But the Court thought, that there was no satisfactory ground to shew, that the parties to the recoveries in the time of William & Mary and George the First were in possession of the tithes, and Refused the amendment. 1820 PHILLIPS Demandant. EDMUND TURNOR, Esq. v. TURNER, Clerk. THIS June 21. appear at the his suit with 'HIS was an action on a replevin bond, brought by 1. A declar Edmund Turnor, assignee of the sheriff, against ation on a reSamuel Turner, one of the sureties in the bond; the conplevin bond (conditioned dition of which bond was, that Jonathan Watmough for the Plaintiff should appear at the county court, on the 22d February in replevin to then instant, and prosecute his suit with effect against county court the said Edmund Turnor, for taking and unjustly detain- and prosecute ing his cattle, goods and chattels, and make a return thereof, if a return should be adjudged. The declaration stated, that E. T. distrained the cattle, goods, and chattels of Jonathan Watmough, for rent due, that the sheriff replevied, and delivered the said cattle, goods and chattels to Jonathan Watmough, who afterwards appeared, and levied his plaint against E. T., for taking and unjustly detaining his cattle, goods, and chattels, and found pledges as well for prosecuting the said plaint, as for returning the said cattle, goods, and chattels, if return should be adjudged; that this plaint was removed into this court, and that thereupon the said Jonathan Wat effect, and make a return of the cattle, goods, &c. distrained, if a return should after alleging be adjudged) that the plaint was removed into the court above, that the Defendant avowed, and that, Plaintiff in replevin having omitted to plead to the avowry, a judgment for a return was awarded, averred, that the Plaintiff in replevin did not prosecute his suit with effect. A plea, that, after the judgment for a return, a writ to enquire of the arrear of the rent and the value of the cattle, goods, &c. distrained, was prayed by the avowant, granted, and executed, and that thereupon avowant had judgment to recover the arrear of rent found, together with a sum for his costs and damages, was held ill, on demurrer. 2. Sureties in a replevin bond are not discharged by the execution of a writ of enquiry, under 17 Car. 2. c. 19. s. 23., and a judgment thereon for avowant to recover the arrear of rent found, together with a sum for his costs and damages. mough 1820. TURNOR ข. TURNER. mough complained against E. T. for taking and unjustly detaining his cattle, goods, and chattels in a certain dwelling-house, and thereupon E. T. avowed the taking for rent arrere, and that Jonathan Watmough, not pleading in bar to such avowry, it was considered by the Court, that he should take nothing by his said plaint, but that he and his pledges should be in mercy; that E. T. should have a return of the said cattle, goods, and chattels. Then the declaration averred, that Jonathan Watmough did not prosecute his suit with effect, whereupon the sheriff assigned the bond to the Plaintiff. The Defendant pleaded in bar, that, after the said judgment in Trinity term, 55 G. 3., the said E. T. prayed the writ of the king to the sheriff of Lincoln, to enquire of the arrear of the rent, and the value of the cattle, goods, and chattels so distrained, which writ was granted and executed, and the inquisition thereupon was returned, that 3677. 10s. was due for rent, and that the cattle, goods, and chattels were worth that sum; and that thereupon E. T. had judgment against Jonathan Watmough, to recover the said sum, and 791. 5s. for his costs and charges; and that E. T. should have execution thereof. To this plea the Plaintiff demurred. This demurrer was argued in Easter term last. Blosset Serjt., in support of the demurrer. The plea does not answer the breach; when a bond is given to prosecute with effect and to make a return, a plea which does not aver a prosecution with effect as well as a return, is ill; where there is an obligation conditioned to do several things, the obligation is forfeited on the breach of one. What damages the Plaintiff may or may not have sustained by breach of the condition to prosecute with effect, is quite another consideration; if he has sustained none, that will appear on the writ of enquiry, but the object of this bond is, to secure the costs costs as well as the rent; all the conditions of the bond are distinct and independent; this is laid down by Lee C. J. in Morgan v. Griffiths (a). "In all replevin bonds there are several independent conditions; one to prosecute, another to return the goods replevied, and a third to indemnify the sheriff; and a breach may be assigned upon any of these distinct parts of condition." The first condition to prosecute with effect was introduced by statute, as a remedy for the tedious proceedings against pledges. The condition to make return, was introduced from the