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How to proceed if the Plaintiff does not declare, &c.

precept you should make manisest to our justices at Westminster, on [the return-day of the retorno habendo] last past, on which day you returned to our faid justices 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 said C. so that the cattle aforefaid to the said E. you could not cause to be returned as by the said writ you was commanded: therefore we command you, that of the cattle of him the said C. to the value of the cattle before taken in tuithernam, you take and deliver to him the said E. to be held by him until the said cattle, before taken, you can cause to be returned, and put by sure and sase pledges the aforefaid C. that he be before our justices at Wefiminjler, on [th; return-day] to answer as well to us of the contempt, as to the said E. of the damages and injuries to him in that behalf done; and in what manner this our precept you shall execute make appear to our justices at Westminster, at the aforesaid return; and that you have there the names of the pledges, and this writ. Witnefs, ££?j. on, ££?<•. at, CJfc. in the twentieth year of our reign.

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

W. sued a replevin. H. removed it hy,recordari into the King's Bench; the plaintiff did not declare, and upon that a return was awarded to H. upon which the sheriff returns averia elongata, and then a withernam was awarded and executed; afterwards the plaintiff came and prayed that he might be admitted to declare; anJ also prayed a deliverance of the cattle taken in withernam: and it was testified by the clerks, that upon the plaintiff's submission to a fine for not declaring, and that being imposed upon him by the judges, he shall 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 said, that the course of B. R. is contrary to that of C. B.

If. the sheriff should return nulla bona vel catalla ad valorem, &c. to the writ of zvithernam, the desendant may sue out an alias capias in withernam, and after that a plurid.

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

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F the plaintiff has removed the cause; and the desendant _ has not appeared upon the return, or at least upon the appearance-day of the return of the refalo; the plaintiff should serve him with a rule to appear, and upon his nonappearance thereto sue out a pone, which is to this effect:

GEORGE the third, isfc. To the sheriff of Bucks, greeting: Put by sureties and sase pledges, E. F. that he be before our justice* at Westminster from [the return-day] to answer to C. D. of a plea, wherefore he took the cattle, goods and chattels of the said C. and them. unjustly detained against gages and pledges, as he saith, and to shew wherefore he hath not appeared in our court before our justices at Westminster, from [the return of the refalo] last past, as the day prefixed to him ; and have you there the names of the pledges, and this writ. Witness Sir William De Greyt knight, at Westminster, the day of

in the twentieth year of our reign.

If upon the return of the pone, the desendant does not appear, the plaintiff may sue. out a distringas ad infinitum till he does appear; which distringas is to the same effect as other writs of dtstringas, 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 the desendant has taken out the fecordari facias loquelam, and does not get it returned and filed within two terms, the plaintiff should apply to the fila%er for a certificate that the same is not returned and filed, which certificate, when obtained, is a sufficient warrant for the cursitor to make out a writ of procedendo, which remands the cause to the county-court to be there determined. Which writ of procedendo is to this effect:

GEORG E the third, (ge. To the sheriff of Bucks, greeting: Although we lately commanded you, that in your sull court you caused the plaint to be recorded, which is in the same county, without our writ, between C. D. and E. F. of the cattle, goods and chattels of the said C. taken and unjustly de, tained, as it was said; and that you should have

the said record before our justices at Weflmivjler, from [the return of the refalo'] under your seal, and the seals of four lawsul knights of the same county of such as should be present at the said Tecord, and that you prefixed the same day to the parties, that then they might be there ready to proceed in the said plaint, as should be just; and that you should have there the names of the said four knights, and that writ. Yet we being now moved with certain causes in our court, before our said justices, command you, that in the same plaint, against the said E. F. at the suit of the said 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 same county, with what speed you can, in such manner, according to the law and custom of England, as you shall see proper. Our said writ in that behalf heretofore directed to the contrary in any wise notwithstanding. Witness, &c. on, t5V. at, tgc. in the twentieth year of our reign.


How the Defendant may proceed in case the Distress was for Rent after the Cause removed, and the Plaintiff nonpros'd or nonsuited at the Trial.

IF the cause has been removed into the superior court by the plaintiff, and after the desendant has appeared he does not declare or proceed therein; or if the cause has been removed by the defendant, and a rule being served on the plaintiff, he does not declare or proceed therein; the desendant may sign 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 superseded by the plaintiff's suing out a writ of second deliverance, as was seen before. For by the fiat. 17 Car. 2. c. 7. An act for the more speedy and effectual proceeding upon distresses and avowries for rents, reciting that " Forasmuch as the ordinary remedy for arrearages of rents, is by distresses upon the lands chargeable therewith; and yet nevertheless, by reason of the intricate and dilatory proceedings upon replevins, that remedy is become ineffectual:" ft is enacted, " That whensoever any plaintiff in replevin shall be nonsuit before issue joined, in any suit of replevin by plaint or writ lawsully returned, removed or depending in any of the king's courts zt H est minster, that the desendant making a sug' gejlion, in nature of an avowry or cognizance for such rent, to ascertain the court of the cause of distress, the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken, to enquire 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 lawsul men of his county: and upon the return of such inquisition, the desendant 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 (full amount unto, Vot. II. Q. "together

How the Defendant may proceed in case the Distress was for Rent after the Cause removed, and the Plaintiff nonpros'd or nonsuited at the Trial.

"together with his sull costs of suit: and shall have exe"cuticn thereupon by fieri facias or ciegit, or otherwise, as "the kw shall require. And\i\ case such plaintiff shall be "nonsuit' after cognizance or avowry made, and issue "joined, or if the verdict shall be given against such "*' plaintiff, then the jurors that are impannelled, or re"turned to inquire of such issue, shall, at the prayer of "the desendant inquire concerning the sum of the arrears, "and the value of the goods or cattle distrained : and there"upon the avowant, or he that makes cognizance, shall "have judgment for such arrearages, or so much thereof as "the go >ds or cattle distrained amount unto, together with "his sull costs, and shall have execution for the same by "fieri facias or elegit, or otherwise as the law shall re'' quire."

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

And fecl. 4. enacts, " That in all cases aforesaid, where "the value of the cattle, distrained as aforesaid, shall not "be found to be the sull value of the arrears distrained "for, that the party to whom such arrears were due, his •' executors cr administrators, may, from time to time, "distrain * again for the residue of the said arrears."

It has been the custom ever since this statute, as it was before, in all rases when the plaintiff is non-proj/ed, to enter judgment pro retorno habendo; but notwithstanding, the desendant may enter a suggejlion according to this statute, and take out a writ of inquiry; and if the plaintiff should take out a writ of second deliverance afterwards, it will be no fupersedeas to such writ of inquiry. Cooper v. Sherbrook, East. 32 Geo. 2. C.B, 2 YVili'. 116. although such writ cf second deliverance would be a supersedeas to the writ de retorno habenda. Ibid. and Palm. 403.

The entry of a suggejlion upon a non-pros before issue joined in the nature of an avrjjry or cognizance for rent, is in the following manner:

might have been taken by common lavi in such case.


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