Plaintiff may replevin. What security to be given. Forfeiture of the bond. 229. When any such personal action shall have been so commenced it shall be lawful for the plaintiff therein to sue out of the Court in which such action shall be instituted a writ, to be called a writ of replevin, in the form No. 23. in the Schedule B. to this Act annexed, directed to the sheriff of the county in which such goods and chattels shall be under seizure or distress, requiring him to replevy the said goods and chattels (d), and the said sheriff shall and he is hereby required, upon good security (by the bond of the plaintiff, and two responsible persons as sureties, conditioned as usual in such cases), being given to him, in double the amount of the value of the property taken or distrained (e), to execute such writ, and to return the said writ, with a correct and proper statement endorsed thereon of the manner in which the same shall have been executed, or the cause why the same has not been executed, to the Court out of which the same shall have issued, within eight days, exclusive of any days hereby appointed to be observed and kept as holidays, next after such writ shall have been delivered to him; provided always, that the value of the property so taken or distrained shall be ascertained by the said sheriff in like manner as the value of goods distrained is now ascertained by law by the sheriff in taking security in replevins (f), and that the said bonds shall be assignable by the sheriff under like circumstances and in like manner, and shall be available to the assignee thereof, as by law now or hereafter authorized in respect of replevin bonds (g). (d) As to the cases in which the writ may be issued and when it may be quashed by the Court, see ante, note (a). 66 (e) Before replevying, it is the sheriff's duty to take security in double the amount of the value of the property from the plaintiff and two sureties. The security is taken by a bond executed by the plaintiff and the sureties to the sheriff. The bond is not, nor is the assignment of it, subject to any stamp duty, 5 Geo. 4, c. 41, s. 1. The condition of the bond is to prosecute the suit with effect and without delay, and also to duly make return of the cattle and goods if a return shall be adjudged (13 Ed. 1, c. 2, 36 Geo. 3, c. 38 (Ir.)). The term prosecute with effect" means to prosecute with success (Tummons v. Ogle, 6 E. & B. 571; Igoe v. O'Hara, 1 Jebb & Sym. 443); and the bond will therefore be forfeited as well by the plaintiff failing in the suit as by his delaying in the prosecution of it (Axford v. Perret, 4 Bing. 586; Harrison v. Wardle, 5 B. & Ad. 146); and when the plaintiff makes delay in the prosecution of the suit it is not necessary to sign judgment of non pros. before suing upon the bond (S. C.). In Powell v. Archer, 4 Ir. C. L. R. 279, the condition of the bond was in the alternative, viz., to prosecute the suit or to make return of the goods; and the Court held that a summons and plaint which averred as a breach of the condition that there had been a verdict against the plaintiff in the replevin suit, and that he had not returned the goods, was demurrable for not averring that a return of the goods had been awarded. In the ordinary form of replevin bond, however, the condition is in the conjunctive and not in the alternative, and it may be doubted whether a bond in the latter form is assignable (Powell v. Archer, ubi supra). If the plaintiff in the replevin suit prosecutes the suit without delay, but Death of the dies before it is brought to a termination, the bond will not be forfeited (Mor- plaintiff. ris v. Matthews, 2 Q. B. 293; Leitrim v. Stewart, Ir. R. 5 C. L. 27; Ormond v. Bierly, Carth. 519). Compare with these cases White v. Murphy, 1 Hud. & Br. 498. certained. against The value of the property seized is to be ascertained by the sheriff or by How value of the replevingers, whom he is bound to appoint within ten days after he is property assworn in (14 & 15 Vict. c. 57, s. 42). If insufficient security be taken the sheriff is responsible if it appears that reasonable care was not exercised by Remedy him or by the replevingers in ascertaining the solvency of the securities sheriff. (Hindle v. Blades, 5 Taunt. 225; Chute v. Cronin, 12 Ir. L. R. 556). The remedy of the party aggrieved in such a case is by action (Tessyman v. Gildart, i B. & P. N. R. 292); and the Court will not upon motion grant relief against the sheriff for either taking insufficient securities, or for not taking any securities at all (Rez v. Lewis, 2 T. R. 617; Twells v.Colville, Willes, 375); but see Reynolds v. Hamilton, Rowe Rep. 637; King v. Hartford, Ib. If the sheriff refuses to replevy when proper security is tendered an action on the case lies against him (Sabourin v. Marshall, 3 B. & Ad. 404). (1) See last note. bond. (g Replevin bonds are assignable under 8 Geo. 1, c. 6, ss. 5 & 6 ; and 36 Assignment Geo. 3, c. 38. The latter Act only applies, however to replevins of a dis- of replevin tress for rent (Igoe v. O'Hara, 1 Jebb & Sym. 443). The assignment should be made by the sheriff to whom the bond was given, even though his year of office has expired; and if it be made by the incoming sheriff, the assignment will be void (Owens v. M'Donough,7 Ir. C. L. R. 262; Benison v. Ganly, 12 Ir. L. R. 316). Where the replevin bond contained a condition beyond