I A. B. of Oath of Value, 11 Geo. 2, c. 19. farmer make oath and say that I know the cattle goods and chattels taken and detained as is alleged and verily believe the same to be of the value of £- and upwards.a W. to wit. Warrant to Replevy. Sheriff of the county of to and my bailiffs and to every of them jointly and severally greeting: Whereas A. B. hath found me sufficient security as well for prosecuting his suit with effect against C. D. for taking and unjustly detaining his cattle goods and chattels to wit &c. which the said C. D. had taken and unjustly detains as it is said as also for making return thereof if return thereof shall be adjudged; therefore on behalf of the said A. B. I command you and every of you jointly and severally that without delay you replevy and cause to be delivered to the said A. B. his said cattle goods and chattels; and in what manner you shall have executed this precept certify to me immediately after the execution thereof. Given under the seal of my office this A.D. 18 day of By the Sheriff. [Or, if granted by a deputy, say, "By L. H. one of the deputies of the said Sheriff according to the form of the statute."] Replevin Bond.b Know all men by these presents that we firmly bound to Sheriff of the county of a Ante, 37. bThe Sheriff, notwithstanding the 9 & 10 Vict. c. 95, 119, still takes this bond; Edmonds v.Challis, 7 K.B.437. Although not in all points conformable to the directions of the statute, it seems good and assignable; Austin v. Howard, 7 Taunt. 28; 2 Marsh. 352: for instance, a bond conditioned to prosecute the suit with effect and to indemnify the Sheriff is good and assignable although not conditioned likewise for prosecuting the suit without delay, Dunbar v. Dunn, 10 Price, 54; so a bond conditioned for appearance at the next County Court, prosecuting the plaint with effect, making a return if adjudged, and indemnifying the Sheriff from all charges and damages by reason of the replevin, was good and assignable, Short v. Hubbard, 2 Bing. 349. In Miers v. Lockwood, 9 Dowl., Coleridge, J., seems to have doubted whether a bond with an indemnity clause in it was assignable. It may be assigned to the avowant only, who may bring his action upon it without joining the party making cognizance, Archer v. Dudley, 1 B. & P. 381; or the assignment may be to both and the action joint, Phillips v. Price, 3 M. & S. 180. A defendant was not entitled to an assignment of the bond on the plaintiff's neglecting to declare at the next County Court, if he himself occasioned it; as by not appear are jointly and severally held and in the sum of £ [a suffi If ing to the summons, and if he obtained an assignment and brought his action, the Court would stay proceedings, Seal v. Phillips, 8 Price, 17; and see Harrison v. Wardle, 5 B. & Ad. 146. the proceedings have been stayed by injunction, and in the meanwhile the plaintiff dies, the defendant is not entitled to an assignment of the bond. The act of God will in no case work a forfeiture, 2 Q. B. infra. The conditions of the bond are distinct and independent of each other, and a breach of any one of them will occasion a forfeiture, Perreau v. Bevan, 8 D. & R. 88. The term prosecuting a suit with effect means with success, and relates to one continued prosecution of the suit, whether in the district Court or in the Court above; Jackson v. Hanson, 8 M. & W. 477; Morris v. Matthews, 2 Q. B. 300; Rider v. Edwards, 3 Sc. N. C. 463. To fulfil the condition to prosecute without delay the plaintiff must use due diligence, Harrison v. Wardle, 5 B. & Ad. 146; the allowing two years to elapse without proceedings amounts to a breach thereof, Axford v. Perrett, 1 M. & P. 472. If the delay be occasioned by the act of the Sheriff, the bond is not forfeited, Harrison v. Wardle, supra; but where the plaint was removed by re. fa. lo., and the plaintiff in replevin appeared, and the defendant did not, held cient sum to cover the value of the cattle distrained if taken damage feasant; if for rent, then double the value of the cattle taken] to be paid to the said Sheriff or his certain attorney executors administrators or assigns; for which payment to be well and truly made we bind ourselves and each of us and each and every of our heirs executors and administrators firmly by these presents. Sealed with our seals. Dated this day of A.D. 18-. THE CONDITION of this obligation is such that if the above-bounden A. B. do prosecute his suit with effect and without delay against C. D. for the taking and unjustly detaining of his cattle &c. to wit &c. and do return the said cattle &c. if a return thereof shall be awarded; that then this present obligation shall be void and of none effect or else to be and remain in full force and virtue. Sealed &c. A. B. (L. S.) G. A. (L. s.) T. R. (L. s.) Assignment of Replevin Bond to be indorsed on the Bond. Know all men by these presents that I Sheriff ["Under-sheriff" or "Replevin Clerk"] of the county of do hereby at the request of the above-named C. D. [the avowant or the person making cognizance] assign over unto him the said C. D. the within replevin bond according to the statute in such case made and provided. Dated &c. [Seal of office &c.] G. A. Indorsed and attested under his hand and seal by the said G. A. in the presence of us E. If the goods cannot be taken by the first replevin, an alias, a pluries, and then a toties quoties may issue. If none of these will do, then a withernam. The withernam thus issues: upon a return of elongata to the toties quoties, the Sheriff summons a jury, and holds an inquisition, as in other cases; and if it be so found, this precept issues