the summons (b). And if the plaintiff enter his plaint, and afterwards be restrained by injunction till his death, whereby the plaint abates, the bond will not be forfeited (c). So, if the plaintiff dies before the termination of the suit, it will abate, and the bond will not be forfeited (c). CHAP. II. SECT. 2. on the Bond. Assignment of, and Action on the Bond.] The sheriff is Assignment directed by the statute 11 G. 2, c. 19, s. 23, to assign the of, and Action bond to the avowant, or person making conusance (d), in the Assignment, same manner as a bail-bond is assigned; and the party after- how and when wards may bring an action on the bond, if forfeited, in his made. own name; and the court may, by rule, give such relief to the parties as may be agreeable to justice and reason. The sheriff is liable to an action on the case if he refuse to assign the bond; and this liability extends to a bond in a replevin of cattle taken damage feasant (e). The bond may be assigned four days exclusive after the time limited therein for the plaintiff to prosecute his suit (ƒ). The bond may be assigned to both the avowant and the To whom, person making cognizance, and they may sue upon it jointly (9). Where the avowant was the person really interested, and the person making cognizance a mere man of straw, the court held that it might be assigned to the avowant only (h). If there be no avowant, the bond may be assigned to the person making cognizance (i). Where the plaintiff neglects to prosecute his suit in the court below, the defendant is entitled to an assignment of the bond, though he has not avowed or made cognizance (k). Court An action may be commenced by the assignee immediately on Action, when the assignment and forfeiture of the bond. This remedy is and in what not affected by the 17 C. 2, c. 7, notwithstanding defendant brought. proceeds under that act (1). The action may be brought in any of the superior courts of law, though the replevin suit did not proceed further than in the county court (m). And when removed by re. fa. lo., it may (notwithstanding an old authority to the contrary) be brought in any of the superior courts, and it is not confined to the court in which the re. fa. lo. was returnable (n). ・ Payment of The court or a judge will order the proceedings in an action Staying Proon the replevin-bond to be stayed on payment into court of the ceedings on value of the goods distrained and costs (o). Or if the value of Value of the goods exceed the amount of the rent due at the time of Goods or the distress, then it would seem on payment of the rent due (b) Seal v. Phillips, 3 Price, 17. (e) Ormond (Duke of) v. Brierly, Carth. 519: 12 Mod. 380, S C. (d) See Dias v. Freeman, 5 T. R. 195: Middleton v. Sandford, 4 Camp. 36: Page v. Famer, 1 B. & P. 378. See the form of assignment, Chit. Forms, 416. And see Vol. I. 547. (e) See per Holroyd, J., in Perreau v. Bryan, 5 B. & C. 305, in commenting on Coombes v. Cole, Rep. Temp. Hardw. 352. (f) 2 Sel. Prac. 266. (g) Phillips v. Price, 3 M. & Sel. 180. (i) See Page v. Eamer, 1 B. & P. 378. (1) Gilb. Replevin, 225: Waterman v. (m) Dias v. Freeman, 5 T. R. 195: (0) Gingell v. Turnbull, 3 Bing. N. C. Rent due, &c. PART I. BOOK II. and costs (p). And if in such a case the amount of rent due be disputed, then the court or a judge would perhaps, as in other cases of liquidated claims (q), allow the defendants to pay into court the sum admitted by them to be due, and order that the plaintiff should proceed at the peril of costs if he do not prove a greater sum due. If separate actions be brought against the sureties, the court would probably stay proceedings upon payment of the sum recoverable, and the costs in one action (r). Setting aside irregular Proceedings. Sureties, how far liable. How discharged. The proceedings may, if irregular or defective, be set aside on application to the court or a judge, as in other cases. (See post, Book IV. Part I. Chap. 17). The court will not, it seems, set the proceedings aside, because the action is commenced before the forfeiture of the bond, for that may be pleaded (s). Nor will they set aside an execution therein upon an