What will amount to a forfeiture of the re plevin bond. SECTION XII. PROCEEDINGS ON THE REPLEVIN BOND. WE have seen that when goods are replevied, the sheriff is required by statute Westminster 2, to take pledges for the prosecution of the suit, and for a return of the goods if awarded; and that by 11 Geo. II. c. 19. s. 23, he is required, in cases of distress for rent, to take a bond, with sureties, &c., conditioned for prosecuting the suit with effect, &c. a Before the passing of the latter statute it was the practice to take bonds under the former, though the sheriff was only required to take pledges. The condition of replevin bonds being to prosecute the suit with effect and without delay, and to return the distress in case a return be awarded, the bond is forfeited and the sureties become liable thereon, in case the plaintiff fails in any of these requisites. The bond therefore is forfeited if the plaintiff do not appear in the county court next after giving the bond, and enter his plaint there, and afterwards proceed in the prosecu tion. So if he does not use due diligence in prosecuting the suit, he is guilty of a breach of that part of the condition which requires him to prosecute without delay, even though it may not appear that the suit is determined; but he is not responsible for any delay which may have proceeded from the negligence of the sheriffd. "When the breach assigned is, that the plaintiff did not prosecute his suit with effect, it is a sufficient answer to shew that the suit is still pending; but it is no answer when the breach is, that he did not prosecute it without delay." The condition of the bond for prosecuting the suit "with effect," means prosecuting it "with success ;" and therefore, if a plaintiff in replevin fails, the bond is broken, and the defendant is not restrained from suing on the bond, though he omits to sue out a writ de retorno habendo, and cause elongata to be returned thereon a. The condition is not satisfied by a prosecution of the suit in the county court; but if the plaint be removed by re. fa. lo. into a superior court, it must be prosecuted there with effect, and a return made, if adjudged there . Therefore where the plaintiff was nonsuited for want of a plea in bar, it was held that the avowant might sue the sureties on the bond, and that he need not execute a writ of inquiry for his damages, because the plaintiff had not prosecuted his suit with effect. But if the plaintiff be restrained by injunction out of the Court of Chancery, or if he die before the suit is determined, whereby the suit abates, the bond will not be forfeited d. sue on the bond. the bond. When a replevin bond is forfeited, the sheriff or his assignee Who may may sue upon it; for the 11 Geo. II. c. 19. directs the sheriff or person taking such bond, to assign the same at the request and costs of the avowant or person making cognizance. It has Assigning been held under this statute, that the sheriff or his deputy may assign the bond to the avowant or conuzor, or to both jointly; or to the conuzor only, if there be no avowant f; or to the avowant only, though there be a conuzor; but it seems to be questionable whether there can be an assignment to the conuzor when there is an avowant 8. It has been held that where the plaintiff and defendant in replevin referred the cause to an arbitrator, and agreed without the privity of the replevin bond sureties, that the bond should stand as a security for the performance of the award, the sureties were discharged h. But where the plaintiff and the principal entered into an agreement, which was made a rule of court, to stay all proceedings in replevin, upon payment, by the latter, of a certain sum of money; it was held, that the surety was not thereby discharged after breach by the principal, but that he was liable for so much as appeared upon a reference to be due. So it What amounts to a discharge of the sureties. Action on the replevin bond. Extent of of the sureties. has been held to be no plea to an action against the sureties, that the replevin suit was referred to an arbitrator, and that he, without the knowledge of the sureties, enlarged the time for making the award. So where the parties to a replevin suit referred to arbitration the time of payment of the rent, with certain claims of the tenant on the landlord for damages, with liberty for the tenant to deduct them, when awarded, from the rent, and agreed to suspend proceedings in replevin pending the reference; held, after award made, that the sureties in the replevin bond were not thereby discharged ". The bond may be put in suit, though it may not in all points be conformable to the directions of the statute (11 Geo. II. c. 19.); as if it be executed by one of the sureties only, or though it contain no condition that the suit should be prosecuted without delay d. The plaintiff in an action on this bond may declare in the debet and