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Shepherd Serjt. now fhewed caufe. The only queftion in this cafe is, whether the perfon making cognizance be competent to maintain this action? Now as it is in the election of the Plaintiff in replevin to declare against the bailiff only, or to join the landlord with him, if the bailiff be not competent to maintain this action, the Plaintiff in replevin will always have it in his power to exempt the fheriff from being refponfible for taking infufficient pledges. At common law the fheriff was bound to take pledges for profecuting the replevin: by the ftat. of Westm. 2. c. 2. he is directed not only to take pledges for the profecution but for the return of the diftrefs, if it fhall be awarded. On the conftruction of that ftatute it has been held, that an action will lie against the fheriff if he take infufficient pledges; and if an action will lie on that ftatute, in whofe favour can it lie but in his who is entitled to a return of the diftrefs? Now the Plaintiff in replevin having in this cafe declared against the bailiff, he alone is entitled to the return. By the cafe of Blackett v. Criffop, 1Ld. Raym. 278. it appears, that when the fheriff takes a bond for the return of the distress he does it by virtue of stat. Westm. 2. Now the 11 Geo. 2. c. 19. f.23. directs, that fuch bond may be affigned to the avowant or the perfon making cognizance, meaning thereby to give the party entitled to the return of the diftrefs, an action on the bond againft the fureties in his own name, inftead of his action in the name of the fheriff. If then thefe fureties had been fufficient there is no doubt but that the perfon making cognizance would have had a right of action on the bond against the fureties. Now on the conftruction of stat. Weftm. 2. the fheriff ftands in the place of the infufficient fureties, and is responsible for their default. On principle therefore the perfon making cognizance is not only entitled to bring this action, but is the only perfon who can maintain it. The theriff is refponfible for the infufficiency of the pledges; the pledges bind themselves for the return of the diftrefs; and the perfon to whom they are to anfwer, is he who alone can demand the return, viz. the party making cognizance, who alone is entitled to fue the writ de retorno habendo. Moreover the fureties for the profecution are anfwerable not only for the return of the cattle but alfo for the cofts of the action of replevin; and the only perfon entitled to thofe cofts is the Defendant in replevin. [The Court obferved, that at common law the pledges were only bound to anfwer for the amercement pro falfo clamore: but that as the

fecurity

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1799.

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V.

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fecurity is now taken by bond, the Court will not relieve againft the penalty without obliging the furety to pay cofts.] The judg ment in replevin is fingularly conftituted: it is a double judg ment, that the Defendant have a return, and that he recover the arrears of rent, though the proceeding be under the ftat. 17 Car. 2. c.7.: and the reason for retaining the old form in addition to judgment for the recovery of the money, is ftated in Cooper v. Sherbrooke, 2 Wilf.117. and Baker v. Lade, Carth.254.

Cockell Serjt. in fupport of the rule. The objection to the Plaintiff's recovery is, that he has no intereft in the fuit. Now it is effential in an action on the cafe that the party complaining fhould prove himfelf to be really damnified. The landlord alone is entitled to the diftrefs, and the bailiff is merely his inftrument for the recovery of it. If a return be made, it is to the landlord's advantage; he therefore alone is fubftantially interested in obtaining it. No argument in the Plaintiff's favour can be drawn from that part of the 11 Geo. 2. which directs that the bond may be affigned to the party making cognizance; fince it by no means follows from the exprefs provifions of that ftatute that he would be entitled to any action independent of the act. The cafe ftands on the principles of the common law and the conftruction of the ftat. Westminster, there being no authorities upon the fubject. The action is brought against the fheriff, because the landlord is injured; then upon what principle can the bailiff be allowed to maintain it? If he recover damages he will not be entitled to retain them, but must pay them over to his principal.

