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Of the writ of but an avowant, who has recovered a judgment, which has been

error.

Staying proceedings.

Of the writ of recaption.

affirmed, is not within the statute. (a)

Interest is not allowed on an affirmance of a judgment on a replevin bond. (b)

Where judgment has been given in an inferior court, not of record, a writ of false judgment lies. If brought upon a judgment in the sheriff's court it is in the nature of a recordari, if in another inferior court, not of record, it is in the nature of an accedas ad curiam. (c)

The court will stay proceedings in replevin on a distress for rent arrear, on the application of the plaintiff upon payment of the rent, and of all costs up to the time of the application, including the costs of the application (d), but not upon payment of costs up to the time of tender, where such tender was made after the distress, and before the goods were replevied. (e)

Where the defendant in replevin, having made cognisance as constable of a township for certain palfrey rent, moved to stay the proceedings on payment of costs by him, the court thought that both parties being actors in replevin, the plaintiff had a right to his judgment, and refused a rule (f); but in a subsequent case, where the defendant made cognisance as bailiff of the commissioners appointed by an inclosure act (50 G. 3, c. 39), and after several pleas in bar pleaded, obtained a rule to stay proceedings upon payment of the costs of the action, and distress to be taxed by the master, and upon delivering up the replevin bond to be cancelled, the court, after observing that the plaintiff had got his goods again, and did not make any claim in respect of special damage for the detention, made the rule absolute on the terms prayed, together with the costs of replevying. (g)

If pending the replevin, the defendant again distrains for the same cause for which the former distress was taken, the plaintiff in replevin may have a writ of recaption, in which he shall re

(a) Cone v. Bowles, 4 Mod. 7. Gold

ing v. Dias, 10 East, 2.

(b) Anon. 4 Taunt. 30.

(e) Tidd's Pr. 1246, 8th edit. Wilk. Repl. 129.

(d) Vernon v. Wynne, 1 H. Bl. 24.

(e) Hopkins v. Shrole, 1 B. and P.

382.

(ƒ) Hodgkinson v. Snibson, 3 B. and P. 603.

(g) Banks v. Brand, 3 M. and S. 525.

cover damages for the second distress taken, and in which the party who took such distress shall be fined for the wrong. (a) No pledges de retorno habendo are found upon a writ of recaption. (b)

A writ of recaption lies where the party distrains other cattle of the plaintiff, than those first distrained, if it is for the same cause (c), and it lies where the second distress is made by bailiff, by the command of the original distrainor; but if made by the bailiff without such command, trespass or replevin must be brought. (d) If A. distrains beasts damage feasant, and, pending that suit, the same, or other cattle of the same owner, trespass on the soil of A. he may distrain again, pending the first suit, because each distress is for a several and distinct trespass, or injury, and no writ of recaption lies (e), and so no recaption lies for a distress taken for rent accruing due pending the suit. (ƒ) So also if the lord distrains the beasts of his tenant for rent, and afterwards distrains the beasts of J. S., a stranger, being on the land, for the same rent, no writ of recaption lies; not for the tenant, because the second distress is not of his beasts, nor for J. S. because the beasts of J. S. were not taken under the first distress.(g)

The party who is distrained may have recaption before avowry made in the replevin, and may aver that the defendant in recaption distrained for the same cause. (h) The defendant in recaption cannot avow as in replevin, but must justify as in trespass. (i)

Of the writ of

recaption.

liverance:

At common law when the plaintiff in replevin was nonsuited, Of second dethe defendant was not entitled to have a return of the distress irreplevisable, the merits of the case not having come in question. The power of bringing fresh replevins being found inconvenient, it was enacted by the statute of Westminster 2, c. 2, that so soon as return of the beasts shall be awarded to the distrainor, the

(a) F.N.B.71 E. Com. Dig. Pleader, (3 K. 32). Gilb. Repl. 263; but in F. N. B. 72 B. it is said, that the plaintiff shall recover damages only for the contempt, and not for the taking or detaining of the cattle; and see 1 Rol. Ab. 320, l. 10.

