habendo. It does not appear to be necessary to state that the writ of retorno habendo issued, the condition of the bond being to make a return, if a return shall be awarded. A breach is then assigned, and it seems to be sufficient to allege a breach (a) of one part of the condition of the bond, either that the plaintiff in replevin did not prosecute with effect, or that he has not made a return (b), though it has been said that both parts of the condition must be negatived. (c) It is then averred that the bond became forfeited to the sheriff, and, if the action is brought by the assignee of the sheriff, the assignment is stated. The declaration need not set out the goods and chattels distrained. (d) Proceedings against the sureties. Declaration. fence. The sureties are not liable beyond the amount of the penalty Plea and deof the bond, and the costs in that action. (e) They may plead that the action was commenced before breach of the condition of the bond (ƒ), but they cannot plead that time has been given to their principal, for it does not, as in the case of bail, prejudice them in their remedy against the principal (g); nor where the plaintiff has taken judgment for the arrears of rent and costs under the statute 17 Car. 2, c. 7, can the defendants plead that fact, the declaration alleging a breach for not prosecuting with effect. (h) If the plea had stated, that an execution had issued on the judgment, and that the sum recovered had been levied and paid to the avowant, before the commencement of the action on the bond, the case would have assumed a very different shape. (i) A plea by the surety, that the judgment was obtained against his principal by fraud, viz. by the plaintiff in collusion with the principal fraudulently procuring the principal to confess the action, and by the principal fraudulently confessing the action, without stating it to be for the purpose of fraudulently deceiving the pledges, is bad. (k) (a) Replevin bonds are not within the stat. 8 and 9 W. 3, c. 11, s. 8. 2 Saund. 187, note, 5th edit. (b) Ante, p. 655. (c) Per Dampier, J. Phillips v. Price, 3 M. and S. 185; but see ante, p. 655. (d) Phillips v. Price, 3 M. and S. 183. (e) Per Lawrence, J. Hefford v. Alger, 1 Taunt. 219. (ƒ) Anon. 5 Taunt. 776. (g) Moore v. Bowmaker, 6 Taunt. 379. 7 Taunt. 97. 2 Marsh. 392, S. C. Hallett v. Mountstephen, 2 D. and R. 343, but see 3 Price, 214. (h) Turner v. Turnor, 2 B. and B. 107. 4 B. Moore, 606, S. C. (i) Per Dallas, C. J. Ibid. (k) Moore v. Bowmaker, 7 Taunt. 97. 2 Marsh. 392, S. C. Proceedings against the sureties. Proceedings against the sheriff. Where the plaintiff assigned a breach for not prosecuting the suit according to the tenor and effect of the condition, and the defendant pleaded that he appeared at the county court, &c. and then and there prosecuted the suit which he had commenced, which suit was still depending and undetermined, to which the plaintiff replied, that the defendant did not prosecute his suit as in the plea mentioned, but wholly abandoned the same, and that the said suit was not still depending, the replication was held bad on special demurrer, for it should have shewn how the suit had ceased to depend. (a) Where to a similar plea the plaintiff replied by traversing the appearance and prosecuting of the suit, it was held, that an agreement (which had been made a rule of court) between the plaintiff and the principal, to stay all the proceedings in replevin upon payment by the latter of a certain sum of money, was evidence, that the suit had not been prosecuted with effect. (b) Where the breach is for not making a return, the plaintiff, after signing final judgment against the defendant for not returning the demurrer-book, may tax the costs and issue execution for the costs and the amount of the goods distrained, without a writ of inquiry. (c) By the statute 11 Geo. 2, c. 19, s. 23, the court in which the action on the replevin bond is brought may by rule give such relief to the parties upon such bond, as may be agreeable to justice and reason, and such rule is to have the nature and effect of a defeasance to such bond. If the sheriff has not taken a bond, or, if the pledges he has taken are insufficient, an action on the case may be maintained against him, which action has superseded the former method of proceeding by scire facias. (d) The courts will not interfere in a summary manner, and grant an attachment where the sheriff has neglected to take a bond, but will leave the party to his remedy by action. (e) The action must be brought by the person (a) Brackenbury v. Pell, 12 East, 585. (b) Hallett v. Mountstephen, 2 D. and R. 346. (c) Middleton v. Bryan, 3 M. and S. 155. (d) Moyser v. Gray, Cro. Car. 446. Rouse v. Patterson, 16 Vin. Ab. 399. pl. 4. Bull. N. P. 60. 