EYRE Ch. J. I am very glad to find that the cafe is not incumbered with any authorities which might be fuppofed to ftand in the way of plain juftice and good fenfe. Independent of authorities, it appears to me one of the cleareft cafes that ever came before the Court. It is admitted that the Plaintiff in replevin may declare against the bailiff, without putting any person on the record to ftand in the fituation of avowant. Now by the courfe of the proceedings in replevin it appears clearly, that if the action be brought againft the bailiff alone, and he maintain his cognizance, he will be entitled to judgment and to have the writ de retorno habendo. The law gives him a right to the poffeffion of the goods, and if the sheriff return that the goods are eloigned, is not the bailiff damnified in being deprived of that poffeffion to which the law has given him a right, or fhall the judgment which he has

obtained

obtained be altogether defeated, because there is a truft and confidence exifting between him and another perfon? It being once established, that the action of replevin will lie against the bailiff alone, and that he may have the writ de retorno habendo, all the reft follows as a neceffary confequence. It is immaterial to the sheriff who brings the action, fince he can be anfwerable but to one perfon, and that must be the person on record. I am perfectly fatisfied on principles of reafon and good fenfe, independent of the laft ftatute, that the perfon making cognizance is the only one entitled to bring this action, and that if the landlord himself had brought it, we should have been obliged, however unwillingly, to have given judgment against him.

ROOKE J. I am clearly of the fame opinion. The bailiff was the party on record in the action of replevin, the only perfon entitled to a return of the diftrefs, and therefore the proper perfon to bring this action.

(a) When this motion first came on, the following cafe was referred to by Mr. Juft. Buller, from the paper-book in his poffeffion.

Archer and Others, Affignees, &c. v. Dudley and Others, E. 22 Ges. 3. B. R.Debt by the Plaintiffs as affignees of H. C. W. Efq. late sheriff of Shropshire, fecundum formam ftatuti, they being infants, and appearing by Sarab Baroness Archer their prochein ami, and complaining for that whereas J. D. complained to the faid H. C. W. against the Plaintiffs, for taking and unjustly detaining certain goods and chattels of the faid J. D. and prayed that they might be replevied and delivered to him; thereupon the faid H. C. W. took from the faid J.D. and the two other Defendants as refponfible fureties, a bond in double the value of the goods fo diftrained (that value being ascertained by the oath of a credible witnefs) the condition of which was, that if the faid 7. D. fhould appear at the next county court to profecute his action with effect against the Plaintiffs, and also make a return of the goods and chattels, if a return fhould be adjudged, and alfo keep indemnified the faid H. C. W. and his deputy and bailiffs, touching the replevin, then the obligation to be void, or else, &c. Profert, &c. -And thereupon H. C. W. replevied the goods, &c, and F. D. at the next county

Rule discharged. (a)

court came in his own proper perfon and
levied his plaint against the plaintiffs, and
removed the record by re. fa.lo. into K.B.
and complained, &c. (here followed the de-
claration in replevin against the Plaintiffs
and T. Hunt their bailiff, imparlance prayed
by them and obtained, avowry by the pre-
fent Plaintiffs and cognizance by T. Hunt
for rent in arrear, future day to plead prayed
by 7. D., his non-appearance and confe-
quent judgment pro retorno habendo to the
prefent Plaintiffs); and Plaintiffs averring
that J. D. made no return, by which the
bond became forfeited to the faid H. C. W.,
fet out the affignment by him of the bond
under the ftatute to themselves. By means
whereof, &c. and by force of the statute, &c,
actio accrevit, &c.

Plea. And the faid J. D., J. C., and
H. W. in their own proper perfons come and
pray judgment of the aforefaid bill because
they say that the faid T. Hunt in the faid
bill mentioned against whom the faid J. D.
levied his aforefaid plaint as well as against
the faid Plaintiffs in manner aforefaid and
who as their bailiff well acknowledged the
taking of the aforefaid goods and chattels in
the faid condition of the faid writing obliga.
tory and bill mentioned in manner and form
as in the faid bill is alledged and to whom as
a person making fuch cognizance as aforefaid
the aforefaid writing obligatory was or ought

to

1799.

PAGE

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The Court will

ings in an action

HOPKINS v. SHROLE.

THE Plaintiff who was tenant to the Defendant, not having paid his rent when it became due, was diftrained upon; foon after the rent was tendered together with the cofts, but being refused by the Defendant, the Plaintiff replevied and entered in arrear, toge into the ufual bonds to profecute his fuit, which he accordingly

of replevin, unlefs upon payment of the rent

ther with all

cofts, though the

arrears were tendered before re

plevin with costs up to that time.

did.

Williams Serjt. on a former day moved to stay proceedings in the action of replevin, on payment by the Plaintiff of the rent in arrear, together with cofts up to the time of the tender made. He cited Vernon v. Wynne, 1 H. Bl. 24. and obferved, that as the Plaintiff was obliged by the replevin bond to proceed, he ought not to be called upon to pay the cofts of the action.

