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Os finding Pledges in Replevin.

"of the distrefs; and that such sheriff, or other oiHcer as "aforefaid, taking any such bond, shall, at the request and "costs of the avbwant or person making conuzance, assign "such bond to the avowant or person aforefaid, by indors*' ing the same, and attesting it under his hand and seal, in ap£-the prefence of two or more credible witnesses; which .**. may be done without any stamp, provided the assignment, "so indorsed, be duly stamped before any action be brought •* thereon; and if the bond so taken and assigned be for"seited, the avowant, or the person making conuzance, "may bring an action and recover thereupon in his own ** name; and the court, where such action shall be brought, "may, by a rule of the same court, give such relief to the *' parties, upon such bond, as may be agreeable to justice "and reafon; and such rule shall have the nature and ef"sect of a deseazance to such bond."

An action on the cafe was brought against a sheriff for taking insufficient pledges upon a replevin; to which he pleaded not guilty; and a verdict being found against him, and a judgment given thereon in the court of C. B. on a writ of error in B. R. it was objected, I. That an action on the case was not the proper remedy; 2. Supposing such action lay, that there ought to have been a scire facias first sued out against the pledges. As to the first, the court held, that the party distraining has, by the stat. Wejim. 2. an interest in the pledges; and if the sheriff omits to take such, or, which is the same thing, takes insufficient ones, he is aggrieved, and consequently entitled to his action.— 2dlyt That jthough a scire facias may be bfought against the pledges, yet it does not follow from thence, that an action does not lie against the sheriff; and such scire facias, .which is only to certify the sufficiency of the pledges, is the lefs necessary in the prefent cafe, such insufficiency being set forth in the declaration, and found by the verdidt. Hit. 13 Gee. 2. Pattison and Prcwse.

Note: In such action against the sheriff, some evidence must be given by the plaintiff of the insufficiency of the pledges or sureties; but very flight 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. Sounders v. Darling and another, Sittings at WeJlm. Tr. 10 Get. $

Of making Replevin.

UPON plaint being made, and pledges found; or in cafe the goods, &c. have been distrained for rent, a replevin-bond having been taken, according to the stat. of II Geo. 2. c. 19. The sheriff, or one of his deputies, by the stat, i,2P. 13 M. c. 12. is to make replevin of the goods or cattle distrained, which is done by granting a warr rant, which is to the following effect:

"Bucks, to wit. A. B. Esq. sheriff of the county aforesaid: To the bailiff of the hundred of Dejborough, in the said county; and also to John Thomas, and William Jones, my bailiffs, and to every of them, greeting: For as much as C. D. hath found me sufficient security as well to prosecute his suit against E. E. and G. H. for taking and unjustly detaining of his cattle, goods and chattels, to wit, cne mare and four colts which the said E. E. and G. H. have taken and unjustly detained, as is alledged; as also for return thereof, if a return thereof should be alledged; therefore I command you, and every of you, jointly and severally, that on the behalf of our lord the king, you replevy, and cause to be delivered to the aforesaid C. D. his cattle, goods and chattels aforesaid; and that the aforesaid E. E. and G. H. give, or cause to be given, sufficient pledges, so that they may be and appear at the next county court to be holden at Aylejbury, in and for the county ot Bucks aforesaid, to answer the aforesaid C. D. in a plea of taking, and unjustly detaining, of his cattle, goods and chattels aforesaid ; and in what manner you shall execute this precept certify to me at the said next county court, to be held at the time and place aforesaid, under the peril incumbent, given under the seal of my office this day of in the twentieth year of the

reign of our sovereign lord George the third, king of Great Britain, ts'c. and in the year of our Lard 1780." .

By John Dixon,

Cne of the replevinors appointed by the said sher.ff for the said county of Bucks.

r 3 i Of

Of removing the Suit from the County-court, &c. into the Courts of B. R. or C. B.

TH E replevin remains before the sheriff, &c. though the goods and chattels, £if<T. distrained are above the value of 40 s. for the replevin, alias and pluries, are all vicontiel writs, 2 H. 7. 5. b. and the suit may be determined in such inserior court; but the suit may be removed by either of the parties into the courts of B. R. or C. B. to be there determined.

And it may be removed by the plaintiff without caufe. F.N.B.'bq. m.

And by the desendant with cause, but not without cause. F. N. B. 70. a. This, however, is otherwise now, for either party may remove it.

The method to be pursued in moving it, depends entirely on the manner in which the suit was commenced below.

