given to the plaintiff in replevin (i), nor by the execution of a writ of inquiry (k) under the stat. 17 Car. II. c. 19, s. 23. But where the suit was referred, and it was agreed between the plaintiff and defendant, without the privity of the sureties, that the bond should stand as a security for the award; it was holden (7), that the sureties were discharged. The avowant, by having elected to proceed under the stat. 17 Car. II. c. 7, is not confined to his execution under the statute, but may proceed upon the replevin bond, if it has been assigned, or against the sheriff for his negligence for the loss of it, notwithstanding what is stated to have been said by Bathurst, J., in Cooper v. Sherbrooke, 2 Wils. 117, that "by stat. 17 Car. II. c. 7, the legislature intended that the proceedings upon that statute by writ of inquiry, fieri facias, and elegit, should be final for the avowant to recover his damages, and that the plaintiff should keep his cattle, notwithstanding the course of awarding a writ de retorno habendo, which is a right judgment: for the statute has not altered the judgment at common law, but only gives a further remedy to the avowant." The Court of Common Pleas, in Turnor v. Turner, decided contrary to that doctrine of Bathurst, J. See 5 B. & C. 303, 4, per Holroyd, J., delivering judgment of court in Perreau v. Bevan. 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 (m), or, what amounts to the same thing, has taken such as are insufficient (n), immediately, without any previous proceedings (10), commence an action on the case (o) against the sheriff; in which action, (since the 11 Geo. II. 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 case (p) decided, that the statute 11 Geo. II. 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. I. c. 2). In the second case (q), it was resolved, that as the proceeding against the sheriff was an action on the case for a culpable neglect

(i) Moore v. Bowmaker, 2 Marsh. 81; 6 Taunt. 379, S. C.

(k) Turnor v. Turner, 2 Brod. & Bingh. 107.

(1) Archer v. Hale, 4 Bingh. 464. (m) Moyser v. Gray, Cro. Car. 446; Anon., Sir W. Jones, 278.

(n) Rouse v. Patterson, 16 Vin. 399,

400; 7 Mod. 387, Leach's ed.; Bull. N. P. 60, S. C.

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

36.

(p) Yea v. Lethbridge, 4 T. R. 433.
(9) Concanen v. Lethbridge, 2 H. Bl.

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

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 but in the third determination (r); it was holden, that the sheriff should not be liable any further 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: and this decision has since been recognized in Paul v. Goodluck, 2 Bingh. N. C. 220; where it was holden, that inasmuch as the two sureties together are liable only to the amount of the penalty of the bond, in case against the sheriff for taking insufficient sureties, he is liable to the extent only of the penalty of the bond given by the sureties. 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 (s). It has been holden, that the sheriff is not bound to warrant the sufficiency of the pledges; and that if they are apparently responsible (t), it is enough. But the sheriff is to exercise a reasonable discretion in deciding upon the sufficiency of the sureties. He is not bound to go out of the office to make inquiries; but if the parties are unknown to him, he ought to require information beyond their own statement, as to their sufficiency. It is for the jury to decide whether he has exercised a reasonable discretion (u). If the sheriff has assigned the bond to the plaintiff, it is unnecessary to prove the execution of the sureties (x). The expenses of a fruitless action against the pledges cannot be recovered as special damages (y), beyond the penalty of the bond, unless notice be given to the sheriff of the intention to sue them. 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 and costs recovered by him. On an application to the Court of C. B. (2), for a rule to show 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 habendo, 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.

60.

(r) Evans v. Brander, 2 H. Bl. 547.
(8) Saunders v. Darling, Bull. N. P.

(t) Hindle v. Blades, 5 Taunt. 225; 1 Marsh. 27.

(u) Jeffery v. Bastard, 4 A. & E. 823. (x) Barnes v. Lucas, Ry. & Moo. 264. (y) Baker v. Garrat, 3 Bingh. 56. (z) Tesseyman v. Gildart, 1 Bos. & Pul. N. R. 292.

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

probandâ.

Ir the defendant claims property (a), the sheriff's power to redeliver the beasts is suspended, and the plaintiff must sue out a writ de proprietate probandâ, 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 further; 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. Property must be claimed by the defendant in person (b); 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 Courts, p. 1195; and herein of the Writs of Pone, Recordari facias loquelam, and accedas ad Curiam, p. 1195, 6, 7. 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 2nd (13 Edw. I.), 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 Court of King's Bench and Common Pleas, will be found in F. N. B. 69, M.

