power over, the goods which were distrained, and the landlord may afterwards distrain the same chattels for rent subsequently accruing due, without discharging the sureties in the replevin bond entered into upon the original distress: the property in the goods replevied remains exclusively in the tenant, and on his bankruptcy will pass(d) to his assignees; and the sureties in replevin have no equitable(e) claim against such goods for their own protection or indemnity.

18. The venue, in a declaration on the replevin bond(ƒ), may be laid in any county; but an action against the sheriff for taking insufficient pledges must be brought in the county where the injury(g) complained of was committed; and may be commenced(h) in any of the superior courts, though the replevin was returned into a different

court.

19. After judgement by default in an action of debt on the replevin bond(i), execution may be issued in England without any suggestion of breaches, or inquiry of damages, as the value of the distress is considered to be admitted by the execution of the bond. This practice, ' however, does not appear to be uniformly (j) followed in England, and an inquiry of damages pursuant to the Statute(k), is required according to the mode of procedure in Ireland.

20. It is an established rule in Courts of Equity(), that if a creditor, without(m) the concurrence of the surety, give time for payment to the principal debtor by express agreement, and not merely by forbearance(n), the surety will be discharged, and it is not essential that the surety should show he has been injured(o) by such indulgence, if the agreement might have operated to his prejudice; this doctrine has been fully recognized as applicable, in equity, to the relief of sureties in replevin bonds: goods distrained for rent having been replevied(p) the landlord and tenant, by their agreement in writing, consented to

(d) Bradyll v. Ball, 1 Bro. Cha. Ca. 427; Bradyll v. Jones, 1 Bro. Cha. Ca. 432.

(e) Moore v. Bowmaker, 6 Taunt. 382; 2 Marsh. 82, S. C.

(f) Gregson v. Heather, 2 Stra. 727; 2 Ld. Raym. 1455.

(g) By the Irish Statute, 10 Car. I. Sess. 2, c. 16. The corresponding English Acts, 7 Jac. I. c. 5, and c. 21, do not include sheriffs.

(h) Hucker v. Gordon, 3 Tyrw. 107. (i) Middleton v. Bryan, 3 M. & Selw.

(k) 9 Will. III. c. 10, ss. 8 and 9, Irish; 8 & 9 Will. III. c. 11, s. 8, English.

(1) Rees v. Berrington, 2 Vesey, Jun. 540; Samuell v. Howarth, 3 Meriv. 278; Bank of Ireland v. Beresford, 6 Dow. Parl. Ca. 233; Mayhew v. Crickett, 2 Swa. 190, and the notes.

(m) Tyson v. Cox, Turn. & Russ.

395.

(n) Eyre v. Everett, 2 Russ. 381. (0) Boultbee v. Stubbs, 18 Vesey, 21; Samuell v. Howarth, 3 Meriv. 279.

(p) Moore v. Bowmaker, 6 Taunt. 379; 2 Marsh. 82; Hallett v. Mountstephen, 2 D. & Ry. 343.

refer the matters in dispute between them to arbitration, and that nothing therein contained should prejudice the distress which had been made, or discharge the sureties, and that, pending such reference, no proceedings should be taken in the replevin suit: an award being made, the tenant authorized the landlord to enter up judgment of “non pros,” and an action being commenced against the surety upon the bond, a motion to set aside the proceedings was refused, because, as was observed, it was no reason for discharging the sureties from their obligation, that the party distraining had not pressed his suit with all possible diligence: the written agreement giving time to the tenant(q) being pleaded by the surety in bar of the action, a demurrer to the plea was allowed a bill in equity was then exhibited by the surety (r), to restrain the landlord from proceeding on the judgement which had been obtained on the replevin bond, and the Court, after observing, "that they were not at liberty to inquire whether any prejudice actually arose to the surety, as it was sufficient if what had been done might have been prejudicial to him, and as no proceedings could have been taken in the replevin suit pending the reference, a material alteration was made in his situation," pronounced a decree for a perpetual injunction. Where the parties in a replevin suit(s) under an order of the Court, referred the cause to arbitration, without the privity of the sureties, upon a motion to enter a verdict in favour of the avowant for the sum awarded, the application was refused so far as it affected the sureties: however, a plea by sureties to an action on a replevin bond, setting out that the replevin suit was referred to arbitration, and that the arbitrator, without the privity(t) of the sureties, enlarged the time for making his award, was, upon demurrer, held bad, for though the circumstances alleged in the plea might have the effect of discharging the sureties in equity, yet those facts were not pleadable in bar of the action.

The observations of Chief Baron Alexander, in his elaborate judgement(u) in Ward v. Henley, afford important principles on this subject. He says: "if a replevin cause be referred at the trial, and by the terms of the reference, the jurisdiction of the arbitrator be confined to the issue on the record, he could decide only the amount of the arrears at the time of the distress, in the same manner as the jury

(q) Moore v. Bowmaker, 7 Taunt.

97; 2 Marsh, 392, S. C.

(r) Bowmaker v. Moore, 3 Price, 114;

7 Price, 223; Daniell, 264.

(s) Archer v. Hale, 4 Bing. 464; 1 Moo. & P. 285, S. C.; but see Dale v.

Gordon, 2 Moo. & Scott, 532, contrà.
(t) Aldridge v. Harper, 10 Bing. 118;
3 Moo. & Sc. 519.

(u) Ward v. Henley, 1 Yo. & Jerv.

