in the event of its being forfeited. Both avowant and person making cognizance may take an assignment of the bond, and sue jointly on it". In this action, if the declaration state that the plaintiff, as bailiff of one J. S. distrained, &c. it is sufficient, without stating that the plaintiff, at the time of the assignment of the bond, was either avowant or person making cognisance in the suit in replevin°. Although the bond be executed by one of the sureties only, it is still available by the sheriffs against such surety".

In Chapman v. Butcher, Carth. 248. the plaintiff in replevin had given a bond to the bailiffs of the borough of New Windsor, conditioned to prosecute his suit with effect in the court of record of that borough. and to make return, if return should be adjudged by law. A replevin was brought in the borough court, and judgment given for the defendant, which was afterwards reversed in the Court of King's Bench, on error, and a new judgment was given that the plaint should abate, and that the defendant should have a return. An action was brought on the bond, and it was holden a lawful bond, and the court said, that it was the common course to take such bonds. With respect to the condition, it was determined, that it was not confined to a prosecution in the court of Windsor, but extended to the prosecution of a writ of error in the King's Bench, for that. was part of the suit commenced below; and by the words, "if a return should be adjudged by law," the condition was not confined to the judgment of any particular court (8), for which reasons the court gave judgment for the bailiffs, the obligees.

So where the condition of the replevin bond was to appear in the county court, and then and there to prosecute with effect; it was holden, that the words then and there related to so much of the prosecution as should be in the county

n Phillips v. Price, 3 M. & S. 180.
o Dias v. Freeman, 5 T. R. 195.
p Austen v. Hayward, 2 Marsh. 352.

7 Taunt. 28. S. C. by the name of Austen v. Howard.

q Vaughan v. Norris, Ca. Temp. Hardw. 137.

(8) "To prosecute with effect, the plaintiff must not only proceed to a decision of the suit, but must have success in it, or he does nothing; and it is not a completion of the condition to have levied a plaint in the county court; for the words extend to all the proceedings, from the original to the conclusion of the action, as well in the court below as in the superior court, by re. fa. to. which is the case in Carth. 249." Per Lee, C. J. delivering the opinion of the court in Morgan v. Griffith, 7 Mod. 380. Leach's ed.

court, but that they did not restrain it, and that the bond was forfeited, the plaintiff having been nonsuited in the superior court, to which the cause had been removed.

Plaintiff in replevin having given a bond to prosecute his suit with effect', levied a plaint against the defendant, who obtained an injunction to stay proceedings until a certain day, on which the plaintiff in replevin died; it was adjudged, that the plaintiff had prosecuted his suit with effect, there not having been either a nonsuit or a verdict against him; and Holt, C. J. compared it to the case of a recognisance on a writ of error, which was to prosecute with effect; there, if the plaintiff was not nonsuit, nor the judgment affirmed, the recognizance was not forfeited.

. It is sufficient to plead that the party did appear at the next county court, and there prosecuted the suit according to the form and effect of the condition, and that that suit is still depending and undetermined'.

In an action brought by the assignee of a replevin bond', where it did not appear on the face of the declaration, that the plaintiff was avowant, or person making cognisance, the court referred to the replevin suit, which was of record. in the same court, for the purpose of ascertaining the fact, the declaration concluding prout patet per recordum.

The breach assigned in the declaration ought to pursue the condition of the bond, but it is not necessary that it should extend any further".

The sureties are liable only to the amount of the penalty in the bond, and costs of suit on the bond. They will not be discharged by time being given to the plaintiff in replevin'.

When the defendant has obtained judgment for a return, if the sheriff return to the writ de retorno habendo, that the cattle are eloigned, the defendant may, if the sheriff has not taken any pledges, or, what amounts to the same thing, has taken such as are insufficient, immediately, without any previous proceedings (9), commence an action on the

r D. of Ormond v. Bierly, Carth. 519. y Moore v. Bowmaker, 2 Marsh. 81. and 12 Mod. 380.

s Brackenbury v. Pell, 12 East, 585.

t Barker v. Horton, C. B. 17 Geo. 2. Willes, 460.

u 5 T. R. 195.

x Hefford v. Alger, 1 Taunt. R. 218.

6 Taunt. 379. S. C.

z Moyser v. Gray, Cro. Car. 446. Anon. Sir W. Jones, 278.

a Rouse v. Patterson, 16 Vin. 399, 400. 7 Mod. 387. Leach's ed. Bull. N. P. 60. S. C.