2. Of the Writ of Pone under the Stat. Westm. 2.

At the common law, where the lord avowed taking the distress for services or customs, if the plaintiff disavowed the tenure, and disclaimed holding of the avowant, the inferior court had not any further cognizance of the suit, and the proceeding there was stayed; because the disclaimer brought the freehold in question, which the county court, not being a court of record, had not any authority to try. This inconvenience was remedied by the stat. Westm. 2, (13 Ed. I. c. 2,) which gave the avowant in this case the writ of pone to remove the proceedings into the king's courts. It appears from the preamble, that the avowant is entitled to this writ of pone, as well where the proceedings are instituted in the inferior court by plaint, as where they are commenced by writ out of Chancery. There is one passage in this statute which is worthy of remark, because it may be inferred from it, that before this statute the defendant in replevin could not remove the proceedings out of the inferior court (11). The words are these: Nec per istud statutum derogatur legi communi usitatæ, quod non permisit aliquod placitum poni coram justiciariis ad petitionem defendentis; quia licet prima facie videatur tenens actor, et dominus defendens, habito tamen respectu ad hoc quod dominus distrinxit, et sequitur pro servitiis et consuetudinibus sibi aretro existentibus, realiter apparebit potius actor, sive querens, quam defendens.

3. Of the Writ of Recordari facias loquelam.

By this writ the

This form of writ is adapted to the removal of the proceedings in replevin (c), when they have been instituted in the county court by plaint, and not by writ; and as the method of suing by plaint has superseded the ancient method of proceeding by writ, the recordari facias loquelam is the writ now in general use. sheriff is commanded to record the plaint, and when recorded, to return it into the King's Bench, or Common Pleas, at a fixed day, on which the parties are to attend in court. This being done, the superior courts have authority to proceed. When the record is removed (d), and the party declares in banco, the plaint is determined. Hence advantage cannot be taken of a variance between the plaint and the declaration in the superior court. By virtue of the writ of re. fa. lo. the plaint may be removed either by the plaintiff or defendant; but the defendant must allege in the writ some cause of removal: this allegation (e), however, is not a material (c) F. N. B. 70, B. (e) 10 Edw. II., Avowry, 213; 20 Edw. III., Avowry, 130.

(d) Hargreave v. Arden, Cro. Eliz. 543.

(11) I am aware that Sir Edw. Coke has given a different explanation of this passage in the 2nd Inst. p. 339, but his explanation seems to be at variance with the context.

point in the writ; it is a mere form, not traversable (f) by the sheriff, and the defendant may avow or justify the taking and detention on other grounds. The delivery of the re. fa. lo. to the clerk of a county court, after interlocutory and before final judgment, is a bar to any further proceeding in that court. The officer of the inferior court cannot refuse paying obedience to the writ (g), under pretence of his fee not having been paid; because he may bring an action for such fees.

4. Of the Writ of Accedas ad Curiam.

This writ is only a species of re. fa. lo. adapted to the removal of replevins, sued by plaint in the Lord's Court. It derives its name from the language of the writ, "accedas ad curiam W. de C. et in illâ plena curia recordari facias loquelam, quæ est in eâdem curiâ sine brevi nostro, &c. See the form of this writ in Gilb. Repl. 145,

ed. 1757. N. If the writ of removal was made returnable on the first return of the term (h), it was incumbent on the plaintiff to declare in the superior court within four days before the end of that term; otherwise the defendant, (although he had not appeared,) was entitled to an imparlance; but see R. G. T. 1 Will. IV. No. 7.

VI. By whom a Replevin may be maintained.

To maintain replevin, the plaintiff ought to have either an absolute or special property (i) in the goods in question vested in him at the time of the taking (12): A mere possessory right is not sufficient (k). If the goods of a feme sole are taken, and she marries, the husband alone may sue the replevin; because the property is transferred by the marriage, and vested absolutely in the husband, so that he may release it: and, consequently, he may have an action in his own name to bring back the property (1). Or the husband and wife may join (m). If the goods are taken after marriage, husband and wife ought not to join in the replevin; but if they do join in the action, and after verdict a motion is made on this ground

(12) There are two kinds of property,—a general property which every absolute owner has, and a special property; as goods pledged or taken to manure his lands, or the like,—and of both these a replevin lies. 1 Inst. 145, b.