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lief, heriot, or other service, in case the plaintiff in the action shall become nonsuit, discontinue, or have judgment against him, double Costs.—The avowry must be for taking the goods, &c. as a distress; else it will be out of the statute (a).
This statute does not extend to a rent-charge, orseisureforaheriot custom (J) ; nor to the case of a distress for poor rates (c).
Where a statute gives double costs, they are calculated thus: l.uw common costs; and then half the common costs. If treble costs, 1. the common costs; 2. half of these, and then half of the latter (i).
Section IV. Of the Remedies where the Pledges prove
\. By Action against the Sheriff.
2. By Scire Facias against the Pledges.
3. By Proceeding on the Replevin Bond.
1. Of the Action against the Sheriff.
The sheriff, upon making replevin, is bound, as has been before stated, to take pledges, and they must be sufficient pledges; for if they be not, an action on the case will lie against him; the Court, however, will not proceed in a summary way, by granting an attachment against the sheriff for neglecting to take a replevin bond(a').
In case pledges are taken and they prove to be insufficient, the party has a double remedy, viz. against the sheriff and against the bail; against the sheriff by action, and against the bail, if the distress were not for rent, by scire facias o" if for rent, either by scire fidut& upon the replevin bond, assigned according to the statute (e).
If insufficient pledges de retorno babendo be taken by the officer of the Court below in the replevin, the remedy against him is b]r action, and the Court of Common Pleas will not order him to pay the costs recovered by defendant in replevin (f).
The pledges taken by the sheriff when the distress is not for rent) are according to the statute of Westm. 2. and may be by bond, saw that too of the plaintiff himself only, for the sheriff being answerable for the sufficiency of the pledges, may take the security as he pleases, since it is at his own peril (g).—But he cannot take money or cattle as a pawn or pledge (h).
(«) a Sell. Pract. 174. (4) 1 Tidd's Pract. 891. (e) Butter ton v. Furber. 1 B. & B. 517. (V) Rex v. Lewis, a T. R. 617. a Sell. Pract. »6a.
(t) Ibid. Gilb.L.ofRtp.iac. (f) Tesseyman v. Geldart. I Ls'' WN. R. aoa.
(g) Gilb. Law ofRep. 97
(i) Moyser v. Gray. Cro.Car.44*>
The pledges taken when the distress is for rent are governed by stat. Ii G. 2. c. 19. and must be by bond with two sureties, and ought to be at least in double the value of the goods distrained. The sheriff, the under-sheriff, and the replevin-clerk, are, as has been before observed, all liable to the defendant in replevin for the suf» ficiency of the pledges de retorno habendo (a) ; but they are not bound to warrant their sufficiency; if they be apparently responsible it is enough (b).
The mode of proceeding on the stat. 11 G. 2. c. 19. is now generally preferred to the old remedy by set. fa. where the distress was for rent; and it is not affected by the 17 C. 2. c. 7. for where, in pursuance of that statute, the avowant had judgment for want of a plea in bar, it was held that he had two methods of proceeding in his election; namely, either to execute a writ of inquiry or to sue upon the replevin bond; the plaintiff not having prosecuted his suit with effect (c).
The action ought to be brought in the name of the person making conusance, where there is no avowant on record (d).
In the action against the sheriff, some evidence must be given by the plaintiff of the insufficiency of the pledges; but very slight evidence is sufficient to throw the proof on the sheriff; for the sureties are known to him, and he is to take care that they are sufficient (e).
This action against the sheriff will lie without any scire facias previously sued out against the bail. But in a case before mentioned, after judgment pro ret. and an eloignment returned, the Court on motion granted a rule against the sheriff, under-sheriff, and replevin-clerk, to pay the defendant 57/. 15/. the amount of the verdict in replevin (damages and costs), together with the costs of the application (a).
Much doubt has been entertained, and the Courts still differ, as to the quantum of damages which the plaintiff ought to recover in this action against the sheriff for taking insufficient pledges.
In the King's Bench it is held, that the plaintiff cannot recover beyond the value of the distress. The argument is, that the duty of the sheriff as prescribed by the Act, is to take the bond for prosecuting the suit and for a return of the goods, if a return shall be' awarded: the bond therefore would be satisfied by returning the goods taken. If so, the value of those goods seems to be the true measure of damages to be given by this action. That by the stat. Westm. 2. it is specifically mentioned, that if any take pledges otherwise, he shall answer for the price of the beasts: and that the 11 G. 2. does not enlarge the sheriff's responsibility in this respect (a).
But in the Common Pleas the direct contrary was holden, for that Court held that the plaintiff might recover the amount of his rent, his costs in the replevin suit, the value of the goods, and whatever other damages the jury might give him, even beyond the penalty of the replevin-bond, i. e. more than double the value of the goods distrained (a). However this doctrine was shortly after over-ruled: and the Court held the sheriff liable to the extent of double the value of the goods distrained, but no farther; by analogy to the liability of the sureties (b)."
Where the plaintiff declared that in a certain messuage, or dwellinghouse, and premises, he distrained for the rent of the said premises with the appurtenances, by virtue of a certain demise thereof; proof of a lease of two messuages, reserving a rent, and of a notice of distress for the rent of the two messuages, was held not to be a variance (c).
2. Of the Remedy by Scire Facias against the Pledges.
Another remedy which the defendant in replevin has, if the plaintiff do not make a return of the goods when a return has been awarded, is, by scire facias against the pledges. Before a scire facias issues, a writ pro ret. hob. must have been sued out, and an elongate or eloignment be returned by the sheriff. After which, if the names of the pledges be not known, an application may be made to the replevinclerk, and if he refuse or delay to tell them, the Court on motion will make a rule upon him for that purpose (d).
