of the writ; but that the said plaintiffs did not, nor would, appear in K. B. on the day prefixed to them by the sheriff for that purpose, or at any other time, but wholly neglected and refused so to do, and had not as yet appeared to the said writ. Plea 2d, that the sheriff, in pursuance of the writ of re. fa. lo. mentioned in the declaration, recorded the plaint, returned it, prefixed the day of the return to both parties, and summoned the (now) plaintiffs to appear in the King's Bench to proceed in the plaint; and that Wardle was ready to proceed, but the plaintiffs did not appear, as before. To the first plea there was a general demurrer; to the second a replication, that the sheriff did not summon the plaintiffs to appear, as in the plea alleged, concluding to the country. To this there was a rejoinder, by way of estoppel, that the plaintiffs ought not to be admitted so to reply, because the sheriff, before the assignment, returned to the re. fa. lo., “that he had prefixed a day to the parties, that they might be ready to proceed in the plaint, as he was commanded." General demurrer to the rejoinder. This case was argued in Easter term (a). The R. V. Richards in support of the demurrers. first plea is insufficient, because it merely shews that Wardle appeared in Court at the return of the writ, and was ready to proceed in the suit, and prosecute the same with effect, without shewing that he did so, or how the suit was disposed of. It states further, that the sheriff returned that he had prefixed a day to the parties, that they (a) Before Denman C. J., Littledale and Parke Js. 1833. HARRISON against WARDLE 1833. HARRISON against WARDLE. might be ready to proceed with the plaint, but it does not allege that the sheriff had in fact summoned the defendants in replevin to appear. In Dalton's Office of Sheriffs, p. 272., it is said, "that the sheriff is first to record the suit in full court, and then to return the same under his own seal, and the seals of four suitors of the same court, and after, the sheriff is to summon the defendant to be there at the day of the return thereof." It was the duty of the sheriff, therefore, to summon the defendants; and the duty of the obligor of the bond was to see that it was done. In Brackenbury v. Pell (a), where the plea to a declaration on a replevin bond stated, that the suit was still depending and undetermined; and the plaintiff replied, "that the defendant did not prosecute his suit as in the plea mentioned, but wholly abandoned the same, and that the said suit is not still depending;" on special demurrer it was held, that the replication was insufficient, for not shewing how the suit was determined and had ceased to depend. In Morgan v. Griffith (b), it was said by Lee C. J., "that in all replevin bonds there are several independent conditions," one of which is to prosecute with effect, and a breach may be assigned on non-performance of any. Gwillim v. Holbrook (c), and Axford v. Perrett (d), shew that the condition of a replevin bond is not satisfied by a prosecution of the suit in the county court; but the plaint, if removed by re. fa. lo. into a superior court, must be prosecuted there with effect and without delay. And it appears from Vaughan v. Norris (e), and Turnor v. Turner (g), that the plaintiff in a replevin suit so removed, by becoming (a) 12 East, 585. (c) 1 Bos. & P. 410. (b) 7 Mod. 380. (e) Cas. temp. Hardw. 137. (d) 4 Bing. 586. nonsuit, nonsuit, fails to prosecute his suit with effect. The rejoinder to the replication to the second plea is bad, because the sheriff's return to the re. fa. lo. is no estoppel in this action, which is not between the same parties as the replevin suit, for the sureties in the replevin bond were no parties to the suit in replevin. Follett contrà. Wardle, the plaintiff in replevin, having appeared in Court at the return of the writ, and been then ready to prosecute his suit with effect, has done all that, by law, he was required to do. It is true that the conditions of the bond are distinct and independent. But assuming that it was the duty of the sheriff to summon the defendant in replevin, he returned that he had prefixed the same day (i. e., the day of the return of the re. fa. lo.) to the parties, that they might be ready to proceed with the suit in the court above. From that it may be inferred, that he had summoned the defendants in replevin, as his duty was; and, if so, it then was their duty to enter an appearance. The question is, whether, when the defendant in replevin does not appear on the return of the re. fa. lo., the plaintiff is bound to take any other step. [Parke J. If the defendants did not appear, the plaintiff in replevin might have sued out a distringas to compel them. By the condition of the bond, he is bound to do all he can to prosecute his suit with effect, and without delay.] The general rule is, that the condition of the bond is not broken, until the action be determined in favour of the landlord, Brackenbury v. Pell (a). It lies on the plaintiffs here to shew that it was legally determined in their favour, so as to 1833. HARRISON against WARDLE. establish the breach alleged, that it was not prosecuted with effect. In The Duke of Ormond v. Bierly (a), the breach assigned was, that the action brought on a replevin bond was not prosecuted with effect. The defendant pleaded, that E. G. levied a plaint in replevin, and died before the suit was determined, whereby the suit abated: the plaintiff replied, that although E. G. levied such a plaint against the defendant, the defendant, by injunction, hindered the proceedings until E. G. died. Upon demurrer to the replication, the defendant had judgment, for per Holt C. J. "This was a prosecution with effect, because there was neither a nonsuit nor verdict against E. Y." In Vaughan v. Norris (b), and Turnor v. Turner (c), the plaintiff in replevin was nonsuited, and the action was thereby terminated. It appears, therefore, plainly established, that the suit must be determined against the tenant before it can be said that there is any breach of the condition of the bond. In Brackenbury v. Pell (d), a replication, stating that the replevin suit was abandoned, without shewing how, was held to be bad on special demurrer. In Axford v. Perrett (e), it appeared that the defendant had taken no step in the replevin cause for more than two years; and after verdict for the plaintiff it was held, that after the time which had elapsed without any proceedings, the replevin cause, by analogy to the practice of the higher tribunals, was out of Court; but here there is nothing to shew that the cause is not depending. The plaintiff ought to have shewn that it was actually determined. [Parke J. Where the breach assigned is that the plaintiff in replevin did not pro (a) Carth. 519. (c) 2 Brod. & B. 107. (b) Cas. temp. Hardw. 137. (d) 12 East, 585. secute secute his suit with effect, it is a sufficient answer to shew that that suit is still pending; but it is no answer where the breach also is, as in this case, that he did not prosecute it without delay.] The plea shews, that the delay arose from the act of the plaintiffs. Then, as to the rejoinder to the replication to the second plea, the plaintiffs are assignees of the sheriff; and if he would be estopped by his return, in an action on the replevin bond, they must also be. Having returned that he has prefixed a day to both parties to be in Court to prosecute their suit, he would be thereby estopped from saying that he did not summon either of them. Assuming, however, that the return is not an estoppel in this action, and that it must be taken, on the replication to the second plea, that the plaintiffs were not summoned to appear in the Court of King's Bench; still, as the plea shews that the sheriff was commanded by the re. fa. lo. to have the record in the King's Bench on the morrow of All Souls, and to prefix the same day to the parties, that then they might be ready to proceed in the plaint, his omission to summon the plaintiffs to appear in the King's Bench is his default, and not that of Wardle. The latter, therefore, has not committed a breach of the condition to prosecute his suit without delay; for the plea alleges that he was ready to prosecute it. Richards in reply. The replevin suit was removed into the Court of King's Bench in Michaelmas term 1829. The plaintiff in replevin having since taken no proceedings in the suit, has committed a breach of the condition of the bond by not prosecuting without delay. In Axford v. Perrett (a), where the plaintiff in (a) 4 Bing. 586. replevin 1833. HARRISON against WARDLE. |