PART I. BOOK III. rent, customs, services, or damage feasant (p), an inquiry of damages and costs is awarded (q). The defendant thereupon sues out a retorno habendo, and an inquiry of damages, either in the same writ (r), or in separate writs(s); and upon the return of the writ of inquiry, final judgment is entered to recover, as well the damages and costs assessed by the jury, as the costs assessed by the court (t). No writ of second deliverance lies after judgment upon demurrer. Inquiry as to Defendant. Or, if the distress were for rent, then, after judgment given for the avowant, or person making conusance, the court may Judgment for award a writ of inquiry, to inquire of the value of the distress (of the execution of which writ of inquiry fifteen days' notice must be given to the plaintiff's attorney or agent (u)); and, upon the return thereof, if the value of the distress be greater than the amount of the rent in arrear, the defendant shall have judgment to recover the arrears, and full costs; but, if the value of the distress be less than the arrears, then he shall have judgment to recover the value of the distress, and full costs(). The stat. 17 C. 2, c. 7, s. 3, does not require, in this case, that the inquiry shall be as to the arrears of rent (y). In this case, no writ de retorno habendo issues. Judgment for Staying Pro- The judgment for plaintiff, on demurrer, is the same as in the action of trespass (≈). Staying Proceedings on Payment into Court, &c.] If the defendant avow or make conusance for rent, the court, upon application by the plaintiff, will stay the proceedings, upon By Plaintiff. the rent and all the costs up to that time being paid into court (a). But they will not do so, where the damages are unliquidated,-as, where the defendant avows &c. for damage feasant (b). By Defendant. Discontinuing ing Plea in Bar, &c. Upon the application of the defendant, also, even before the 3 & 4 W. 4, c. 42, s. 21, the court have stayed the proceedings, upon payment of the costs of the action and of the costs of replevying, and upon giving up the replevin-bond, where no special damage was laid in the declaration(e); and since that act money may be paid into court as in other cases (d). Discontinuing Withdrawing Plea in Bar, &c.] The de-Withdraw fendant cannot have a rule to discontinue, &c., for though he be an actor in the suit, yet still it is the plaintiff's suit (e). The court will not, after issue joined upon a plea in bar, suffer the plea to be withdrawn, and the avowry confessed, (a) Vernon v. Wynne, 1 H. Bl. 24: Hopkins v. Shrole, 1 B. & P. 382: and see Davis v. Prince, Barnes, 429. In two recent instances judges at chambers have allowed the payment into court of part of the rent distrained for, making an order that defendant proceed at the peril of costs if he does not prove a greater sum due. (b) Anon., 8 Mod. 379. (e) Banks v. Brand, 3 M. & Sel. 525: see Hodgkinson v. Snibson, 3 B. & P. 603, cont. (d) See post, Book IV. Part I. Ch. 9. (e) Long v. Buckeridge, 1 Str. 112. without consent, for the avowant would lose his costs (f). See further as to discontinuing, post, Book IV. Part I. Ch. 19. СНАР. 11. SECT. 2. Trial, &c.] After giving notice of trial, the plaintiff (or, if he Trial, &c. neglect to do it, the defendant) may make up the "Nisi Prius record, as directed ante, 758, with reference to proceedings in ejectment by original, and sue out jury process, enter the cause for trial, and proceed to verdict or nonsuit, as in ordinary cases (g). Inasmuch as both parties in replevin are deemed actors, when the record is carried down for trial by the defendant, it is not necessary to have the proviso in the distringas, as in cases of trial by proviso (h), although, in practice, it is usually inserted (?). For the same reason, the defendant, in replevin, cannot have judgment as in case of a nonsuit (k); but, if either plaintiff or defendant give notice of trial, and afterwards do not proceed to try the cause, or countermand their notice in time, the opposite party will be entitled to costs, as in ordinary cases(). If a verdict be found for the plaintiff, the jury assess the The Verdict. damages (m), as in a verdict for plaintiff in trespass, &c.