FOR FALSE
RETURNS.

Second count for not levy

of remaining of record in the said court of our said lord the king, before the king himself here, to wit, at Westminster aforesaid, fully appears (z); by means of which said premises, the said A. B. hath been, and is greatly injured and deprived of the means of obtaining the said moneys so indorsed on the said writ and directed to be levied as aforesaid, and which are still wholly unpaid as aforesaid, and is likely to lose the same, to wit, at, &c. aforesaid.

[The same as the first count, to the †, observing the notes, and then ing, and false proceed as follows:-] And although there were then, and afterwards, return of nulla and before the return of the said last-mentioned writ, divers goods and bona (a). chattels of the said E. F. within the bailiwick of the said C. D. as such sheriff as aforesaid, whereof the said C. D. could, and might, and ought to have levied the moneys so indorsed on the said lastmentioned writ, and directed to be levied as last aforesaid, to wit, at, &c. aforesaid, whereof the said C. D. so being sheriff as aforesaid, there had notice. Yet the said C. D. so being sheriff of the said county of ——————————— as aforesaid, not regarding the duty of his office as such sheriff, but contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve the said A. B. in this behalf, and to deprive him of the moneys so indorsed on the said last-mentioned writ, and directed to be levied as last aforesaid, and of the means of obtain[*355] ing the same, did not, nor would at any time before the return of the said last-mentioned writ, levy the money last aforesaid, or any part thereof, but wholly neglected and refused so to do, and therein failed and made default, and at the return of the said last-mentioned writ, to wit, on. &c. aforesaid, falsely and deceitfully returned to the said court of our said lord the king, that the said E. F. had not any goods or chattels in his bailiwick, whereof he could cause to be levied the damages, (or" debt and damages,") last aforesaid, or any part thereof. As by the said last-mentioned writ and the return thereof remaining, &c. [Proceed as in the first count to the end. If the sheriff seized and improperly sold the goods, a count should be added as in 9 Fast.

298.

For not taking [Commencement as ante, 287.]-For that whereas the said A. B. heretofore, to wit, on, &c. in a certain close, situate, &c. took and dis

a replevin

bond accord

ing to the 11

Geo. 2. c. 19. s. 23. (b).

(z) As to this reference, see ante, sufficient pledges. 1 Saund. 195.b. 2 H. 230. n. u. Fortescue, 379. B. 36. 547. 4 T. R. 433. 2 Sel. Prac. (a) See the use of this count, ante, 2d edit. 175, 6, 7. The action must 351. be brought in the name of the avowant, or in case there be no avowant of the person making connusance in the replevin suit. 1 B. and P. 378. The precedents, ante 218 to 223. and the notes thereto, will assist in framing declarations of this nature.

(b) See the precedents, Mod. Ent. 215. 2 H. B. 36. 547. An action is sustainable against the sheriff, either for not taking replevin bond. Cro. Car. 446 Sir W Jones. 378. 1 Saund. 195. b. 2 T. R. 617, or for taking in

REPLEVIN
BOND.

trained divers large quantities of potatoes, then planted and growing NOT TAKING in the said close, of great value, to wit, of the value of L., of lawful, &c. as a distress for certain arrears of rent, to wit, for the sum of

', of like lawful money then due and owing from one E. F. to the said A. B. for the rent of the said premises, with the appurtenances, by virtue of a certain demise thereof theretofore made to the said E. F. rendering rent for the same. And the said A. B. then and there detained the said potatoes so taken and distrained for the cause aforesaid, according to the laws and customs of this realm, until the said C. D. then being sheriff of the said county of -, afterwards, to wit, on,

c. aforesaid, and within his bailiwick, as such sheriff, (that is to say) at, *c. on the complaint of the said E. F. made to him the said C. D. so then being such sheriff as aforesaid, against the said A. B. in that behalf, and under colour of his office of such sheriff as aforesaid, caused the said goods and chattels to be replevied and delivered to the said E. F. and then and there made deliverance of the said distress to the said E. F. to wit, at, &c. aforesaid. And the said A. B. in fact further saith, that at the then next county court (c) of the said sheriff, to wit, at the county court of the said sheriff, holden at, &c. in and for the said county of -, on, &c. before the then suitors of the said court, to

wit,

and

the said E. F. did appear, and then and there in the same court, without the writ of our said lord the king, levied his plaint against the said A. B. for the taking and unjustly detaining of the said goods and chattels, and afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, the said A. B. did duly appear in and before the said court, to answer the said E. F. in the plea of his said plaint, and such proceedings were thereupon had in the said plea, that afterwards, to wit, at the next county court of the said C. D. as such sheriff as aforesaid, holden at, &c. aforesaid, in and for the said county of —

