M'Farland v. M'Nitt

By the Court, Nelson, J. The only ground taken to sustain the demurrers, -which I shall notice, is that the plaintiff should have averred in his declaration the issuing of a writ of retorno habendo, and a return of elongata thereto. In the case of Armstrong v. Burrell and others, decided at the last term, (not reported) the question arising in this case was substantially decided. The declaration there was like the present, on a bond given to the sheriff under the fourth section of the act concerning replevins, and the condition was in the same form as here. The defendants demurred, and the principal ground [332] relied on was that the condition of the bond “ to prosecute the gujt effect and without delay,” was unauthorized by the fourth section, and therefore void. Upon an examination of the authorities and an inquiry-into the practice of sheriffs in taking bonds under the statutes, Weslminster, 2, or 13 Ed. 1, ch. 2, and 11 Geo. 2, ch. 19, of which the fourth and eighth sections of our act are copies, it was found to be well settled in England, that the condition of the bond was the same in form, and its legal effect the same, whether taken under one statute or the other; or, in other words, that a condition of the bond under the statute, 2 Westm. in the form required by the statute, Geo. 2, was valid, and that a failure to prosecute the suit with effect, that is, with success, was a forfeiture of the condition, and gave to the sheriff the right to institute a suit on the bond. The condition and legal effect of the bond being the same, it necessarily follows that the form of the pleading should be the same. The books show that such has been the uniform understanding and practice of the profession, and the decisions of the courts have been in conformity thereto. This court had occasion to examine the question under consideration, in the case of a suit on a bond, under the eighth section, in 3 Wendell, 54, and it was there decided that the averment in the declaration of the issuing of the writ of retorno habendo and the return of elongata thereto was not essential. See also 4 Wendell, 618. The English authorities on this subject will be found in Gilbert's Repl. 67 to 69. 2 Selw. N. P. 904 to 908. 1 Ld. Raym. 278. 2 H. Black. 36, 547. 1 Saund. 195. 9 Com. Law R. 429. 2 Bingh. 349, n. 11 Com. Law R. 236. 5 Bam. & Cres. 284. The special causes of demurrer were untenable, and there was no ground for the general demurrer. Judgment reversed.* Footnotes [*] Decided January term last,