bar. Of the plea in manor for the penalty of a bye-law made within the manor, de injuriâ suâ propriâ absque tali causâ was held to be a good plea in bar. (a) Of the issue and verdict. Of the verdict. The issue in replevin is made up as in other cases, with this difference, that both parties-being actors, either the plaintiff or defendant may make up the issue or paper-book. The defendant, therefore, may proceed to trial without a proviso (b), and consequently cannot have judgment against the plaintiff, as in case of a nonsuit, under the statute 14 G. 2, c. 17. (c) The issue may be entered of record by either party, and as both are actors, there is no rule to enter the issue, nor as it seems, can there be judgment for not entering the issue. The record and jury process, and other proceedings before trial, are the same as in other actions. (d) On a verdict for the plaintiff in replevin, the jury are to give damages for the unlawful taking and detaining of the goods, and, unless the goods have been previously delivered by the sheriff, (which is now invariably the case) and the action has been brought in the detinet, damages to the amount of the value of the goods. (e) On the home circuit, and in London and Middlesex, it is usual to give four guineas as damages for the detention, being the supposed amount of the replevin bond. (f) The verdict should regularly apply to all the issues, but where to an avowry for rent the plaintiff pleaded, 1st. Non tenuit, and 2dly, Riens in arrear, and the first plea was found for him, the court held, that the second plea thereby became immaterial, and that the proper course was to discharge the jury from finding any verdict upon it, but that, if any verdict was found, it should be for the plaintiff. (g) Upon verdict for the avowant, on an avowry for rent, the jury must, under the statute 17 Car. 2, c. 7, s. 2, inquire concerning the arrears, and the value of the goods or cattle distrained, if the avowant intends to take the benefit of that statute, for under (a) Wells v. Cotterell, 3 Lev. 48. Levinz, J. diss. Com. Dig. Pleader, (F. 19). (b) 2 Saund. 336, c. notes, 5th edit. Wilk, Repi. 79. (c) Shortridge v. Hierne, 3 T. R. 400. Tidd's Pr. 823, 8th edit. (d) Wilk. Repl. 80. (e) Gilb. Repl. 239. Wilk. Repl. 85. (ƒ) Wilk. Repl. 85. (g) Cossey v. Diggons, 2 B. and A. 546. verdict. that statute the avowant is to have judgment for such arrears, or of the issue and so much as the goods or cattle distrained amount to. He should therefore be prepared with proof, not only of the amount of the rent, but also of the value of the distress. (a) The neglect of the jury in this case cannot be supplied by writ of inquiry. (b) So in cases within the statutes 7 H. 8, c. 4, and 21 H. 8, c. 19, the jury ought to find the damages, but the omission in this case may be remedied by a writ of inquiry. (c) The plaintiff in replevin being entitled at common law to recover damages, may have his costs by the statute of Gloucester, 6 Ed. 1, c. 1, s. 2, which gives costs in all cases in which the plaintiff was entitled to damages. A defendant in replevin, residing out of the jurisdiction of the court, may be compelled to give security for costs. (d) Of the costs. For the plaintiff. ant. Statutes 7 H. 8, By the statutes 7 H. 8, c. 4, and 21 H. 8, c. 19, s. 3, the de- For the defendfendant in replevin or second deliverance, making avowry, cognisance, or justification, for rents, customs, or services, or for damage feasant, if the avowry, cognisance, or justification, be and 21 H. 8. found for him, or the plaintiff be nonsuit, or otherwise barred, is entitled to costs as well as damages. These statutes extend to an avowry by an executor (e), and it is said, that it has been the practice to give damages and costs under them to avowants, in avowries for amercements in leets, and for heriots, and in other cases not mentioned in the statutes (f), but this practice appears to be incorrect, and is at variance with other authorities. (g) Where the defendant has judgment on a plea in abatement, he is not entitled to his costs under these statutes. (h) The statute 4 Jac. 1, c. 3, which enacts, that if any person Stat. 4 Jac. 1. shall commence any action in any court, wherein the plaintiff or demandant might have costs, in case judgment should be given for ant. Of the costs. him, and the plaintiff after appearance be nonsuited, or a verdict For the defend-pass against him, the defendant shall have his costs, is not confined to suits commenced in the superior courts; and, where a defendant removed the proceedings by recordari, from the county court into the King's Bench, and signed judgment of non pros, on the plaintiff's not appearing, he was held to be entitled to his costs under this statute. (a) Stat. 17 Car. 2. Stat. 11 G. 2, c. 19. Where there are several avowries or pleas in bar. Where the defendant proceeds under the statute 17 Car. 2, c. 7, s. 2, and has judgment for the arrearages of rent, or the value of the goods distrained, he is by the words of the statute entitled to full costs. By statute 11 Geo. 2, c. 19, s. 22, if the plaintiff in an action of replevin founded upon a distress for rent, quit rents, relief, heriot, or other service, shall become nonsuit, discontinue his action, or have judgment against him, the defendant shall recover double costs of suit. This statute does not extend to a distress for a rent-charge (b), or to a seisure for a heriot-custom (c), nor to a distress for a rent-charge under a canal act (d); but, where the defendants avowed generally under the statute 11 Geo. 2, c. 19, for rent due on a demise, under which the plaintiff held as their tenant, and at the same time pleaded many other avowries, in various