7 Mod. 387, S. C. Ante, p. 651. (e) R. v. Lewis, 2 T. R. 617. Yea v. Lethbridge, 4 T. R. 455. Tesseyman v. Gildart, 1 B. and P. N. R. 292; but see Richards v. Acton, 2 W. Bl. 1220. who would be entitled to an assignment of the replevin bond; thus, where there is no avowant, the person making cognisance must bring the action. (a) The action may be maintained even after the avowant or person making cognisance has taken an assignment of the replevin-bond, and sued the principal and sureties, for such assignment is no waiver of the proceedings against the sheriff. (b) With regard to the extent to which the sheriff is liable, there has been a considerable difference of opinion. In the case of Rouse v. Patterson (c), the plaintiff was allowed to recover the rent in arrear, and the costs in the replevin suit, which together did not exceed the value of the distress. So in Gibson v. Burnell (d), Gould, J. was of opinion, that the plaintiff was entitled to recover the costs in replevin as well as the rent in arrear. But, in Yea v. Lethbridge (e), the court of King's Bench held, that the plaintiff could not recover damages beyond the value of the distress. This decision was afterwards questioned in the case of Concanen v. Lethbridge (f), where it was ruled, that the plaintiff might recover damages to the extent of the injury sustained, although they exceeded the penalty of the bond, viz. double the value of the goods distrained; but in the later case of Evans v. Brander (g), this doctrine was overthrown, and it was determined that the sheriff was only liable to the extent to which the sureties themselves would have been liable, viz. to the extent of double the value of the goods distrained. (h) If the defendant pleads not guilty, the plaintiff must be prepared to prove the whole of his declaration. The replevying of the distress may be proved by producing the original precept to deliver, for which purpose a writ of subpoena duces tecum should be served upon the bailiff, and, in case the precept has been returned to the sheriff's office, notice to produce it should be served on the defendant's attorney; a recognition of the bailiff's act by the defendant will render such proof unnecessary. (i) If a (a) Page v. Eamer, 1 Bos. and Pul. $78. (b) 1 Saund. 195, g. notes, 5th edit. (c) 16 Vin. Ab. 400. See 4 T. R. 434; and 2 H. Bl. 39. (d) Cited in Yea v. Lethbridge, 4 T. R. 434. (e) 4 T. R. 433. (S) 2 H. Bl. 36. (g) 2 H. Bl. 547. (h) In a late nisi prius case, Abbot, C. J. is reported to have said, that as the verdict in the replevin suit was merely for a return of the goods, the jury could not in their verdict exceed the value of the goods. Scott v. Waithman, 3 Stark. N. P. C. 171. (i) 2 Phill. Evid. 273, 6th edit. Proceedings against the sheriff. Proceedings bond has been taken, notice to produce it should be given, but, against the when produced, it will not be necessary for the plaintiff to prove it, by calling the attesting witness, for, as against the sheriff, it must be taken to be a valid bond. (a) sheriff. Where the action is brought for taking insufficient sureties, some proof of their insufficiency must be given, though very slight evidence is enough to throw the proof on the sheriff. (6) The sheriff will be justified in taking a person as a surety, who appears to the world to be a person of responsibility, provided he does not neglect the means in his power of informing himself upon the subject. (c) The sureties themselves are competent witnesses to prove their sufficiency or insufficiency (d), and what the sureties have said, about the time of executing the bond, in answer to applications by creditors for the payment of debts, has been held to be admissible evidence. (e) (a) Scott v. Waithman, 3 Stark. N. P.C. 169. 1 Phill. Evid. 433, 6th edit. (b) Saunders v. Darling, Bull. N. P. 60. (c) Hindle v. Blades, 5 Taunt. 225. Scott v. Waithman, 3 Stark. N. P. C. 170, S. P. As to a replevin clerk in an action by the sheriff against him, see Sutton v. Waite, 8 B. Moore, 27, (d) 1 Saund. 195, g. notes, 5th edit. Hindle v. Blades, 5 Taunt. 226. 2 Phill. Evid. 274, 6th edit. (e) Gwyllim v. Scholey, 6 Esp. N. P. C. 100. Trespass. injury. AN action of trespass quare clausum fregit lies where an imme- Nature of the diate injury is committed to land, with force either actual or implied (a), and, though the door of the house through which the trespasser entered was open. (b) Shooting into a close, so as to strike the soil, is, as it seems, such an entry as will support trespass. (c) But, in general, when the injury is not committed on the plaintiff's land, trespass will not lie (d), and a mere non feasance, as leaving tithes on lands, is not sufficient to maintain trespass (e) Whether trespass is a proper remedy for the continuance of an injury, for the inception of which the plaintiff has already recovered in an action of trespass, appears to be doubtful. (f) Trespass quare clausum fregit may in general be maintained by any one who is in the actual possession of land, and any possession is a legal possession as against a wrong doer (g), and trespass may be maintained by a tenant at will (h), or by tenant by sufferance. (i) By whom. Trespass quare clausum fregit may be maintained either by a By those who person who has a property in the soil, or by one who is entitled have an interest to the exclusive possession of land, although he has no property or property in or interest in the soil itself; but the commissioners of sewers the soil. (a) Co. Litt. 257, b. Green v. Goddard, 9 Salk. 641. (b) 2 Rol, Ab. 555, l. 18. (c) Per Lord Elleuborough, Pickering v. Rudd, 1 Stark. N. P. C. 58. 4 Campb. N. P. C. 219, S. C. arg. Keble v. Hickringill, 11 Mod. 74. See Millen v. Hawery, Latch, 13. (d) Haward v. Bankes, 2 Burr. 1114. Keble v. Hickringill, 11 Mod. 74, 130. (e) Ante, p. 356. (ƒ) Lawrence v. Obee, 1 Stark. N.P. C. 22; but see Coventry v. Stone, Stark. N. P. C. 534. Ante, p. 333. Quare whether any action will lie, for the defendant would, it seems, be guilty (h) 2 Rol. Ab. 551, l. 47, 54. Com. (i) 2 Rol. Ab. 551, l. 42. Com. Dig. ubi sup. Graham v. Peat, 1 East, 244. |