objection which might have been taken before judgment (t). The plaintiff may, in general, recover to the extent of the penalty. Where separate actions were brought against each of the pledges, it was holden that the plaintiff could recover, from both, damages only to the amount of the penalty, and from each the costs in the separate action against him individually (u). If the distress were for rent, they are not, either jointly or separately, liable beyond the amount of the rent in arrear at the time of the distress, and costs (x); and they are only liable for the value of the goods seized, and double costs; and if that exceeds the amount of rent due, they will be liable only for the rent (y). Where a sheriff took a replevin-bond with one surety only, and was sued for taking insufficient pledges, in which action the plaintiff recovered damages and costs, it was held that the sheriff could not recover against the surety the costs of defending such action, nor more than a moiety of the damages awarded, the surety being deprived of calling on a co-surety for contribution (z). It may be necessary here to mention, that pledges in replevin cannot plead to an action on the replevin-bond, that they are discharged by a reference to arbitration (a), or by time having been given to the plaintiff in replevin (6). But though they cannot so plead, nevertheless the court might, on application by motion in such cases, relieve them; and where the plaintiff and defendant in replevin, without the privity of the pledges, agreed to refer the cause to arbitration, and that the replevin-bond should stand as a security for the performance of the award, the court relieved the pledges (c). The pledges are not discharged by the defendant's taking a verdict (p) See Hunt v. Round, 2 Dowl. 558. (r) See Key v. Hill, 2 B. & A. 598: (8) Anon., 5 Taunt. 776. (t) Short v. Hubbard, 10 Moore, 107; 2 (u) Hefford v. Alger, 1 Taunt. 218. (2) Austen v. Howard, 1 Moore, 68; 7 S. C. (a) Moore v. Bowmaker, 7 Taunt. 97; 7 Price, 223; 2 Marsh, 392, S. C.: Aldridge v. Harper, 10 Bing. 118; 3 Moo. & Se. 518, S. C.: and see Hallett v. Mountstephen, 2 D. & Ry. 343. (b) Moore v. Bowmaker, 6 Taunt. 379. (c) Archer v. Hale, 1 Moo, & P. 285; 4 Bing. 464, S. C.: and see. Aldridge v. Harper, 10 Bing. 124; 3 Moo, & Sc. 518, S. C.: Bank of Ireland v. Beresford, 6 Dow. 238: Donelly v. Dunn, 2 B. & P. 45. and judgment for the arrears of rent, &c., under the 17 C. 2, c. 19, ss. 2, 3 (d). 6. Proceedings against the Sheriff. CHAP. II. the Sheriff. If the sheriff neglect to take a bond, he is not liable to an 6. Proceedattachment; but the defendant, if damnified, may have his ings against remedy against him by action on the case (e). So he may have an action on the case against the sheriff for taking insufficient pledges, and may therein recover damages to the extent of the penalty of the bond (f). And this, it seems, without getting a return of elongata to the writ de retorno habendo, or without even suing out that writ (g). The high-sheriff, under-sheriff, and replevin clerk, are all answerable to the defendant for the sufficiency of the pledges de retorno habendo (h). The sheriff, however, is not liable for taking insufficient pledges if they were apparently responsible at the time of the taking the bond (i): but if the sheriff had notice of the fact of their insufficiency, or neglected the means in his power of knowing it, and did not use a reasonable degree of caution in deciding upon their sufficiency, he would be liable; and it is for the jury to say whether he used such caution or not (k). If a person known to the sheriff make inquiries as to the credit or reputation of a tradesman, and the value of his stock, and communicate the result of such inquiry to the sheriff, if it be favourable, the latter need not make a personal inquiry (1). And in a recent case it was held that the sheriff or replevin clerk is not bound to go out of the office to make inquiries; but if the sureties are unknown to him, he ought to require information beyond their own statement as to their sufficiency (m). And, where persons of respectable appearance were brought to the replevin clerk