pany will not be responsible for any Injury or Damage, however caused, occurring to Horses or Carriages while travelling, or in loading or unloading:"-Held, that the Terms contained in the Ticket formed Part of the Contract for the Carriage of the Horses; and that the alleged Duty of Defendants, safely and securely to carry and convey the Horses, did not arise upon that Contract. Case. The declaration stated, that whereas the defendants, before and at the time of &c., were the proprietors of a certain railway, to wit, the York and North Midland Railway, and of certain carriages used by them, the defendants, for the carriage and conveyance therein and thereon of passengers, cattle, and goods and chattels in, upon, and along the said railway and other railways, for hire and reward to them, the defendants, in that behalf; and whereas the plaintiff heretofore, and before the committing by the defendants of the grievance hereinafter mentioned, and before the commencement of this suit, to wit, on &c., A. D. 1847, at the request of the defendants, caused to be delivered to the defendants, and the defendants thereupon then received from the plaintiff, divers, to wit, nine horses of the plaintiff, to be safely and securely carried by the defendants in and upon the carriages of the defendants on and by the said railway and certain other railways, to wit, from York to Watford, in the county of Hertford, that is to say, from the York terminus of the said York and North Midland Railway to a certain railway station or stopping-place called the Watford station, being a station of and upon a certain other railway, and to be safely and securely delivered to the plaintiff at Watford aforesaid, to wit, at the said railway station called Watford station, for certain reasonable reward to the defendants in that behalf; and the defendants having so received the said horses as aforesaid, for the purpose aforesaid, it thereupon became and was the duty of the defendants safely and securely to carry and convey and deliver the said horses of the plaintiff as aforesaid; yet the defendants, not regarding their duty in that behalf, did not nor would use due and proper care in and about and for the carriage and conveyance as aforesaid of the plaintiff's said horses from York aforesaid to Watford aforesaid; but then, to wit, on the day and year aforesaid, took so little and such bad care in this behalf, and so wrongfully, improperly, and negligently conducted themselves in and about the carrying and conveying of the said horses of the plaintiff, that, by reason and in consequence of the then insufficiency and defective state and condition of a carriage of the defendants wherein one of the said horses, being of great value, to wit, of the value of 2007., was then being car ried and conveyed by the defendants on the occasionafore said, the said last-mentioned horse, whilst being carried and conveyed therein by the defendants on the occasion aforesaid, was then killed, and the said last-mentioned horse, being of the value aforesaid, thereby became and was wholly lost to the plaintiff, to the plaintiff's damage of 2007. Pleas: first, not guilty; secondly, that the defendants did not receive from the plaintiff the said horses in the said declaration mentioned, or any of them, to be safely and securely carried by the defendants in and upon the carriages of the defendants on and by the said railways in the said declaration in that behalf mentioned, to wit, from York to Watford, &c., to be safely and securely delivered to the plaintiff at Watford aforesaid, in manner and form &c.: conclusion to the country. Thirdly, that, on the day and year in the declaration in that behalf mentioned, they received from the plaintiff the said horses of the plaintiff in the declaration mentioned, to be carried by the defendants from York, in the said declaration mentioned, to Watford, in the said declaration mentioned; subject, nevertheless, to a certain contract between the plaintiff and the defendants then on that behalf made, namely, that the plaintiff should undertake all risks of conveyance of the said

horses whatsoever, and that the defendants should not be responsible for any injury or damage, however caused, occurring to the said horses while travelling, to wit, on the said railways in the said declaration in that behalf mentioned, or in loading or unloading the same; and that the said horse in the said declaration in that behalf mentioned was killed, and the said loss and damage to the plaintiff in the said declaration in that behalf mentioned occurred, whilst the said horse was travelling in, upon, and along the said railway in the said declaration mentioned, called "The York and North Midland Railway." Verification. Replication to the third plea, that the defendants received from the plaintiff the said horses of the plaintiff, to be carried as in the said declaration in that behalf mentioned, without any such contract as in the said third plea mentioned being in that behalf then made between the plaintiff and the defendants, in manner and form &c. conclusion to the country. On the trial, before Alderson, B., at the Lent Assizes for Yorkshire, in 1848, it appeared that the injury to the horse which caused its death was occasioned by a defect in one of the horse-boxes in which the plaintiff's horses were placed, and which defect was pointed out to the servants of the defendants, who tried, but unsuccessfully, to cure it. On the other hand, the defendants proved that the plaintiff and his servant travelled in the same train with the horses, and attended to them from time to time; and that, when the horses were received, a ticket was given to the plaintiff, stating the amount paid by the plaintiff for the carriage of the horses, and the journey they were to go, and having at the bottom the following memorandum:

"N.B. This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the Company will not be responsible for any injury or damage, however caused, occurring to horses or carriages while travelling, or in loading or unloading."

