the fi. fa., in the other the validity of the bill of sale, would have been directly in issue, and the property of the goods seized would have been settled thereon: upon the affirmative or negative decision of which depended the Sheriff's breach or no breach of duty, as a necessary conclusion of law; and by parity of reasoning, in case for a false return on mesne process of "non est inventus," the plea of not guilty would simply put in issue the fact of making the return alleged, that is, that the said E. F. was not found in the bailiwick of the defendant, and that the truth or falsehood of the return, if intended to be disputed, must be raised by a denial of the inducement. pleas and evidence. If in issue, the plaintiff must show that the party had goods Special within the bailiwick when the writ was delivered, of which the Sheriff had notice, or might, by using due diligence, have had notice (o). When the fi. fa. was alleged to be against the goods of A. and B., and the proof was that they were the goods of A. only, the evidence was deemed sufficient (p). When the Sheriff defends his return of nulla bona on the ground that the debtor was the domestic servant of an ambassador, the plaintiff may show that the appointment was fraudulent (q), or that the assignment of the goods before execution was fraudulent (r); or (s) that a prior judgment was fraudulent (the Sheriff indemnified or not indemnified.) If properly raised on the record, the Sheriff may show that the debtor has become bankrupt, and that a fiat has issued against him (t). The bankruptcy must be regularly proved. If the Sheriff can show that the plaintiff assented to his withdrawing on a claim made for rent and taxes, this will afford him a good defence, even though no rent or taxes were due (u): so the defendant must show that he paid the money levied to the landlord, under 8 Anne, c. 14, for arrears of rent; the onus of proving that the rent was in arrear lies upon the Sheriff, but slight evidence suffices (x). The Sheriff may show that the judgment on which the writ issued was frau dulent and void (y). He cannot give in evidence, even in mitigation of damages, an inquisition held by him to inquire into the property of the goods (z). A person who has taken the goods out of the Sheriff's hands, in this action is competent to prove his own property in them, as the Sheriff cannot, after a return of nulla bona, maintain an action against him, being precluded by his return disclaiming all interest in the goods (a), and the assistant to a Sheriff's officer, who has been left in possession under an execution, is a competent witness for the Sheriff (b). Pledges to prosecute must be taken. SECTION XI. FOR TAKING INSUFFICIENT PLEDGES IN REPLEVIN (a). Before the Sheriff or his deputy can replevy either upon writ and pledges or application he must, as already observed (b), take pledges. pro ret. hab. By the common law, which still governs distresses damage feasant, it is still necessary that, first, pledges for the prosecution, which are merely nominal; and, secondly, pledges pro ret. hab. be taken. In Co. Litt. 145 b, it is laid down, that the Sheriff ought to take two kinds of pledges, one by the common law, namely, pledges to prosecute; and another by the statute of Westminter 2, c. 2, s. 3, pledges to return the goods. And the statute of 11 Geo. 2, c. 19, (in cases of rent), requires him to take both, with this difference only, that it gives the penalty for not prosecuting to the defendant, which at common law belonged to the Queen (c). Nature of pledges. Pledges (plegii) are persons becoming surety, and not money or goods of any kind taken as a pawn; the proper term for that would be latinici vadium; and if the Sheriff takes money or goods, he will be liable to an action for so doing. The term common plegii or pledges is in the plural number, yet in distresses for Number in damage feasant, if one be found sufficient, the Sheriff has dis- distresses at charged his duty (d); but in distresses for rent, if either surety law. is insufficient at the time they are taken, the Sheriff is liable (e); In disin the one case there is no obligation on the Sheriff to take a statute law. replevin bond with two sureties; in the other there is. tresses by Pledges must be sufficient in law as well as in estate, for if Sufficiency they be poor in estate or insufficient in law, of pledges. within as age, women covert, outlawed, persons politic or bodies corporate, the Sheriff must answer it; but if sufficient at the time they are taken, and are rendered insufficient afterwards, the Sheriff is excused (ƒ). quiry into their sufficiency is required of the Sheriff. What degree or knowledge of or inquiry into the circum- What destances of sureties is required of the Sheriff, have been a fertile gree of insource of litigation; the rule, however, is now clear, that he must exercise a reasonable discretion and caution in receiving them; whether he has done so or not is a question for the jury in each case (g); and the law cannot be laid down with more particularity. In most cases of misbehaviour by the Sheriff or his officers in relation to replevin, the Court will attach him (h), but for taking no bond, or one with insufficient pledges, the Court will not grant an attachment, for as the taking of the bond is directed by act of parliament and not by the Court, the neglect to do so is not a contempt of Court (i). The party aggrieved, therefore, is Form of acleft to proceed against the Sheriff by action on the case (k). This action may be maintained after the defendant in replevin has taken an assignment of the replevin bond and sued both principal and sureties thereon, for the Sheriff