(n). If it be found for the defendant, the jury, at common law, find the issues specially for the defendant, and the judgment is, that he have a return of the goods irreplevisable (o). But, if the distress were for rent, customs, services, or damage feasant, then the jury may assess damages for the defendant (p); and the judgment then is, not only for a return of the goods, but for the damages and costs also (g). Or, if the distress were for rent, and the defendant wish that the finding should be according to the 17 C. 2, c. 7, s. 2, the jury find the amount of the rent in arrear, and the value of the things distrained; and the defendant shall have judgment for such arrears, or so much thereof as the value of the goods or cattle distrained amount to together with full costs, and shall have execution thereupon (r). If the jury, in finding a verdict generally for defendant, omit to assess damages according to the statutes of H. 8, the omission may be supplied by a writ of inquiry (s). But, if the jury find according to stat. 17 C. 2, c. 7, s. 2, an omission in their verdict cannot be supplied by such writ (t); although, in such a case, the court would probably allow the defendant to enter his judgment for a return at common law, or allow him to amend it, if already (f) Com. Dig.. Pleader, 3 K. 20. (2) See as to the form of Nisi Prius record, Chit. Forms, 448; and of jury process, Id. (h) Reg. v. Banks, 2 Salk. 652. (1) Jones v. Concannon, 3 T. R. 661: Eggleton v. Smart, 1 W. Bl. 375. (k) Jones v. Concannon, 3 T. R. 661: Shortridge v. Hiern, 5 T. R. 400: Eggieton v. Smart, 1 W. Bl. 375. () See Book IV. Part I. Ch. 23, 24. (m) Usually, no more than the costs of the replevin-bond (about (47. 48.) are given as damages. But special damages, if alleged in the declaration, may, it should seem, be recovered. (n) See form of the postea, Chit. Forms, 449; of the judgment and execution, Id. (0) See the forms of postea, &c., on this verdict, Chit. Forms, 450, 451. (p) 7 H. 8, c. 4, s. 3: 21 H. 8, c. 19, s. 3. (q) See form of postea, Chit. Forms, 450; judgment. Id.; writ de retorno habendo, Id.; fi. fa. or ca. sa. for damages and costs, Id. 453. (r) See form of rostea, Chit. Forms, 453; judgment, Id.; and execution, Id. See Turnor v. Turner, 2 B. & B. 107; 4 Moore, 606, S. C. (8) Herbert v. Waters, Carth. 362; 1 Salk. 205, S. C.: Pratt v. Rutlidge, Id. 95: Harcourt v. Weeks, 5 Mod. 77: Dewell v. Marshall, 2 W. BI. 921; 3 Wils. 442, S. C. (t) Sheape v. Culpeper, 1 Lev. 255; 1 Sid. 380; T. Raym. 170; 1 Vent. 40, S. C.: Herbert v. Waters, 1 Salk. 205; 2 L. Raym. 59, S. C.: Kinaston v. Mayor of Shrewsbury, Hardw. 297, 298; 2 Str. 1052, S. C.: Rees v. Morgan, 3 T. R. 349 : see Freeman v. Atcher, 2 W. Bl. 763. BOOK III. Judgment for Nonsuit. entered (u); or, if the jury have assessed damages, but not the amount of the rent, the defendant may have leave to enter his judgment, as a judgment under stat. 21 H. 8, c. 19(x). If the plaintiff be nonsuit, the defendant, at common law, Defendant on has judgment to have a return of the goods (y). But, if the distress were for rent, customs, services, or damage feasant, then the jury may inquire of the defendant's damages (2); and the judgment is then not only for a return of the goods, but for the damages and costs also (a). Or, if the distress were taken for rent, then, at the prayer of the defendant, the jury shall inquire of the amount of the arrears, and the value of the distress (b), in the same manner as where a verdict is given for the defendant; and he shall have judgment to recover the arrears and his costs, if the value of the distress be found to equal or exceed such arrears; but, if the value of such distress do not equal the arrears, then he shall have judgment to recover the value of the distress and his costs (b). As the judgment at common law in this case is not for a return of the goods irreplevisable, the plaintiff may sue out a writ of second deliverance, and proceed upon it, as mentioned ante, 799. This writ will be a supersedeas