For if replevin be in the county court by writ, it must be removed into B. R. or C. B. by pone. F. N. B. 69. m.

If in the county court by plaint, it is removed by writ of recordari facias loquelam, [commonly called a refalo, for the sake of abbreviation], F. N. B. 71. a.

If replevin is in a court of record, that may hold plea in replevin, it must be removed by writ of certicrari, and can be removed in no other manner.. 3 Mod. 56.- Per King ch. just. Hil. 3 Geo. i. For a rej'alo does not go to a court of record, because there the suit is already r»corded.

And if the plaint is in the court of another lord, it may be removed into B. R. or C. B. by recordari to the sheriff, commanding him quod accedas ad curiam et in plena curia ill' recordari facias, &c. F. N. B. 70. b.

But it is (aid, that a replevin shall not be removed out of a couit, which is not the king's court, without cause, neither by the plaintiff, nor by the desendant. Reg. 85. b. 2 Injlit. 339. for the prejudice that may come thereby to the lord.

All the above writs, to remove the suit from the inserior Courts into B. R. or C. B. are in their nature original writs, and issue out of -Chancery. But as the suit is most usually commenced in the county court by plaint, and seldom or ever at this day by writ, I shall only shew the method of removing it when by plaint.

In order to remove it therefore, the party makes out a pracipe to the curfitor of the proper county, in the following form:

1 Bucks,

Of removing the Suit from the County-court, &c. into the Courts of B. R. or C. B.

Bucks, to wit, Refalo for [either the plaintiff or defendant naming him] of a plaint between C. D. and E.F. and G. H. for taking and unjustly detaining the cattle, goods, and chattels of the said C.

Returnable from Easier in fifteen days.

Upon delivery of this writ to the curfitor, he makes out the writ, which must be carried to the under-sheriff of the county, who returns it of course.

The refalo is to the following effect:

GEORGE the third, by the grace of God, of Great Britain, France, and Ire/and, king, desender of the Faith, &c. To the sheriff of Buckinghamshire, greeting. We command you, that in your sull county you cause the plaint to be recorded, which is in the same county, without our writ-, between C. D. and E. E. and G. H. of the cattle, goods, and chattels of the said C. taken and unjustly detained, as it is said; and that you have the said record before us [or if C. B. before our justices] at Westminster, from Easier day, in fifteen days, under your seal, and the seals of four lawknights of the same county, of such as shall be present at the said record; and that you prefix the same day io the parties, that then they may be there ready to proceed in the said plaint as shall be just, and have you there the names of the said four knights, and this writ. Witness ourself at Westminster, the day of in the

twentieth year of our reign.

Let this writ be executed if the said Q. desires it, otherwise not.

The return thereof, is as follows:

By virtue of this writ to me directed, in my sull

county held at A-stefbwy, the day of ——

Of removing the Suit from the County-court, &c. into the Courts of B. R. or C. B.

in the twentieth year of the reign of our sovereign lord George the third, king of Great Britain, France, and Ireland, &c. I caused the plaint to be recorded, which is in the same county, without the writ of our said lord the king, between C. D. and E. F. and G. H. of the cattle, goods, and chattels of the said C. taken and unjustly detained, as it is said, which said plaint appears in a certain schedule to this writ annexed; and I have the said record before our said lord the king [or the justices of our said lord the king] at Westminster , on the day within written, under my seal, and the seals of four lawsul knights of the same county, who were present at the said record; and I have prefixed the same day to the parties, that they may be then and there ready to proceed in the said plaint, as shall be just.

The answer of A. B. esq. sherifF.

The schedule to be annexed to the writ and return.

At my sull court held at Ayhjbury, in the county of

Bucks, the . • day of in the twentieth

year of the reign of our sovereign lord George the third, &c. before L. M. N. 0. P. $>. and R. S. four lawsul knights of the same county, (amongst other things) it is thus contained: C. D. complains against E. F. and G. H. of a plea of taking and unj ustly detaining of his cattle, goods, and chattels, to wir, one mare and four colts of the said C. and at my sull court held at Jylejbury, in the county aforesaid, the day of last, before S. T. J. M.

N.U. and W. X. four lawsul knights of the said county, I caused the said plaint between the partics aforesaid to be recorded as the writ hereunto annexed requires. In testimoney whereof, as well I the said sheriff, as the said S. T. J. M. N. U. and IV. X. who were present at the said record, have caused our seals to be hereunto put, the day and yaar and place above mentioned.

A. B. esq. sheriff.

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