BONDS. [⚫ 220] Replevin granted. ON REPLEVIN judged by law (w), and should well and truly keep harmless and indemnified (x) the said sheriff of his under-sheriff, deputy, and bailiffs, touching and concerning the replevying and delivery of the said goods and chattels, then the said obligation was to be void *and of none effect, otherwise to be and remain in full force. And thereupon the said sheriff afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, at the prayer of the said G. H. replevied and made deliverance of the said goods and chattels to the said G. H. according to the duty of his Plaint in coun- said office. And afterwards, to wit, at the then next county court for ty court. the said county of, &c. to wit, at the county court of the said sheriff, year of the reign of our said lord the king, in the court of our said lord the king, before the king himself, by, his attorney, declared against the said A. B. in the said plea of taking and unjustly detaining his goods and chattels, and by the said declaration, he the said G. H. by the said his attorney, complained that the said A. B. on, &c. aforesaid, at, &c. aforesaid, in a certain street or place there, called took the goods and chattels following, to wit, [here recite the goods as in the declaration,] *and them unjustly detained against sureties and pledges, &c. To the damage of the said G. H. of L., and therefore he brought his suit, &c. And afterwards, to wit, in that Term, in the year of the reign, &c. in the said court same chattels mentioned in the schedule or pledges under the 11 Geo. 2. c. 19. s 23. Id. ibid. (2) It is usual to state the avowry or (x) As to this part of the condition, cognizance, in order to shew that the see 1 Lutw. 687. (y) These pledges are taken under the statute Westminster 2. 13 Ed. 1. c. 2. See Gilb. 98. and are not the plaintiff is entitled to sue under the 11 Geo. 2. c. 19. s. 23.; see 1 B. and P. 378. 5 T. R. 196.; but this does not seem necessary, it being sufficiently of our said lord the king, before the king himself, (the said court then ON REPLEVIN and still being holden at Westminster, in the county of Middlesex, the BONDS. said A. B. by his " attorney, came and defended the wrong and injury, when, &c. and well avowed the taking of the said goods and chattels in the said declaration mentioned, in a certain messuage or dwelling-house, with the appurtenances, situate and being in &c. in the said street or place there, called, &c. and justly, &c. because he said that one L. M. for a long space of time, to wit, for the space of next before, and ending on —, and from thence until and at the said time when, &c. held and enjoyed the said messuage or dwellinghouse, in which, &c. with the appurtenances, as tenant thereof, to the said A. B. by virtue of a certain demise thereof, to the said L. M. theretofore made at and under the yearly rent of L., payable on, &c. in every year, and because L. -, part of the said sum of L.—, of the rent aforesaid, for the space of ending on, &c. as aforesaid, and from thence until and at the said time when, &c. was due and in arrear from the said L. M. to the said A. B. the said A. B. well avowed the taking of the said goods and chattels in the said declaration mentioned, in the said messuage or dwelling-house, and justly, &c. as for and in the name of a distress, for the said sum of L.due and in arrear as aforesaid, and which said sum of L. so due and in arrear to the said *A. B. still remains wholly due and unpaid. [* 222 ] And such proceedings were thereupon had in the said plea in the said Judgment for court of our said lord the king, before the king himself, at Westmin- replevin pro ster aforesaid, that afterwards, to wit, in of the reign, &c. in the said court of our said lord the king, before the king himself, it was considered and adjudged in and by the same court, that [the said G. H. should take nothing by his said plaint (a), but that he and his pledges to prosecute should be in mercy, &c. and that the said A. B. should go thereof without day, and that] the said A. B. should have a return of the said goods and chattels; as by the record and proceedings thereof now remaining in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears. And the said A. B. in fact, further saith, G. H. did not that the said G. H. did not make a return of the said goods and chat. tels, or any part thereof, according to the form and effect of the Term, in the SO year defendant in retorno haben do. return the goods. disclosed in the commencement of the declaration, that the distress was for rent, and that the condition of the bond was to proceed in an action of replevin against the plaintiff or to return the goods to him; see 5 T. R. 195, 197. and 7 Wentw. 21.