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

The entry of a suggestion in the nature of a cognizance in

a B.

Buds, to witi E. F. was summoned to answer C. D. in a plea, wherefore he took the cattle, goods and chattels of the said C. and unjustly detained the same against gages and pledges, tsfc. and whereupon the said E. offered himself in court here, in his own proper person, on the day of

against the said C. in the plea aforefaid, and the said C. came not, but made desault, Therefore it is considered, that the said C. and his pled-' ges for prosecuting be in mercy, and that the said E. go thereof without day, and have a return of the said cattle, goods, and chatties, &c. and thereupon the said E. says, that he the said E. took the said cattle, goods, and chatties, of the said C. for the taking whereof he was summoned to appear in the said court of our said lord the king of the bench at Wejlminiier, to answer to the said C. as aforefaid, at the parish of 0. in the said county, in a certain place there called the stable, and that he took the same as bailiff of /. A. for that the said C. at the time of the taking the said cattle, goods and chattels, and for the space of two years and three quarters of a year ended at and upon the day of and from thence until

the time of the taking of the said cattle, goods and chattels, held and enjoyed the said stable, with the appurtenances, amongst other things, as tenant thereof, to the said /. A. at and under ihe yearly rent of twelve pounds, payable quarterly; and because the sum of thirty-three pounds, of the yearly rent aforefaid, for two years and three quarters of another year, ending at and upon the said day of in the said year of

our Lord 1779, on that day, in that year, and at the time of taking the said cattle, goods and chattels, were in arrear and unpaid, he the laid E. as bailiff of the said /. took the said cattle, goods Q^2 and

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

ants chattels, for and in the name of a distress for the said rent so due in arrear and owing from the said C. to the said /. as aforesaid. And the said

E. according to the form of the statute in such case made and provided, prays a writ of our lord the king to be directed to the sheriff of Bucks, to enquire of the sum in arrear of the rent aforesaid, and of the value of the cattle, goods and chattels aforesaid; and it is granted to him: wherefore the sheriff is commanded, that, by the oath of twelve good and lawsul men of his bailiwick, he diligently enquire how much rent was in arrear and due to the said /. at the time of the taking of the cattle, goods and chattels aforesaid; and how much the said cattle, goods and chattels, so taken in the'name of a distress as aforesaid, were worth according to the true value thereof, and the inquisition which he shall thereupon take let him make appear here on [the return day] under his seal and the seals of those by whose oath he shall take the s<tid inquisition, &c.

Upon entering the above suggestion on a rail, the desendant may then sue out his writ of enquiry, which is to the following effect: •

GEORGE the third, by the grace of God, &c.
To the sheriff of Bucks, greeting. Whereas E.

F. was lateiy summoned to appear in our court cf
she Bench, before our justices at Westminster, to an-
swer unto C. D. of a plea, wherefore he took the
cattle, goods, and chattels of the said C. and un-
justly detained the same against gages and piedges,
until, Use.' and the said E. F. offered himself
in court, before our justices at Westminster, in his
own proper person, on the day of
against the said C. in the plea aforesaid: and the
said C. came not, but made desault. Therefore
it was considered, that the said E. and his pledges
should be in mercy; atid thai the said E. should

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

go thereof without day, and have a return of the
said cattle, goods, and chattels. And thereupon
it hath been suggested to us in our said court, be-
fore our said justices at IVeflminJier aforesaid, by the
said E. that he the said E. took the said cattle,
goods, and chattels of the said G. for the taking
whereof, he was summoned to appear in our said
court of the Bench, before our said justices at
Westminster, to answer the said C. D. as aforesaid,
at the parish of 0. in the said county, in a cer-
tain place there called the stable; and that he
took the same as bailiff of f. A. for that the said
C. for the space of two years, and three quarters
of another year, ending at and upon the said
day of in the year of our Lord 1779; and

from thence, until and at the time of taking of
the said cattle, goods, and chattels, held and en-
joyed the said stable, with the appurtenances,
amongst other things, as tenant thereof to the
said y. at and under the yearly rent of twelve
pounds, payable quarterly: and because the
sum of thirty-three pounds of the yearly rent
aforesaid, for two years, and three quarters of an-
another year, ending at and upon the said
day of in the year of our Lord 177-9, on

that day in that year, and at the time of taking
the said cattle, goods, and chattels, were in ar-
rear, and unpaid to the said J. he the said E. as
bailiff of the said J. took the said cattle, goods,
and chattels, for and in the name of a distress,
for the said rent so due in arrear and owing from
the said C. to the said J. as aforesaid. And the
said E. according to the form of the statute in
such case made and provided, prayed our writ to
be directed to you, to enquire of the sum in ar-
rear of the rent aforesaid, and of the value of the
cattle, goods, and chattels aforesaid. Therefore
we command you, that according to the form of
that statute, in that case made and provided, you
diligently enquire, by the oath of twelve good and
Q.3 . lawsul