to the Bailiff; and, if necessary, an alias and pluries Alias and ad infinitum. He must take the posse comitatus, if need be. pluries. TO CARRY OUTLAWRY INTO EFFECT IN THIS COURT is partly the Outlawry. duty of the Sheriff, and partly that of the Coroner of the county; the former in a ministerial, the latter in a judicial character; the former to execute and return writs, make proclamations, &c.; the latter to pronounce judgment of outlawry. Victoria &c. to the Sheriff of C. D. late of Exigi Facias.a in the county of greeting: We command you that you cause that subsequent delay was not a breach of the bond. Ibid. Where an assignment was not signed by the Sheriff, but by a person accustomed to act in the Sheriff's office, in the name of the Sheriff, and under the seal of the office, it was held sufficient, Middleton v. Sandford, 4 Camp. 36. a The distringas is abolished by the Common Law Procedure Act, 15 & 16 Vict. c. 76, s. 24. After the return of non est inventus to ca. sa. this writ issues; a ca. sa. for this purpose must be both tested and made returnable on a day certain in term time. It is sufficient if Mode of Husting (if in London; if not, say "from County Court to County Court"] until according to the law and custom of England he be outlawed if he do not appear; and if he do appear then that you take him and him safely keep so that you may have his body before us [C. P. "before our justices" Exch. "before the barons of our said Exch."]at Westminster on to answer to A. B. in an action of contract at the suit of the said A. B. and whereupon you returned to us [C. P. "to our justices" Exch. "to our barons"] at Westminster on- last past that the said C. D. was not found in your bailiwick and that he had nothing in your bailiwick by which he could be distrained and have there this writ. Witness &c. This writ requires the Sheriff to call the party from County Court to County Court, or from Hustings to Hustings (as the case may be) till he is outlawed. If the Sheriff neither bring in executing it. the party, on a caption, or render before the outlawry, or render a complete outlawry at the time that the writ of exigent is returnable, he has not complied with the writ, nor done his duty.a Where there is neither a caption nor a render, the Sheriff, having the writ actually in his possession, at the respective times the party is demanded at five successive County Courts or Hustings exacts or calls the party in the following manner : с C. D. appear and answer A. B. in an action of contract [or "tort," as the case may be], or judgment of outlawry [or "waiver"] will be pronounced against you. After the exactions have been made, the Coroner (the Recorder in London), taking the exigent in his hand, in this form pronounces upon the delinquent Judgment of Outlawry. Forasmuch as C. D. the defendant named in this writ of exigent hath been duly exacted at five successive County Courts [or "Hustings"] and hath not appeared nor been taken or rendered his body to the Sheriff of this county of W. Therefore we pronounce him outlawed [or "waived"]." After judgment of outlawry pronounced, the writ of exigent, together with the judgment of outlawry, is returned to the custos brevium. The Clerk of the Outlawries, on receiving the exigent and return thereto, will make out the capias utlagatum. Return to Exigi Facias. By virtue of this writ to me directed at my County Court held at for the county of -on the aforesaid on the in and day of [in London, "at the Husting of pleas of land holden in the Guildhall of the city of London on -"] in the year within written the within-named C. D. was a first time demanded and did not appear: And at my County Court held at day of in the year aforesaid the said C. D. was a second time demanded and did not appear: And at my County Court held at day of in the year aforesaid the said C. D. was did not appear: And at my County Court held at a The King v. Yandell, 4 T. R. 533; Plowd. 371; 3 Lev. 245; 2 B. & C. 353. b Volet v. Waters, 3 D. & R. 55. aforesaid on the a third time demanded and aforesaid on c 2 B. & C. supra. the d This judgment need not be signed by the Coroner. The King v. Yandell, 4 T. R. 533. day of in the year aforesaid the said C. D. was a fourth time demanded and did not appear: And at my County Court held at aforesaid on —— the day of in the year aforesaid the said C. D. was a fifth time demanded and did not appear: Therefore by the judgment of Esq. coroner of our sovereign lady the Queen for the county aforesaid the said C. D. according to the law and custom of England is outlawed. If not at all in the time of the same Sheriff, thus: By virtue of this writ to me directed at my [&c. and conclude his return with "The answer of Sheriff" and conclude by stating the times when called by the present Sheriff thus:] This writ so indorsed was delivered to me the present Sheriff by the above-named Sheriff on his going out of office. At my County Court &c. Where the Defendant appears. on the day of A.D. in and By virtue of this writ to me directed at my County Court held at for the said county of the withinnamed C. D. was a first time demanded; and then and there appeared and then rendered himself into my custody; whose body I have ready before our lady the Queen at the day and place within contained as within I am commanded. was de Victoria &c. to the Sheriff of greeting: We command you that allowing those County Courts [or "Hustings"] at which C. D. late of manded and did not appear as you returned to us ["to our justices" or "to the barons of our Exchequer"] at Westminster on last past you cause the said C. D. to be further demanded from County Court to County Court [or "from Husting to Husting"] until according to the law and custom of England he be outlawed if he do not appear; and if he do appear then that you take him and him safely keep so that you may have his body before us [" before our justices" or before the barons of our said Exch."] at W. on —— to answer A. B. in an acat the suit of the said A. B. and have there this writ. Witness tion of &c.b Capias Ullagatum. 