Sed per Curiam. There is no ground on which we can allow this application (a). If a tenant neglect to pay his rent when due he muft fuffer for it. In Vernon v. Wynne the motion was made on payment of the cofts of the action.

Williams on hearing this moved to ftay proceedings on pay ment of the rent in arrear and cofts up to the time of the application; and accordingly a rule nifi was granted. Against this Heywood Serjt. now fhewed caufe, and objected that the motion was only made to defeat the Defendant in replevin of his double cofts, and that the Plaintiff' ought therefore to pay the cofts out of pocket. He fuggefted that another object might be to prevent the avowant going to trial at the next aflizes, fince perhaps the Plaintiff would never draw up his rule.

(a) Tender upon the land before a diftrels maketh the diftrefs tortious; tender after the diftress and before the impounding, maketh the detainer and not the taking wrongful; tender after the impounding maketh neither the one nor the other

wrongful, for then it comes too late, be caufe that then the cafe is put to the trial of the law, to be there determined. 8 C. 147. a. Six Carpenters' cale, 5 Co. 96.a. Pilkington's café, 2 Inft. 107.

The

The Court however thinking the application reasonable made the rule abfolute on the following terms.

On payment within a fortnight of the rent due, and
cofts up to the present time, including the cofts of
the application, all proceedings to ftay, and that if
the money be not paid within a fortnight, the avow-
ant to be at liberty to proceed, and the Plaintiff to
plead in bar inftanter and take short notice of trial.

1799.

HOPKINS

V.

SHROLE.

ROGERS V. JENKINS.

A Claufum fregit having iffued againft the Defendant at the

Feb. 12th.

If process be

ferved in the name of one

livered in the

bad.

fuit of T. Rogers and J. Barber, a fummons was made out in the fheriff's office at the fuit of T. Rogers only, and ferved on Plaintiff, and dethe Defendant; to which he entered an appearance: on dif- claration be decovery of the mistake another fummons was made out at the fuit name of two, it of both Plaintiffs, and ferved on the Defendant, but not till is four days after the writ was returnable; to this no appearance was entered: a declaration was afterwards delivered in the name of both Plaintiffs, and judgment was figned for want of a plea. Le Blanc Serjt. having on a former day obtained a rule nifi for fetting afide this judgment for irregularity,

Runnington Serjt. now fhewed caufe, and contended, ift, That any irregularity in the fervice of the procefs was waved by appearance (a). 2dly, That the variance was immaterial, it having been determined in Hally v. Tipping, C. B. 3 Wilf. 61. that if a Plaintiff arreft a Defendant in his own right, he may declare against him as executor if he will wave his bail, and in Lloyd v. Williams, C.B. 3 Wilf.141. 2 Black 722. S. C. that a Plaintiff who has fued out a capias in his own name, may declare qui tam. (b)

(a) Vid. Fax v. Money, ante, 250. and Davis v. Orven, ante, 344. But a defect in proceedings cannot be waved. So the writ may be general and the count as executor or affignee of the sheriff, Hainey v. Sparing, 10 Geo. 3. C. B. Impey's Prac. C. B. ed. 4. p. 233. Goodwin q. t. v. Parry, 4 Term Rep. 577. and Huffey v. Wilfon, 5 Term Ref.254.

(b) Vid. etiam The Weavers' Company q.t. v. Forrest, 2 Str. 1232. But where the process is to answer the Plaintiff in a special character, he cannot declare generally. Thus, if the process be qui tam, Canning v.

Sed

Davis, 4 Burr. 2417. or in the names of
affignees, Meggs and Another, Affignees
of Cockran, v. Ford, E. 25 Geo. 3. Tidd Pr.
225. in notis, the Plaintiffs cannot declare
in their own characters. It is faid how-
ever in the cafe of Lloyd q. t. v. Williams,
as reported 2 Bl. 722. that Yates J. in the
cafe of Canning v. Davis, made this dif-
tinction, that though a Plaintiff style him-
felf executor or give himself any other fu-
perfluous defcription in the procefs it will
not hurt, for the demand is fill the fame,
but that in the cafe before him the very
nature of the demand was altered, the pro-

cefs

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