Dorrington v Edwin
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1724 |
| Date | 01 January 1724 |
| Court | Court of the King's Bench |
English Reports Citation: 90 E.R. 306
IN THE COURT OF KINGS BENCH AT WESTMINSTER.
The REPORT of Several CASES ARGUED and ADJUDGED in the COURT of KING'S BENCH at Westminster; from the First Year of KING JAMES the SECOND, to the Tenth Year of KING WILLIAM the THIRD. Collected by ROGER COMBERBACH, Esq; late RECORDER of CHESTER, and one of the JUSTICES of NORTH-WALES. Published by his Son ROGER COMBERBACH of the Inner-Temple, Esq. 1724. [1] de tehm. sancti mich. anno 1 jac. II. regis. in B. R. dorrington versus edwin. Scire lacks lies against pledges in replevin after elongavit returned, and pledges to be found both in a writ and a plaint, by West. 2, e. 2. Replevin by plaint in the Sheriff's Court transmitted to the Hustings, and so hither by certiorari. After, upon an elongavit return'd by the sheriff, a seire facias issued against the pledges. Demurrer thereto. Pollexfen pro defendente. Scire facias lieth not against the pledges; for the advantage of suing the bail is lost by removing the certiorari hither: so in debt, if removed hither. This appears by the words of the certiorari, (dicite (to the plaintiff) quod prosequatur si voluerit) and this is the practice in other cases upon a removal out of an Inferior Court. Obj. In a replevin, the plaint it self is removed, and the pledges liable. Respons. By the common law there were no pledges in replevin pro retorn' habendo. Stat. West. 2, cap. 2, brought in the pledges, and the recordari & pone are grounded upon that statute. The proceedings upon a recordari vary from those upon a certiorari. Willis and Brmiker, Hill. 1 Jac. '2, Rot. 1157, for in a certiorari the caso is begun de novo. 3 H. 6, 2 & 3. That the parties may proceed in a plaint below upon a recordari, but not in a certiorari. The declaration in this Court runs thus : A. summonit' fuit ad respondend' B. which proves it to be a new original. There is no precedent for this case. That a scire facias would not lie if it had been removed by pone, &c. for that lieth upon a writ, not a plaint. 2 Inst. 340. [2] 8 Ed. 3, 72. 29 Ed. 3, 38 b. Dalt. Sher. 434. 1 Cro. 446. Mosyer mid Gray, 1 Cro. 594. That admitting the rest, there must be an alias and a pluries ret. habend. before the scire faciaa. Fitz. Nat. Br. 74, 80. Rast. Eritr. 569. Dalt. Sher. 273. Holt pro quer'. A scire facias lies and is grounded on Stat. Westm. 2, cap. 2, that pledges shall be found, both...
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