custom of taking pledges de retorno habendo, which were wholly distinct from the pledges for prosecution. There are cases in which a breach of one of the conditions of a replevin bond has been deemed a sufficient cause of action, without alleg. ing any breach of the other. Vaughan v. Norris (b), Dias v. Freeman (c), Gwillim v. Holbrook (d). The legal meaning of the term prosecuting with effect is prosecuting with success, as the object of the condition is to secure the party's costs. This is clear in the case of pledges on other actions (e) as well as in replevin (ƒ) Ormond v. Bierly (g). It appears, also, from the determinations on the stat. 4 Ann, c. 16. s. 16., as to the making of an entry or claim to avoid a fine, upon which an action must be commenced within a year and prosecuted with effect (h). Whatever effect, therefore, the judgment to make a return, and the return itself, may have towards satisfying the condition for a return, it can have none towards satisfying the condition to prosecute with effect, (Cooper v. Sherbrooke (i), Baker v. Lade) (k) which was intended to give the landlord security for his a) 7 Mod. 380. (b) Cas. Temp. Hardw. 137. (c) 5 T. R. 195. (d) 1 B. & P. 410. (e) Carth. 519. per Holt, C.J. (g) Carth. 510. (b) See Adams on Ejectm. 93. 94. last ed. (i) 2 Wils. 117. costs 1820. TURNOR V. TURNER. costs against a vexatious tenant. Yea v. Lethbridge (a), Page v. Eamer. (b) Cross Serjt., contrà. The conditions of the bond are in the alternative; either that the party shall prosecute with effect, or that he shall make a return. if it were otherwise, the Defendant, though satisfied by a return, might go on for damages. In all the cases where after a return has been adjudged, the avowant has sued for an omission to prosecute with effect; the return, though adjudged, was never made, so that the party was without any satisfaction. After judgment for the Defendant, by the common law, a writ de retorno habendo was awarded (c), and before the party calls on the sureties, he should endeavour to obtain a return. Instead of that, he waives the benefit of the judgment for a return; and he takes the benefit of the stat. 17 Car. 2. by suing out a writ of enquiry: Upon this writ he enters up judgment for damages, and entitles himself to an execution by fi. fa. This execution would give him all the goods he could have taken under the judgment for a return, and all the other goods of the Plaintiff too : so that the judgment for a return, is merged in the judgment upon the writ of enquiry. Cooper v. Sherbrooke is in point, and it is laid down in the books of practice, that where a party sues out a writ of enquiry under 17 Car. 2., he cannot afterwards go against the pledges (d). At all events the declaration is bad, for it does not show that the party did not prosecute with effect; it shows that judgment was entered up for a return; and when that was done there was an end of the suit. The allegation should have been, that no return was made; all the precedents are so; either that the party did not prosecute with effect, because no judgment 433. (a) 4 T.R. (c) Com. Dig. Pleader, 3. K. 31. was was arrived at, or that there was a judgment, but no return. Blosset, in reply. It appears from Cooper v. Sherbrooke, that even where there is a judgment for a return, an enquiry may be had under 17 Car. 2. It is not necessary, therefore to show that no return has been made. The declaration here is the same as in Dias v. Freeman, and the judgment itself, or the sort of judgment, makes no difference in the case, the only question being whether the party has prosecuted with success. Baker v. Lade shows, that the judgment under 17 Car. 2. is cumulative, and does not affect the common law. No case is cited in Tidd, and he only states, that, if a party has a judgment and an enquiry, he cannot sue on the breach for not returning: but this position does not affect the breach for not prosecuting with effect. Cur. adv. vult. DALLAS C. J. having stated the case and pleadings, as above set forth, now delivered the judgment of the Court. The question which the Court has to decide is, whether this plea is a good bar to the Plaintiff's action, which action is against one of the sureties in the replevin bond, the condition of which is set out in the declaration; and it appears to have been that Jonathan Watmough should prosecute his suit with effect against the said Edmund Turnor, for taking and unjustly detaining his cattle, goods, and chattels, and make a return thereof if a return should be adjudged. We think the condition of the bond was broken; by the Plaintiff in replevin becoming nonsuit he has not prosecuted his suit with effect. Although it appears by the declaration, that a return of the cattle, goods, and chattels was awarded, yet we think the avowant had his election, whether he would proceed by a writ de retorno habendo, 1820. TURNOR บ. TURNER. or |