REPLEVIN NOT TAKING A of such sheriff as aforesaid, caused the said goods and chattels [or "potatoes"] to be replevied and delivered to the said E. F., and then made deliverance of the said distress to the said E. F. And the plaintiff further saith, that at the then next County Court (h) of the said sheriff, to wit, at the County Court of the said sheriff, holden in and for the said county of The plaint levied. Judgment against plaintiff in replevin. Reference to proceedings. Defendant's duty to take a replevin bond. heretofore, on &c., before the then suitors of the said Court, to wit, and , (i) the said E. F. did appear, and then in the same Court, without the writ of our said lady the queen, levied his plaint against the now plaintiff for taking and unjusly detaining of the said goods and chattels, [or "potatoes"] and afterwards, to wit, on the day and year last aforesaid, the now plaintiff did duly appear in and before the said Court, to answer the said E. F. in the plea of his said plaint; and such proceedings were thereupon had in the said plea, (k) that afterwards, to wit, at the next County Court of the now defendant as such sheriff as aforesaid, holden at &c. aforesaid, in and for the said county of , on &c. aforesaid, before the said then suitors of the said Court, the said E. F. did not duly prosecute his suit, and it was then duly considered in and by the said last-mentioned Court, (1) that the said E. F. should take nothing by his said plaint, but that he and his said pledges to prosecute should be in mercy &c., and that the now plaintiff should have a return of the said goods and chattels [or "potatoes,"] as by the remembrance and proceedings thereof still remaining in the said Court more fully and at large appears. And although it was the duty of the now defendant, as such sheriff, before his making deliverance of the said distress to the said E. F. as aforesaid, in pursuance of the statute in such case made and provided, to take from the said E. F. and two (m) responsible persons as sureties, a bond in double the value of the said goods and chattels [or "potatoes"] so distrained as aforesaid, conditioned for the prosecuting the suit of replevin of the said E. F. for the taking of the said goods and chattels [or "potatoes"] with effect, and without delay, and for duly returning the goods and chattels [or "potatoes"] so distrained, in case a return should be awarded, as the defendant then well knew. Nevertheless the now deneglect of duty. defendant, so being such sheriff as aforesaid, not regarding his duty in that behalf, but contriving and wrongfully and unjustly intending to injure the now plaintiff, and to deprive him of the benefit of his said distress, and of the means of obtaining satisfaction for the said arrears of rent so due and owing as aforesaid, did not nor would, before his 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 the plaintiff further saith, that he hath not as yet obtained a return of the said goods and chattels [or "potatoes"] so dis Defendant's The replevied goods not returned. (h) If the plaint in replevin were removed into Q. B. or C. P. by re. fa. lo. and there was a declaration and avowry and judgment in the Court above, observe the form, ante, 325 to 329. It is not necessary, where pledges have been taken, to state any proceedings against them. (i) A misdescription of the suitors under a videlicit is not a fatal variance, 3 D. & R. 226; 2 B. & C. 2, S. C. (k) As to this taliter processum, see 1 Saund. 92, note 2; Carth. 53. (1) If the proceedings were removed into Q. B. or C. P. see the form, ante, 325 to 329. (m) A bond with one surety seems suffi cient to enable the sheriff to sue thereon; 2 Marsh. 352; 7 Taunt. 28, 327; 1 Moore, 68, S. C. REPLEVIN BOND. of action more trained as aforesaid, or any or either of them, or any part thereof, and the NOT TAKING A said arrears of rent have not, nor hath any part thereof, as yet been paid to the now plaintiff, nor hath the said E. F. hitherto answered to the now plaintiff for the value of the said goods and chattels so distrained as aforesaid, or any or either of them, or any part thereof, and by reason of the premises the now plaintiff hath been and is wholly deprived of the said goods and chattels [or "potatoes"] so distrained as aforesaid, and of the benefit of the said distress, and of the means of satisfying the said arrears of rent, and his costs and charges by him expended in and about the endeavouring to obtain satisfaction thereof, and a return of the said goods and chattels [or "potatoes."] And whereas also heretofore, to wit, on the day and year first Second count aforesaid, the now plaintiff took and distrained certain other goods and stating the cause chattels of great value, to wit, of the value of £—, for a certain sum of concisely. (n) money, to wit the sum of £, then due and owing to the now plaintiff