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. The entry of a fuggeftion in the nature of a cognizance in C. B. Bucks, to wit. E. F. was fummoned to anfwer C. D. in a plea, wherefore he took the cattle, goods and chattels of the faid G. and unjustly detained the fame against gages and pledges, &c. and whereupon the faid E. offered himself in court here, in his own proper perfon, on the day of against the said C. in the plea aforefaid, and the faid C. came not, but made default, Therefore it is confidered, that the faid C. and his pled-' ges for profecuting be in mercy, and that the faid E. go thereof without day, and have a return of the faid cattle, goods, and chattles, &c. and thereupon the faid E. fays, that he the faid E. took the faid cattle, goods, and chattles, of the faid C. for the taking whereof he was fummoned to appear in the faid court of our faid lord the king of the bench at Westminster, to answer to the faid C. as aforefaid, at the parish of O. in the faid county, in a certain place there called the ftable, and that he took the fame as bailiff of I. A. for that the faid C. at the time of the taking the faid 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 faid cattle, goods and chattels, held and enjoyed the faid ftable, with the appurtenances, amongst other things, as tenant thereof, to the faid I. A. at and under the yearly rent of twelve pounds, payable quarterly; and because the fum of thirty-three pounds, of the yearly rent aforefaid, for two years and three quarters of another year, ending at and upon the faid day of in the faid year of our Lord 1779, on that day, in that year, and at the time of taking the faid cattle, goods and chattels, were in arrear and unpaid, he the faid E. as bailiff of the faid I. took the faid cattle, goods 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. and chattels, for and in the name of a diftress for the faid rent fo due in arrear and owing from the faid C. to the faid I. as aforefaid. And the faid E. according to the form of the ftatute in fuch. cafe made and provided, prays a writ of our lord the king to be directed to the fheriff of Bucks, to enquire of the fum in arrear of the rent aforesaid, and of the value of the cattle, goods and chattels aforefaid; and it is granted to him: wherefore the fheriff is commanded, that, by the oath of twelve good and lawful men of his bailiwick, he diligently enquire how much rent was in arrear and due to the faid I. at the time of the taking of the cattle, goods and chattels aforefaid; and how much the faid cattle, goods and chattels, fo taken in the name of a diftrefs as aforefaid, were worth according to the true value thereof, and the inquifition which he fhall thereupon take let him make appear here on [the return day] under his feal and the feals of those by whofe oath he fhall take the faid inquifition, &c. Upon entering the above fuggeftion on a roll, the defendant may then fue out his writ of enquiry, which is to the following effect: GEORGE the third, by the grace of God, &c. go How the Defendant may proceed in case the Diftrefs was for Rent after the Caufe removed, and the Plaintiff nonpros'd or nonfuited at the Trial. go thereof without day, and have a return of the Q 3 lawful 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. lawful men of your county, how much of the Upon this writ of enquiry the whole fact is to be proved and may be litigated. Cooper v. Sherbrook. E. 32 Geo. 2. C. B. If A. diftrains B. for rent, and B. replevies and gives the ufual bond to profecute, then levies his plaint, and afterwards removes the fame by refalo, 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 default, that B. fhall be amerced, and avowant have a retorno habendo. -A. in such case may either fue out a writ of enquiry of damages, according to this ftatute 17 Car. 2. c. 7. or he may commence actions on the replevin bond [taken according to the 11 Geo. 2. c. 19. f. 23.] against the plaintiff and his bondsmen, to recover his damages and cofts. As the ftatute 17 Car. 2. c. 7. relates only to diftreffes for rent, and gives a writ of enquiry by default, &c. if the diftrefs was for damage feasant, after judgment pro retorno habend. the defendant's remedy is by writ de retorno habend. and if an elongata is returned, he may have a withernam, &c. or if the fheriff has taken infufficient pledges, he may have an action against the sheriff for fuch infufficiency of the pledges; or if in case the sheriff took a replevin bond, and 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. and affigned the fame to the defendant, he may have an action on fuch bond against the bondfman. But note: In cafes of damage feafant, &c. the Sheriff is not obliged to take a replevin bond, nor can he compel the plaintiff to find bondfmen and enter into a bond; [the ftat. II G. 2. c. 19. f. 23. only relating to d.ftreffes for rent] but then the fheriff before he makes replevin may infift upon fufficient pledges pro retorno habendo in pursuance of Wefm. 2. c. 2. and then the defendant after elongata returned to the writ de retorno habendo, may have a feire facias against fuch pledges or if the plaint was never removed after a non-pros below, he may have a precept in the nature of a fcire facias. Vide 2 Will. 41. By the fame ftatute 17 Car. 2. c. 7. if the plaintiff is nonfuited after iffue joined, or if verdict is given against him, the jury returned or impanelled, at the prayer of the defendant, fhall enquire of the rent in arrear, and the value of the goods, &c. diftrained, &c. But if in fuch cafe the jury impanelled omit to enquire of the value of the rent arrear, or of the cattle, the defendant cannot then have a writ of enquiry to fupply that omiffion, because the ftatute confines it to the jury impanelled in the cause. I Lev. 255. Therefore, in fuch cafe, the defendant must take judgment de retorno habendo at common law. Tucket v. Stephens. P. 6 Geo. 1. C. B. Carth. 362. Note: In writs of enquiry under this ftatute, the jury fet their hands and feals to the verdict; and upon the trial of fuch writs, the judge of nifi prius is only affiftant to the fheriff, 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 fign, and afterwards move to have it made a rule of court. Caf. K. B. 519, 610. By the 21 Hen. 8. c. 19. f. 3. it is enacted, "That every avowant, and every other perfon or perfons that make any avowry, juftification, or conuzance, as baily or fervant to any perfon or perfons in any replegiare or fecond deliver. ance, for rents, customs, fervices, or for damages feafant, or rent or rents upon any distress taken in any lands or tenements, if the fame avowry, cognizance, or juftification be found for them, or the plaintiffs in the fame be nonfuit, |