
    David Pemble, Assignee of the Sheriff, vs. Henry Clifford.
    An action cannot be sustained- on a replevin bond, against the securities, unless a judgment (of non pros, or otherwise) has been obthined’in the' re-pleviasuit, and a retorno habendo ordered.
    Tried before Mr. Justice Richardson,
    This was an action of debt on a replevin bond, brought by David Pemble, assignee of the sheriff, against Henry Clifford, the security. In the" original replevin suit, a certain James D. Cogan, was the plaintiff. The writ was issued-, but no declaration was filed, nor subsequent proceedings had thereon, The bond being considered as forfeited', this action was brought against Henry Clifford, the security. The defendant filed a special demurrer, which was argued in May Term, 1824. This demurrer contained, amongst other exceptions, the ground that an action could not be brought on the replevin bond, against the securities, unless a-judgment had been obtained in the replevin suit and a re-torno habendo- awarded, The demurrer was supported. A notice was then served on the presiding jüdge, that A motion would be made, at the next court of appeals, to reverse this dé cisión, on the ground, that the presiding judge erred in de. ciding,that a retorno' habendo- should have been ordered and a judgment of non-pros, entered up, before an action could be brought on the replevin bond, against the securities; and the case was submitted, without argument.
   Nott, J,

This , case is settled by the case of Thomas-Duggan'vs. Alexander England. (Harper's Reports, 217.j The motion is, therefore, refused.  