If the plaint have never been removed, the defendant may sign a non pros, in the Court below, and have a precept in the nature of a. scire facias (e).
Note. The two preceding remedies are used where the distress is not for rent, as well as where it is.
3. Of the Remedy on the Replevin Bond.
When goods are taken in distress for rent, and replevied, the distrainer has no lien on the goods, but is left to his remedy on the replevin bond [f).
The usual remedy, therefore, where the distress is for rent, and a replevin bond is entered into, according to stat. 11 G. 2. c. 19. is by taking an assignment of the replevin bond, and bringing an action thereon against the pledges in the defendant's own name (d).
(a) a Sell. Pract. 164. (b) Ibid. 547. TwelU v. Colville. Wilka. 275
0) Taylor v. Brooke. 3 M. & S. 169.
(d) a Sell. Pract. a66.
(1) Waterman v. Yta. » Wilt 41
(f) Bradyll v. Ball, 1 Br. R. 4»?v
By the statute, the sheriff is ordered, at the request and costs of the avowant, or person making conusance, to make an assignment.
A replevin bond may be assigned to the avowant only, or he may "bring his action upon it without joining the party making conusance (a).
A defendant in replevin is, indeed, entitled to an assignment of the bond, if the plaintiff in replevin do not appear in the County Court and prosecute according to the condition (b); which condition is not satisfied by a prosecution in the County Court, but the plaint, if removed by re. fa. la. into a superior Court, must be prosecuted there with effect, and a return made, if adjudged there (c). In such case, the defendant may sue on the bond as assignee of the sheriff in the superior Court, though the replevin be not removed out of the County Court; averring in his declaration, that the plaintiff did not appear at the next County Court and prosecute according to the condition of the bond (*)•
The bond may be assigned four days exclusive after the time limited therein for plaintiff to prosecute his suit (d).
The action must be brought in the same Court in which the re.fa. la. is returnable. The mode of assigning and proceeding is the same as on a bail-bond (*).
The two sureties in a replevin bond, are together liable only to the amount of the penalty in the bond, and the costs of the suit in the bond (/).
A declaration by P. and C. assignees of a replevin bond, stating that they distrained the defendant's goods for rent due to P. is good without naming C. bailiff (g).
The avowant and the person making cognizance may together take an assignment of the bond, and sue jointly upon it (g).
The declaration need not set out the goods distrained; and if it state that the sheriff took the bond in double the value, conditioned for prosecuting, &c, and for making return of the goods in the condition mentioned, and thereupon the sheriff replevied the same, that shews the bond was conditioned for a return of the goods distrained. And the declaration is not double because it alleges that the defendant did not prosecute his suit with effect, and hath not made a return (g).
Debt lies by the assignee of a replevin bond against one of the sureties in the detinet only. And where they declared that at the City of C. and within the said jurisdiction of the Mayor of the City, they distrained the goods of W. H. for rent, and that W. H.
at the said City made his plaint to the Mayor, &c. and prayed deliverance; whereupon the Mayor took from him, and the defendant, and another person a bond, which they all three executed, conditioned for W. H. appearing before the Mayor or his deputy at the next Court of record of the City, and there prosecuting his suit, &c. and thereupon the Mayor replevied, &c. Held, that it was not ground for special demurrer, that the declaration did not shew a custom for the Mayor to grant replevin, and take bond, and did not shew that plaint was made in Court (a).
In an action by the assignee of a replevin bond against the surety, the declaration alleges that a return of the goods was adjudged, but that S. the plaintiff in replevin, did not make return. The defendant pleads, ist. that the judgment was obtained by the plaintiff by fraud, in collusion with 5., 2dly, that before judgment obtained, all matters in difference between the plaintiff and S. were referred to arbitration, pending which the proceedings were staid. Held that the first plea, not stating that the judgment was obtained for the purpose of defrauding the sureties, was no answer to the action; and that the second plea was bad, since the reference was as much for the benefit of the sureties as of the principal, and therefore no prejudice could arise to them from the delay (b).
A declaration on a replevin bond (conditioned for the plaintiff in replevin, to appear at the County Court and prosecute his suit with effect, and make a return of the cattle, goods, &c. distrained, if a return should be adjudged) after alleging that the plaint was removed into the Court above; that the defendant avowed, and that the plaintiff in replevin, having omitted to plead to the avowry, a judgment for a return was awarded, averred that the plaintiff in replevin did not prosecute his suit with effect. A plea, that after the judgment for a return, a writ to enquire of the arrear of rent and the value of the cattle, goods, &c. distrained, was prayed by the avowant, granted, and executed, and that thereupon avowant had judgment to recover the arrear of rent found, together with a sum for his costs and damages, was held ill on demurrer (c).
Sureties in a replevin bond are not discharged by the execution of a writ of inquiry, under 17 C 2. c. 19. s. 23. and a judgment thereon, for avowant to recover the arrear of rent found, together with a sum for his costs and damages (c).
Though a replevin bond be accepted by one of two sureties only, it is nevertheless available by the sheriff against such surety; but semble not to a greater amount than a moiety of the rent and costs (d). In debt upon a replevin bond, assigning for breach the not making
(0) Wilson v. Hobday. 4 M. & T. lao. (0 Tumor v. Turner, a B. fc P.. 107.
(4) a Moore v. Bowmaker. % Mars. 39a. I (d) Austen v. Haward. % Mars. 35a. S. C 7 Taunt. 97. S. C. I 7 Taunt. a8.