COMMONWEALTH v. REES, 1 Miles 330

The opinion of the Court was delivered by Stroud, J. According to the case stated, “ the question intended to be raised is, whether the plaintiffs, having taken an assignment of the replevin bond from the sheriff’ are precluded, by that act, and their subsequent proceedings, from recovery in this action.” This question the argument on both sides assumes to depend on the single point, whether the action has not been improvidcnlly instituted, no execution having been issued on the judgment obtained on the reple-vin bond? The 11th

section of the act of the 21st of March 1772 (Purd.

Dig. 783) directs, “that all sheriffs and other officers having authority to serve replevins may and shall, in every replevin of a distress for rent, take in their own names from the plaintiff and one responsible person as surety, a bond in double the value of the goods dis-trained, and conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained, in case a return shall he awarded before any deliverance be made of the distress ; and such sheriff or other officer taking any such bond shall, at the request and costs of the avowant or person making conusance, assign such bond to the avowant or person aforesaid, by indorsing the same and attesting it under his hand and seal in the presence of two credible witnesses; and if the bond so taken and assigned be forfeited, the avowant or person making conusance may bring an action and recover thereupon in his own name.” The only difference between this

section of our act of assembly and the 23d

section of the statute of 11 George 2, c. 19, is in the requisition by the latter of an additional surety in the replevin bond. It might have been expected, therefore, that upon a law enacted so long since, and on a subject of so much practical application, the books would furnish decisions upon every variety of cases ; yet none were cited by counsel, nor have we been able to find any upon the contested point before us. Looking, then, at the reason of the thing, what is the proper conclusion to be formed.

The replevin bond is to be taken in the name of the sheriff, and, without doubt, is intended to be for his protection as well as for the benefit of the avowant in the replevin. The avow-ant has the double security of the replevin bond, and of the recognizance of the sheriff and his official sureties. He may coerce an assignment by the sheriff of the former, without prejudicing, in any degree, his right of recourse to the sheriff and his sureties. Note by Sergeant Williams to Mounson v. Renshaw, 1 Saund. Rep. 195, f; Watson on Sheriff 302.

This, though a great benefit to the avow-ant, yet works no injustice to the sheriff, provided the avowant is prompt in bringing suit upon the bond, prosecutes it with proper diligence, and suffers no unreasonable delay in awarding execution.

But ought he, having deprived the sheriff of all control of the bond, to be permitted to institute suit upon it, or not, at his pleasure; or, having commenced suit, to stop at any stage of the proceedings, allege his unwillingness to go further, and, without regard to the interest or convenience of the sheriff, turn round upon him and his sureties in the recognizance 1 The replevin bond is forfeited upon the recovery of judgment against the plaintiff in the replevin; he has then failed to prosecute his suit with effect] Perreau v. Bevan, 11 Eng. C. L.

Rep. 236; and of course the sheriff, if the avowant has not elected to take an assignment of the bond, may, by suit upon it, without further delay, protect himself from ultimate loss on the call of the avowant, so far as the responsibility of the obligors will avail him for that purpose. Can it be just, then, to deprive him of this power, and yet compel him to take up the proceedings on the suit on the replevin bond, wherever the avowant may choose to abandon them 1 We think not.

The assignee having begun the suit, must carry it on, diligently and judiciously, until it be ascertained by execution to what amount, if any, the sureties are insufficient. In Lyon v. The Huntingdon bank, 12 Serg. & Rawle 68, where the Bank had exacted certain bonds with warrants of attorney, as collateral security for the payment of a note which was discounted by it, Chief Justice Tilghman said: “the legal inference is (unless there was proof to the contrary), that the bank took upon itself the care of attending to these bonds and pursuing all legal means to recover them.

The obligors could make no legal payment, after notice of the assignment, to any other than the bank.” This doctrine accords with the plain principles of justice, and is strictly applicable to the case at bar. It was decided long since, in Oxley v. Cowperthwaite, 1 Dall. 349, that the sheriff is responsible for the sufficiency of the sureties in the replevin bond, on the termination of the replevin suit; and in Pearce v.

Humphreys, 14 Serg. & Rawle 25, although lite severity of this rule was felt and acknowledged, yet it was re-asserted and enforced to the extent established in the former case, This differs from the construction put upon the analogous statute in England; it being now well settled there that the sheriff incurs no liability, provided the sureties, at the taking of the bond, were in good credit, and apparently responsible, and he neglected no proper means of ascertaining their true condition in respect to property. Hindle v. Blades, 1 Eng. C. L. Rep. 86 ; Sutton v. Waite, 17 Ibid. 96.

Whilst this harsh feature is retained in our system, we do not feel ourselves called upon to add to the burthen of the sheriff a single grain beyond the requisition of express authority. In the case stated, it seems to have been thought by the plaintiff’s counsel that the fact of the surety’s non residence in this county constituted, of itself, evidence of his insufficiency. This is a point which has not claimed our particular attention, as our decision is on a ground which does not extend the inquiry so far.

It may not be unimportant, however, to observe, in conclusion, that where the guarantor of a bond was sued, the demand of payment and a refusal to pay, although coupled with the fact of non residence of the obligor, were not deemed evidence of insolvency. Johnston v. Chapman, 3 Penns. Rep. 20. Judgment for defendant.