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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.
or otherwise barred, that then they shall recover their damages and costs against the said plaintiffs, as the same plaintiffs should have done or had, if they had recovered in the replegiare, or second deliverance found against the desendants."
Neither this statute, nor the 43 Eliz. [if the desendant avows as overseer for a distress for a poor rate,] tie the inquisition up to the same jury as are returned or impanelled, as the 17 Car. 2. c. 7. does. Sali. 95.
In replevin the desendant avowed, and the plaintiff, being nonsuited, brought a writ of second deliverance, whereupon it was moved to stay the writ of enquiry of damages. Et per cur. This is a.supersedeas to the retorno habendo, but not to the writ of enquiry of damages; for these damages are not for the thing avowed for, but are given by the star. 21 H. 8. c. 19. as a compensation for the expence and trouble the avowant has been at. Salk. 95. pi. 6. Palm. 403. Latch. 72.
If the plaintiff is nonsuited for want of delivering a declaration, if it was through any cause that would have entitled him to a writ of second deliverance, as sickness of the person employed, &c the court will order the desendant to accept of a declaration on payment of costs; otherwise, the plaintiff would be remediless, the writ of second deliverance being taken away by the 17 Car. 2. in cafes of rent. Vent. 64.
'Ho second deliverance lies after a judgment in demurrer, or after a verdict, or consession of the avowry; but in all these cases, the judgment must be entered with a return irreplevisable. But upon a nonsuit either before or after evidence, where the distress was not for rent, a writ of second deliverance will lie, because there is no determination of the matter; and there a writ ofsecond deliverance lies to bring the matter in question: but in the case of a demurrer and verdict, the matter is distrained by law; and in the case of a consession, it is determined by the consession of the party. 2 Lill. Reg. 457.
Os nonprossing, nonsuiting, discontinuing, &c.
THE plaintiff pleaded two matters in bar to an avowry, and on one of the pleas the sact was found for him, but the judge did not certify [according to 4 Anne, c. 16. s. 5.] that the plaintiff had probable cause to plead the other plea. The desendant moved for coils pursuant to that statute; and the question was, whether the proceedings were within that statute or not? the avowant in replevin being omitted in the words of the statute. Rule to ihew cause why the plaintiff should not pay costs was enlarged. Barnes 144.
The desendant made two avowries, and plaintiff obtained an order for time to plead, pleading issuably and taking notice of trial for the sitting after last term in Middlesex, and within time demurred to the firjl, and pleaded in bar to the latter; and upon that the desendant signed a nan pros for want of pleading issuably to both avowries, which the court held to be regular. But upon payment of costs, pleading issuably and taking notice of trial within the same term, the non-pros was set aside. Barnes 314.
After joinder in demurrer, plaintiff obtained a rule for the avowant to shew cause why he should not discontinue on payment of costs; it was objected for the avowant, that a discontinuance in replevin is very different from a non-pros; and that after a discontinuance, a writ de retorno babendo could not be awarded. The court, however, did not enter into that matter, as the parties entered into a rule by consent, to stay proceedings on payment of the rent arrear with costs. Barnes 171.
In replevin, both plaintiff and desendant may carry down the record to trial.
The dessendant brought down the record, but the plaintiff did not appear at the assizes; upon which, the desendant's counsel insisted strongly on a verdict, which was complied with. But afterwards, upon application by the plaintiff to set the verdict aside, the court after hearing the judge's report, ordered the pojlea to be amended, and a nansuit to be returned, instead of a verdict for the desendant; and that he should pay the costs of the motion. Barnes 458. .
On motion for judgment as in casse of a nonsuit, a distinction was endeavoured to be made from common cases, because in replevin desendant might, in the first instance, have carried down the record to trial. Per cur. The act of parliament has made no distinction. Barnes 317.—But the
Os nonprossing) nonsuiting, discontinuing, Sec.
King's Bench hold, that the desendant in replevin ought never to have judgment as in case of a nonsuit, as he himself is an actor, and may carry the cause down. Sayer an Costs. 142. The plaintiff's goods distrained were not replevied, but, by consent of the attornies on both sides, remained in the distrainors hands; and without any writ of refalo or appearance in the court above, the plaintiff declaied, the desendants avowed, and after long special pleadings, and after trial of the issues of the assizes, and a verdict for the plaintiff, the avowants moved to set aside all the proceedings; and the rule for that purpose was made absolute. The court held the agreement to be void, a fraud upon the revenue and officers, and an abuse of the court and the bar; that they had no jurisdiction, and consequently could not give judgment. Barnes 451.
Os the Judgment and Execution in Replevin.
IF there is judgment for the plaintiff upon a relicla verifications, cognovit aclionem, nil dicit, &c. or for want of a replication to his plea in bar to the avowry, or upon a demurrer, a writ of enquiry of damages shall be awarded. Com. Dig. 5 Vol. 303.
Or at the request of the plaintiff by the assent of the defendant, the justices may assess the damages without a writ of enquiry.
But if there is judgment for the plaintiff in replevin, quod adbuc detinet by desault after appearance, there shall be a special writ of enquiry for the value of the goods or cattie and damages. F. N. B. 69. /. Co Ent. 611. a.'
But where the taking was lawsul, the damage shall be' only for the detainer, as where goods are taken damage seasant, and detained after amends tendered. F. N. B. 69.
If there is a verdict for the plaintiff, the jury usually assess the damages. 2 Saund. 315.
Or the jury after verdict may be dismissed, and damages assessed by the justices with the desendant's consent.
Or if the jury do not assess the damages, and the goods, &c. should be detained, the plaintiff may make a suggestiou thereof upon the roll, whereupon a writ shall go to enquire of the value of the cattle, ts'c. and damages; upon which the plaintiff (lull have judgment for both.
If there is judgment for the desendant upon a demurrer or verdict, or the plaintiff is nonsuited, the desendant shall have return irreplcvisable; but if the nonsuit is before verdict, the judgment for a return is not irreplevisable. 14 H. 7. 6. b. 34 H. 6. 5. a.
If the distress was for rent, and plaintiff is nonprossed, or judgment is given against him upon demurrer, the desendant may have a writ of enquiry according to 17 Car. 2. C. 7. which vide ante. Or if verdicl is given for the desendant, or the plaintiff is nonsuited after issue joined, &c. the jury impanelled or returned shall enquire what arrear, and of what value the distress is, ts'c. and after such inquisition he shall have a fi. fa. elegit, he.
If the desendant, upon the judgment de retorno habendo, sue out a wrir pro retorno habendo, and the sheriff cannot find the cattle, he may have a capias in withernam, upon the return of elongata, 2 Leon. 174,
Of the Judgment and Execution in Replevin.
But if the desendant has judgment for a return irreplevisable, if the owner of the cattle or goods tenders all that is due on the judgment, and it is accepted, he shall have a writ of delivery for the goods. 2 In/lit. 107.
So if he tenders the whole upon the judgment, which is ascertained upon the avowry, and is resused, he shall have detinue. 2 Instit. 107.