(b) Gilb. Repl. 264.

(c) F. N. B. 72 G.

(d) F. N. B. 71, F. G.

(e) F. N. B. 71 E. Gilb. Repl. 262.
(ƒ) Gilb. Repl. 269.

(g) F. N. B. 71 H. Gilb. Repl. 266.
(h) F. N. B. 72 A.

(i) F.N. B. 72 B. Com. Dig. Pleader,
(3 K. 32). Gilb. Repl, 264.

liverance.

Of second de sheriff shall be commanded by a judicial writ to make return of the beasts unto the distrainor, in which writ it shall be expressed that the sheriff shall not deliver them without writ, making mention of the judgment given by the justices, which cannot be without a writ issuing out of the rolls of the said justices, before whom the matter was moved. Therefore, where he comes before the justices, and desires replevin of the beasts, he shall have a judicial writ, that the sheriff, taking surety for the suit, and also of the beasts or cattle to be returned, or the price of them (if return be awarded) shall deliver unto him the beasts or cattle before returned, and the distrainor shall be attached to come at a certain day before the justices, afore whom the plea was moved in presence of the parties, and if he that replevied make default again, or for another cause return of the distress be awarded, being now twice replevied, the distress shall remain irreplevisable, but if a distress be taken of new, and for a new cause, the process abovesaid shall be observed in the same new distress.

The writ of second deliverance which is issued by the filacer in the King's Bench, and by the prothonotary in the Common Pleas (a), operates as a supersedeas to the writ of retorno habendo (b), but not to the writ of inquiry of damages under the statutes 7 H. 8, and 21 H. 8 (c), nor to the writ of inquiry under the statute 17 Car. 2 c. 7. (d) In the case, therefore, of a distress for rent, where the avowant takes judgment for the arrears and costs under the latter statute, a writ of second deliverance is nugatory, if the defendant takes out execution for the arrears and costs under the statute. (e)

On the plaintiff's declaring in second deliverance, the defendant avows or makes cognisance as in replevin. (ƒ)

If the defendant in the writ of second deliverance has judgment, whether by nonsuit of the plaintiff, by abatement of the writ, or by discontinuance of the plea, a return irreplevisable is awarded; but where the distress has been taken for damage feasant, on tender of the damages for which the distress was originally taken, an action of detinue may be brought by the owner

(a) Wilk. Repl. 139.

(b) 2 Inst. 341.

(c) Anon. Latch, 72. Pratt v. Rut-
lidge, 1 Salk. 95. Bull. N. P. 58.
(d) Cooper v. Sherbrooke, 2 Wils.

116.

(e) 1-Saund. 195, e. notes, 5th edit. 3 Bl. Com. 150. In Playters. Sheering, 1 Vent. 64, the stat. 17 C. 2, c. 7, it is said to have taken away the writ of second deliverance.

(f) Com. Dig. Pleader, (3 K. 4).

of the goods, because, notwithstanding the judgment, the goods Of second deare only held as a pledge. (a)

The form and nature of the bonds which the sheriff is required to take by the statutes of Westm. 2, (13 Ed. 1, c. 2,) and 11 Geo. 2, c. 19, have been already explained. It has also been stated that the condition of the bond under the latter statute, is for prosecuting the suit with effect, and without delay, and for duly returning the goods and chattels distrained, in case a return shall be awarded, to which a condition for indemnifying the sheriff is usually added. (b)

Prosecuting the suit with effect, has been held to mean prosecuting with success, and the condition extends to all the proceedings, from the original to the conclusion of the action, and as well in the court below as in the superior court (c), and so even where the condition is " to appear in the county court, and then and there to prosecute with effect." (d) But where the action was stayed by injunction, during which period the plaintiff in replevin died, this was held to be no breach of the condition, because there was neither a nonsuit nor a verdict against the plaintiff. (e)

