the parlour a carpet, &c., growing crops of corn in a field called S. &c. and should make return thereof, if return should be adjudged, and should indemnify the sheriff and his officers for replevying the said goods and chattels. The declaration stated the condition to be, that defendant should prosecute with effect his action against the plaintiff, for taking and unjustly detaining defendant's goods and chattels in the said condition mentioned, and should make return thereof, if return should be adjudged, and should indemnify the sheriff and his officers for replevying the said goods and chattels : held, that this was no variance. (a)

Debt lies by the assignee of a replevin bond against one of the sureties in the detinet only. And where they declared that at the city of C. and within the said jurisdiction of the mayor of the city, they distrained the goods of W. H. for rent, and that W. H. at the said city, made his plaint to the mayor, &c. and prayed deliverance; whereupon the mayor took from him, and the defendant, and another person, a bond, which they all three executed, conditioned for W. H. appearing before the mayor or his deputy at the next Court of Record of the city, and there prosecuting his suit, &c. and thereupon the mayor replevied, &c. Held, that it was not ground for special demurrer, that the declaration did not shew a custom for the mayor to grant replevin, and take bond, and did not shew that plaint was made in Court. (b)

A defendant in replevin does not, at law, by giving time to the plaintiff in replevin, discharge the sureties in the replevin bond. (c)

But in the above case, the Court of Exchequer granted an injunction to restrain the landlord from proceeding at law on an assignment of the replevin bond against the sureties, there appearing to have been an agreement to refer, and a reference between the landlord and tenant (without the concurrence of the surety) of the matters in difference, whereby the performance of the condition of the land (to proceed with effect) has been suspended. (d)

Notwithstanding this decision of the Court of Exchequer, the cause was tried in another shape before the Court of Common Pleas. The plaintiff declared as assignee of a replevin bond against the surety; the declaration alleged that a return of the goods was ad

(a) Glover v. Coles, 1 Bing. 6. 7 Moore, 231 S. C.

(b) Wilson v. Hobday. 4 M. & S. 120.

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

(d) Bowmaker v. Moore, 3 Price, 214.

judged, but that S. the plaintiff in replevin, did not make return. The defendant pleaded, 1st. that the judgment was obtained by the plaintiff by fraud, in collusion with S.; 2dly, that before judgment obtained, all matters in difference between the plaintiff and S. were referred to arbitration, pending which the proceedings were staid. Held, that the first plea, not stating that the judgment was obtained for the purpose of defrauding the sureties, was no answer to the action; and that the second plea was bad, since the reference was as much for the benefit of the sureties as the principal, and therefore no prejudice could arise to them from the delay. (a) But upon this cause coming again before the Court of Exchequer, they granted a perpetual injunction against the defendant in equity, to restrain him from suing on the replevin bond, on the ground that the circumstances affected the conscience of the defendant in equity : because the suit was in point of fact delayed, and the surety placed in a different situation by the delay, which might have been prejudicial to him, whether it actually was so or not. (b)

The plaintiff and defendant in a replevin suit referred the cause to an arbitrator, and agreed, without the privity of the sureties, that the replevin bond should stand as a security for the performance of the award: Held, that the sureties were discharged. (c)

Allowing two years to elapse without proceedings, held to be a breach of the condition in a replevin-bond to prosecute the replevin without delay, and that the obligee might recover on such breach, although judgment of non pros. was never signed in the County Court. (d)

By 11 G. 2. c. 19. s. 23. the sheriff, on taking a replevin bond, must ascertain the value of the goods distrained, on oath. Where the under-sheriff administered the oath to A. B., the broker, and there was also written on the margin of the replevin bond, "A. B. maketh oath, that the value of the goods within specified is 497. 168." Held, that this was a mere memorandum, and did not require an affidavit stamp. (e)

In an action by the assignee of the sheriff on a replevin bond, conditioned for the plaintiff in replevin to appear at the County Court, and prosecute his suit with effect, and make a return of the

(a) Moore v. Bowmaker, 7 Taunt. 97. S. & P. 285. S. C.

C. 2 Marsh. 392. S. C.

(b) Bowmaker v. Moore, 7 Price, 225. (c) Archer v. Hale. 4 Bing. 464. 1 M.

(d) Axford v. Perrett. 4 Bing. 586. 1 M. & P. 476.