[* 356]

on, &c. aforesaid, before the said then suitors of the said court, the said E. F. did not duly prosecute his suit, and it was then and there duly considered, in and by the said last mentioned court, that the said E. F. should take nothing by his said plaint, but that he and his said pledges to prosecute should be in mercy, &c. And that the said A. B. should have a return of the said goods and chattels, as by the remembrance and proceedings thereof still remaining in the said court, more fully and at large appears; and although it was the duty of the said C. D. before his making deliverance of the said distress to the said E. F. as aforesaid, in pursuance of the statute in such *case made and provided, [357] to take from the said E. F. and two responsible persons as sureties, a bond in double the value of the said goods and chattels so distrained

(c) If the plaint in replevin were removed into K. B. or C. P. by re. fa. lo. and there was a declaration and avowry and judgment in the court

above, observe the precedent, ante,
220 to 221. It is not necessary where
pledges have been taken to state any
proceedings against them.

NOT TAKING
REPLEVIN

BOND.

as aforesaid, conditioned for the prosecuting the suit of replevin of the said E. F. for the taking of the said goods and chattels with effect, and without delay, and for duly returning the goods and chattels so distrained, in case a return should be awarded. Nevertheless the said C. D. so being such sheriff as aforesaid, not regarding his duty in that behalf, but contriving and wrongfully and unjustly intending to injure the said A. B. and to deprive him of the benefit of his said distress, and of the means of obtaining satisfaction for the said arrears of rent so due and owing as aforesaid, did not, nor would, before his making deliverance of the said distress to the said E. F. as aforesaid, take from the said E. F. and two responsible persons as suretics as aforesaid, such a bond as aforesaid, conditioned as aforesaid; but wrongfully and injuriously wholly omitted and neglected so to dof, to wit, at, &c. aforesaid, and the said A. B. in fact saith, that he hath not as yet obtained a return of the said goods and chattels so distrained as aforesaid, or any or either of them, or any part thereof, and the said arrears of rent have not, nor hath any part thereof as yet been paid to him the said A. B. nor hath he the said E. F. hitherto answered to the said A. B. for the value of the said goods and chattels so distrained as aforesaid, or any or either of them, or any part thereof, and by reason of the premises the said A. B. hath been and is wholly deprived of the said goods and chattels so distrained as aforesaid, and of the benefit of the said distress, and of the means of satisfying the said arrears of rent, and bis costs and charges by him expended in and about the endeavouring to obtain satisfaction thereof, and a return of the said goods and chattels, Second count. to wit, at, &c. aforesaid. And whereas also heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, the said A. B. took and distrained certain other goods and chattels, to wit, &c. of great value, to wit, &c. for a certain sum of money, to wit, &c. then due and owing to the said A. B. for rent, and the said last mentioned goods and chattels being so distrained as aforesaid, the said C. D. then being sheriff of —, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, at the prayer of the said E. F. replevied and made deliverance of the said last mentioned goods and chattels to the said E. F. and afterwards, to wit, at the county court of the said C. D. as such sheriff as aforesaid, duly holden at, &c. aforesaid, on, &c. aforesaid, before certain then suitors of the same court, the said E. F. did not duly appear at the same court, and then and there prosecute with effect his suit by him before then commenced in the same county court against the said A. B. for the taking of the said goods and chattels as last aforesaid, and it was thereupon then and there duly considered in and by the same court, that the said A. B. should have a return of the said last mentioned goods and chattels. As by the remembrance and proceedings thereof still remaining in the said court more fully appears. And the said A. B. further saith, that the said C. D. so being sheriff of, &c. at the time of the causing the said last mentioned goods and chattels to be replevied and delivered to the said E. F. as aforesaid, not regarding his duty as such sheriff, nor

[ 358]

REPLEVIN
BOND.

the statute in that case made and provided, but contriving and wrong- NOT TAKING fully and unjustly intending to injure, prejudice, and aggrieve the said A. B. in that behalf, and to deprive him of the benefit of the said last mentioned distress, did not, nor would, before the replevying and delivery of the said last mentioned goods and chattels so distrained as last aforesaid, to the said E. F take in the name of the said C. D. so being sheriff as aforesaid, of the said E. F. and two responsible persons, a bond in double the value of the said last mentioned goods and chattels so distrained as last aforesaid, such value being ascertained by the oath of one or more credible witness or witnesses not interested in the said last mentioned goods and chattels, or distress, and conditioned for the prosecuting the suit of replevin of the said E. F. with effect and without delay, and for duly returning the said last mentioned goods and chattels, in case a return thereof should be awarded before the deliverance of the said last mentioned distress was so caused to be made to the *said E. F. as last aforesaid, as he the said C. D. according to the form of the statute, ought to have done; but the said C. D. so being sheriff of, &c. aforesaid, then and there wholly neglected so to do, nor have the said last mentioned arrear of rent, or any part thereof, been paid or satisfied to the said A. B. nor hath the said E. F. hitherto answered to the said A. B. for the value of the said last mentioned goods and chattels so distrained as last aforesaid, or any or either of them, or any part thereof. By means, &c.-[Conclusion as in the first count.]

