Gibbs v. Bull

Platt, J.

delivered the opinion of the Court. The objections taken on the demurrer to the first count, are, 1. That the facts averred by the plaintiffs, show no neglect of duty *438 in the defendant, as sheriff; and that the bond set out in the count was taken conformably to the statute. 2. That the statute requires the sheriff to take sufficient security to prosecute the suit, &c. and to return the goods, “ if a return thereof should be adjudged whereas, the count charges the defendant for neglect of duty, in not taking sufficient security to prosecute, &c. “ with effect,” “ or to return the goods,” &c. iJ. That the count is defective in stating, that the retorno ha-lendo, and ca. sa., were directed to, and returned by, the coroner, instead of the sheriff.

By the fourth section of the statute, (1 JV. R. L. 92.) it is provided, that “ the sheriff, before he makes deliverance of any beasts, goods or chattels, by virtue of any writ or plaint in replevin, shall take of the plaintiff sufficient security to prosecute the suit, and to return the same beasts, goods, or chattels, if return thereof shall be adjudged ; and if any sheriff shall take security otherwise, or neglect to take such security, he shall answer for the price, or value of the beasts, goods and chattels,” &cc. This section is a transcript of 13 Edw. I. ch. 2. s. 3. By the eighth section of our statute, (1 JV. R. L. 93.) it is provided, “ that in every replevin of a distress for rent, the sheriff shall take, in his own name, from the plaintiff, and two sureties, a bond in double the value of the beasts, goods, or chattels distrained, conditioned, for prosecuting the suit with effect, and without delay, and for returning the beasts,” &c.; and such bond is made assignable to the defendant in replevin, &c. This latter section is copied from the 17 Car. II. ch. 7. and 11 Geo. II. ch. 19. It is very evident, that the declaration in this case was framed with a reference to the eighth section,( and not with a view to the fourth section. The count avers, that the goods were seized by these plaintiffs, under authority of an act of Congress. And the eighth section of the statute is applicable only to a replevin of a distress for rent. The question, then, is, whether the plaintiff has shown a right to recover under the provision of the fourth section ? It seems to be a settled construction, that under the fourth section the sheriff may take such security as he pleases, in his own name, and at his own peril. (Gilb. Repl. 75. 1 Saund. 195. and. notes. 2 Mass. Rep, 517.) The sta *439 tute makes no provision, requiring the sheriff to assign the bond, so that the defendant in replevin might sue it in his own name ; but, I presume, that if such defendant chooses to avail himself of the bond, this Court would compel an assignment by its own officer, for the benefit of the injured defendant, and protect his rights, although suing in the sheriff’s name. The ancient mode of proceeding was, after an elongates returned on the retomo habendo, to issue a scire facias against the sureties; and if that were not effectual, to issue a scire facias against the sheriff, to respond for the value of the goods. But, the modern practice is, after elon-gata returned; to bring a special action on the case against the sheriff, where he has omitted to lake sufficient security. It is important to remark, that the statute does not require security for damages or costs ; but merely to prosecute, and to return the goods, if., &c. It appears, therefore, that the first count makes a fatal admission against the plaintiffs, in stating, that the sheriff did take a bond of two sureties in 4,000 dollars, conditioned for prosecuting the plaint, and for returning the goods, &c. Such bond was according to the statute ; and the averment, that the sureties were insufficient to ensure a prosecution of the suit “ to effect, and for a return of the goods,’’ if true, gives no right of action against the sheriff; because, the sureties contemplated by the statute, are not responsible for any damages beyond the valúe of the goods replevied.

The damages in this case, over and above the value of the goods, were assessed at 2,730 dollars and 96 cents. Now, for that sum, these plaintiffs are left to seek satisfaction from Rowley, the plaintiff in replevin, and, for aught that is alleged in the count, the sureties taken by the sheriff are ample for the mere value of the goods which are eloign-ed. I see nothing in the statute that requires the plaintiff in replevin to execute the bond. Besides, I think it a defect in the count, that it alleges, that the sheriff did not take security to prosecute the suit, or to return the goods, &c. The security prescribed by the statute, is to prosecute, and to return, &c. and the sheriff is expressly forbidden to “ take security otherwise.’’ For these reasons, the defend *440 ant is entitled to judgment on the demurrer to the first count There is nothing in the objection, that the retorno habendo was directed to the coroner; because, it appears, that pend» ing the replevin suit, Gibbs, one of the plaintiffs, was appointed sheriff, instead of Bull; and, therefore, as the sheriff for the time being, was a party to the suit, the process was properly and necessarily directed to the coroner.

The third count sets out the same proceedings in the re-plevin suit, up to the judgment therein for a return of the goods, and for damages-and costs, as in the first count; and charges the defendant, as sheriff, with not having taken sufficient security to prosecute the suit, or to return the goods, &c. But the third count is grossly defective, inasmuch as it omits entirely the essential averment, that a retorno ha-bendo had been issued, and elongata returned. Such a return is indispensable, in order to charge the sheriff in any form ; for non constat, but that the defendants in replevin- might have had a return of the goods ; and if so, the sheriff is not liable, even though he took no security. (1 Saund. 195. and notes. 18 Vin. Abr. 399. Kindle v. Blades, 5 Taunt. 227.) The defendant is, therefore, entitled to judgment on the demurrer to the third count.

The fourth count alleges as the gravamen, that the sheriff made deliverance on the plaint in replevin, “ without taking any pledge or security to the said plaintiffs for the return of the said goods f &c. without adding in the words of the statute, “ if return thereof should be adjudged.” This averment is defective, and shows no cause of action ; because it does not pursue the requisition of the statute. The sheriff may have done his duty, pursuant to the statute, in taking “ sufficient security (in his own name) to prosecute the suit, and to return the goods, &c. if return thereof shall be ad- judgedand yet, every word in this count may be true. This count is, also, liable to the same fatal objection as the third count, in omitting to aver, that a retorno habendo was issued, and returned elongata. It merely states the judg- _ ment in favour of the defendants in replevin; and for aught that appears, they may have their goods, whenever they please to issue their execution for that purpose.

*441 The defendant is, accordingly, entitled to judgment on the demurrer to the fourth count also.

Judgment for the defendant accordingly.