It was contended for the defendants, that the plaintiff had not proved the contract out of which the alleged duty arose, and that the evidence supported the contract stated in the third plea. The learned judge held, that the ticket constituted the proper evidence of the contract between the plaintiff and the defendants; but that the plea, though in the terms of the ticket, did not state the legal effect of the contract; for, according to Lyon v. Mells, (5 East, 428), every such contract is open to the exception of injury or damage arising from the insufficiency of the carriage provided by the defendants; and that if the ticket limited the common-law liability of the carrier, yet it did not support the third plea, because the plea stated a contract without that exception. The jury found that the carriage of the defendants was insufficient, and caused the death of the horse; and gave a verdict for the plaintiff, damages 1837. 15s.; leave being reserved to the defendant to move to enter a nonsuit. In the following Easter Term, (April 15),

Knowles obtained a rule nisi accordingly, or for a new trial on the ground of misdirection, citing Lord Ellenborough, in Nicholson v. Willan, (5 East, 507, 512); Latham v. Rutley, (2 B. & C. 20); Palmer v. The Grand Junction Railway Company, (4 Mee. & W. 749; 3 Jur. 559).

In Hilary Term*,

Martin and Dearsley shewed cause.-First, there is no variance between the contract as stated in the declaration and the contract as proved. The legal import of a contract to carry is to carry safely and securely, "regard being had to the relative rights and duties of the parties." (Tindal, C. J., in Rose v. Hill, 2 C. B. 877, 888). If the words "safely and securely" were omitted, a sufficient cause of action would remain; and,

* Jan. 22, before Lord Denman, C. J., Patteson, Coleridge, and Wightman, JJ. The argument was continued on Jan. 25.

therefore, the plaintiff was entitled to succeed on the second issue. Secondly, as to the effect of the notice stated in the third plea, it is the duty of carriers to use due and ordinary care, and to provide fit and proper carriages. The object and effect of a notice limiting their liability is to protect them against unexpected and unavoidable accidents; (Birkett v. Willan, 2 B. & A. | 356; Bodenham v. Bennett, 4 Price, 31); but they are, notwithstanding such notice, liable for gross negligence. (Wyld v. Pickford, 8 Mee. & W. 443, 460, 461; Story on Bailments, s. 562, citing Lyon v. Mells, 5 East, 428; Abbott on Shipping, 342, 7th ed.) Again, there is a variance between the contract and the statement of it in the third plea, because that statement omits the exception of gross negligence. (Latham v. Rutley, 2 B. & C. 20). And, further, the limitation of the liability of the defendants contained in the receipt is no qualification of the contract. (Sleat v. Fagg, 5 B. & A. 342). [They also referred to sects. 4 and 8 of stat. 11 Geo. 4 & 1 Will. 4, c. 68.]

Knowles, J. Addison, and T. Barstow, contra.-That such a declaration as the present, although in form an action on the case, and although it does not specifically charge the defendants as common carriers, is virtually an action ex contractu, was decided in Dale v. Hall, (1 Wils. 281). Non-joinder might have been pleaded to it in abatement. (Powell v. Layton, 2 N. R. 365; Max v. Roberts, 12 East, 89). The declaration is founded on a contract, indeed, whether that contract be such as arises by general custom between a common carrier and the person delivering goods to him for carriage, or it be a more special contract of bailment arising by agreement between the parties. In the present case the contract, relied on in the declaration as the ground for the alleged duty, is larger than the contract which was proved at the trial. If it be, the defendants were entitled to succeed upon the second issue. Suppose, for the sake of argument, that the Company were, in general, common carriers of horses, and that the rule as to negligence of common carriers applies to live animals as well as to goods and merchandises-which, however, Parke, B., questioned in Palmer v. The Grand Junction Railway Company, (8 Mee. & W. 749; 3 Jur. 559)-still the Company had a right to enter into a more limited contract with the plaintiff upon accepting these horses; (Nicholson v. Willan, 5 East, 507); and when they did, the plaintiff was bound to rely on that contract in his declaration. (Latham v. Rutley, 2 B. & C. 20, where Abbott, C. J., says, (p. 22), "The result of all the cases is, that if the carrier only limits his responsibility, that need not be noticed in pleading; but if a stipulation be made that, under certain circumstances, he shall not be liable at all, that must be stated"). The same rule of pleading is in Tempany v. Burnand, (4 Camp. 20); Howell v. Richards, (11 East, 633). But the distinction pointed out by Abbott, C. J., is more than a distinction in pleading: it is the test to shew whether the common-law liability is or is not waived by the parties, and whether they have or have not entered into a new contract upon delivery and acceptance of the articles in question. It has been said, that the stipulation proved by the defendants in this case at the trial did not alter the effect of the contract stated in the declaration; and that, notwithstanding the stipulation, the defendants were liable for the accident which happened to the horse; and Lyon v. Mells (5 East, 428) was cited. But what was proved there was only a notice, and a general notice: here the note proved was proved to contain the terms of a special contract entered into between the plaintiff and the defendants with respect to the acceptance of a particular kind of goods. The defendants, supposing them to be common carriers, had a right to make that special contract of acceptance. (Harris v. Packwood, 3 Taunt. 264). [Coleridge, J.The argument is, that, although, by the terms of the