for rent, and the said last-mentioned goods and chattels being so distrained as aforesaid, the now defendant, then being sheriff of, afterwards, to wit, on the day and year last aforesaid, at the prayer of the said E. F. replevied and made deliverance of the said last-mentioned goods and chattels to the said E. F. And afterwards, to wit, at the County Court of the now defendant, as such sheriff as aforesaid, duly holden, to wit, on the day and year last aforesaid, before certain then suitors of the same Court, the said E. F. did not duly appear at the same Court and then prosecute with effect his suit by him before then commenced in the same County Court against the now plaintiff for the taking of the said goods and chattels as last aforesaid; and it was thereupon then duly considered in and by the same Court, that the now plaintiff should have a return of the said last-mentioned goods and chattels; as by the remembrance and proceedings thereof still remaining in the said Court more fully appears. And the now plaintiff further saith, that the now defendant, so being sheriff of the county of -, at the time of the causing the said last-mentioned goods and chattels to be replevied and delivered to the said E. F. as aforesaid, not regarding his duty as such sheriff, nor the statute in that case made and provided, but contriving and wrongfully and unjustly intending to injure, prejudice and aggrieve the plaintiff in that behalf, and to deprive him of the benefit of the said lastmentioned distress, did not nor would, before the replevying and delivery of the said last-mentioned goods and chattels so distrained as last aforesaid, to the said E. F. take, in the name of the now defendant, so being sheriff as aforesaid, of the said E. F. and two responsible persons, a bond in double the value of the said last-mentioned goods and chattels so distrained as last aforesaid, such value being ascertained by the oath of one or more credible witness or witnesses not interested in the said last-mentioned goods and chattels or distress, and conditioned for the prosecuting the suit of replevin of the said E. F. with effect and without delay, and for duly returning the said last-mentioned goods and chattels, in case a return thereof should be awarded before the deliverance of the said last-mentioned distress was so (n) Before the pleading rules of Hil. T. 4 Wil. 4, reg. 5, several counts were admissible, but now only one count should be in serted. But for conciseness this second may NOT TAKING A FOR TAKING INSUFFICIENT PLEDGES. For taking in sufficient pledges in replevin. (0) caused to be made to the said E. F. as last aforesaid, as the defendant as such sheriff ought to have done; but the now defendant then wholly neglected so to do, nor hath the said last-mentioned arrear of rent, or any part thereof, been paid or satisfied to the now plaintiff, nor hath the said E. F. hitherto answered to the plaintiff for the value of the said last-mentioned goods and chattels so distrained as last aforesaid, or any or either of them, or any part thereof. By means &c. [Conclude as in the first count. FOR TAKING INSUFFICIENT PLedges. Proceed as in the first count of the last precedent to the asterisk, and then as follows:] And on the contrary the defendant wrongfully and unjustly, before the replevying and delivery of the said [cattle,] goods and chattels as aforesaid, to wit, on &c., did take, in the name of the now defendant, as such sheriff as aforesaid, of the said E. F. and two other persons, to wit, G. H. and I. K. (p). a certain bond, conditioned (q) for the prosecuting the said suit of the said E. F. with effect, and for duly returning the said [cattle,] goods and chattels so distrained as aforesaid, in case a return thereof should be adjudged as a bond taken in pursuance of the said statute. Nevertheless the now plaintiff saith, that the said G. H. and I. K. so taken as sureties as aforesaid, at the time of their becoming pledges and sureties in that behalf as aforesaid, were not good, able, sufficient or responsible sureties for prosecuting the said suit of the said E. F. with effect, or for duly returning the said [cattle,] goods and chattels so distrained as aforesaid, in case a return thereof should be adjudged; but the said G. H. and I. K., at the time of their becoming such sureties as aforesaid, were and each of them was and ever since hath been and still are wholly insufficient for that purpose, nor have the said [cattle,] 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 [cattle,] goods and chattels so distrained as aforesaid, or any or either of them, or any part thereof. By means of which said premises the now plaintiff hath been and is wholly deprived of the said [cattle,] goods and chattels, and of the benefit of the said distress, and of the means of satisfying the said arrears of rent and the said costs and charges by him in and about his said suit in that behalf expended, and in (0) See other forms, 1 Mall. 215; Mod. Ent. 215; Lil. Ent. 37; 4 T. R. 433; Gilb. Rep. 24; 3 Bing. 50; and see note, ante, 565, note (g), and 2 Hen. Bla. 36, 547. If the sureties were apparently responsible at the time they were taken, and diligent and reasonable inquiries were made, before they were accepted, into their actual sufficiency, the sheriff is not liable; 5 Taunt. 