How to proceed if the Plaintiff does not de

clare, &c.

precept you should make manifeft to our justices at Westminster, on [the return-day of the retorno habendo] laft paft, on which day you returned to our faid juftices at Westminster, that before the coming of the aforefaid writ the cattle aforefaid were eloined or conveyed away to places unknown to you by the faid C. fo that the cattle aforefaid to the faid E. you could not caufe to be returned as by the faid writ you was commanded therefore we command you, that of the cattle of him the faid C. to the value of the cattle before taken in withernam, you take and deliver to him the faid E. to be held by him until the faid cattle, before taken, you can caufe to be returned, and put by fure and fafe pledges the aforefaid C. that he be before our juftices at Weminfler, on [the return-day] to anfwer as well to us of the contempt, as to the faid E. of the damages and injuries to him in that behalf done; and in what manner this our precept you fhall execute make appear to our juices at Westminster, at the aforefaid return; and that you have there the names of the pledges, and this writ. Witness, &. on, c. at, &c. in the twentieth year of our reign.

The writ of withernam is but mejne process. Ld. Raym. 614. Vide Comb. 201. 2 Salk. 582.

W. fued a replevin. H. removed it by recordari into the King's Bench; the plaintiff did not declare, and upon that a return was awarded to H. upon which the fheriff returns averia elongata, and then a withernam was awarded and executed, afterwards the plaintiff came and prayed that he might be admitted to declare; and alfo prayed a deliverance of the cattle taken in withernam and it was teftified by the clerks, that upon the plaintiff's fubmiffion to a fine for not declaring, and that being impofed upon him by the judges, he fhall have deliverance of the withernam; and a fine of 3 s. 4 d. being accordingly imposed on the plaintiff, he then declared and had deliverance. Noy 50. Webb and Hind; but faid, that the course of B. R. is contrary to that of C. B.

If the fheriff fhould return nulla bona vel catalla ad valorem, &c. to the writ of withernam, the defendant may sue out an alias capias in wither nam, and after that a pluries.

How to proceed if the Defendant does not appear, &c.

F the plaintiff has removed the caufe; and the defendant

appearance-day of the return of the refalo; the plaintiff fhould ferve him with a rule to appear, and upon his nonappearance thereto fue out a pone, which is to this effect:

GEORGE the third, &c. To the fheriff of
Bucks, greeting: Put by fureties and safe pledges,
E. F. that he be before our juftices at Westminfier
from [the return-day] to anfwer to C. D. of a
plea, wherefore he took the cattle, goods and
chattels of the faid C. and them unjustly detained
against gages and pledges, as he faith, and to
thew wherefore he hath not appeared in our court
before our juftices at Westminster, from [the return
of the refalo] laft paft, as the day prefixed to
him; and have you there the names of the pledges,
and this writ. Witnefs Sir William De Grey,
knight, at Westminster, the
day of
in the twentieth year of our reign.

If upon the return of the pone, the defendant does not appear, the plaintiff may fue out a diftringas ad infinitum till he does appear; which diftringas is to the fame effect as other writs of diftringas, to compel an appearance of the party in court.

How the Plaintiff is to proceed if the Defendant has removed the Suit, and does not file the Refalo.

IF out the
F the defendant has taken out the recordari facias loquelam,

and does not get it returned and filed within two terms, the plaintiff should apply to the filazer for a certificate that the fame is not returned and filed, which certificate, when obtained, is a fufficient warrant for the curfitor to make out a writ of procedendo, which remands the cause to the county-court to be there determined. Which writ of pro

cedendo is to this effect:

GEORGE the third, &c. To the fheriff of Bucks, greeting Although we lately commanded you, that in your full court you caused the plaint to be recorded, which is in the fame county, without our writ, between C. D. and E. F. of the cattle, goods and chattels of the faid C. taken and unjustly detained, as it was faid; and that you should have the faid record before our juftices at Westminster, from [the return of the refalo] under your feal, and the feals of four lawful knights of the fame county of fuch as fhould be prefent at the faid record, and that you prefixed the fame day to the parties, that then they might be there ready to proceed in the faid plaint, as fhould be just; and that fhould have there the names of the faid four knights, and that writ. Yet we being now moved with certain caufes in our court, before our faid juftices, command you, that in the fame plaint, against the faid E. F. at the fuit of the faid C. D. before you levied or affirmed, and now depending undetermined, you proceed at your next county-court to be holden in and for the fame county, with what fpeed you can, in such manner, according to the law and cuftom of England, as you fhall fee proper. Our faid writ in that behalf heretofore directed to the contrary in any wife notwithstanding. Witnefs, &c. on, &c. at, &c. in the twentieth year of our reign.

you

How

How the Defendant may proceed in cafe the Diftrefs was for Rent after the Caufe removed, and the Plaintiff nonpros'd or nonfuited at the Trial.

