directed to the sheriff, who was commanded to replevy the goods, that is, to give them back to their owner; and to take sureties from him, binding him to try the question of the distrainer's right to take them, and to return the goods if that question was decided against him. That was the common law; but it was

[*184] found extremely inconvenient to send tenants, perhaps poor ones, to the Court of Chancery for writs, and accordingly by [c. 21 of the] stat. Hen. 3, commonly called the Statute of Marlebridge, jurisdiction was given the sheriff to entertain actions of replevin in the first instance; see Thompson v. Farden, 1 M. & Gr. 535, (39 E. C. L. R. 548,). By means of this statute the tenant obtains restitution of the goods seized immediately. But as it would have been unjust to take the distress from the landlord and leave him without any security, the stat. of Westminster the 2nd, (i. e. 13 Edw. 1, c. 2) requires the sheriff, when he restores him the distress, to take security from him that he will prosecute an action of replevin against the distrainer, and return the distress if the court so award. And this security, by stat. 11 Geo. 2, c. 19, s. 23, is directed to be a bond from the plaintiff—that is, the tenant,—with two responsible persons as sureties, in *double the

[*185]

39

39 The sheriff is responsible for taking insufficient sureties, and is bound to use a reasonable discretion in the matter. Jeffery v. Bastard, 4 A. & E. 823, (31 E. C. L. R. 362,); Plumer v. Brisco, 11 Q. B. 46, (63 E. C. L. R. 46,). But if the sureties were at the time apparently responsible, he is not liable. Hindle v. Blades, 5 Taunt. 225, (1 E. C. L. R. 122,); 1 Wms. Saund. 195 f. This statute requires that the bond shall be conditioned to prosecute the suit "with effect and without delay." These words also form part of the condition of the bond which must be given upon the removal of replevins from the county courts under the 9 & 10 Vic. c. 95, s. 121.

value of the goods distrained; and this bond is assignable to the distrainer, contrary to the usual rule of the law of England, that choses in action are not assignable. Thus the party distrained, if he dispute the right of the distrainer, may obtain back his goods; but, on condition of bringing an action of replevin against the distrainer: if he succeed in this action he recovers damages, but, if not, the judgment is provided by stat. 17 Car. 2, c. 7, the particular enactments of

They mean that the suit shall be prosecuted to a not unsuccessful termination. Jackson v. Hanson, 8 M. & W. 477.* In Morris v. Crouch, 2 Q. B. 293, (42 E. C. L. R. 681,) a bond was conditioned to prosecute the suit "with effect," not adding "without delay." The distrainer removed the proceedings, and carried the suit regularly forward in the superior court until he died. It was held that the condition was not broken. See also Rider v. Edwards, 3 M. & Gr. 202, (42 E. C. L. R. 112,). The condition to prosecute the suit, "without delay," may, however, be broken by a delay which does not exceed the time allowed by the ordinary practice of the courts, if the defendant in replevin be unduly prejudiced by it. Therefore, where a plaint was removed into a superior court, and the plaintiff obtained successive orders for time to declare, and did not declare until more than five months after the removal, it was held that there was evidence for the jury of a delay in prosecuting the suit. Gent v. Cutts, 11 Q. B. 288, (63 E. C. L. R. 288,). Although the jurisdiction in replevin of the old county courts is now transferred to the new courts established under the 9 & 10 Vic. c. 95, the sheriff must still, it seems, take a bond pursuant to the 11 Geo. 2, c. 19. Edmonds v. Challis, 7 C. B. 413, (62 E. C. L. R. 413,). The bond which is required by the County Court Act before the proceedings can be removed, is to be given by the party removing the proceedings to the other party in the action, and is to be approved by the judge; see s. 127; but where a judge, by mistake, took the bond to himself, it was held not to be void. Stansfield v. Hellawell, 7 Exch. 373.

40 See the notes to Mounson v. Redshaw, 1 Wms. Saund. 195 f.; and Austen v. Howard, 7 Taunt. 325, (2 E. C. L. R. 584,).

which are somewhat complicated; but the general effect of which is, that the landlord recovers his rent and costs.41

[*186]

*The time will not permit us to go further.

41 See the notes to Mounson v. Redshaw, 1 Wms. Saund. 193 to 195, h. The 11 Geo. 2, c. 19, s. 22, provided that when the distress was for rent, quit-rents, reliefs, heriots, and other services, and the plaintiff became non-suit, discontinued his action, or had judgment given against him, the defendant should recover double costs. This provision has been altered by the 5 & 6 Vic. c. 97, s. 2, under which the defendant is now entitled, in these cases, to receive only a full and reasonable indemnity as to all costs, charges, and expenses incurred in and about the action.

AFTER the time which has elapsed since the delivery of the last Lecture, it is right briefly to recapitulate what has been done. I began, as you may recollect, by describing the different sorts of tenancy. I then divided the considerations arising out of the relation of landlord and tenant into four heads-the [*188] first comprising those points which relate to the commencement of the tenancy; the second, those which occur during its continuance; the third, those which relate to its termination; and the last, those which arise out of

1 Ante, Lecture I.

a change either of the tenant or the landlord. Pursuing the subject in this order, we had disposed of the first head, comprising those points which relate to the commencement of the tenancy. We had entered upon the second, and, as this naturally subdivided itself into two considerations, that of the landlord's rights against his tenant, and that of the tenant's rights against the landlord; we had begun with the former class, the principal topic included in which being the landlord's right to rent, I had spoken at some length on the nature of rent, the time and the manner in which it is payable, the demands which the tenant sometimes is entitled to set off against it, the mode in which its payment is enforced, particularly by distress, to the various topics connected with which the last Lecture was devoted.3

Having thus brought to a termination the remarks I had to offer on the subject of the rent-the remuneration which the landlord receives for giving up the possession of his property to the tenant, it remains to consider his right to require the tenant to treat that property in a particular manner while it is out of his possession. When I speak of the treatment

[*189] of the property, I mean in the way of upholding and cultivating it. Since it is obvious, that if a house, it will, without repairs, go to decay; and if consisting of land, it will, if improperly cultivated, lose heart and degenerate; the rights, therefore, of the landlord as against the tenant, with regard to those two matters, cultivation and repairs, are of great practical importance, and very frequent practical discussion.

In order clearly to comprehend this portion of the subject, it is necessary to see how the law stands with

2 Ante, Lectures II., III., and IV.

3 Ante, Lectures V. and VI.