225; 1 Marsh. 27; 8 Moore, 27; but see Jeffery v. Bastard. 4 A. & E. 823. What is evidence of insufficiency, see 3 Stark. 168; 4 A. & F. 823. As to this action, Cro. Car. 11, 46; Sir W. Jones, 378; 2 T. R. 617; 1 Saund. 195; 2 Sel. Prac. 175 to 177. Some forms state the issuing of a writ retorno habendo, but this is unnecessary. As to the damages, see 1 Chit. Col. Stat. 675, note; 3 Bing. 56; 5 B. & C. 290; 4 T. R. 433; 2 Hen. Bl. 547. The sureties in the bond may be witnesses to prove whether they were sufficient or not; 1 Saund. 195; 5 Taunt. 225. The penalty of the bond is the limit of damages; 4 A. & E. 823. (p) It is not necessary to prove the execution by the sureties; Ry. & Moo. C. N. P. 264; and see 3 Stark. C. N. P. 168; Roscoe oa Evid. 418. (q) Examine with the bond and condition, and let this correspond. and about the endeavouring to obtain a return of the said [cattle,] goods and chattels. FOR TAKING INSUFFICIENT PLEDGES. As in the count for an escape, ante, 552, to the end of the statement of the Against the arrest, and then proceed as follows:] And the plaintiff further saith, that the sheriff for not assigning a bail said E. F. having been so arrested and being in the custody of the defend- bond, on 4 Anne, c. 16, s. ant as such sheriff, under and by virtue of the said writ, the defendant, as 20. (r) such sheriff, afterwards, and before the return of the said writ, to wit, on &c. [the date of the bail bond,] took bail for the appearance of the said E. F. in the said Court of our said lady the queen, before the queen herself, according to the form of the statute in such case made and provided, and on that occasion the now defendant then took of the said E. F. and two other persons, as his sureties or bail, according to the form of the said statute, a certain writing obligatory, commonly called a bail bond, to wit, in the penal sum of £, lawful money of Great Britain, conditioned for the said E. F. causing special bail to be put in for him to the said action in her said majesty's said Court, as required by the said writ; (s) and the plaintiff in fact further saith, &c. [state the forfeiture of the bail-bond, (t) as ante, 324, and then proceed as follows:] And although the plaintiff, [by G. H. his attorney on that behalf,] did (u) afterwards and whilst the defendant was such sheriff as aforesaid, to wit, on &c. [day of request to assign, or about it,] request the defendant to assign the said writing obligatory to the now plaintiff, being the plaintiff in the said action, according to the form of the statute in such case made and provided; and although the now plaintiff' was then ready and willing and offered to pay to the now defendant the costs payable to him in that behalf, according to the form of the said last-mentioned statute; Yet the now defendant, so being such sheriff as aforesaid, not regarding the duty of his said office as such sheriff, nor the statute in that case made and provided, but contriving and wrongfully and unjustly intending to injure the plaintiff in this behalf, and to hinder and prevent him from bringing any action or actions on the said writing obligatory and to deprive him of the means of recovering the damages [if in debt, say, "debt and damages"] aforesaid, did not, nor would, at the said time when he was so requested as aforesaid, assign the said writing obligatory to the plaintiff, (x) but on the contrary thereof then wholly neglected and refused and hath from thence hitherto wholly neglected and refused so to do and by means of the premises last aforesaid, the plaintiff hath been and is hindered and prevented from bringing any action or actions on the said writing obligatory and hath been and is deprived of the means of recovering the said damages [or if in debt, say "debt and damages"] and is likely to lose the same. [If it be doubtful (r) Though an action cannot be supported against the sheriff for not taking a bail bond, or for taking insufficient sureties by the plaintiff in the suit, (see Tidd's Prac. 9th ed. 223, and 2 Saund. 61 f,) yet if a bond be taken, the sheriff is, by the 4 Anne, c. 16, s. 20, bound, on the request of the plaintiff or his attorney, to assign such bond as therein mentioned, and if he refuse to do so, he is liable to an action on the case, 7 T. R. 122; 2 Saund. 