(9) Formerly, where the sheriff had taken insufficient pledges, it was the practice to proceed in the first instance by scire facias,

caseb (10) against the sheriff; in which action (since the 11 Geo. 2. c. 19. s. 23.,) in cases of a distress for rent arrear, three different resolutions have taken place with respect to the extent of the sheriff's liability. The first cases decided, that the statute 11 Geo. 2. c. 19. s. 23. had not enlarged the responsibility of the sheriff, and that the value of the goods distrained ought to be the measure of the damages against him, as it was under the stat. Westm. 2. (13 Edw. 1.) c. 2. In the second case, it was resolved, that as the proceeding against the sheriff was an action on the case for a culpable neglect of duty, the plaintiff was entitled to recover a full compensation for the injury sustained by him in consequence of that neglect, although such compensation exceeded double the value of the goods distrained (11); but in the third and last determination it was holden, that the sheriff should not be liable any farther than the sureties would have been, if he had done his duty, and taken a bond, and they had been sufficient; and that, as the responsibility of the sureties was limited by the statute to double the value of the goods distrained, that sum ought to be the measure of the damages.

b This method of proceeding against the sheriff was settled, after much debate, in Rouse v. Patterson.

c Yea v. Lethbridge, 4 T. R. 433.

d Concanen v. Lethbridge, 2 H. Bl. 36.

e Evans v. Brander, 2 H. Bl. 547.

against the pledges. A detailed account of this method is given in the 1st. vol. of Serjt. Wms. ed. of Saunders, p. 195. a. n. (3), and Gilb. Repl. cap. 2. s. VII. 4.

(10) In this action, some evidence must be given by the plaintiff of the insufficiency of the pledges, but very slight evidence is sufficient to throw the burthen of proof on the sheriff. Saunders v. Darling. Middx. Sittings, Trin. 10 Geo. 3. C. B. Bull. N. P. 60. (11) The damages given by the jury in this case were 1007.

The rent in arrear was
The costs of the replevin suit
Expense of de retorno kabendo

10 10 0

84 O 0

5 0

99 10 0

The value of the goods was 221. 4s.; and the penalty of the bond was 501.-The court permitted the verdict to be entered for the whole sum (100l.) found by the jury. In Pattison v. Prowse, the damages given by the jury, for which judgment was entered, were made up of the costs of the replevin suit, and the rent in arrear, but there the value of the goods was more than the sum for which the judgment was entered.

In Richards v. Acton, 2 Bl. Rep. 1220. the Court of Common Pleas, on a summary application, made a rule on the sheriff, under-sheriff, and the replevin clerk, who had refused to discover the names of the pledges taken on granting the replevin, to pay to the defendant in replevin the damages (12) and costs recovered by him.

On an application to the Court of C. B.f for a rule to shew cause why the officer of the court below should not pay the costs recovered by the defendant in replevin, on account of the insufficiency of the pledges taken by him de retorno ha- bendo, the court refused to grant the rule; observing, that the defendant's remedy was by action, there not having been any cause in the court at the time when the replevin bond was taken.

IV. Of claiming Property, and of the Writ de Proprietate probandå.

If the defendant claims property, the sheriff's power to re-deliver the beasts is suspended, and the plaintiff must sue out a writ de proprietate probandá, or of proving property, because questions of property cannot be determined in the county court without the king's writ.

On the purchasing the writ de proprietate probanda, an inquest of office is holden; and if on such inquest the property be found for the plaintiff, the sheriff is to make deliverance; but if it be found for the defendant, the replevin by plaint is determined, and the sheriff cannot proceed any farther: yet the plaintiff may bring a new replevin by writ; for what is done on the plaint will not operate as a bar, because it is not connected with the proceeding by writ.

f Tesseyman v. Gildart, 1 Bos. & Pul. g 1 Inst. 145.b. N. R. 292.

(12) Nothing was said in this case respecting the quantum of damages; but it is conceived, that since the case of Evans v. Brander, if a similar application should be made, the court would not compel the sheriff, or other officer granting replevin, to pay more than double the value of the goods distrained.

Property must be claimed by the defendant in person"; it cannot be claimed by his bailiff or servant. A bailiff cannot claim property below, because being only servant to another, in whose right he has taken the goods, he cannot say that they are his own; but the bailiff above may plead property in a stranger, for this is a sufficient reason to excuse him from damages, since he has not taken the plaintiff's goods from him.

V. Of the Process for removing the Cause out of the inferior Court; and herein of the Writs of Pone, Recordari facias loquelam, and Accedas ad Curiam.

FOUR different forms of writs are prescribed by law for the removal of the proceedings in replevin out of an inferior into a superior court:

1. The writ of pone at common law.

2. The writ of pone under the statute of Westminster the 2d (13 Edw. 1.) c. 2.

3. The writ of recordari facias loquelam.

4. The writ of accedas ad curiam.

1. Of the writ of Pone at Common Law.

When the proceedings in the county court were instituted by writ out of chancery, and the plaintiff was desirous of removing them, this was the proper form of writ for that purpose; but the proceeding in replevin by writ having fallen into disuse, the writ of pone has consequently shared the same fate; it will not be necessary, therefore, to trouble the reader with an explanation of it. The different forms of this writ, as adapted to a removal into the Courts of King's Bench and Common Pleas will be found in F. N. B. 69. M..

h1 Inst. 145. b.