as sureties, by the attorney's clerk, on behalf of the party replevying, their circumstances being unknown both to the attorney's clerk and to the replevin clerk, and the latter caused the sureties to make affidavit in detail as to their sufficiency, with which he was satisfied, and an action was afterwards brought against the sheriff for taking insufficient sureties, it was considered that the jury might properly find that the inquiry made did not excuse the sheriff (n). The sheriff is, it seems, liable in this respect, if one of the sureties was insufficient (o). The sureties themselves may be witnesses to prove whether they were sufficient or not (p). (d) Turnor v. Turner, 2 B. & B. 107; 4 v. Gordon, 1 C. & M. 58. Moore, 606, 616, S. C. (e) R. v. Lewes, 2 T. R. 617; 1 Saund. 195. (See Jeffery v. Bastard, 4 A. & E. 823: Evans v. Brander, 2 H. Bl. 547: Baker v. Garrett, 3 Bing, 59; 10 Moore, 324, S. C.: Paul v. Goodluck, 2 Bing. N. C. 220. According to Yen v. Leth bridge, (4 T. R. 433), the plaintiff cannot recover beyond the value of the goods distrained. (See Concanen v. Lethbridge, 2 H. BL. 36: Hindle v. Blades, 5 Taunt. 225; 1 Marsh. 27, S. C.: Sutton v. Waite, 8 Moore, 27). He is not bound to take more than one pledge on a replevin for distraining cattle damage feasant. (Hucker (g) Perreau v. Bevan, 5 B. & C. 284. (k) Jeffery v. Bastard, 4 A. & E. 823: (1) Sutton v. Waite, 8 Moore, 28. (m) Jeffery v. Bastard. 4 A. & E. 823; (n) Jeffery v. Bastard, 4 A. & E. 823. BOOK III. Taking an assignment of the replevin-bond is not a waiver of your remedy against the sheriff; and therefore, if, after proceeding against the pledges, you find them insufficient, you may still bring your action against the sheriff for taking insufficient pledges (q). (q) 1 Saund. 195 e: and see Baker v. Garratt, 3 Bing. 56; 10 Moore, 324, &C. CHAPTER III. SCIRE FACIAS. SECT. 1. What, and in what Cases requisite, 815 to 829. 2. Proceedings upon, 829 to 837. SECT. 1. What, and in what Cases requisite. A SCIRE FACIAS is a judicial writ, founded upon some record, and requiring the person against whom it is brought to shew cause why the party bringing it should not have advantage of such record, or (as in the case of a scire facias to repeal letters-patent) why the record should not be annulled and vacated. It is considered in law, however, as an action, and in the nature of a new original (a); and, when brought to repeal letters-patent, may in fact be an original writ, returnable in Chancery (b), or a judicial writ returnable in the superior court (c). The scire facias against bail on their recognisances, against pledges in replevin, to repeal letters-patent, or the like, is in fact an original proceeding; but when brought to revive a judgment after a year and a day, or upon the death, marriage, or bankruptcy, &c., of parties, or when brought on a judgment in debt on bond, or on a judgment quando &c., against an executor, it is but a continuation of the original action (d). In some cases it is merely an interlocutory proceeding, and in the nature of process, as in the case of a scire facias quare executionem non, and scire facias ad audiendum errores, when those writs were in force; sometimes a proceeding after the action has terminated, as in the case of scire facias quare restitutionem non, and scire facias ad rehabendam terram. СНАР. 111. It is a general rule that where a new person, who was not Where a a party to a judgment or recognisance, derives a benefit by, be affected by Stranger is to or becomes chargeable to the execution, there must be a scire the Judg. facias to make him a party to the judgment or recogniIn some cases, however, a scire facias is not neces sance (e). (a) Woodycer v. Gresham, Skin. 682: Comb. 455, S. C.: Winter v. Kretchman, 2T. R. 46: Fenner v. Evans, 1 Id. 267. (b) See the form, Tidd's Forms, 426; also a form of scire facias for the Queen on a bond, and declaration, Id. 424. As to when her majesty must proceed by sire facias, and not by information of debt, see Att. Gen. v. Serrell. 4 M. & W. (d) See Executors of Wright v. Nutt, 1 (e) 2 Saund. 6, n. 1; Penoyer v. Brace, 1 Salk. 319; 1 L. Raym. 245. ment. |