note, you may have relieved yourselves from liability for some accidents, yet you could not and did not relieve yourselves from the liability of providing a carriage fit and safe for any horse you undertook to carry; for instance, for this young and spirited horse.] But the declaration states, that we were liable for all accidents; that we insured, as common carriers generally do, to deliver the horse safely and securely at Watford. Now, the special contract proved clearly excludes some if not all accidents; and, if so, the defendants were entitled to succeed on the second issue, and to the judge's direction to that effect. But it is said, that there was no special contract at all in this case; that the ticket delivered to the plaintiff's servant was a notice only, and not a paper containing the terms of a particular contract; and that the Carriers Act, 11 Geo. 4 & 1 Will. 4, c. 68, does not allow the defendants the benefit of this notice. It was said the notice mentioned in sect. 2 of that statute, and referred to in sect. 4, is a notice affixed in the office, which this is not. Now, it may be said, that the notices, which, by that statute, have the effect of limiting the carrier's liability, are notices which refer only to goods and merchandise; and then this ticket, supposing it to be a notice, is not within the statute at all, but is under the general law, and limits the defendants' liability as a notice, as much as if it were a term of a particular contract. (Story on Bailments, sect. 760). But, whatever be the interpretation of that statute in those respects, the answer to the objection is, that, according to Lord Tenterden's test in Latham v. Rutley, the stipulation in this note, that, under certain circumstances, the defendants would not be liable at all, is the term of a new special contract, and is within the 6th and not within the 2nd and 4th sections of the statute. The defendants, then, were entitled to succeed on the second issue. As to the third issue, they were equally entitled to succeed upon it, for it sets out the contract in the terms of the ticket. The stipulation, which the other side would interpolate into the contract, is necessarily to be implied, they say, from the terms of the ticket: then it is also to be implied necessarily from the terms of the pleading; and the party pleading is not bound to set out that which must be necessarily implied from the terms in which he pleads. Either, then, the stipulation is not in the contract, or it is in the pleading. In either case the defendants are right. But in all this it is supposed that the Company were generally common carriers of horses, and that they undertook on this occasion to carry horses, though on this occasion they limited their general liability by a special contract with the plaintiff. The terms of the ticket, however, which is made out for owners and servants as well as horses, and the evidence that the plaintiff and his servant in this case accompanied the horses, shew that the defendants never undertook to carry horses at all. The Company only let out carriages or trucks to the owners of horses, who, by themselves or their servants, had the care of the horses. But if the horses were in the care of the plaintiff and his servant, which they were, since they accompanied them, it is clear that the plaintiff did not make out his case even upon the general issue. (The East India Company v. Pullen, 2 Str. 690).

Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court.-This was an action on the case to recover damages for the loss of a horse, by reason of the insufficiency of one of the carriages of the defendants, on which the horse was conveyed from York to Watford.

His Lordship, after stating the pleadings and the evidence, as stated above, proceeded:-It appears to be clear, that the terms contained in the ticket, given to the plaintiff at the time the horses were received, formed part of the contract for the carriage of the horses between the plaintiff and the defendants; and

that the allegation in the declaration, that the defendants received the horses, to be safely and securely carried by them, which would throw the risk of conveyance upon the defendants, is disproved by the memorandum at the foot of the ticket; and the alleged duty of the defendants safely and securely to carry and convey the horses would not arise upon such a contract.