-The declaration on the replevin bond, after stating the declaration in replevin, as above, may proceed immediately to the state- (a) Qu. if writ or plaint, see Com. BONDS. ON REPLEVIN said condition of the said writing obligatory (6), but hath hitherto wholly neglected and refused, and still wholly neglects and refuses so Whereby to do. Whereby the said writing obligatory became forfeited to the said bond forfeited E. F. so being sheriff of the said county of as aforesaid. And to sheriff, who assigns to the same being so forfeited, the said sheriff afterwards, to wit, on, &c. plaintiff. at, &c. aforesaid, at the request of the said A. B. by an indorsement, &c. [The statement of the assignment and conclusion of the declaration, are precisely the same as in the precedent, ante, 213 & 214, from the † to the end] 27. The like when the [When the declaration is for not prosecuting the action of replevin in the county court, proceed as in the last precedent, to the † 220, and then bond was foras follows:-] And although afterwards, to wit, on, &c. the county feited, by the replevin suit court of the said sheriff of the said county of not being pro- *at, &c. aforesaid, before secuted in the county court (c). [223] 28. For rent on a demise (d). and " was duly holden then suitors of the said court, the same being the next county court of the said sheriff of the said county of, after the making of the said writing obligatory as aforesaid, to wit, at, &c. aforesaid. Yet the said G. H. did not appear at the said county court, so holden next after the making of the said writing obligatory as aforesaid, and then and there prosecute his said action with effect against the said A. B. according to the form and effect of the said condition, but wholly omitted and neglected so to do. Whereby the said writing obligatory became forfeited, &c. [State the forfeiture and the assignment of the bond to the plaintiff, and proceed to the end, as in the last precedent.] [Commencement in debt, ante, 184. n. a.]-For that whereas the (b) The issuing of a writ retorno hadendo is sometimes stated, 7 Wentw. 1. but is unnecessary. Willes 6. 2 Sel. Prac. 267. (c) See 5 T. R. 195. As to the mode of shewing a determination of the suit in the county court, where the plaintiff in replevin appeared, but was afterwards nonsuited for not declaring, see 12 East. 585. (d) As to debt on leases, stating the lease, see vol. 1. Index, tit. Debt. 1 Rich. C. P. 454, 5. 2 Rich. C. P. 252. 259.265. 267. 270. When it is doubtful whether the demise were by deed, it is advisable to declare in the above form, stating the substance of the terms of the demise, and adding a count for use and occupation. It is settled that in debt for rent reserved by deed, the plaintiff may declare without stating the deed; (see the precedents and notes in 1 Saund. 276. n. 1. 202. 325. n. 4. Ld. Raym. 1503;) unless in case of a lease of tithes, or other incorporeal hereditaments, 2 Saund. 297. n. 1.— This is the only case in which the plaintiff is allowed to declare generally, and to produce a deed in evidence in support of such declaration, 1 New. Rep. 104. 109. When the declaration sets out the lease, it is similar to the declaration in covenant for rent, except in the commencement and conclusion, see post.-to which precedent, with the notes, the reader is referred, See a precedent of debt on the reddendum of a lease for tithes, 2 Saund. 296. and against an administrator on the reddendum in a lease of lands, 1 Saund. 1, 2. And in debt for rent on the reddendum of a lease to commence in future, 1 &c. said A. B. heretofore, to wit, on, &c. at, &c. demised to the said C. D. ON LEASES. a certain messuage, land, and premises, with the appurtenances, situate, &c. to have to hold the same to the said C. D. for a certain term of *years, to wit, for and during, and until the full end and term of twenty- [224] one years, then next ensuing, and fully to be complete and ended, yielding and paying therefore, during the said term, to the said A. B. the yearly rent of L.—, of lawful, &c. at the four most usual feasts, or days of payment in the year, that is to say, on, &c. by even and equal portions. By virtue of which said demise, the said C. D. entered (e) into the said demised premises, with the appurtenances, and was possessed thereof from thenceforth, until and upon the feast of St. Michael the Archangel, A. D. 1806, when (ƒ) a large sum of money, to wit, the sum of L.-, of the rent aforesaid, for the space of then elapsed, became and was due and payable from the said C. D. to the said A. B. and still is in arrear and unpaid to the said A. B. to wit, at, c. aforesaid. Whereby an action hath accrued (g) to the said A. B. to demand and have of and from the said C. D. the sum of L.——, parcel of the said sum above demanded.—And whereas also the 29. Count for said C. D. afterwards, to wit, on, &c. at, &c. aforesaid, was indebted, use and occuc. [The form of the indebitatus count in debt, will be as ante, 185, pation (h). and the subject matter of the debt, for use and occupation, will be as ante, 38, and the conclusion will be as ante, 187.] [Commencement in debt ante, 184. n. a.]