Replevin.

sheriff has taken no sureties at all, or such as are insuffi- CHAP. VIII. cient, the defendant may bring an action on the case against him, and recover all the damages he has sus- Demurrer. tained, provided they do not exceed the penalty in the bond (y). It is to be observed that a writ de retorno habendo will be irregular, if the plaintiff dies after a declaration in replevin, and before avowry (z).

The enactments, under which the defendants in reple- Costs. vin were entitled to double costs, have been repealed; and instead thereof, the parties entitled are to receive such full and reasonable indemnity as to all costs, charges, and expenses incurred in and about any action, suit, or other legal proceeding, as shall be taxed by the proper officer in that behalf, subject to be reviewed in like manner, and by the same authority, as any other taxation of costs by such officer (a).

bond.

In regard to the replevin bond already mentioned, it Replevin is to be observed that it may be put in suit immediately upon the obligee's neglecting to appear at the next county court, and there to levy his plaint (b); and the allowing of two years to elapse without proceeding has been held to be a breach of the condition upon which the obligee may recover, although judgment of non pros. has not been signed in the county court (c). The suit must be conducted to a successful termination; for if the plaintiff is non-pros'd for want of a plea, or if he fails at the trial, the defendant may sue on the bond for breach

(y) Concanen v. Lethbridge, 2 H. Bl. 36; Rex v. Lewis, 2 T. R. 617; Evans v. Brander, 2 H. Bl. 547; Paul v. Goodluck, 2 Bing. N. C. 220.

(z) Cutfield v. Corney, 2 Wils. 83.

(a) 5 & 6 Vict. c. 97, s. 2.

(b) Dias v. Freeman, 5 T. R. 195; Warton v. Blacknell, 12 M. & W. 558.

(c) Oxford v. Perrott, 4 Bing. 586.

CHAP. VIII. of the condition to prosecute the suit with effect (d). In

Replevin bond.

order that an action may be maintained on the bond, the sheriff is required to assign it to the avowant, &c.; for it is enacted by the statute of Geo. 2(e), “that the sheriff, or other officer as aforesaid, taking any such bond, shall at the request and costs of the avowant or person making cognizance, assign such bond to the avowant or person aforesaid, by indorsing the same, and attesting it under his hand and seal in the presence of two or more credible witnesses; which may be done without any stamp, provided the assignment so indorsed be duly stamped before any action brought thereupon; and if the bond so taken and assigned be forfeited, the avowant or person making cognizance may bring an action, and recover thereupon in his own name." The assignment should be to the defendant in the replevin suit; and if there be two defendants, it may be assigned to both, and they may jointly sue upon it(ƒ). Where a replevin bond was made to one of the sheriffs of London, it was held that the bond and the assignment thereof to the landlord were good, as it did not appear that one sheriff might not grant a replevin (g). The bond being joint and several, the sheriff or his assignee may sue any one of the parties, or bring an action against all (h). But if separate actions are brought against each, the Court would probably stay proceedings in two by an ordinary consolidation rule (i).

The Court may order a stay of proceedings on the

(d) Waterman v. Yea, 2 Wils. 41; Turner v. Turner, 2 B. & B. 107, Perreau v. Bevan, 5 B. & C. 284; Jackson v. Han8 M. & W. 477.

son,

(e) 11 Geo. 2, c. 19, s. 23.

(f) Phillips v. Price, 3 M. & S. 180; Archer v. Dudley, 1 B. & P. 381.

(g) Thompson v. Farden, 1 M. & Gr. 535.

(h) Wilson v. Hobday, 4 M. & S. 120.

(i) Bartlett v. Bartlett, 4 M. & Gr. 269.

Replevin

bond.

bond, and give such relief to the parties as may be CHAP.VIII. agreeable to justice and reason (k). The landlord is entitled to the value of the goods which have been taken out of his possession by the replevin, if the rent due to him at the time of the distress amounts to that sum; but otherwise only to the amount of rent so due. If the penalty of the bond exceeds this sum, and the full costs of the replevin suit, the Court will at any time relieve the sureties, upon payment of those sums, together with the costs of the action on the bond, and the costs of the application (1); but in order that the Court may be induced to interfere, it must clearly appear that the application is made on behalf of the sureties, and not of the principal (m).

(k) 11 Geo. 2, c. 19, s. 23.

(1) Miers v. Lockwood, 9 Dowl. 975; Gingell v. Turnbull, 3 Bing. N. C. 881.

(m) Warton v. Blacknell, 12 M. & W. 558.

CHAP. IX. THE statutes in force relating to land-tax direct that the

Taxes.

Land-tax.

Assessed taxes.

tenant shall pay that tax in the first instance, and deduct
out of his rent so much of the rate as, in respect of the
said rent, the landlord should and ought to pay and
bear; and the landlords, both mediate and immediate,
according to their respective interests, are required to
allow such deductions. But covenants relative to the
land-tax are authorized by the statutes, and it is pro-
vided that nothing therein contained shall be construed
to alter, change, determine, or make void any contracts,
covenants, or agreements whatsoever, between landlord
and tenant, or any other persons, touching the
of taxes and assessments (a).

payment

The window tax may be levied on the tenant or occupier of premises, and deducted out of the rent payable to the landlord (b). The windows in buildings not used for the purpose of habitation are exempted from duty (c); but it has been held that the lower part of a

(a) 38 Geo. 3, c. 5, s. 35; Gibbs v. Stead, 8 B. & C. 528. (b) 43 Geo. 3, c. 161, s. 55.

(c) 57 Geo. 3, c. 25, s. 1.

Taxes.

Assessed

taxes.

small house, used as an office, adjoining the dwelling- CHAP. IX. house of the party so using it, and having an internal communication therewith, is not exempt on the ground of its being used as an office and for no other purpose (d). A room having no communication with the dwelling-house is not exempt, if it be part of the house. Persons engaged in trade are exempt from duty for any number of windows not exceding three, in any shop or warehouse parcel of a dwelling-house (e).

By the Property Tax Act (ƒ) occupiers of lands, &c., Property tax. paying the duty of sevenpence in the pound on the annual value of lands, &c., in respect of the property thereof, may deduct sevenpence in the pound on the amount of their rent out of the first payment afterwards made on account of it, and the landlords are to allow the deduction under a penalty of 50l.; and it is by the same statute enacted, "that no contract, covenant or agreement between landlord and tenant, or any other person, touching the payment of taxes and assessments to be charged on their respective premises, shall be deemed or construed to extend to the duties charged thereon under this act, nor be binding contrary to the intent and meaning of this act; but that all such duties shall be charged upon and paid by the respective occupiers, subject to such deductions and repayments as are by this act authorized and allowed; and all such deductions and repayments shall be made and allowed accordingly, notwithstanding such contracts, covenants or agreements (g).”

The sewers' rate, though not imposed directly by act Sewers' rate. of parliament, and therefore not to be considered as

a parliamentary tax, may be levied on the tenant or occupier of the premises subject to it, and should there(d) Rex v. Dryden, 8 Price, 103.

(e) 4 Geo. 4, c. 11.

(f) 5 & 6 Vict. c. 35, s. 60, rule iv. 9.
(g) Ibid. s. 73.