It may be, that, notwithstanding the terms of the contract, the plaintiff might have alleged, that it was the duty of the defendants to have furnished proper and sufficient carriages, and that the loss happened from a breach of that duty; but the plaintiff has not so declared, but has alleged a duty which does not arise upon the contract, as it appeared in evidence.

The rule, therefore, will be absolute.—Rule absolute to enter a nonsuit.

EASTER TERM.

MARY WELCHMAN, Administratrix of Joseph Welchman, v. JANE STURGIS.-April 21.

An Administrator may maintain an Action for Money had and received against a Party who has received Debts due to the Intestate after the Death of the Intestate and before the Grant of Administration. Where a Party arrested upon a Capias issued by Judge's Order under Sect. 3 of Stat. 1 & 2 Vict. c. 110, had paid Money into Court, an Application to take it out on perfecting special Bail must be made before Issue joined, in pursuance of Sect. 3 of Stat. 7 & 8 Geo. 4,

c. 71.

Assumpsit for money had and received by the defendant to the use of the plaintiff as administratrix. Plea, non assumpsit.

A rule had been obtained calling upon the plaintiff to shew cause why the sums of 145l. 2s. 6d. for debt, and 107. for costs, which had been paid into court in lieu of bail, should not be paid out of court to the defendant, or why the defendant should not be discharged out of custody. It appeared that the defendant had been arrested upon a capias issued by a judge's order, under sect. 3 of stat. 1 & 2 Vict. c. 110, and had put in special bail under sect. 4; but it did not appear clearly from the affidavits whether special bail was put in before or after issue had been joined. In Hilary Term, (Jan. 31),

Gray shewed cause against the former branch only of the rule. By sect. 2 of stat. 7 & 8 Geo. 4, c. 71, the money paid into court is to abide the event of the suit, subject to the provision in sect. 3, by which it shall be lawful for the defendant, "at any time in the progress of the cause before issue joined in law or fact, or final or interlocutory judgment signed, to receive the same out of court upon putting in and perfecting special bail in the cause, and payment of such costs to the plaintiff as the said Court shall direct." But, in order to have the benent of this section, special bail must be put in before issue joined. (Ferrall v. Alexander, 1 Dowl. P. C. 132). And by sect. 4 of stat. 1 & 2 Vict. c. 110, the defendant "shall remain in custody until he shall have given a bail bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with 107. for costs, according to the present practice of the said superior courts; and all subsequent proceedings, as to the putting in and perfecting special bail, or of making deposit and payment of money into court instead of putting in and perfecting special bail, shall be according to the like practice of the said superior courts, or as near thereto as the circumstances of the case will admit."

Pearson, contra.-[Wightman, J.-Ought not the defendant to shew that issue was not joined before special bail was put in ?] The words of the 4th section of stat. 7 & 8 Geo. 4, c. 71, are satisfied if special bail is put in at any time before final judgment. Wightman, J.-If so, it was unnecessary to put into the section the

words "before issue joined."] In Geach v. Coppin, (3 Dowl. P. C. 74, 78), Littledale, J., qualified his opinion in Ferrall v. Alexander, (1 Dowl. P. C. 132). [Wightman, J.-In Morris v. Shepherd, (2 Jur. 1069), which is the latest case upon the point, the Court of Exchequer said, "It is too late to put in special bail, as the money paid into court has now become a security to the plaintiff for the amount which he may recover in the action."] There is no reason now why the joining of issue should be a dividing line since the abolition of arrest on mesne process. Under the old practice, before stat. 1 & 2 Vict. c. 110, there was reason why this application should not be made after bail had been put in and perfected, because that was a step in the cause. [He referred to Ireland v. Berry, (5 Q. B. Rep. 551, 554; 8 Jur. 488).]

Lord DENMAN, C. J.-The words of the 3rd section of stat. 7 & 8 Geo. 4, c. 71, must be adhered to.

PATTESON, J.-The stat. 1 & 2 Vict. c. 110, has made no difference. It is true, that putting in bail is collateral to the action; but the change of money into bail is equally collateral. It is only by stat. 7 & 8 Geo. 4, c. 71, that a party can now pay money into court in lieu of bail, stat. 1 & 2 Vict. c. 110, having preserved the right as far as it is applicable. If the defendant wants to have the money paid out of court, he must do it under the terms of the former act; and, therefore, there is no difference since the late statute.

COLERIDGE and WIGHTMAN, JJ., concurred.-Rule accordingly.

