the defendant, award a writ to inquire of the value of such distress, and, upon the return thereof, judgment shall be given for the avowant, or him that makes cognisance as aforesaid, for the arrears alleged to be behind, in such avowry or cognisance, if the goods or cattle so distrained shall amount to that value; and in case they shall not amount to that value, then for so much as the said goods or cattle so distrained shall amount unto, together with his full costs of suit, and he shall have execution thereupon by fieri facias, or elegit, or otherwise, as the law shall require. It does not appear to be necessary that the jury should inquire under this section of the statute of the sum in arrear, which is admitted by the demurrer, but only of the value of the distress. (a) It seems that the avowant may either take the judgment given by statute 17 Car. 2, c. 7, without the common law judgment for a return (b), or may enter a judgment for a return, in addition to the judgment given by the statute (c), for the statute has not altered the judgment at common law; but the plaintiff in such case is to keep his cattle, notwithstanding the award of the writ de retorno habendo (d), the usual course, however, is to take judgment under the statute only. (e) Fifteen days notice of the execution of the writ of inquiry must be given. (ƒ) Of the judgment. For the defend-* ant on demur rer. The judgment for the defendant after verdict, at common law, For the defendis that he have a return of the cattle, &c. irreplevisable (g), and ant after verdict. if the distress has been either for rent, customs, services, or damage feasant, for damages, pursuant to the statutes 7 H. 8, c. 4, s. 3, and 21 H. 8, c. 19, s. 3. (h) If the jury omit to find damages under these statutes, the omission may be supplied by a writ of inquiry (i), and so if they omit to find the treble damages, where the defendant has avowed under the statute 43 Eliz. c. 2, s. 19, for poors rate. (k) (a) Mounson v. Redshaw, 1 Saund. (c) Baker v. Lade, Carth. 253. 117. (e) Tidd's Pr. Forms, 691, 5th edit. (ƒ) Burton v. Hickey, 6 Taunt. 57. 1 Marsh. 444, S. C. (g) Com. Dig. Pleader, (S K. 30). 2 Inst. 340. 1 Saund. 195, c. notes, (h) 2 Towns. Judgm. 206. (i) Valentine v. Fawcett, cases temp. Hardw. 140. 1 Saund. 195, c. notes, 5th edit. (k) Dewell v. Marshall, 3 Wils. 442. 2 W. Bl. 921, S. C. Valentine v. Fawcett, cases temp. Hardw. 138. 2 Str. 1021, S. C. 1 Saund. ubi sup. Of the judgment. For the defend ant after verdict. Stat. 17 Car. 2, c. 7, s. 2, For the defend at common law. Where the distress is for rent, it is enacted by the statute 17 Car. 2, c. 7, s. 2, that in case the plaintiff shall be nonsuit, after cognisance or avowry made and issue joined, or if a verdict shall be given against the plaintiff, then the jurors, who were impanelled or returned, to inquire of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods or cattle distrained; and thereupon the avowant, or he that makes cognisance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same by fieri facias or elegit, or otherwise as the law shall require. As the statute directs, that the jurors who are impanelled or returned to inquire of the issue, shall inquire concerning the sum in arrear and the value of the distress, the omission of this finding cannot be supplied by a writ of inquiry (a); but the defendant may waive the benefit of the statute 17 Car. 2, c. 7, and take the common law judgment pro retorno habendo (b), and even where he has entered an erroneous judgment under the statute of Charles 2, the court, on error brought, will allow him to amend, and enter the common law judgment (c), for it is not compulsory upon him to avail himself of the statute of Charles 2. (d) The judgment for the defendant at common law, when the ant on nonsuit plaintiff has been nonsuit either before or after verdict, is that of the plaintiff he have a return of the cattle, &c.; but such return is not irreplevisable, as in the case of judgment on demurrer or verdict (e), to remedy which mischief the statute of Westminster 2 gives the writ of second deliverance. (f) Where the plaintiff is nonsuit before avowry or cognisance, it is necessary for the defendant to make a cognisance or avowry pro retorno habendo, to entitle himself to damages within the statutes of 7 Hen. 8, and 21 Hen. 8, but such suggestion of an avowry is not traversable (g) (a) Sheape v. Culpepper, 1 Lev. 255. (c) Rees v. Morgan, 3 T. R. 349. (e) Br. Ab. retorn de avers, 23. Gilb. Repl. 246. 1 Saund. 195, d. notes, 5th edit. Vin. Ab. Replev. (M). (f) See post, p. 653. (g) Anon. 1 Salk. 94. 1 Saund. 195, e. notes, 5th edit. Where the plaintiff is nonsuit at the trial, the jury may Of the judgment. before issue join ed, under stat. 17 C. 2, c.7, s. 2. In case of a distress for rent, it is enacted by statute 17 Car. 2, c. 7, s. 2, that whensoever any plaintiff in replevin shall be nonsuit before issue joined, in any suit of replevin by plaint or writ For the defendlawfully returned, removed, or depending, that the defendant ant on nonsuit making a suggestion in nature of an avowry or cognisance for such rent, to ascertain to the court the cause of distress, the court on his prayer shall award a writ to the sheriff of the county, where the distress was taken, to inquire by the oaths of twelve good and lawful men of his bailiwick, touching the sum in arrear at the time of such distress taken, and the value of the goods or cattle distrained, and thereupon notice of fifteen days shall be given to the plaintiff, or his attorney in court, of the sitting of such inquiry: and thereupon the sheriff shall inquire of the truth of the matters contained in such writ, by the oaths of twelve good and lawful men of his county, and upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods