Page:United States Reports, Volume 1.djvu/360

Rh 

1788.

SHIPPEN,Preʃident. The Act of Affembly, exprefly directs that the procefs, to be iffued againft a freeholder, fhall be a Summons. Upon the writ which has iffued in this cafe, the Defendant muft be arrefted before his appearance can be accepted ; and it might hereafter be doubted, under our Act of Affembly, whether in fubmitting, even upon thofe terms, to the Capias, he has not forfeited his privilege to be fued by a Summons.



HERE was a rule of reference in this caufe, the report to be made to next term.  After the next term, however, the referees, who had never met on the bufinefs, was changed by confent, and the report made returnable into oƒƒices.  Whereupon it was faid by SHIPPEN, Preʃident,  that the rule for reporting to the next term, was expired by its own limitation, and the cafe, in that refpect, open to any new agreement of the parties. 

N the trial of this caufe, it was ruled by SHIPPEN, Preʃident, that were one man has received money belonging to another, an had retained it without confent of the onwer, it is to be confidered in the fame light as money lent, and ought to carry intereft. He faid that this cafe was clearly diftinguifhable from that of goods fold and delivered where no money actually paffes between the parties, and intereft is not due of courfe. 

HIS was an action againft the Sheriff for taking infufficient fureties on a replevin bond ; and the queftion materially difcuffed on the trial, was, whether a Sheriff is refponfible that the fureties fhall prove fufficient on the event of the replevin; or only that they were of good credit at the time of their entering into the bond?

Sergeant, for the Plaintiff, obferved, that he Defendant in replevin could not controul the Sheriff in accepting or rejecting the fureties, and, therefore, he ought not, in juftice, to be affected by their eventual infolvency ; and, he infifted, that, in law the Sheriff takes them at his peril, and is anfwerable for their proving fufficient. ''Gilb. on Diʃt.'' 67. 176. 1 ''Bac. Abr.'' 207.

Levy, for the Defendant, ftated the hiftory, nature, and duties of the Sheriff's office from Robinʃon's Charles the ƒiƒth. 1 Vol. p. 213. and