rights, from which circumstance it was suggested that they did not distrain as landlords, but merely with a view to try the title, the court of Common Pleas held that they were entitled to double costs under this statute. (e) There are only three cases in which this statute gives double costs, viz. where the plaintiff is nonsuit, discontinues his suit, or has judgment against him, and therefore, where the cause, being at issue, the parties agreed by bond to submit to arbitration, the costs to abide the event, and the arbitrator awarded in favour of the defendant, it was held that he was not entitled to double costs. (ƒ) Where there are several avowries or pleas in bar in replevin, and some of the issues joined thereon are found for the plaintiff, (a) Davies v. James, 1 T. R. 373. (b) Lindon v. Collins, Willes, 429. (d) Leominster Canal Company v. (e) Johnson v. Lawson, 2 Bing. 341. The avowant on a distress for poor's rates is only entitled to single costs under the stat. 43 Eliz. c. 2, s. 19. Batterton v. Furber, 1 B. and B. 517. 4 B. Moore, 296, S. C. (ƒ) Gurney v. Buller, 1 B. and A. 670. and some for the defendant, the party for whom the issues are of the costs. found, which entitle him to judgment on the whole record, shall have the general costs of the cause (a), but the other party shall be allowed to deduct therefrom the costs of the issues found for him, unless the judge who tried the cause certify that the party entitled to judgment had a probable cause to make the avowries, or plead the pleas, upon which such issues were joined. (b) The costs of such issues include not only the costs of the pleadings, but also such parts of the briefs, and expenses of witnesses, as relate to the trial of those issues. (c) If the judge certify (which he need not do in court at the trial of the cause) (d) the costs of the issues found for the other party shall not be deducted. (e) If an avowant in replevin, after trial and verdict for the plaintiff, obtains judgment non obstante veredicto, in consequence of the plaintiff's pleas in bar being bad, he is not entitled to any costs upon the pleadings subsequent to the pleas in bar, for he should have demurred to them. (ƒ) ment. If the defendant confesses the action, final judgment is entered Of the judgup for the damages confessed. If he suffers judgment by default, the plaintiff must issue a writ of inquiry, under which da- For the plaintiff. mages will be assessed for the taking and detention of the goods, On confession, and where the goods have not been previously delivered by the default, demursheriff to the plaintiff, and the action has been brought in the rer, or verdict. detinet, for the value of the goods (g), and so where judgment is given for the plaintiff on demurrer. (h) Where the plaintiff has a verdict, the jury find the damages he has sustained by reason of the unjust taking and detaining, and judgment is entered for such damages. (i) At common law, when judgment was given for the avowant or For the defendperson making cognisance, on demurrer, the form was to award ant on demurrer. Of the judgment. For the defend a return (a) of the cattle or goods distrained, to the avowant. (b) No damages or costs were recoverable by the avowant at common law, but by statute 7 Hen. 8, c. 4, s. 3, it is enacted that ant on demurrer. every avowant and other person, that makes avowry or cognisance, or justifies as bailiff in any replevin or second deliverance for any rent, custom, or service, if his avowry, cognisance, or justification, be found for him, or the plaintiff be otherwise barred, shall recover his damages and costs which he has sustained, as the plaintiff should have done, if he had recovered. And by statute 21 Hen. 8, c. 19, s. 3, it is enacted that every avowant and other person that makes any avowry, justification, or cognisance, as bailiff or servant in any replevin, or second deliverance for rents, customs, services, or for damage feasant, or other rent, upon any distress, taken in any lands or tenements, if the same avowry, cognisance, or justification be found for him, or the plaintiff in the same be nonsuit, or otherwise barred, shall recover his damages and costs against the said plaintiff, as he should have done if he had recovered therein against the said defendant. (c) Under stat. Under these statutes the avowant may sue out a writ of retorno habendo, and a writ of inquiry either in the same or in separate writs (d), and, upon the return thereof by the sheriff, final judgment may be entered up for the defendant to recover, as well the damages and costs assessed by the jury, as the costs adjudged by the court, and the defendant may enforce the payment of them by a capias ad satisfaciendum, or fieri facias.(e) A writ of second deliverance does not operate as a supersedeas to the writ of inquiry under the statutes of Hen. 8, though it is a supersedeas of the writ pro retorno habendo. (ƒ) By statute 17 Car. 2, c. 7, s. 3, it is enacted, that if judgment 17 Car. 2, c. 7. in any of the king's courts at Westminster, (and by 19 Car. 2, c. 5, the courts of great sessions in Wales, and of the counties Palatine,) be given upon demurrer for the avowant, or him that makes cognisance for any rent, the court shall, at the prayer of (a) The judgment on demurrer is for a return of the cattle irreplevisable. 2 Inst. 340. 1 Saund. 195, c. notes, 5th edit. But the judgment is good at common law, though it be not adjudged irreplevisable. Gamon v. Jones, 4 T. R. 509. (b) Ibid. (c) As to the cases to which these statutes extend, see ante, p. 643. (d) Thes. Br. 220. Lill. Ent. 600.1, 2,4. (e) Thes. Br. 56, 221. 1 Saund. 195, notes, 5th edit. (ƒ) Anon. Latch, 72. Palm. 405. Pratt v. Rutlidge, 1 Salk. 95. |