61 a; and if there be any doubt whether the sheriff has taken a bail bond, it is advisable to demand an assignment, and to add this count to those for an escape, and not taking the defendant, as ante, 552 to 555; see (s) This should be examined with the bail (t) This statement does not appear to be absolutely necessary, as the bond may be assigned before it is forfeited; Tidd's Prac. 9th ed. 298; and see the words of the statute, 4 Anne, c. 16, s. 20. (u) See the words of the statute, 4 Anne, c. 16, s. 20. (x) Or if the assignment were not sufficient, state"by indorsing the same," &c. as in 4 Anne, c. 16, s. 20. FOR TAKING INSUFFICIENT PLEDGES. For taking insufficient bail. For not arrest ing within a reasonable time whether a bail bond was taken, add a count for an escape, as ante, 552; see 7 T. R. 109. See form, Brunskill v. Robertson, 9 A. & E. 840. See forms, Brown v. Jarvis, 5 Dowl. P. C. 281; Randell v. Wheble, 10 A. & E. 719. and on the first opportunity. FOR NOT OBEYING Against a wit- with a subpoena duces tecum for neglecting to produce the papers men tioned in the subpoena, whereby the plaintiff was nonsuited. (y) FOR NOT OBEYING SUBPOENA. For that whereas the plaintiff, before the committing of the grievances by the now defendant as hereinafter mentioned, to wit, on &c., in the Court of our lady the queen, before the queen herself, [or if in C. P. "before her majesty's justices,"] at Westminster, impleaded one E. F. in a certain plea of [trespass on the case] to the damage of the now plaintiff of £, and such proceedings were thereupon had in the said Court of our said lady the queen, before the queen herself, in that plea, that afterwards, to wit, at the sittings at Nisi Prius, holden in [the Great Hall of Pleas, commonly called Westminster Hall, at Westminster,] on, &c. before the Right Honourable Thomas Lord Denman, then and still being chief justice of our said lady the queen, a certain issue [or "issues" if there were several joined in the record,] before then joined in the said plea between the now plaintiff and the said E. F., in due manner came on to be tried by a jury of the country then chosen, tried and sworn for that purpose. And whereas, before the trial of the said issue [or "issues,"] and also before the committing of the grievances by the defendant hereinafter next mentioned, to wit, on, &c. the now plaintiff prosecuted out of the Court of our said lady the queen, before the queen herself, her said majesty's writ of subpoena, directed to [G. H., I. K., and] the now defendant, by which said writ our said lady the queen commanded [the said G. H., I. K., and] the now defendant, (≈) that all other things being set (y) See the law and form, 9 East, 473; 8 Bing. 224; 3 Chit. Gen. Prac. by Lush, 704, &c. This action lies at common law; Dougl. 561. The party may proceed by action founded on the statute 5 Eliz. c. 9, s. 12, for the penalty of £10, and also for the further recompense given by that statute, if it has been previously assessed by the Court, out of which the process issued; Dougl. 561. A witness is entitled to be paid or tendered to him a reasonable sum for going to and returning from the place of trial; Newton v. Harland, 9 Dowl. 17; but when a witness was subpoenaed at Camberwell to attend a trial in London on the part of the plaintiff, having admitted that he had received a guinea with a subpoena from the opposite party, consented to receive 1s. with the plaintiff's subpoena, it was held sufficient payment to render him liable to an action for not obeying the plaintiff's subpoena; Betteley v. M'Leod, 3 Bing. N. C. 405; 5 Dowl. 481, S. C. The question as to whether a subpoena is served within a reasonable time, depends upon the circumstances of each particular case; see Maunsel v. Ainsworth, 8 Dowl. P. C. 869. The declaration need not aver in express terms that the subpoena was served within a reasonable time, the usual averment that the defendant could and might have appeared, and had no reasonable excuse for omitting to do so, being sufficient; ibid. It is not necessary to show that the defendant was called on his subpoena, if it be shown by other evidence that he was not present; nor is it necessary that the jury should be sworn, and the plaintiff nonsuited; it is sufficient if he withdrew the record, being unable safely to go to trial in the absence of the witness; Lamont v. Cook, 6 M. & W. 615. In an action against a witness for not obeying a subpoena, it is prima facie sufficient to allege that the defendant was a material witness, and that his absence caused the plaintiff to be nonsuited, without averring that plaintiff had a good cause of action. At all events such allegation is suffi. cient after verdict; Masterman v. Judson, 8 Bing. 224; Davis v. Lovell, 4 M. & W. 678. See fully as to the liability of a witness in case of non-compliance with a subpoena, 3 Chitty's Gen. Prac. by Lush, 704, &c. (3) Set out the subpoena in its terms. Where the declaration stated that the plaintiff caused to be left with the defendant a |