285.

must have done, if the case had proceeded to a verdict: the sureties in the replevin bond would then have no cause of complaint, because their liability could not be altered, the arbitrator being substituted in place of a jury: but if, on the trial of the replevin suit, the tenant and landlord, without the privity of the sureties, agree to refer all matters in difference between them, and by the submission give the arbitrator power not only to decide upon the amount of rent due at the time of distraining, but also authorize him to settle the amount of rent due subsequently to the institution of the replevin cause, in which the sureties have no concern, the liabilities of the sureties would by that means be increased, as the rent awarded by the arbitrators might be composed, in part at least, of rent which became due long subsequent to the period of the original distress."

The grounds of equitable interference in these cases are, that the parties in replevin shall not by their acts, be permitted to enlarge or vary the liability of the sureties, or render them subject to responsibilities, or expose them to difficulties which were not comprehended in the original contract. The landlord by entering into any binding agreement having the effect of preventing him from obtaining(v) judgement, or issuing execution in the replevin suit at the time allowed by the usual course of the Court, or by withdrawing an execution (w) in the replevin cause against the tenant's goods, or by empowering the arbitrator to settle accounts between the landlord and his tenant, involving(x) other matters besides the subject of the replevin suit, or by accepting (y) a composition from his tenant for the rent in arrear, will exonerate the sureties, but a reference at Nisi Prius to ascertain the rent due, merely substituting the award of an arbitrator for the verdict of a jury, and without extending(2) the period allowed by the rules of the Court for issuing an execution, or mere negligence(a) in prosecuting the replevin suit, will not avoid the security.

Whenever an application was made to Sir Anthony Hart to extend a receiver to a second cause, he always required(b) the consent of the receiver's sureties in the first cause, because the Court have no jurisdiction, by extending a receiver without the consent of his sureties in the

original cause, to render them answerable for his conduct, or for his administration of the fund in both causes. However, upon a motion at the Rolls to extend a receiver to a second cause, it was suggested by counsel, that the sureties of the receiver would be discharged, unless their recognizance was renewed; but Sir Michael O'Loghlen(c) observed, though he had entertained such an opinion, yet finding that a contrary practice had so long prevailed, he would not introduce any alteration on the subject. If sureties in replevin be discharged by any act of the landlord, or avowant, the sheriff will, by such means(d), be relieved from any liability to action for taking insufficient sureties, as it is not equitable that the creditor should be suffered to deprive the sheriff of his remedy against the sureties, and yet hold him answerable for their insufficiency.

By the Irish Act(e), 36 Geo. III. c. 38, courts of law are authorized, on motion, to give such relief to the parties upon the replevin bond as may be agreeable to justice and reason: after judgement for the landlord in a replevin suit, the tenant obtained an injunction in equity to restrain the proceedings at law, on the terms of bringing the arrear of rent into Court: the injunction being afterwards dissolved, an order was made, on consent(ƒ), that the landlord should receive the money so lodged, and that the tenant should pay the costs in equity within a fortnight after taxation, together with the further sum of £115, and that on payment of such sums all further proceedings at law between the parties should cease: the sureties in the replevin bond were not parties to the consent, and upon motion to set aside proceedings subsequently taken against them on the bond, the Queen's Bench ordered the suit to be stayed, holding that the sureties were discharged in consequence of the time for payment given to the principal by the consent order.

21. The assignee of a replevin bond having brought separate actions against the principal and his two sureties, it was ordered (g) that the proceedings in all the actions should be stayed on payment of the rent and costs, and in case of default, that the first action alone should be prosecuted, the defendant in the other two actions submitting to be bound by the result of the action against the principal.

(c) Parker v. O'Brien; La Touche v. O'Brien, 25th Nov. 1837, at the Rolls, MSS.

(d) But see Dale v. Gordon, 2 Moore & Scott, 532; 3 Moo. & Sc. 339.

(e) 36 Geo. III. c. 38, Irish; 11 Geo.

II. c. 19, s. 23, English.

(ƒ) O'Beirne v. Greene, 2 Jebb & S.

582.

(g) Bartlett v. Bartlett, 4 Mann. & Gr. 269; Miers v. Lockwood, 9 Dowl. Pr. Ca. 975.

22. THE party replevying and his sureties having executed the replevin bond, the sheriff issues his precept or warrant to his bailiff, or gives him(a) verbal directions to replevy the goods distrained, and where the proceeding is by plaint, causes a summons(b), to be served on the person distraining, requiring him to appear at the next county court to answer the plaintiff in a plea of taking and unjustly detaining his goods. If the distress be not restored after demand made by the bailiff, the sheriff may break open(c) the outer door of a house, or the gate(d) of any enclosure in his bailiwick, where the goods have been placed, for the purpose of delivering them to the claimant. In a plea of justification to an action of trespass for seizing cattle, the sheriff(e) is not bound to allege that the cattle replevied by him were the property, or in the possession of the party replevying.

Upon a return made to the sheriff's warrant by the bailiff, that the goods were eloigned, or removed to places unknown to him, the sheriff should hold an inquest of office in his county court to ascertain the fact, and if found to be true, he should issue(f) his precept in nature of a writ of withernam, commanding his bailiff to seize goods belonging to the persons so distraining, in lieu of those which were eloigned.

(a) 2 Co. Instit. 139.

(6) Gilb. Replevin, by Hunt, 101. (c) By Stat. Westminster the First, 3 Edw. I. c. 17, Engl. & Irish; 2 Instit. 193 and 194; Semayne's case, 5 Rep. 93, A.

(d) Year Book, 8 Hen. IV. fo. 19, pl. 4; Bro. Abr. Replevin, pl. 17.

(e) Milles v. Davies, 2 Comyns's Rep.

590.

(ƒ) Gilb. Repl. 116-119; 1 Bro. & Gouldsb. 167.