what the Statute directed, viz., to indemnify the sheriff, it was held to be nevertheless assignable (Caithness v. Murphy, Sm. & Bat. 1); and see Harding v. Lyhane, 2 Fox & Sm. 160). In White v. Murphy, 1 Hud. & Br. 498, it was held that the defendant in replevin is not bound to procure a return of the writ of replevin or to appear to it before taking an assignment of the replevin bond; and he may proceed against the sureties notwithstanding the death of the principal before the return of the writ and before the assignment. Compare with this case the case of Morris v. Matthews, and the other cases referred to above. As to the meaning of the term " prosecute with effect," see Tummons v.Ogle, ubi supra. It is not necessary to assign breaches in suing upon a replevin bond, the bond not being within sect. 145, ante (2 Wms. Saund. 187 (2); Middleton v. Bryan, 3 M. & S. 155). a If plaintiff'in replevin be 230. If the plaintiff in any such action for replevin of distress made for rent shall be non-prossed (h) for not filing non-prossed. his summons and plaint as aforesaid it shall be lawful for the or nonsuited, defendant entitled to judgment and execution for his rent. Non-prossing plaintiff. Judgment in the action where defendant succeeds. defendant to file a suggestion in the nature of a plaint for rent, and praying the Court to inquire the cause of the distress; and thereupon, or in case judgment be given for the defendant on demurrer, it shall be lawful for the Court to issue a writ of inquiry to the sheriff of the county wherein the distress was taken, or to the Master of the Court, to inquire touching the amount of rent in arrear at the time of such distress being taken, and the value of the goods or chattels distrained, and such inquiry shall be taken in the manner herein-before provided upon judgment by default; and upon the return of such inquisition the defendant shall have judgment and execution to recover against the plaintiff the arrears of rent in case the goods and chattels shall amount to the value, and in case they shall not amount to that value then for so much as the value of the said goods and chattels shall amount to, with his costs of suit in that behalf incurred; and in case the said plaintiff shall be nonsuit after issue joined, or if the verdict shall be given against the plaintiff, then the jurors empannelled to try such issue shall, at the prayer of the defendant, inquire the amount of the rent due, and the value of the goods and chattels distrained, and the defendant shall have judgment and execution for such arrears, or so much thereof as the value of the goods and chattels distrained shall amount unto, together with his costs of suit in that behalf incurred (i). (h) By section 100 of the C. L. P. Act, 1856, if the plaintiff in replevin neglects to file the summons and plaint, or a copy thereof within ten days after service, unless the time shall have been extended, or to proceed to trial within one term from that in which or the vacation of which the defence or other subsequent proceeding is filed, the defendant may proceed to enter the rules provided in cases of such default by sections 38 and 106 of the present Act. (i) By section 101 of the C. L. P. Act, 1856, it is enacted that in all actions for replevin of a distress made for rent, when the amount of rent in arrear at the time of making such distress shall have been ascertained as provided by the present section the defendant shall have judgment and execution to recover against the plaintiff the arrears of rent, whether the value of the goods and chattels distrained shall amount to so much or not, anything in the present Act to the contrary notwithstanding. Accordingly, when the defendant obtains judgment for the amount of rent in arrear at the time of making the distress, he may realize the judgment in the same manner as an ordinary judgment. It is, however, only when the goods have been taken as a distress for rent that the defendant (if successful) is entitled to such judgment. In other cases the judgment which the defendant is entitled to is that given by the Common Law, viz., a return of the goods. In both class of cases the replevin bond becomes forfeited if the plaintiff fails to satisfy the judgment; in the first class of cases because he has failed to prosecute the suit with effect, i. e. with success; in the other, because the alternative condition of the bond is that the plaintiff should return the goods; note (e), supra. As the action of replevin is instituted to recover possession of the goods Damages taken, the plaintiff in case he succeeds is entitled to nominal damages only, where plaintiff and cannot recover damages for the unlawful taking or vexatious mode of succeeds. proceeding, and consequently if substantial damages be given the Court, will, on application, reduce them to four guineas, being the estimated expenses of the replevin bond (Braman v. Sherman, 2 Ir. Jur. N. S. 310; Bowen v. Hornidge, Arm. Mac. & O. 318; French v. Tauffe, 3 Law Rec. N. S. 26). With respect to the power of amendment, so as to enable Amendment. the said Courts and the Judges thereof to prevent the failure of justice by reason of mistakes and objections of form: 15 & 16 Vict. c. 76, s. 222. 