiff had neglected to enter his writ of replevin.

SEC. 6. Whenever any plaintiff in replevin shall neglect to enter and prosecute the suit, the defendant may upon complaint have judgment for a return and restoration of the goods and chattels replevied, and damages for the taking, to the amount of six per cent. on the penal sum of the bond, with reasonable costs; and a writ of return and restoration thereupon accordingly.

SEC. 7. If upon trial of the writ of replevin judgment shall be rendered for a return and restoration, the defendant shall recover for his damages six per cent. on the penal sum of the bond, if such judgment shall be recovered within one year from the date of such writ; but if such judgment shall be recovered after the expiration of one year from the date of said writ, the defendant shall have for his damages six per cent. per annum on the penal sum of the bond.

SEC. 8. If upon trial of the writ of replevin the plaintiff shall make good his plea, he shall recover of the defendant his reasonable damages for the taking and detention of the goods and chattels and his costs.

SEC. 9. If upon trial of the writ of replevin the plaintiff shall make good his plea for part of the goods replevied, and shall fail to make it good as to the other part, he shall have judgment for his reasonable damages for the taking and detention of the part adjudged to be his, and his costs; and the defendant shall have judgment for a return and restoration, as provided in the seventh section of this act, for the goods and chattels adjudged to him, with damages, to be estimated as provided in said section, according to the relative value of such part, and all the goods and chattels replevied, with or without cost at the discretion of the court; but the court before whom such trial shall be had shall in such case set off the damages recovered by each.

SEC. 10. When the goods and chattels replevied shall have been taken on execution or warrant of distress, they shall, in case of a judgment of return and restoration, be held responsible for the space of twenty days after the return thereof; if on mesne process, until thirty days shall have expired after final judgment thereon, in case judgment shall not then have been given; but if final judgment on mesne process shall have been given before the return, then for the space of

twenty days only after the return; to the end the creditor at whose suit they were originally taken may have a complete remedy, and the benefit of his attachment.

SEC. 11. The money recovered by way of damages by any officer who has taken or attached goods and chattels at the suit of a creditor, shall be deemed to be recovered to the use of the attaching creditor, and when received shall be paid over to him.

SEC. 12. The writ of return and restoration shall substantially be as follows:

The State of Rhode-Island and Providence Plantations. [SEAL.] To the sheriffs of our several counties or

SC.

to their deputies,

Whereas plevied the following goods and chattels, viz: rate and particularly describe them:) which

of in the county of

suggested,

our said county of had unlawfully taken, (detained or attached, as the case may be,) as the said and caused the same to be summoned to appear before our court of common pleas then next to be holden at within and for our said county of

to answer unto said

for such unlawful taking, (detaining or attaching, as

Monday of

And

the case may be,) on the whereas to our said court at their said term, begun and holden as aforesaid, upon a full hearing of the cause of the taking, (detaining or attaching, as the case may be,) it appeared that the said taking, (detaining or attaching, as the case may be,) was lawful and justifiable; whereupon it was then and there by said court considered, that the same be returned and restored unto the said irrepleviable; and that the said against the said

the sum of

recover

dollars damages for his taking the same by the said process of replevin, and his costs of defence, taxed at as to us appears of record, whereof execution remains to be done: We command you therefore, that you forthwith return and restore the same goods and chattels unto the said

goods and chattels of the said

and also that of the within your precinct, you the aforesaid

cause to be levied and paid unto the said

sums, being in the whole

with twenty-five cents more

for this writ, together with your fees; and for want of such goods and chattels of the said

to be by you found with

in your precinct to satisfy and pay the sums aforesaid, we command you to take the commit to our jail in

body of the said

in our county of

and him therein to