66 Victoria &c. to the Sheriff of greeting: We command you that you omit not by reason of any liberty of your bailiwick but that you enter the same and take C. D. late of being outlawed in your said county on &c. at the suit of A. B. in an action of [if the writ issue into a county different from that in which the defendant wus outlawed say 66 as our Sheriff of returned to us (or in C. P. to our justices' or in Exch. 'to our barons of our Exchequer') at W. at a certain day now past"] if he shall be found in your bailiwick and him safely keep so that you may have his body before us [or "before our justices" or "before the barons of our said Exch."] at W. on &c. to do and receive what our said Court for "justices" or "barons"] shall consider of him in this behalf and have there this writ. Witness &c. Return. The execution of this writ appears in a certain inquisition to this writ annexed. • See M'Taggart v. Wedderburn, 2 D. & L. 580. b A writ of proclamation is not necessary. Cro. Jac. 577. Inquisition thereon. in the W. (to wit.) An inquisition indented taken at in the county of W. on the day of -year of the reign of our sovereign lady Victoria before me Sheriff of the said county by virtue of the Queen's writ to me directed and to this inquisition annexed upon the oath of A. B. C. D. E. F. &c. honest and lawful men of my bailiwick who being sworn and charged to inquire of all such matters and things as in the said writ are mentioned and contained on their oath say that C. D. in the said writ to this inquisition annexed on on which day he was outlawed in the said county at the suit of A. B. in an action of whereof he is convicted was and yet is possessed of the goods and chattels following that is to say of the value of £as of his own proper goods and chattels [or "had nor hath any goods or chattels in my bailiwick to the knowledge of the said jurors"]: And the jurors aforesaid upon their oath aforesaid do further say that the said C. D. on last past (on which day he was outlawed as aforesaid) was and yet is seised in his demesne as of fee [as the case may be] of and in one messuage and 100 acres of land with the appurtenances situate in the parish of in the said county now in the tenure and occupation of T. R. of the yearly value of £ in all issues beyond reprises: all and singular which said goods chattels tenements and premises I the said Sheriff by virtue of the said writ on the said day of the taking of this inquisition have taken and caused to be seized into the hands of our said lady the Queen as by the said writ I am commanded: And the jurors aforesaid upon their oath aforesaid do further say that the said C. D. on last past (on which day he was outlawed as aforesaid) or at any time afterwards had not nor hath he any other or more goods chattels lands or tenements in my bailiwick to the knowledge of the said jurors. In witness whereof as well I the said Sheriff as the jurors aforesaid have severally set our respective seals to this inquisition on the day and year and at the place aforesaid. [Signatures and seals of the Sheriff and jurors.]a Venditioni exponas. greeting: Whereas by an inquisition indented in your county on the day of in the Victoria &c. to the Sheriff of taken before you at year of our reign by virtue of our writ of special capias utlagatum under the seal of our Court of Q. B. [or "C. P." or "Exch. of Pleas"] to you the said Sheriff directed and delivered whereby we commanded you to inquire what goods and chattels lands and tenements C. D. late of had in your bailiwick the day of then last past or at any time afterwards on which day he was outlawed in your said county at the suit of A. B. in an action of it was found by the oaths A. B. C. D. E. F. and other good and lawful men of your said county that C. D. in the said writ named on the day of then last on which day he became outlawed and on the day of taking the said inquisition was possessed as of his own proper goods and chattels of and in the several goods and chattels particularly mentioned and expressed in the schedule or inventory thereof hereunto annexed which said goods and chattels were worth to be sold the sum of £- all which said goods and chattels you the said Sheriff by virtue of our said writ on the day of taking the said inquisition did seize and take into our hands as by the said writ and inquisition taken thereupon transcribed into our Court of Exchequer and there remaining in the custody of our remembrancer more fully appears: And we being desirous to be satisfied of the value of the said goods and chattels in the said inqui a When the capias utlagatum and the Sheriff's return have been filed, a transcript of it is made out by him; the transcript is then taken to one of the clerks in the Exchequer, who makes out the venditioni exponas commanding the Sheriff to sell the goods; a levari facias to extend his freehold land; and a sci. fi. to recover debts due to the defendant; or a sequestration as the case may be; Rex v. Hind, 1 Dowl. 286. If the proceeds of the sale do not amount to 50l. the Court of Exchequer will on motion order the Sheriff to pay it over; if they exceed 50l. a petition must be sent to the Lords of the Treasury. |