Cushenden and Rutherford, and another, against Harman, Board, and Reynolds, 2 Tyl. 431

The Court delivered the following opinion. Curia. The plaintiffs declare upon a bond of recognisance entered into by the defendants before a Justice of the Peace upon the- issuing of a writ of replevin, in which Parker Reynolds and David Stewart were plaintiffs, and the present plaintiffs were avowants, conditioned that the plaintiffs in replevin should prosecute their writ to effect, and in default and upon award of redelivery of the estate replevied, to redeliver the same, and answer all damages occasioned by issuing the writ. The declaration then alleges, that the estate was replevied by virtue of the writ.

That the writ of replevin was entered in the County Court to which it was made returnable, and that, after several imparlances, judgment was rendered against the plaintiff in replevin, and a return of the estate replevied awarded, and so the plaintiffs say, that Stewart and Reynolds did not prosecute their writ to effect, and did not, &e. They then allege a general request, and neglect and. refusal to pay the bond, &c. The defendants demur generally, and take several exceptions to the declaration, which are now to be considered. First.

That the plaintiffs have not set forth in themselves any right to the estate replevied. The declaration sets forth, that the writ of replevin was served by taking tire estate replevied from the now plaintiffs, and delivering it to Stewart and Reynolds, the plaintiffs in replevin, When goods are taken in replevin, the plaintiff may show, not only a general property, which every owner hath, but also a special property, such as a person has who hath goods pledged to him, or who hath the cattle of another to manure his lands, &c. Bac. Abr. vol. 6. p. 69.

And on the other hand the defendant, in his avowry, need not show a fight to the property in himself ; for if he has the possession, which must be if the property is taken from him by the writ, he ought to have it returned to him for the benefit of the right owner. Comb. p. 477. Barret v. Scrimshaw.

But whatever may be the present plaintiffs’ interest in the property replevied, it cannot now come in issue; for it has been already decided in the action of replevin, and that is the gist of the breach of the bond of recognisance as declared upon, The Court therefore consider, that the plaintiffs have in their declaration set forth a sufficient interest in the property replevied, to maintain the present action.

In debt on a recognisance entered into for the prosecution of a writ of replevin, if the defendants would avail themselves of the return of any part of the property replevied, so that the identity, quantity, and quality of the property replevied, becomes necessary to be spread on the record, or to use the same for any other purpose in pleading, they should crave oyer of the record in the action of replevin. The second exception is, that the plaintiffs have not in their declaration described the estate replevied.

The declaration describes the property replevied by reference to the writ of replevin, “ and took the estate in the said writ of replevin mentioned,” and again the declaration makes profert of the records and proceedings of the County Court in the action of replevin.

In England the action upon a replevin bond is a scire facias; but with us, in case of a breach of the replevin bond, an action of debt is brought upon it, reciting the proceedings in the action of replevin in breach, and is so far of the nature of a spi. fa. that it is connected with and predicated upon a former judgment, a reference to which by profert is a sufficient certainty for the Court to proceed in rendering judgment. Id certum est quod certum reddi potest. What is proferted in a declaration may be craved, and shall be read in oyer.

If the defendants inclined to avail themselves of the return of any part of the property replevied, so that the identity, quantity, and quality of the property replevied became necessary to be spread particularly on the present record, or to use the same for any other purpose in pleading, they should have craved oyer of the County Court records. The Court therefore consider, that the second exception is not well taken. The last exception is, that the plaintiffs have not alleged any especial demand of the property replevied.

The bond of recognisance, as set forth in the declaration, combines the English plegii de prosequendo, by common law, and plegii de retorno habendo, by the statute of Westminster 2, cap. 2. with a clause of indemnification from all damages resulting from the issuing the writ. In England the pledges to prosecute and to return the property in case, are taken to the sheriff, and the sci. fa. issues in his name against the pledges; with us the bond is taken to the avowants, and an action in the nature of a scire facias is commenced against the plaintiff in replevin, and his sureties in the name of the recognisee.

In the elder country the writ de retorno habendo is not a returnable process, and seems only to be used to decide whether the property replevied be eloigned or not. For if the defendant hath a return awarded to him, and he sueth a writ de retorno habendo, and the sheriff returns on the pluries, quod averia elongata sunt, he shall have a scire facias against the pledges, &c. accordmg to the statute of Westm. 2. (13 Edw. I. stat 1.) and if they have nothing, then he shall have a withernam against the plaintiff’s own cattle. Fitzherbert's N. B. 172.

In an action upon a recognisance taken for the prosecution of writ of replevin, where the redelivery of the property has been awarded, it is not necessary to allege ⅛ the declaration -a special demand of the properly replevied.

By our practice, the writ de retorno haberido or withernam have not therefore been resorted to, but the usual mode has been when in replevin a return of the property has been awarded, with judgment for costs, to have recourse to an action on the bond, which, as it embraces in its covenants all the several injuries the avowants in replevin may have sustained, has been found to. answer all the purposes bf those writs, with others not included in them, excepting that in our practice no provision is made to ascertain on the record whether the property is eloigned or not, or is refused to be redelivered.

It might, perhaps, be better in all cases to issue the writ de retorno habendo as against the plaintiff in replevin, and to procure a regular return by a proper officer, quod catadla elongata stmt, (which would be tantamount to a demand and refusal,) or that the sheriff had demanded the chattels of the plaintiff in replevin, which he refused to redeliver, and then recourse might be had to an action on the bond, waiving the writ de withernam ; but since this is not the practice, we must endeavour to give such a consistency to the present practice as we are able.

It has been usual to institute actions on recognisances in replevin, without alleging any especial demand, Communis error facit jus. The Court therefore consider, that in an action upon a recognisance, taken for the prosecution of a writ of replevin, where’ the redelivery of the property, has been awarded, it is not necessary to allege in the declaration a special demand of the property replevied. John Cook, for the plaintiffs. Chauncey Langdon, for defendants. Let judgment be entered, that the declaration is sufficient. Tyler, Assistant Judge, hesitante. Declaration sufficient.