On the trial, before Platt, B., at the last assizes for Monmouthshire, it appeared that the intestate died on the 13th May, 1848, and letters of administration were granted to the plaintiff on the 12th June following. In that interval the defendant, who had lived for many years with the intestate as his wife, received monies due to the intestate in his lifetime from certain creditors, and sold certain goods of the intestate and received the purchase-money. It was contended for the defendant, that the plaintiff could not maintain this action for the money received by the defendant from the creditors of the intestate. The learned judge overruled the objection, and a verdict was given for the plaintiff for 951. 11s. 2d.

Keating now moved for a rule nisi for a new trial, on the ground of misdirection. The question is, how far it is competent to the administrator to ratify and confirm the act of a party who has dealt wrongfully with the money or goods of the intestate before the grant of letters of administration, and bring an action for money had and received. In Woolley v. Clarke, (5 B. & Ald. 744), Abbott, C. J., said, (p. 745), “There is a manifest distinction between the case of an administrator and an executor. An administrator derives his title wholly from the ecclesiastical court. He has none until the letters of administration are granted; and the property of the deceased vests in him only from the time of the grant." [Patteson, J.-What Lord Tenterden said was extrajudicial, because the action in that case was by an executrix; and it is contrary to the current of the authorities in Com. Dig. "Administration," B. 10; and particularly Tharpe v. Stallwood, (5 M. & Gr. 760; 7 Jur. 492), Foster v. Bates, (12 Mee. & W. 226; 7 Jur. 1093), and Patten v. Patten, (1 Alcock & Nap. 493, cited in 1 Williams on Executors, 493, n., 3rd edit.)] Woolley v. Clarke was not cited in Tharpe v. Stallwood, (5 M. & Gr. 760; 7 Jur. 492), or in Foster v. Bates, (12 Mee. & W. 226; 7 Jur. 1093), where Parke, B., said, (12 Mee. & W. 233; 7 Jur. 1093), "In the present case there is no occasion to have recourse to the doctrine that one may waive a tort and recover on a contract, for here the sale was made by a person who intended to act as agent for the person, whoever he might be, who legally represented the intestate's estate, and it was ratified by the plaintiff after he became ad

replevin for the taking and detaining the said goods and chattels, or any or either of them; and the Whitechapel County Court of Middlesex was, at the time of the taking of the said bond, the only court in which the said K. G. could validly commence an action of replevin for taking and detaining the said goods and chattels; by means of which said premises the plaintiffs were wholly deprived of the said goods and chattels so distrained as aforesaid, &c. And although a reasonable time for the said K. G. commencing in the Whitechapel County Court of Middlesex an action of replevin for the taking and detaining the said goods and chattels, elapsed after the replevying of the same as aforesaid, and before the commencement of this suit, and although the said K. G. did not within such reasonable time commence in the last-mentioned court such action as aforesaid, yet the plaintiffs lost the benefit of such bond as the defendants ought to have taken and omitted to take as aforesaid, and were put to great charges and expenses, to wit, &c., in and about ascertaining what bond the defendants had taken, and in and about inquiring into the sufficiency of such bond, and the power of the defendants to assign the same to the plaintiffs, &c. Pleas: first, not guilty; secondly, that the said county court mentioned in the said condition as aforesaid had, at the time of the taking of the said bond, jurisdiction to hear and determine any action of replevin for the taking and detaining the said goods and chattels, &c. Issue thereon. The cause was tried before Cresswell, J., at the first Sittings at Westminster, in Michaelmas Term, 1847, when it appeared, that, on the 29th March, 1847, the plaintiffs distrained the goods of one K. G., who resided within the district of the Whitechapel County Court, for the sum of 351., arrears of rent. K. G. applied in the usual way to the defendants to replevy the goods, and they caused them to be valued, and on the 1st April took a replevin bond for 947. 8s. from K. G. and two sureties, conditioned as follows:-"The condition of the said obligation is such, that, if the abovebounden K. G. do appear at the next county court for the county of Middlesex, to be holden at the house known by the name of the Sheriff's Office, in Red Lion-square, in the said county, and shall then and there prosecute her action with effect against G. E., for taking and unjustly detaining of her goods and chattels, to wit, &c., and make return thereof, if return shall be adjudged by law, and shall well and truly keep harmless and indemnified the said Sheriff of Middlesex, his under-sheriff, deputies, and bailiffs, touching and concerning the replevying and delivery of the said goods and chattels, then the said obligation to be void and of no effect; otherwise to be and remain in full force." Red Lion-square was without the jurisdiction of the Whitechapel County Court, which was proved to have been duly established by order in council, and to have opened formally on the 15th March, and for business on the 22nd. The defendants contended, that, notwithstanding the establishment of the Whitechapel County Court, the sheriff still had jurisdiction in this matter; and also, that, supposing his jurisdiction had ceased, the bond was a good bond and assignable, and that the plaintiffs might have proceeded against the bail. It appeared also, that notice had been given to the defendants to produce the bond at the trial. The plaintiffs' counsel called for the bond, which the defendants' counsel declined to produce. On the part of the plaintiffs a copy was produced, which was proved to have been obtained from the sheriff's office, and it was about to be read; whereupon the counsel for the defendants produced the original, and said it could not be read without the subscribing witness. The learned judge overruled the objection, and, in point of form, the original was read, and the subscribing witness was not produced. The jury returned a verdict for the plaintiffs, damages 357. rent, and the expenses; and leave was re

