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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.

or otherwise barred, that then they fhall recover their da mages and cofts against the faid plaintiffs, as the fame plaintiffs fhould have done or had, if they had recovered in the replegiare, or fecond deliverance found against the defendants."

Neither this ftatute, nor the 43 Eliz. [if the defendant avows as overfeer for a distress for a poor rate,] tie the inquifition up to the fame jury as are returned or impanelled, as the 17 Car. 2. c. 7. does. Salk. 95.

In replevin the defendant avowed, and the plaintiff, being nonfuited, brought a writ of fecond deliverance, whereupon it was moved to ftay the writ of enquiry of damages. Et per cur. This is a fuperfedeas to the retorno habendo, but not to the writ of enquiry of damages; for thefe damages are not for the thing avowed for, but are given by the ftat. 21 H. 8. c. 19. as a compenfation for the expence and trouble the avowant has been at. Salk. 95. pl. 6. Palm. 403. Latch. 72.

If the plaintiff is nonfuited for want of delivering a declaration, if it was through any cause that would have entitled him to a writ of fecond deliverance, as fickness of the perfon employed, &c. the court will order the defendant to accept of a declaration on payment of cofts; otherwise, the plaintiff would be remedilefs, the writ of fecond deliverance being taken away by the 17 Car. 2. in cafes of rent. Vent. 64.

No fecond deliverance lies after a judgment in demurrer, or after a verdict, or confeffion of the avowry; but in all thefe cafes, the judgment must be entered with a return irreplevifable. But upon a nonfuit either before or after evidence, where the diftrefs was not for rent, a writ of fecond deliverance will lie, because there is no determination of the matter; and there a writ of fecond deliverance lies to bring the matter in queftion: but in the cafe of a demurrer and verdict, the matter is diftrained by law; and in the cafe of a confeffion, it is determined by the confeffion of the party. 2 Lill. Reg. 457.

Of

Of nonproffing, nonfuiting, difcontinuing, &c.

THE

HE plaintiff pleaded two matters in bar to an avowry, and on one of the pleas the fact was found for him, but the judge did not certify [according to 4 Anne, c. 16. f. 5.] that the plaintiff had probable caufe to plead the other plea. The defendant moved for cofts pursuant to that ftatute; and the question was, whether the proceedings were within that ftatute or not? the avowant in replevin being omitted in the words of the ftatute. Rule to thew caufe why the plaintiff fhould not pay cofts was enlarged. Barnes 144.

The defendant made two avowries, and plaintiff obtained an order for time to plead, pleading iffuably and taking notice of trial for the fitting after laft term in Middlefex, and within time demurred to the first, and pleaded in bar to the latter; and upon that the defendant figned a non-pros for want of pleading iffuably to both avowries, which the court held to be regular. But upon payment of cofts, pleading iffuably and taking notice of trial within the fame term, the non-pros was fet afide. Barnes 314.

After joinder in demurrer, plaintiff obtained a rule for the avowant to fhew caufe why he fhould not difcontinue on payment of cofts; it was objected for the avowant, that a difcontinuance in replevin is very different from a non-pros; and that after a discontinuance, a writ de retorno habendo could not be awarded. The court, however, did not enter into that matter, as the parties entered into a rule by confent, to stay proceedings on payment of the rent arrear with cofts. Barnes 171.

In replevin, both plaintiff and defendant may carry down the record to trial.

The defendant brought down the record, but the plaintiff did not appear at the affizes; upon which, the defendant's counsel infifted ftrongly on a verdict, which was complied with. But afterwards, upon application by the plaintiff to fet the verdict afide, the court after hearing the judge's report, ordered the poftea to be amended, and a nonfuit to be returned, inflead of a verdict for the defendant; and that he fhould pay the cofts of the motion. Barnes 458.

On motion for judgment as in cafe of a nonfuit, a diftinction was endeavoured to be made from common cafes, because in replevin defendant might, in the first inftance, have carried down the record to trial. Per cur. The act of parliament has made no distinction. Barnes 317.-But the

Of nonproffing, nonfuiting, difcontinuing, &c.

King's Bench hold, that the defendant in replevin ought never to have judgment as in cafe of a nonfuit, as he himself is an actor, and may carry the caufe down. Sayer on Cofis. 142.

The plaintiff's goods diftrained were not replevied, but, by confent of the attornies on both fides, remained in the diftrainors hands; and without any writ of refalo or appearance in the court above, the plaintiff declared, the defendants avowed, and after long special pleadings, and after trial of the iffues of the affizes, and a verdict for the plaintiff, the avowants moved to fet afide all the proceedings; and the rule for that purpose was made abfolute, 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 jurifdiction, and confequently could not give judgment. Barnes 451.

Of

Of the Judgment and Execution in Replevin.

IF

F there is judgment for the plaintiff upon a relicta verificatione, cognovit actionem, 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 fhall be awarded. Com. Dig. 5 Vol. 303.

Or at the request of the plaintiff by the affent of the defendant, the justices may affefs the damages without a writ of enquiry.

But if there is judgment for the plaintiff in replevin, quod adbuc detinet by default after appearance, there shall be a fpecial writ of enquiry for the value of the goods or cattie and damages. F. N. B. 69. 1. Co Ent. 611. a.

1

But where the taking was lawful, the damage fhall be only for the detainer, as where goods are taken damage feafant, and detained after amends tendered. F. N. B. 69. T. G.

If there is a verdict for the plaintiff, the jury ufually affefs the damages. 2 Saund. 315.

Or the jury after verdict may be difmiffed, and damages affeffed by the juftices with the defendant's confent.

Or if the jury do not affefs the damages, and the goods, &c. fhould be detained, the plaintiff may make a fuggeftiou thereof upon the roll, whereupon a writ fhall go to enquire of the value of the cattle, &c. and damages; upon which the plaintiff fhall have judgment for both.

If there is judgment for the defendant upon a demurrer or verdict, or the plaintiff is nonfuited, the defendant fhall have return irreplevifable; but if the nonfuit is before verdict, the judgment for a return is not irreplevifable. 14 H. 7. 6. b. 34 H. 6. 5. a.

If the diftrefs was for rent, and plaintiff is nonproffed, or judgment is given against him upon demurrer, the defendant may have a writ of enquiry according to 17 Car. 2. c. 7. which vide ante. Or if verdict is given for the defendant, or the plaintiff is nonfuited after iffue joined, &c. the jury impanelled or returned fhall enquire what arrear, and of what value the diftrefs is, &c. and after fuch inquifition he fhall have a fi. fa. elegit, &c.

If the defendant, upon the judgment de retorno habendo, fue out a writ pro retorno habendo, and the fheriff cannot find the cattle, he may have a capias in withernam, upon the return of elongata, 2 Leon. 174.

But

Of the Judgment and Execution in Replevin.

But if the defendant has judgment for a return irreplevifable, 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 Inftit. 107.

So if he tenders the whole upon the judgment, which is afcertained upon the avowry, and is refused, he shall have detinue. 2 Inftit. 107.

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