(e) Dunn v. Lowe. Bing. 193.

goods distrained, if it should be adjudged; and the plaintiff in replevin, after removing the plaint into the Common Pleas, became nonsuit; it was held, that he had thereby not prosecuted the suit with effect, and that the condition of the bond was broken; that the avowant had his election of proceeding by a writ de retorno habendo, or issuing a writ of inquiry under the statute 17 Car. 2. c. 7. s. 2. Therefore, where to a declaration against one of the sureties on the bond, averring that the plaintiff in replevin did not prosecute his suit with effect, a plea, stating the writ of inquiry and judgment to recover the arrears found under 17 Car. 2. c. 7. 8. 2. is no bar to the action on the bond, and is bad on general demurrer, it not shewing that any execution had issued on the judgment, or that the sum recovered had been levied and paid to the avowant before action brought. (a)

Declaration in debt by the assignee of a replevin bond, set out the condition, which was, that "if B. appeared at the then next County Court, and there prosecuted his suit without delay against I., the bond to be void;" averment, "that B. did not appear, &c." Plea, first, non est factum, and issue thereon; second, "that B. did appear and prosecute, &c. ;" and third, "that B. did appear at the then next County Court, and prosecute, &c." and which said suit is still depending and undetermined. Replication to the second and third pleas, traversing the appearance and prosecuting of the suit, but not traversing the allegation that the suit was still depending and undetermined, and issue on the replication: Held, on these pleadings, that an agreement (which was made a rule of this Court) between plaintiff and the principal to stay all proceedings in the replevin, upon payment by the latter of a certain sum of money, each party to pay his own costs, was admissible evidence to negative the allegation in the third plea, that the suit was still depending and undetermined, and that the surety was not discharged by such agreement, after breach by the principal, but was liable for such sum as appeared, upon a reference, to be due. (b)

Though a replevin bond be executed by one of two sureties only, it is nevertheless available by the sheriff against such surety; (c)

(a) Turnor v. Turner, 4 Moore, 606. 2 & Ryl. 343. Brod. & Bing. 107. S. C. (c) Austen v. Howard, 7 Taunt. 28. 2 (b) Hallett v. Mountstephen, 2 Dowl. Marsh. 352. S. C.

but it seems not to a greater amount, than a moiety of the rent and costs. (a)

One of the sureties in a replevin bond, being a material witness in the cause, the Court granted a rule for substituting another surety in his place, upon giving the defendant's attorney notice of such rule. (b)

In debt upon a replevin bond, assigning for breach the not making a return of the goods distrained for rent, the plaintiff may, after signing judgment against the defendant for not returning the demurrer book, tax the costs and issue execution for them, and the amount of the goods distrained as indorsed on the replevin bond, without executing a writ of enquiry. (c)

The Court will not set aside proceedings on a replevin bond because the action is commenced before breach, for it may be pleaded. (d)

After a nonsuit for a variance in an undefended action on a replevin bond, the Court will permit the declaration and record to be amended, and a new trial had. (e)

Interest is not allowed on the affirmance of a judgment in an action on a replevin bond. (ƒ)

CHAPTER XIX.

REMEDIES FOR TENANTS AGAINST LANDLORDS.

Of the Remedies for an unfounded, irregular, or excessive Distress.

SECTION I. For Rent pretended to be Arrear.

SECTION II. For other supposed Right to distrain.

IT has been seen that where the goods or cattle of a person have been taken as a distress, whether on the ground that they are liable

(a) Austen v. Howard, 7 Taunt. 327. 1 (c) Middleton v. Bryan. 3 M. & S. 155. Moore, 68. S. C. (d) Anon. 5 Taunt. 776. (b) Bailey v. Bailey, 1 Bing. 92. 7 (e) Halhead v. Abrahams, 3 Taunt. 81. Moore, 439. S. C. (f) Anon. 4 Taunt. 30.

for rent-arrear or damage-feasant, the party so distrained upon may contest the distrainer's right by an action of replevin; beside that action, however, the law affords other remedies where the distress is unfounded; these are by action of trespass de bonis asportatis, or quare clausum fregit, for damages; or trover for the value of the thing distrained.

Trespass quare clausum fregit was the remedy commonly resorted to of old, not merely as a remedy for a distress wrongfully taken, but as a means of trying the title to lands and tenements, the title frequently coming into question in the course of that action; that action, however, has of late years been in some degree superseded by that of replevin in the one case, and ejectment in the other.

Still, however, these actions of trespass, and that of trover, are open to the party who means to contest the validity of a distress. The proceedings have in effect much similarity; but in respect to proof of title, (where the distress was for damage-feasant,) the action of replevin being more strict than that of trespass for taking and carrying away the goods, the latter remedy is often preferred.

SECTION I. Remedies for unfounded Distress for Rent pretended to be Arrear.

To entitle a man to bring trespass he must, at the time when the act was done which constitutes the trespass, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession in respect of the right being actually vested in him. (a)

This action lies for an unlawful taking; as if the distress be made at night. So, if beasts of the plough had been taken when other sufficient distress could have been had. So, if doors have been broken open (or enclosures thrown down) to make it, for the outer door can in no case be broken open, except under the direction of stat. 11 G. 2. c. 19. of which we have before treated. But in distress for rent, if the outer door be open, the person dis

(a) Burser v. Martin. Cro. Jac. 46. Smith v. Milles. 1 T. R. 450.