[359]

sufficient

[Proceed as in the precedent, ante, 355, to the †, 357, and then For taking inas follows:-] And on the contrary thereof, he the said C. D. wrong pledges in refully and unjustly, before the replevying and delivery of the said cattle, plevin (d). goods and chattels as aforesaid, to wit, on, &c. at, &c. aforesaid, did take, in the name of him the said C. D.

as such sheriff as aforesaid, of the said E. F. and two other persons, to wit, G. H. and J. K. a certain bond, conditioned for the prosecuting the said suit of the said E. F. with effect, and without delay, and for duly returning the said cattle, goods, and chattels so distrained as aforesaid, in case a return thereof should be awarded as a bond taken in pursuance of the said statute; nevertheless the said A. B. in fact saith, that the said G. H. and J. K. so taken as sureties as aforesaid, at the time of their becoming pledges and sureties in that behalf as aforesaid, were not good, able, sufficient, or responsible sureties for prosecuting the said suit with effect and without delay, or for duly returning the said cattle, goods, and chattels so distrained as aforesaid, in case a return thereof should be adjudged; but the said G. H. and J. K. at the time of their becoming such sureties as aforesaid, were, and each of them was, and ever since hath been, and still are, wholly insufficient for that purpose, nor have the said cattle, goods, and chattels, or any or either of them,

(d) See the note, ante, 355. n. a. and 2 H. B. 36. 547. Mod. Ent. 215.

INSUEFICIENT

PLEDGES.

[* 360]

FOR TAKING or any part thereof, as yet been returned to the said A. B. nor have the said arrears of rent, *or any part thereof, been as yet paid or satisfied to the said A. B. nor hath the said judgment been yet in any way satisfied, nor hath the said E. F. hitherto answered to the said A. B. for the value of the said cattle, goods, and chattels so distrained as aforesaid, or any or either of them, or any part thereof, by means of which said premises he the said A. B. hath been and is wholly deprived of the said cattle, goods, and chattels, and of the benefit of the said distress, and of the means of satisfying the said arrears of rent and the said costs and charges by him in that behalf expended, in and about his said suit in that behalf, and in and about the endeavouring to obtain a return of the said cattle, goods, and chattels, to wit, at, &c. aforesaid.[A count may be added for not taking sureties generally.]

Against the [As in the count for an escape, ante, 349, to the end of the statement of sheriff for not the arrest, and then proceed as follows:-] And the said A. B. in fact assigning a bail bond, on further saith, that the said E. F. being so arrested and in custody of the 4 Ann. c. 16. said C. D. so being such sheriff as aforesaid, under and by virtue of the s. 20 (e). said writ, for the cause aforesaid, he the said C. D. as such sheriff afterwards, and before the return of the said last mentioned writ, to wit, on, &c. last aforesaid, at, &c. aforesaid, took bail for the appearance of the said E. F. in the said court of our said lord the king, before the king himself, at the return of the said writ, according to the form of the statute in such case made and provided; and on that occasion he the said C. D. so being such sheriff as aforesaid, then and there, to wit, on, &c aforesaid, at, &c. aforesaid, took of the said E. F. and two other persons as his sureties or bail, according to the form of the said [ 361] statute, a certain writing obligatory, commonly called a *bail bond, in

the penal sum of L.- lawful money of Great Britain, conditioned for the appearance of the said E. F. at the time and place aforesaid, to answer to the said A. B. in the plea and bill aforesaid; and the said A. B. in fact further saith, &c.-[State the non-appearance of the party arrested, and the consequent forfeiture of the bail-bond (ƒ), as ante, 213, and then proceed as follows:-] And although the said A. B. by G. H. his lawful attorney in that behalf, did (g) afterwards, and whilst

(e) Though an action cannot be supported against the sheriff for not taking a bail bond, or for taking insufficient sureties by the plaintiff in the suit, see Tidd's Pract. 3d edit. 197. and 2 Saund. 61. f. yet if a bond be taken, the sheriff is, by the 4 Ann. c. 16. s. 20. bound, on the request of the plaintiff or his attorney, to assign such bond as therein mentioned, and if he refuse to do so, he is liable to an

action on the case. 7 T. R. 122. 2 Saund. 61. a.

(f) This statement does not appear to be absolutely necessary, as the bond may be assigned before it is forfeited. Tidd's Pract. 457.; and see the words of the statute, 4 Ann. c. 16. s. 20.

(g) See the words of the 4 Ann. c. 16. s. 20.