detinet, or in the detinet only e. The court will not set aside proceedings on the bond, because the action is commenced before breach, for that fact may be pleaded; nor will they set aside an execution in an action on a replevin bond, upon an objection to the proceedings which might have been taken before judgments. The action on the bond must be brought in the same court in which the re. fa. lo. is returnable; but it may be brought in a superior court, though the plaint be not removed out of the county court h. The sureties in a replevin bond are together liable only to the liability the amount of the penalty in the bond, and the costs of the action, or for the value of the goods seized, and double costs. And if the penalty or the value of goods seized exceed the amount of the rent due at the time of the distress, they will be liable only for the rent1. Where a sheriff took a replevin bond from one surety only, and he was sued thereon by the person making cognizance for having taken insufficient pledges, who recovered damages and costs in such action; held, that the sheriff having sued the surety on the bond for not having returned the goods, and suggested breaches according to the stat. of 8 & 9 W. III. c. 11, was not entitled to recover the costs incurred in defending the action against him as such sheriff; and that as the surety was precluded from calling on his co-surety for contribution, he was only liable to a moiety of the damages awarded by the jury in the action against the sheriff a. SECTION XII. PROCEEDINGS AGAINST THE SHERIFF FOR TAKING INSUFFICIENT PLEDGES. Case lies against the sheriff and We have seen that the sheriff is bound to take pledges, or a bond, with sureties on replevying the goods, and that in case his officers the bond be forfeited, the sureties are liable to be sued thereon; for taking it remains to be observed, that if the defendant obtain judgment insufficient in the replevin suit, and be unable to get satisfaction from the pledges. principal, or the sureties, he may maintain an action on the case against the sheriff, or the replevin clerk, for taking insufficient pledges b. If at the time of taking the bond, the sureties be apparently responsible, the sheriff is not answerable for their sufficiency. Therefore it is sufficient, on the part of the sheriff, in such an action, to show that the sureties are apparently persons of responsibility, although they were not actually such; unless it be shown that the sheriff had notice of the fact, or neglected the means of information within his power, and a Austen v. Howard, 1 Moore, 68. 7 Taunt. 28. 327. 2 Marsh. 352. Richards v. Acton, 2 Bl. 1220. The court of King's Bench refused an attachment against a sheriff for neglecting to take a replevin bond, as the party injured might bring an с Hindle r. Blades, 5 Taunt. 225. 1 Marsh. 27. If the sure ties be apparently re sponsible, it is suf ficient. The declaration. Evidence. did not act under the circumstances, and considering the information he had obtained, with a reasonable degree of caution; and the general reputation, as to the want of credit of the sureties, in the neighbourhood of their respective residences, is evidence against the sheriffa. But it seems that if the sureties reside out of the sheriff's bailiwick, he should search the office of the sheriff in whose bailiwick they reside, to ascertain whether any process had been sued out against them, before the bond is taken. This action is maintainable even after the avowant has taken an assignment of the replevin bond, and sued the principal and sureties thereon, if, through their insolvency or otherwise, he has not been able to obtain satisfaction; for the assignment of the bond is no waiver of any proceedings against the sheriff, as it is in the case of a bail bond c. The declaration in this action should set forth the distress and replevin, and the proceedings in the suit, and state that it was the duty of the sheriff to take sufficient pledges, and that he neglected to do so, and that the plaintiff had not obtained a return of the goods, or their value. Where the declaration stated that the sheriff, instead of taking a bond from the plaintiff in replevin, and two sufficient sureties, took a bond from the plaintiff, and one surety, who was alleged to be insufficient; it was held ill for not alleging that the plaintiff in replevin was insufficient d. If the replevin be for damage feasant, the declaration should shew that a writ of retorno habendo had been issued, and elongata returned thereone. A count against the sheriff for not restoring the goods is bad, for his duty under stat. Westm. 2. is only to take pledges for that object. Some evidence must be given by the plaintiff of the insufficiency of the pledges; but very slight evidence is sufficient to throw the onus of proof on the sheriffs. The sureties themselves are competent witnesses to prove whether they are suf |