Thompson v Farden and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 443
IN THE COURT OF COMMON PLEAS
S. C. 1 Scott, N. R. 275; 8 D. P. C. 813; 9 L. J. C. P. 284; 4 Jur. 608.
[535] thompson v. farden and others. 1840.-[S. C. 1 Scott, N; E. 275; 8 D. P. C. 813; 9 L. J. C. P. 284; 4 Jur. 608.] A replevin bond may be taken and assigned by any officer who has power to grant replevins.-Held, that one of the sheriffs of London has such power, without his companion, and may therefore take, and assign, replevin bonds. Debt, by the assignee of a replevin bond. The declaration stated, that on 26th August 1838, in the parish of St. Giles, Cripplegate Without, in the city of London, the plaintiff distrained the goods and chattels of the defendant Farden, for a certain sum of money then due to the plaintiff "Thompson for rent: that the said goods and chattels being so distrained, the defendant Farden afterwards, and within the space of five days then next ensuing, to wit, on, &c., made his plaint before Sir Moses Montefiore, knight, then being one of the sheriffs of the said city, out of the court of hustings of the said city, of the taking and unjustly detaining of the said goods and chattels by the plaintiff, and then prayed the said Sir M. M., knight, so then being one of the sheriffs of the said city, that the said goods and chattels might be forthwith replevied by the said Sir M. M., knight, so then being, &c., and delivered to the defendant Farden; that thereupon the said Sir M. M., knight, so then being, &c. according to the form of the statute in Such case made and provided, did take from the defendant Farden, and from the two other defendants as two responsible sureties, a bond in double the value of the said goods and chattels, the value thereof having been, on that occasion, first ascertained by the oath of a credible witness, duly sworn according to the form, &c. That the defendants, on, &c., by their certain writing obligatory, sealed, &c. became held and irmly bound unto the said Sir M. M., knight, so then being, &c. in the said sum of money above demanded, to be paid to the said sheriff, with a condition thereunder written, that if, &c. (in the usual form of the (a) See Taylor v. Bains, 7 Mod. 148; Dunkins's case, Tremaine, P. C. 501; Bromhall and Johnson's case, ib. 502; Baker v. Baker, ib. 505. And see further as to writs of prohibition-in causes testamentary, Marquess of Winchester's case, 6 Co. Kep. 23 a.; Orphans of London's case, 5 Co. Eep. 73 b.; Smallwood v. Brickhouse, 2 Mod. 316;-in suits respecting marriage, Harmer v. Bunoill, Vaughan, 207, 220; Hicks v. Harris, Comberb. 200; Colletfs case, T. Jones, 213; Anon, (but S. C.), 2 Mod. 315;-in suits relating to the making of church-rates, F. N. B. 50 N.; Jeffreys case, 5 Co. Eep. 67 b.; Hollam v. Kirim, 2 Eoll. Eep. 463; Anon. Poph. 197; Roberts case, Hetley, 63; Anon, (afterwards called, Thursfield v. Jones], 1 Ventris, 367; Whaley v. Lambert, 1 Bac. Abr., title Churchwardens, 600 ;- in suits for the payment of church-rates, Thwrsfield v. Jones, T. Jones, 187; Watkins v. Seaman, 2 Lutw. 1019; Woodward's case, 3 Mod. 211, 1 Salk. 164: Comberb. 132; Dawson v. Wilkinson, C. T. Hardw. 381, Andrews, 11; Rex v. Haworth, 12 East, 556; Lanchester v:. Thompson, 5 Madd. 4j-in suits relating to churchwardens' accounts, " v. Bagshaw, 2 Stra. 974;-in suits respecting the occupation of pews, ' v. Windus, 5 B. & C. 1, 7 D. & K. 564. 444 THOMPSON V. 1ABDBN 1 MAN. & G. 536. condition to a [536] replevin bond); that thereupon the .said Sir M. M., so being,.&c. afterwards, on, &c., at the prayer of the defendant Farderi, replevied and made deliverance of the said goods and chattels to the;defendant Farden, according to the duty of his said office. That although, afterwards, to wit, on the 2d day of October in the year aforesaid, the court of hustings for the said city was duly holden at the Guildhall of the said city, before the Eight Hon. Sir John Cowan, Bart., Lord Mayor of the said city, Sir G-. C. knt., and Sir M. M. knt., sheriffs of .the said city, the same being the next court of hustings for the said city, after the making, of the said writing obligatory as aforesaid, yet the defendant Farden did not appear at the said court of hustings and prosecute his said writ with effect and without delay against the, plaintiffs, according to the form and effect of the said condition, but wholly .omitted and neglected so to do": That the said writing obligatory thereby became forfeited to:the said Sir M, M., knt., so then being, &c. That the said writing obligatory being so forfeited, the said Sir M. M., knt., afterwards, and after the expiration of his said shrievalty, to wit, 18th December, in the year aforesaid, at the request and costs of the plaintiffs, by an indorsement on the said writing obligatory, duly assigned the same to the plaintiffs according to the form, &c., as by the said indorsement, &c.: That by means thereof, and by force of the statute, &c., an action had accrued to the plaintiffs as assignees of said Sir M. M., knight, to demand and have of and from the defendants the said sum of money above demanded : That the defendants, although often requested, had not, nor had any of them, as yet paid the said sum of money or any part thereof to the said Sir M. M., knight, before the said^assignmerit, or to the plaintiff since that assignment, but had hitherto wholly refused to pay the sarne or any part thereof, to the said Sir M. M., knt., or to [537] the plaintiff, and still do refuse to pay same or any part thereof to the plaintiff. Wherefore the plaintiff saith that he is injured, and hath damage, &c. General demurrer; and joinder. Goulburn Serjt. for the demurrer. The question is, whether a replevin bond can be taken and assigned by one sheriff of London in his own name. [Tindal C. J. Is it alleged that the other sheriff was dead ?] It is not. The court of hustings held after the granting of the replevin and the taking of the replevin bond, is stated to have been held before both the sheriffs. If any circumstances had occurred to make it proper that the replevin should be granted by one sheriff only, those circumstances should have been suggested on the record, as was done in Bex et Eegina v. FFarrington (1 Salk. 152). Here, there is no such suggestion. It is not contended that one sheriff might not do the act, and state it as the act of both sheriffs. The case of Rich v. Sir Thomas Player (Skinner, 104) will, probably, be cited against the. defendants; but in that case nothing was decided, a further day was given to bring in more precedents. The power of assigning replevin bonds is created by 11 G. 2, c. 19, s. 23; but the first statute which authorises replevins, is the statute of Marlbridge, 52 H. 3, c. 21, which enacts that if the beast of any man be taken and wrongfully withholden, the sheriff, upon complaint made thereof to him, may deliver them without let or gainsaying of him that took the beasts, if they were taken out of liberties...
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