Same against Heath
| Jurisdiction | England & Wales |
| Judgment Date | 24 May 1844 |
| Date | 24 May 1844 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 5
QUEEN'S BENCH
S. C. 13 L. J. Q. B. 247; 8 Jur. 688.
[13] branscombe against scarbrough. same against heath. Friday, May 24th, 1844. Replevin bonds are not an exception to the rule that, on a bond, the plaintiff cannot recover more than the penalty and costs of suit on the bond. Therefore proceedings in such suit may be stayed on payment of the penalty and coats, though the plaintiff's costs in the replevin suit much exceed the penalty. A Judge at chambers may order the stay of proceedings. [S. C. 13 L. J. Q. B. 247; 8 Jur. 688.] The plaintiff in these actions was the defendant in an action of replevin, Wheeler v. Branscomle (5 Q. B. 373). The cause was tried, and a verdict found for the plaintiff, but leave reserved to move to enter a verdict for the defendant. A rule to that effect was made absolute in last Michaelmas vacation (5 Q, B. 373). The defendant in replevin took an assignment of the replevin bond, and commenced the present actions upon it against Scarbrough and Heath, the sureties. His taxed costs in the cause of Whetler v. Branscombe greatly exceeded the penal sum in the replevin bond, which was only 181. Is. The defendants, Scarbrough and Heath, took out a summons to shew cause at chambers " why, upon payment of the penalty of the bond on which these actions are brought, together with costs to be taxed, all further proceedings in these causes should not be stayed." Cause was shewn before Patteson J., who made the order as 6 DAVIS V. CLARKE 6 Q. B. 1*. prayed, giving leave to the plaintiff Branacombe to move this Court that the order might be discharged upon either of the two grounds after stated. M. Smith now moved for a rule to shew cause why the order should not be discharged. First, the learned Judge bad not jurisdiction. Stat. 11 d 2, c. 19, a. 23, which makes replevin bonds assignable to the avowant [14] or person making cognizance, enacts that, if the bond be forfeited, the assignee may sue thereon, and "the Court where such action shall be brought may by a rule of the same Court give such relief to the parties upon such bond, as may be agreeable to justice and reason." A Judge at chambers is not "the Court "for this purpose. [Patteson J. The defendants said that they were not seeking relief under the statute, but merely bringing in the penalty of the bond, as a defendant might do in any case. Then the question arose whether they were entitled to a stay of proceedings on merely...
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