IF

F the caufe has been removed into the fuperior court by the plaintiff, and after the defendant has appeared he does not declare or proceed therein; or if the caufe has been removed by the defendant, and a rule being ferved on the plaintiff, he does not declare or proceed therein; the defendant may fign a non-pros, enter up judgment pro retorno habendo; and if the original distress was made for rent, he may proceed to execute a writ of inquiry of damages, which is the better way than taking out a writ pro retorno habendo ; because that writ may be fuperfeded by the plaintiff's fuing out a writ of fecond deliverance, as was feen before. For by the flat. 17 Car. 2. c. 7. An act for the more fpeedy and effectual proceeding upon diftreffes and avowries for rents, reciting that "Forafmuch as the ordinary remedy for arrearages of "rents, is by diftreffes upon the lands chargeable there"with; and yet nevertheless, by reafon of the intricate "and dilatory proceedings upon replevins, that remedy is "become ineffectual:" It is enacted, "That when foever

any plaintiff in replevin fhall be nonfuit before iffue "joined, in any fuit of replevin by plaint or writ lawful"ly returned, removed or depending in any of the king's courts at Westminster, that the defendant making a fuggeftion, in nature of an avowry or cognizance for such 66 rent, to ascertain the court of the cause of distress, the 66 court upon his prayer fhall award a writ to the fheriff of "the county where the diftrefs was taken, to enquire by "the oaths of twelve good and lawful men of his bailiwick, "touching the fum in arrear at the time of such distress "taken, and the value of the goods or cattle diftrained: "and thereupon notice of fifteen days fhall be given to the "plaintiff, or his attorney, in court, of the fitting of fuch "inquiry and thereupon the fheriff fhall inquire of the "truth of the matters contained in fuch writ, by the oaths "of twelve good and lawful men of his county: and upon "the return of fuch inquifition, the defendant fhall have "judgment to recover against the plaintiff the arrearages of "such rent, in cafe the goods or cattle diftrained fhall amount unto that value and in cafe they shall not Ce amount to that value, then fo much as the value of the faid goods and cattle fo diftrained fhall amount unto, VOL. II. "together

How the Defendant may proceed in cafe the Diftrefs was for Rent after the Caufe removed, and the Plaintiff nonpros'd or nonfuited at the Trial.

"together with his full costs of fuit: and fhall have exe"cution thereupon by fieri facias or elegit, or otherwife, as

66

the law fhall require. And in cafe fuch plaintiff shall be "nonfuit after cognizance or avowry made, and iffue joined, or if the verdict fhall be given against such plaintiff, then the jurors that are impannelled, or re"turned to inquire of fuch ifiue, fhall, at the prayer of "the defendant inquire concerning the fum of the arrears, "and the value of the goods or cattle distrained: and there66 upon the avowant, or he that makes cognizance, shall "have judgment for fuch arrearages, or fo much thereof as "the goods or cattle diftrained amount unto, together with "his full cofts, and fhall have execution for the fame by fieri facias or elegit, or otherwife as the law fhall re"quire."

Sect. 3. gives the like remedy to the avowant, &c. upon a judgment given for him upon demurrer.

And feet. 4. enacts, "That in all cafes aforefaid, where "the value of the cattle, diftrained as aforefaid, fhall not "be found to be the full value of the arrears diftrained "for, that the party to whom fuch arrears were due, his executors or adminiftrators, may, from time to time, "diftrain * again for the refidue of the faid arrears."

It has been the custom ever fince this ftatute, as it was before, in all cafes when the plaintiff is non-proffed, to enter judgment pro retorno habendo; but notwithstanding, the defendant may enter a fuggeftion according to this ftatute, and take out a writ of inquiry; and if the plaintiff fhould take out a writ of fecond deliverance afterwards, it will be no fuperfedeas to fuch writ of inquiry. Cooper v. Sherbrook, Eaft. 32 Geo. 2. C. B. 2 Wilf. 116. although fuch writ of fecond deliverance would be a fuperfedeas to the writ de retorno habendo. Ibid. and Palm. 403.

The entry of a fuggeftion upon a non-pros before iffue joined in the nature of an avowry or cognizance for rent, is in the following manner :

* A fecond diftrofs might have been taken by common law in fuch cafe.

The