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of finding Pledges in Replevin.

"of the diftrefs; and that fuch fheriff, or other officer as "aforefaid, taking any fuch bond, fhall, at the request and

cofts of the avowant or perfon making conuzance, affign "fuch bond to the avowant or perfon aforefaid, by indorf❝ing the fame, and attefting it under his hand and feal, in the prefence of two or more credible witneffes; which may be done without any ftamp, provided the affignment, "fo indorfed, be duly ftamped before any action be brought "thereon; and if the bond fo taken and affigned be for"feited, the avowant, or the perfon making conuzance,

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may bring an action and recover thereupon in his own <name; and the court, where fuch action fhall be brought, "may, by a rule of the fame court, give fuch relief to the "parties, upon fuch bond, as may be agreeable to justice and reafon; and fuch rule fhall have the nature and ef"fect of a defeazance to fuch bond."

An action on the cafe was brought against a sheriff for taking infufficient 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, 1. That an action on the cafe was not the proper remedy; 2. Suppofing fuch action lay, that there ought to have been a feire facias firft fued out against the pledges. As to the first, the court held, that the party diftraining has, by the ftat. Wefim. 2. an intereft in the pledges; and if the fheriff omits to take fuch, or, which is the fame thing, takes infufficient ones, he is aggrieved, and confequently entitled to his action.2dly, That though a feire facias may be brought against the pledges, yet it does not follow from thence, that an action does not lie against the fheriff; and fuch feire facias, which is only to certify the fufficiency of the pledges, is the lefs neceffary in the prefent cafe, fuch infufficiency being fet forth in the declaration, and found by the verdict. Hil. 13 Geo. 2. Pattifon and Prowfe.

Note: In fuch action against the sheriff, fome evidence must be given by the plaintiff of the infufficiency of the pledges or fureties; but very flight evidence is fufficient to throw the proof on the fheriff, for the fureties are known to him, and he is to take care that they are fufficient. Saunders v. Darling and another, Sittings at Weftm. Tr. 10 Geo. 3.

Of

Of making Replevin.

PON plaint being made, and pledges found; or in cafe the goods, &c. have been diftrained for rent, a replevin-bond having been taken, according to the ftat. of II Geo. 2. c. 19. The fheriff, or one of his deputies, by the ftat. 1, 2 P. & M. c. 12. is to make replevin of the goods or cattle diftrained, which is done by granting a warrant, which is to the following effect:

"Bucks, to wit. A. B. Efq. fheriff of the county aforefaid: To the bailiff of the hundred of Defborough, in the faid county; and alfo to John Thomas, and William Jones, my bailiffs, and to every of them, greeting For as much as C. D. hath found me fufficient fecurity as well to profecute his fuit against E. F. and G. H. for taking and unjustly detaining of his cattle, goods and chattels, to wit, one mare and four colts which the faid E. F. and G. H. have taken and unjustly detained, as is alledged; as alfo for return thereof, if a return thereof fhould be alledged: therefore I command you, and every of you, jointly and feverally, that on the behalf of our lord the king, you replevy, and caufe to be delivered to the aforefaid C. D. his cattle, goods and chattels aforefaid; and that the aforefaid E. F. and G. H. give, or cause to be given, fufficient pledges, fo that they may be and appear at the next county court to be holden at Aylesbury, in and for the county of Bucks aforefaid, to answer the aforefaid C. D. in a plea of taking, and unjustly detaining, of his cattle, goods and chattels aforefaid; and in what manner you fhall execute this precept certify to me at the faid next county court, to be held at the time and place aforefaid, under the peril incumbent, given under the feal of my office this day of in the twentieth year of the reign of our fovereign lord George the third, king of Great Britain, &c. and in the year of our Lord 1780."

By John Dixon,

One of the replevinors appointed by the faid her ff for the faid county of

Bucks.

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

HE replevin remains before the fheriff, &c. though the goods and chattels, &c. diftrained are above the value of 40s. for the replevin, alias and pluries, are all vicontiel writs, 2 H. 7. 5. b. and the fuit may be determined in fuch inferior court; but the fuit 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 cause. F. N. B. 69. m.

And by the defendant with caufe, but not without caufe. 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 fuit 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 fake 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 certiorari, and can be removed in no other manner., 3 Mod. 56. Per King ch. juft. Hil. 3 Geo. 1. For a refalo does not go to a court of record, becaufe there the fuit is already recorded.

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 fheriff, commanding him quod accedas ad curiam et in plena curia ill' recordari facias, &c. F. N. B. 70. b.

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

All the above writs, to remove the fuit from the inferior courts into B. R. or C. B. are in their nature original writs, and iffue out of Chancery. But as the fuit is most usually commenced in the county court by plaint, and feldom or ever at this day by writ, I fhall only fhew the method of removing it when by plaint.

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

form:

I

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 faid C.

Returnable from Easter in fifteen days.

Upon delivery of this writ to the curfitor, he makes out the writ, which must be carried to the under-fheriff 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 Ireland, king, defender
of the Faith, &c. To the fheriff of Buckingham-
fhire, greeting. We command you, that in your
full county you caufe the plaint to be recorded,
which is in the fame county, without our writ,
between C. D. and E. F. and G. H. of the cattle,
goods, and chattels of the faid C. taken and un-
juftly detained, as it is faid; and that you have
the faid record before us [or if C. B. before our
juftices] at Westminster, from Eafter day, in fifteen
days, under your feal, and the feals of four law-
knights of the fame county, of fuch as fhall be
prefent at the faid record; and that you prefix
the fame day to the parties, that then they may
be there ready to proceed in the faid plaint as
shall be juft, and have you there the names of the
faid four knights, and this writ. Witnefs our-
felf at Westminster, the
day of

twentieth year of our reign.

in the

Let this writ be executed if the faid C. defires it, otherwife not.

The return thereof, is as follows:

By virtue of this writ to me directed, in my full county held at Aylesbury, 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 fovereign lord George the third, king of Great Britain, France, and Ireland, &c. I caufed the plaint to be recorded, which is in the fame county, without the writ of our faid lord the king, between C. D. and E. F. and G. H. of the cattle, goods, and chattels of the faid C. taken and unjustly detained, as it is faid, which faid plaint appears in a certain schedule to this writ annexed; and I have the faid record before our faid lord the king [or the juftices of our faid lord the king] at Weftminfter, on the day within written, under my feal, and the feals of four lawful knights of the fame county, who were prefent at the faid record; and I have prefixed the fame day to the parties, that they may be then and there ready to proceed in the faid plaint, as shall be juft.

The anfwer of A. B. efq. fheriff.

The schedule to be annexed to the writ and return.

day of

At my full court held at Aylesbury, in the county of
Bucks, the
in the twentieth
year of the reign of our fovereign lord George the
third, &c. before L. M. N. O. P. 2, and R. S. four
lawful knights of the fame county, (amongst other
things) it is thus contained: C. D. complains
against E. F. and G. H. of a plea of taking and un-
justly detaining of his cattle, goods, and chattels, to
wir, one mare and four colts of the faid C. and at
my full court held at Aylesbury, in the county afore-
faid, the day of laft, before S. T. J. M.
N. U. and W. X. four lawful knights of the faid
county, I caufed the faid plaint between the par-
ties aforefaid to be recorded as the writ hereunto
annexed requires. In teftimoney whereof, as well
I the faid fheriff, as the faid S. T. J. M. N.U.
and W. X. who were prefent at the faid record,
have caufed our feals to be hereunto put, the day
and year and place above mentioned.

A. B. efq. fheriff.

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