-For that whereas hereto- 30. On an anfore, to wit, on, &c. at, &c. by a certain indenture then and there made nuity deed for arrears of the between the said A. B. of the one part, and the said C. D. of the other annuity (i). part, (which said indenture, sealed with the seal of the said C. D. the said A. B. now brings here into court, the date whereof is the day and year aforesaid), he the said C. D. for the *consideration therein mentioned, did grant, &c. (here state, in the past tense, the grant of the annuity, and the defendant's covenant to pay it, and proceed as follows:-) As by the said indenture, reference being thereunto had, will amongst other things, more fully and at large appear. And the said Saund. 250, 1. and of debt for a rent charge, or annuity against the pernors of the profits, 1 Saund. 276. 282. n. 1. 1 T. R. 378. Dougl. 628. (e) As to the allegation of the lessee's entry, see 1 Saund. 203. n. 1. Com. Dig. Pleader, 2 W. 14. and see post in covenant for rent. (f) It must be shewn at what time the rent became due, Gilb. Debt. 407. Quere, 10 East. 142 to be incorrect. mise was not by deed, or there was no (i) Debt is preferable to covenant on (g) In Gilb. on Debt. 414. this is said mages must be assessed, in pursuance of 8. and 9 W. 3. c. 11. s. 8. which causes expense and delay. (h) This count in debt for use and occupation is sustainable, when the deVOL. II. Y [225] ON ANNUITY A. B. in fact saith, that after the making of the said indenture, and duDEEDS. ring the natural life of the said E. F. to wit, on, &c. at, &c. aforesaid, a large sum of money, to wit, the sum of L.- of lawful, &c. of the said annuity or yearly rent charge, for one year, and a quarter of a year, then elapsed, became and was due and owing from the said C. D. to the said A. B. and still is in arrear and unpaid, contrary to the form and effect of the said indenture, and of the said covenant of the said C. D. so by him in that behalf made as aforesaid, to wit, at, &c. aforesaid. Whereby an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L.being the said sum above demanded. Yet, &c. (Conclusion as ante, 187.) 31. On a mort. gage by lease and re-lease for principal and interest (1). [* 226] Proviso. [Commencement in debt, ante, 184. n. a.]-For that whereas heretofore, to wit, on, &c. at c. by a certain indenture then and there made between the said A. B. of the one part, and the said C. D. of the other part, which said indenture, sealed with the seal of the said C. D., the said A. B. now brings here into court, the date whereof is the day and year aforesaid, after reciting as therein is recited, *the said C. D. for the considerations therein mentioned, did grant, bargain, sell, alien, release, and confirm unto the said A. B. and to his heirs and assigns, certain messuages, lands, tenements, and premises, with the appurtenances therein mentioned and particularly described (). To have and to hold, &c. (copy the habendum verbatim), subject among other things to a certain proviso or condition, that is to say (m) that if the said C. D., his heirs, executors, or administrators, did and should pay to the said A. B. his executors, administrators, or assigns, the full sum of L.-, and lawful interest for the same, of good and lawful money of Great Britain, on the day of next ensuing the date of the said indenture, then the (4) In general it is more advisable to n. 2. 2 Saund. 366. Indeed it is not declare in debt than in covenant on a necessary to state the grant, or the bamortgage deed, because in the former bendum, or proviso, and it would sufthe judgment is final in the first in- fice merely to state the covenant, acstance, and though by default bail in cording to the legal affect. error are required, Tidd 1079.-Debt on the covenant is also preferable to debt on a mortgage bond, conditioned as well for payment of the money, as performance of covenants in the mortgage deed, because in the latter case the damages must be assessed under the 8 and 9 W. 3. c. 11. s. 8. which cre. ates expense and delay, and the plain. tiff is not entitled to bail in error, 10 East. 407. (1) The premises ought not to be stated at length, but in this concise way. Cowp. 665.727. 1 Saund. 233. (m) The proviso is to be copied from the deed verbatim, in the past tense. It is not necessary to state the premises, the habendum or the proviso, for as in covenant on a deed it is sufficient to state the covenant and the breach, and the former may be stated, according to its legal effect; so the declaration in debt on a mortgage deed, may state the covenant to have been to pay the principal and interest on the day mention. ed in the proviso, without stating such proviso. |