served to enter a verdict for the defendants, if the Court should be of opinion that the bond which was taken was sufficient, within the meaning of the 9 & 10 Vict. c. 95. Bramwell, in the same term, having obtained a rule calling upon the plaintiffs to shew cause why the verdict found for them should not be set aside, and, instead thereof, a verdict be entered for the defendants, or why a new trial should not be had, or why the entry of final judgment should not be stayed,

Baines and M. Dawson (Nov. 22 and 24) shewed cause.-Originally at common law the remedy of a party whose goods had been distrained was by suing out of the Court of Chancery a writ of replevin, directed to the sheriff of the county where the distress was taken. This process being tedious and inconvenient, the Statute of Marlbridge, 52 Hen. 3, c. 21, abolished this writ, and gave authority to the sheriff to re-deliver the goods after complaint made to him, which complaint might be taken out of court; as appears also by 1 Phil. & Mary, c. 12, s. 3, recognising and extending this authority, and the appointment by the sheriff of four deputies to make replevies. Then came the stat. 11 Geo. 2, c. 19, which enacts, by sect. 23, "that sheriffs and other officers having authority to grant replevins shall, in every replevin of distress for rent, before any deliverance of the distress, take, in their own names, from the plaintiff, and two responsible persons as sureties, a bond in double the value of the goods, conditioned for prosecuting the suit with effect and without delay, and for duly returning the distress, in case a return shall be awarded." A bond at common law being a chose in action and not assignable, this statute authorises the sheriff to assign such bond, i. e. one made in conformity with the statute, to the avowant. Then followed the plaint in replevin in the old county court. The question is, how is this proceeding altered by the provisions of the 9 & 10 Vict. c. 95? By sect. 119 it is enacted, "that all actions of replevin in cases of distress for rent in arrear or damage faisant, which shall be brought in the county court, shall be brought without writ in a court held under this act." And, by sect. 120, “in every such action of replevin, the plaint shall be entered in the court holden under this act for the district wherein the distress was taken." The whole replevin suit, therefore, is now to be prosecuted in the district court. This view is supported by the 24th, 25th, and 26th Rules (11 Jur., part 2, p. 73) made by the judges, under the 61st section; nevertheless the sheriff is still bound to take the replevin bond under the 11 Geo. 2. And had such a bond as is authorised by that act been taken in the present case, no difficulty would have arisen. In the first place, the defendants contend that this bond is sufficient; and, secondly, that, if it is insufficient, it can only be because the jurisdiction of the sheriff is taken away by the District Court Act, 9 & 10 Vict. c. 96. But, first, this bond is not sufficient. Even before the late act, a bond conditioned "then and there to prosecute" would have been irregular, (Jackson v. Hanson, 8 Mee. & W. 477), and now it is absolutely void. The jurisdiction of the sheriff to entertain the replevin suit (not to take the bond) being gone, the condition of the bond is, in point of law, impossible. Sect. 4 of the 9 & 10 Vict. c. 95, does not help the case, for the plaint entered after the granting of the replevin bond (which is not to be confounded with the querimonia mentioned in the Statute of Marlbridge) is the commencement of the suit, and that is the act of the party, not of the sheriff. (Ex parte Boyle, 2 D. & R. 13; Co. Litt. 145. b.) At the time when the replevin bond is taken there is no cause in court. (Tesseyman v. Gildart, 1 B. & P. N. R. 292). Jackson v. Hanson also shews that the plaint to be levied after the granting of the bond, and to be heard at the then next county court, is the commencement of the suit. What the duty of the sheriff in replevin is may be found in 1