is not discharged by the defendant in replevin proceeding on the bond (1). (d) Hucker v. Gordon, 1 C. & M. 58. (e) Scott v. Waithman, 3 Stark. Rep. 168. (ƒ) Dalton, 434; Co. Litt. 145; 2 Inst. 340; 10 Co. 102. (g) Scott v. Waithman, 3 Stark. Rep. 168; Jeffery v. Bastard, 4 Ad. & Ellis Rep. 829, and cases cited; vide also "Pleas of due and proper and reasonable Inquiry into the Cir- (i) Rex v. Lewis, 2 Term Rep. 617. tion. Time of commenc ing action. Parties to action. Declaration. And if the defendant in replevin elects to proceed on the statute, 17 Car. 2, c. 7, he is not confined to his execution under that statute, but may sue the sureties or the Sheriff (m). As to the proper time for commencing the action, there is a distinction between cases where the sureties are taken on distresses at common law and on distresses not at common law; for example, where the distress was upon cattle damage feasant, it was holden, that no action could be brought until after a ret. hab. was issued, and a return of elongata thereon (n). From the case of Perreau v. Bevan (o), the general impression seemed to have been that a retorno habendo was not material in any case, but when it was cited, Bugby said, " in that case the avowant had proceeded under the 17 Car. 2, c. 7, and the bond there was of a very different description; that was a bond under the 11 Geo. 2, c. 19, and therefore conditioned for prosecuting the suit with effect, that is, success, and accordingly was forfeited immediately on the plaintiff below being non-prossed; but here the avowant would, at common law, be entitled only to a judgment awarding a return of the cattle; and the Sheriff, by the statute of Westminster 2, (13 Edw. 1, c. 2,) was directed to take pledges to secure such return, who would not have been liable without a ret. hab. and a return of elongata thereon, and therefore the Sheriff cannot be liable at an earlier stage of the proceedings." The party entitled to an assignment of the bond is the proper person to bring the action, that is, the avowant; or where there is no avowant on the record, the person making conusance (p). The declaration states the taking, replevy, the levying plaint, judgment against plaintiff in replevin, the issuing of the writ of ret. hab., and return of elongata thereon (1), of the Sheriff's duty to take bond with sufficient sureties, and defendant's neglect of duty, thus: "Nevertheless the now defendant, so being such Sheriff as aforesaid, not regarding, &c. but contriving, &c. did not nor would, before his (m) Perreau v. Bevan, 5 B. & C. 284; 8 D. & R. 72. (n) Hucker v. Gordon, Į C. & M. 67. (0) 5 B. & Cr. 284; 8 D. & R. 72. (p) Page v. Eamer, 1 B. & l. 378; vide Richards v. Acton, 2 W. Bl. 1220. (4) Hucker v. Gordon, 3 Tyr. 107. making deliverance of the said distress to the said E. F. as aforesaid, take from the said E. F. and two responsible persons as sureties as aforesaid, such a bond as aforesaid, conditioned as aforesaid, but wrongfully and injuriously wholly omitted and neglected so to do: and on the contrary, the defendant wrongfully and unjustly, before the replevying and delivery of the said goods and chattels, to wit, on, &c. did take, in the name of the now defendant, as such Sheriffs as aforesaid, of the said E. F. and two other persons, to wit, A. B. and C. D., a certain bond, conditioned, &c. Nevertheless the now plaintiff saith, that the said A. B. and C. D. so taken as sureties as aforesaid, at the time of their becoming pledges and sureties in that behalf as aforesaid, were not good, able and sufficient or responsible sureties for prosecuting, &c.; but the said A. B. and C. D., at the time of their becoming such sureties as aforesaid, and the said E. F. (r), were and each of them was and ever since hath been and still are wholly insufficient for that purpose, nor have the said goods and chattels, or any or either of them, or any part thereof, as yet been returned to the plaintiff, nor have the said arrears of rent or any part thereof, been as yet paid or satisfied to the plaintiff, nor hath the said judgment been in any way satisfied, nor hath the said E. F. hitherto answered to the plaintiff for the value of the said goods and chattels so distrained as aforesaid, or any or either of them, or any part thereof: by means whereof, &c." issue. Upon the effect of the general plea of "not guilty" to this Effect of declaration, no question seems as yet to have arisen in our general Courts, but on principle it would seem that the sufficiency or insufficiency of the sureties is not put in issue by this plea, but simply the taking the bond as alleged, and that if the former proposition be intended to be brought in question, the averments of their insufficiency should be denied; and this view of its effect seems countenanced, if not justified, by the cases of Wright v. Lainson (s) and Lewis v. Alcock (t), though not perhaps parallel cases. At all events, until the point be sanctioned by judicial authority, the pleader would not do well to trust to that plea alone, if the question of sufficiency was the point to be raised for the jury. The replevying (if in issue) may be shown by the original Evidence if precept to deliver; when it remains in the possession of the the replevying be in bailiff he should be served with a subpoena duces tecum, but if it issue. has been returned to the Sheriff, he should be served with a notice to produce it, to let in secondary evidence of its contents. (r) A count stating that the Sheriff, instead of taking a bond from the plaintiff in replevin and two sufficient sureties, took a bond from the plaintiff in replevin and one surety, who was alleged to be insufficient, is bad for |