or cattle distrained shall amount unto that value, and in case they shall not amount to that value, then so much as the value of the said goods and cattle so distrained, shall amount unto, together with full costs of suit, and shall have execution thereupon by fieri facias or elegit, or otherwise as the law shall require. (a) The writ of inquiry under this statute, should be as well of the amount of the rent in arrear, as of the value of the distress, for the amount of the rent is not admitted as in case of a demurrer. (b) If the plaintiff is nonprossed for want of a plea in bar, after the defendant has avowed, it does not appear to be necessary to make the suggestion mentioned in the statute, the cause of the distress being ascertained by the avowry. (c) Where the defendant takes judgment for the arrears under this clause of the statute, he may also enter a judgment for a return (d), and it appears to be in the election of the defendant, assess the damages for the avowant, under the statutes of H. 8. Gardner v. Hobbs, 5 Mod. 76. Harcourt v. Weeks, 5 Mod. 77. Valentine v. Fawcett, Ca. temp. Hardw. 140. Herbert v. Walters, 1 Lord Raym. 59. Or he may have a writ of inquiry. Ibid. (a) See form of a writ of inquiry under this statute. Lill. Ent. 601. Wilk. (b) 2 Saund. 286, notes, 5th edit. (c) 2 Sannd. ubi sup. (d) Turner v. Turnor, 2 B. and B. 107. Wilk. Repl. 182. Ante, p. 647. Of the judgment. For the defend ant on nonsuit after issue join ed, upon statute whether he will take out his common law execution for a return, or that given by the statute for the arrears of rent. (a) A writ of second deliverance is not a supersedeas to the writ of inquiry under this statute. (b) The clause of the statute 17 Car. 2, c. 7, s. 2, which relates to 17 C. 2, c. 7, s.2. judgment for the defendant, on the nonsuit of the plaintiff, after issue joined, has already been stated. (c) Of the execu tion. Retorno habendo. The plaintiff, having recovered judgment for damages and costs, may have execution by writ of capias ad satisfaciendum, fieri facias, or elegit. For the defendant the executions are, 1. For a return of the cattle, &c. 2. For the damages and costs given by the statutes 7 H. 8, c. 4, and 21 H. 8, c. 19, and thirdly, for the arrearages of rent and costs under the statute 17 Car. 2, c. 7. 1. The execution for a defendant who has judgment after having avowed or made cognisance, is at common law, a writ de retorno habendo, which is issued by the filacer in the King's Bench, and by the prothonotaries in the Common Pleas. (d) This writ recites the proceedings and judgment in replevin, and commands the sheriff to cause the cattle or goods to be returned to the defendant, to hold to him irreplevisable after judgment on demurrer or verdict (e); or upon nonsuit before or after issue joined (f), that he do not deliver them on the complaint of the plaintiff, without the king's writ (of second deliverance) which shall make express mention of the judgment. If the cattle or goods are eloigned or removed by the plaintiff, so that the sheriff cannot deliver them to the defendant, then upon the sheriff's return of elongata, the defendant may have a capias in withernam (g), commanding the sheriff to take in withernam the cattle, goods, and chattels of the plaintiff, to the value of the cattle, goods, and chattels before taken, to be delivered to the defendant, to hold to him till the sheriff can cause to be returned the cattle, goods, and chattels, before taken, and to put by gages and safe pledges the plaintiff to answer as well for his contempt, as to the defendant for the damages and injury to him done. If the plaintiff had no cattle, &c. and the sheriff returned nihil, it was formerly the practice to issue a scire facias against the pledges under the statute of Westminster 2 (a), to shew cause why their cattle, to the value of the cattle eloigned, should not be delivered to the defendant. (b) If no cause was shewn, a writ issued to take their cattle, but if the sheriff returned nihil to the latter writ, a scire facias was awarded against the sheriff himself. (c) In modern practice upon the return of elongata to the writ of retorno habendo, it is usual to bring an action on the case against the sheriff for not taking pledges, or for taking insufficient pledges, without any previous scire facias against the pledges. (d) Of the execution. 2. Where the defendant has judgment for damages under the Under statutes statutes 7 H. 8, c. 4, and 21 H. 8, c 19, he is entitled to recover 7 H. 8, and 21 his damages and costs, as the plaintiff would have done if he H.8. had recovered, and he may consequently have a capias ad satisfaciendum, fieri facias, or elegit. 17 Car. 2. 3. Where the defendant has judgment for the arrearages and Under statute costs, under the statute 17 Car. 2, c. 7, he will be entitled to execution by fieri facias or elegit or, according to the words of the statute," otherwise as the law shall require." Whether under the latter words the defendant is entitled to have execution by capias ad satisfaciendum has not been determined. The statute 27 Eliz. c. 8, which gives a writ of error from the King's Bench to the Exchequer Chamber, does not extend to the action of replevin, it not being an action first commenced in the King's Bench within the words of the act. (e) Under the statute 3 Hen. 7, c. 10, which gives costs and damages to the defendant in error, for his delay and wrongful vexation, the plaintiff in replevin below is entitled, on affirmance of a judgment recovered by him below, to his damages and costs (ƒ), (a) Ante, p. 623. (b) Dorrington v. Edwin, 3 Mod. 56. (c) 1 Saund. 195, a. notes, 5th edit. (d) Ibid. Rous v. Patterson, 16 Vin. Ab. 399. Bull. N. P. 60. See post. Of the writ of error. |