231. It shall be lawful for the Superior Courts of Common Amendment. Law, and every Judge thereof, and any Judge sitting at Nisi Prius, at all times to amend all defects and errors in any writ, pleading, record, or other proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made in such manner as shall be thereby directed, and with or without costs, and upon such terms as to the Court or Judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made; and when such amendment shall be made at Nisi Prius or upon any inquiry, the order shall be endorsed on the abstract or writ, and all pleadings or other records of the Court which it may be necessary to amend in conformity therewith shall be amended accordingly (j). (j) The powers of amendment conferred by the present section are very extensive. Formerly much embarrassment and frequently a miscarriage of justice arose from defects in the proceedings in an action, which, although affecting in no manner the merits of the cause, or prejudicing the opposite party, were yet of such a character as to render the proceedings erroneous or abortive. It is true that in such cases the Courts of Law possessed a limited Common Law power of amendment inasmuch as they might amend their own proceedings at any time while they were as it was called "in paper," that is, until judgment signed and during the term in which it was signed (Tidd's Pr., 6th ed., p. 744; Alder v. Chip, 2 Bur. 756, Cope v. Marshall, Sayers, 285). They could not, however, in exercise of that power amend the original writ in a cause (Crawley v. Archdall, Vern. & Scriv. 203, 207, 208); and Common Law power of amend ment. Present powers. When amendment unnecessary. In cases of the power could only be exercised by the Court or a Judge of the Court and not by a Judge of another Court sitting at Nisi Prius. To remedy the inconvenience arising from this state of things, acts were passed from time to time conferring powers of amendment upon the Court and a Judge. The powers so conferred were not, however, of a sufficiently extensive character, and were principally confined to giving power to the Judge at the trial to amend variances between the record and the evidence; and accordingly when the present act was passed, it was considered desirable to confer upon the Court or a Judge the power they at present possess. The power conferred by the present section is, as may be observed, very extensive. It may be exercised by the Superior Courts of Common Law, or by any Judge thereof. The defects that may be amended are defects in any proceeding, whether there is anything in writing to amend by or not, and the terms of amendment are wholly left to the discretion of the Court or Judge. The only clause in the section which would appear to be of a restrictive character is the provision directing that all such amendments as may be necessary for the purpose of determining the real question in controversy shall be made, from which it would follow, that the power of amendment does not extend so as to allow an amendment for the purpose of raising a new question between the parties. In addition to the powers conferred by the present sections powers of amendment are conferred by sect. 16, ante, p. 13; and by sects. 84-91, ante, pp. 87-95. The latter sections relate to cases where it becomes necessary to amend a misjoinder or nonjoinder of parties, and in such case it would appear that the power of amendment is derived wholly under the sections in question, and not under the present section (Wickens v. Steel, 2 C. B. N. S. 488, ante, p. 89). Before referring to any of the cases in which the Court has exercised its power of amending the proceedings, it is well to bear in mind, that, although the proceedings be defective or irregular, it may often happen that it is unnecessary to apply for leave to amend. Thus, defects in pleading are often aided by pleading over or by verdict. See Wms. Saund., 228, and Manbourquet v. Wyse, Ir. R. 1 C. L. 471. Again, if the defect in question irregularity. amounts merely to an irregularity, and is not such as to render the proceedings void, the irregularity will be waived unless the opposite party apply to the Court or a Judge within a reasonable time, or if he take a fresh step after knowledge of the irregularity. (179th G. O. 1854). Thus, where the copy of the writ which was served on the 17th February, omitted the name of the Court, it was held that an application on the 2nd of April to set the proceedings aside was too late (Woodroffe v. Dimsdale. 5 Ir. Jur. O. S. 239); and sec Stephens v. O'Beirne, 3 Ir. C. L. R. 66; Bartram v. Williams, 4 Bing. N. C. 301; Thorp v. Beer, 2 B. & A. 373. As to the distinction between an irregularity and a nullity, it is difficult to lay down any precise rule. When the defect in the proceedings complained of is not such as to deprive the Court of jurisdiction (see Tisdall v. Humfreys, Ir. R. 1 C. L. 1; Martin v. Williams, Ir. R. C. L. 5), or does not appear upon the record of the proceedings of the Court in such a manner as to show that they are erroneous, as, for instance, when the defect complained of is a mere omission in the copy of the writ served (Woodroffe v. Dimsdale, ubi supra), it would appear that the defect is an irregularity only, and that the proceedings in the cause, and the judgment founded thereon, will not require to be amended unless application is made by the opposite party within the period of time prescribed by the 179th G. O.; and see further Ch. Ar. Pr. 12th ed., p. 1471. |