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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.

lawful men of your county, how much of the yearly rent aforefaid, at the time of taking the said cattle, goods, and chattels, were in arrear and unpaid; and how much the said cattle, goods, and chattels, taken as aforefaid, were worth, according to the true value of the same. And the inquisition which you shall thereupon make you (hall certify to our jujlices at IVejlminjler on [the return] under your seal, and the seals of those by whose oath you (hall take that inquisition; and have you there the names of those by whose oath you (hall take that inquisition, and this writ. Witnefs Sir William De Grey, knight, at Wijltninjler, the day of in the twen

tieth year of our reign,

Upon this writ of enquiry the whole sact is to be proved and may be litigated. Cooper v. Sherhrook. E. 32 Geo. 2. C.B.

If A. distrains B. for rent, and B. replevies and gives the usual bond to prosecute, then levies his plaint, and afterwards removes the same by resale, and then does not declare; or if he declares and A. avows, and B. not putting in a plea in bar, the avowant have judgment by desault, that B. shall be amerced, and avowant have a retorno babendo. A. in such cafe may either sue out a tvrit of enquiry of damages, according to this statute 17 Car. 2. c. 7. or he may commence actions on the replevin bond [taken according to the 11 Geo. 2. c. 19. / 23.] against the plaintiff and his bondsmen, to recover his damages and costs.

As the statute 17 Car. 2. c. 7. relates only to distresses for rent, and gives a writ of enquiry by default, &c. if the distrefs was for damage seasant, after judgment fro retorno habend. the desendant's remedy is by writ de retorno habend. and if an elongata is returned, he may have a withernam, &c. or if the sheriff has taken insufficient pledges, he may have an action against the sheriff for such insufficiency of the pledges; or if in case the sheriff took a replevin bond,

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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.

and assigned the same to the desendant, he may have an action on such bond against the bondsman.

But note: In cases of damage feasant, &c. the sheriff is not obliged to take a replevin bond, imr can he compel the plaintiff to find bondsmen and enter into a bond; [the star. II G. 2. c. 19./. 23. only relating to d.stresses for rent] but then the sheriff before he makes replevin may insist upon sufficient pledges pro retorna habendo in pursuance of IVeJbn. 2. c. 2. and then the desendant after elongata returned to the writ de reform habendo, may hdve a scirt faciai against such pledges—or if the plaint w.is never removed after a non-pros below, he may have a precept in the nature of a scirefacias. Vide 2 Wils. 41.

By the same statute 17 Car. 2. c. 7. if the plaintiff is nonsuited after issue joined, or if verdict is given against him, the jury returned or impanelled, at the prayer of the desendant, shall enquire of the rent in arrear, and the value of the goods, (jfc. distrained, c?V.

But if in such case the jury impanelled omit to enquire of the value of the rent arrear, or of the cattle, the desendant cannot then have a writ of enquiry to supply that omission, because the statute confines it to the jury impaneiUd in the cause. 1 Lev. 255. Therefore, in such case, the defendant must take judgment de retorno habendo a{. common law. Tucket v. Stephens. P. 6 Geo. 1. C. B. Carth. 362.

Note: In writs of enquiry under this statute, the jury set their hands and seals to the verdict; and upon the trial of such writs, the judge of nisi prius is only assistant to the sheriff, and has no judicial power. And if the parties come to any agreement at the trial, the way is to bring it to the judge to sign, and afterwards move to have it made a rule of court. Cas. K. B. 519, 610.

By the 21 Hen. 8. c. 19. s. 3. it is enacted; "That every avowant, and every other person or persons that make any avowry, justification, or conuzance, as baily or servant to any person or persons in any replegiare or iecond deliverance, for rents, cufhms, services, or for damages feasant, or rent or rents upon any distress taken in any lands or tenements, if the same avowry, cognizance, or justification be found for them, or the plaintiffs in ths same be nonsuit,

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