It is to be observed that the condition of the bond is in the conjunctive, to prosecute with effect, and to make a return, if awarded. It is said that these are two independent conditions, the plaintiff in replevin being bound to do both, as well to prosecute with effect, as to make return, if it shall be adjudged, and that if he omits to do either, the bond is forfeited. (f) It seems to have been considered, that if the avowant takes judgment for the arrears of rent and costs under the statute 17 Car. 2, c. 7, the electing to take such judgment operates as a waiver of the

(a) 2 Inst. 341. Gilb. Repl. 250. maker, 7 Taunt. 103. Morgan v. GrifAnte, p. 641. fith, 7 Mod. S31, accord. But see Phil(b) Short v. Hubbard, 2 Bingh. 349. lips v. Price, 3 M. and S. 183, where it Ante, p. 625.

(c) Morgan v. Griffith, 7 Mod. 381. Chapman v. Butcher, Carth. 248, cases of bonds under the stat. of Westminster

2.

(d) Vaughan v. Norris, Cases temp. Hardw. 137.

(e) Duke of Ormond v. Bierly, Carth. 519. 12 Mod. $80, S. C.

is said by Dampier, J. that if the party
prosecutes his suit with effect, he 'need
not make a return; and, that if he
makes a return, he need not prosecute
with effect; quære for making a return is
not equivalent to prosecuting with ef.
fect; for by not prosecuting with effect,
the plaintiff in replevin becomes liable
for costs and damages, which are not

(f) Per Gibbs, C. J. Moore v. Bow- covered by making a return. If the

liverance.

Proceedings

against the

sureties.

Proceedings

against the sureties.

Declaration.

retorno habendo, and that consequently the avowant cannot proceed against the pledges on the condition for making a return. (a) It may, however, be observed, that although the avowant takes judgment under the statute, such judgment being cumulative (6), a return may still be awarded, and such return being awarded and no return made, that part of the condition of the bond appears to be broken; at all events a breach may be assigned on the other part of the condition of the bond to prosecute with effect. (c)

Under the statute 11 Geo. 2, c. 19 (d), the sheriff may assign the replevin bond to the avowant and person making cognisance jointly (e), or to the avowant alone (ƒ), or to the person making cognisance, where there is no avowant. (g) In cases not within the above statute, the action must be brought in the name of the sheriff, as the bond cannot be assigned. An assignment signed, not by the sheriff, but by a person accustomed to act in the sheriff's office, in the name of the sheriff, and under the seal of the office, has been held sufficient. (h)

Where the plaintiff makes default in the county court, the assignee of the replevin bond may sue in one of the superior courts at Westminster, although the plaint has never been removed. (1)

The venue in an action of debt on a replevin bond is transitory, and the plaintiff may declare either in the debet and detinet, or in the detinet only. (k) The declaration states the distress, and where the bond has been taken pursuant to the statute 11 Geo. 2, c. 19, that such distress was for rent; the application to replevy; the taking of the replevin bond and the condition; the plaint levied; the removal of the cause, if such removal took place, and the proceedings to the judgment of retorno

construction put upon the bond by
Gibbs, C. J. be correct, it will follow,
that nothing but a judgment for the
plaintiff will be a performance of the
condition, sed quære, for it is said by Ld.
Kenyon, that returning the goods taken,
will be a satisfaction of the bond. Yea
v. Lethbridge, 4 T. R. 435, and see post,
p. 659.

(a) Tidd's Pr. 1079, 8th edit.
(b) Ante, p. 647.

(c) Turner v. Turnor, 2 B. and B.
107.

(d) Ante, p. 624.

(e) Phillips v. Price, 3 M. and S.

180.

(ƒ) Archer v. Dudley, 1 Bos. and Pul. 381, n.

(g) See Page v. Eamer, 1 Bos, and Pul. 378. Dias v. Freeman, 5 T. R. 197.

(h) Middleton v. Sandford, 4 Campb. N. P. C. 36.

(i) Dias v. Freeman, 5 T. R. 195.
(k) Wilson v. Hobday, 4 M. and S.

120.

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