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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 non fuited 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 defendants.”

Neither this statute, nor the 43 Eliz. [if the defendant avows as overseer for a diftress 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. Salk. 95.

In replevin the defendant 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 super fedeas 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 stat, 21 H. 8. c. 19. as a compensation for the expence and trouble the avowant has been at. Salk. 95. pl. 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 fecond deliverance, as sickness of the person employed, &c. the court will order the defendant to accept of a declaration on payment of costs; otherwise, the plaintiff would be remedilers, the writ of second deliverance being taken away by the 17 Car. 2. in cases of rent. Vent. 64.

No second deliverance lies after a judgment in demurrer, or after a verdi&t, or confession 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 of second deliverance lies to bring the matter in question : but in the case of a demurrer and verdict, the matter is diftrained by law; and in the case of a confession, it is determined by the confession of the party. 2 Lill. Reg. 457.

Of

to that her plea. The plaintiff many [accordi,

Of nonprofing, nonsuiting, discontinuing, &c.
T HE plaintiff pleaded two matters in bar to an avow-

ry, and on one of the pleas the fact was found for him, but the judge did not certify (according to 4 Anne, 6. 16. f. 5.] that the plaintiff had probable cause to plead the other plea. The defendant moved for costs pursuant to that statute; and the queition was, whether the proceedings were within that statute or not? the avowant in replevin being omitted in the words of the statute. Rule to Thew caufe why the plaintiff should not pay costs was enlarged. Barnes 144. .

The defendant made two avowries, and plaintiff obtained an order for time to plead, pleading issuably and taking notice of trial for the fitting after last term in Middlefex, and within time demurred to the first, and pleaded in bar to the latter; and upon that the defendant signed a non-pros for want of pleading issuably to both avowries, which the court held to be regular. But upon payment of costs, pleading ifluably 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 habendo 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 defendant may carry down the record to trial.

The defendant brought down the record, but the plaintiff did not appear at the aflizes ; upon which, the defendant's counsel infifted 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 poslea to be amended, and a nonsuit to be returned, instead of a verdict for the defendant; and that he should pay the colls of the motion. Barnes 458.

On motion for judgment as in case of a nonfuit, a diftinction was endeavoured to be made from common cases, because in replevin defendant 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

King's

Of nonprofing, nonfuiting, discontinuing, &c.,

King's Bench hold, that the defendant 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 on 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 appear. ance in the court above, the plaintiff declared, the defendants avowed, and after long special pleadings, and after trial of the issues of the affizes, and a verdict for the plaintiff, the avowants moved to set aside all the proceed. ings; 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.

Of

Of the Judgment and Execution in Replevin. If there is judgment for the plaintiff upon a relifla verifi. 1 catione, 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 shall be awarded. Com. Dig. 5 Vol. 303.

Or at the request of the plaintiff by the affent 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 adhuc detinet by default after appearance, there shall be a special writ of enquiry for the value of the goods or cattie and damages. F. N. B. 69. l. Co. Ent. 611. a.

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

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

Or the jury after verdict may be dismissed, and damages affeffed by the justices with the defendant's consent.

Or if the jury do not assess the damages, and the goods, &c. should be detained, the plaintiff may make a suggestion thereof upon the roll, whereupon a wric shall go to enquire of the value of the cattle, &c. and damages; upon which the plaintiff ihall have judgment for both.

If there is judgment for the defendant upon a demurrer or verdict, or the plaintiff is nonsuited, the defendant shall have return irreplevisable; 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 nonprofjed, or judgment is given against him upon demurrer, the defendant may have a writ of enquiry according to 17 Car. 2. 6. 7. which vide ante. Or if verdi&t is given for the defendant, or the plaintiff is nonfuited after issue joined, &c. the jury impanelled or returned shall enquire what arrear, and of what value the distress is, &c. and after such inquisition he shall have a fi. fa. elegit, &c.

If the defendant, upon the judgment de retorno habendo, sue out a writ pro retorno habendo, and the sheriff cannot find the cattle, he may have a capias in withernum, 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 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 Inftit. 107.

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

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