of the writ de retorno habendo; but the defendant is not precluded by it from levying the damages and costs awarded to him by the judgment. Second Deliverance after. New Trial. Costs. New Trial.] In replevin, where the verdict is for the plaintiff, the court will not, in general, grant a new trial, even on payment of costs, without very clear grounds; for the landlord has other remedies for his rent, and a new trial would renew the liability of the sureties, and the plaintiff's risk of paying double costs (c). See further as to new trials, post, Book IV. Part I. Ch. 27. Costs.] If the plaintiff have a verdict, he is entitled to costs of increase, by the stat. of Gloucester, (6 Edw. 1, c. 1, s. 2), in the same manner as in all other actions in which a plaintiff recovers damages (d). So, if the defendant, in replevin, or second deliverance, making avowry, cognizance, or justification for rents, customs, or services, or for damage feasant, have a verdict, or the plaintiff be nonsuit or otherwise barred, he is entitled to costs by 7 H. 8, c. 4, s. 3, & 21 H. 8, c. 19, s. 3(e). And by 17 C. 2, c. 7, s. 2, in replevin of a distress for rent, if the defendant have judgment upon this act, he shall have full costs of suit. And, lastly, where the distress is for rent, relief, heriot, (u) Rees v. Morgan, 3 T. R. 349: Her- (x) Gamon v. Jones, 4 T. R. 509. 454. (3) 21 H. 1, c. 19. s. 3. (a) See form of postea, Chit. Forms, 454; judgment, Id. 455; and execution, Id.: and see Turnor v. Turner, 2 B. & B. 107; 4 Moore, 606, 616, S. C. (b) 17 C. 2, c. 7, s. 2. (c) Parry v. Duncan, 7 Bing. 243; 5 Moo. & P. 19, S. C. (d) See Butterton v. Furber, 1 B. & B. 517; 4 Moore, 296, S. C. (e) See Turner v. Gallillee, Hardr. 153: Smith v. Walker, 2 L. Raym. 788: Com. 122, S. C.: Haselop v. Chaplin, Cro. EL 330: Samuel v. Hoder, Cro. Jac. 520: Porter v. Wray, Cro. El 301: Davies v. James, 1 T. R. 371: Butterton v. Furbor, 1 B. & B. 517. or other service, (not a rent-charge) (f), the defendant avowing, or making cognizance, in replevin, shall have double costs of suit, if the plaintiff be nonsuit, discontinue his action, or have judgment given against him (g). Such double costs are estimated by giving the defendant, first, the whole of his single costs, including expenses of witnesses, counsel, fees, &c., and then half of that amount (h). No suggestion is, it seems, requisite to entitle the defendant to these (i). As to costs generally, see post, Book IV. Part I. Ch. 30. It does not appear that there is any difference as to the mode of taxation between a replevin and any other suit (k). СНАР. 11. SECT. 2. Execution.] The execution for the plaintiff is the same as Execution. in ordinary cases, where a plaintiff has a judgment for damages For Plaintiff. and costs, namely, by fieri facias, ca. sa., or elegit (1). It may be questionable, however, whether these writs can be made returnable immediately after the execution thereof, as the Uniformity of Process Act, and the statute of 3 & 4 W. 4, c. 67, 8. 2, passed to amend it, do not, perhaps, extend to a replevin suit. The practice is to make them so returnable. dant. So, if the defendant have judgment under stat. 17 C. 2, c. 7, For Defento recover the arrears of rent, or value of the distress, he shall have execution by fieri facias, ca. sa., or elegit (m). torno Ha But when the defendant has judgment at common law, he Writ de Reshall have execution by a writ de retorno habendo, to have a bendo. return of the things distrained, and a fieri facias or ca. sa. for his costs (n). Or, if the defendant have judgment, under stat. 21 H. 8, c. 19, he shall have a writ de retorno habendo for a return of the goods; and also a fi. fa. or ca. sa. for his damages or costs (o). It seems the writ de retorno habendo, and a fi. fa. or ca. sa. for the damages and costs, may be included in one writ. The sheriff is not bound to execute a writ de retorno habendo, unless some person attend on behalf of the defendant, to shew him the goods; and, it will be a good return to the writ, to say, that no person did attend(p). See the practical directions as to the mode of suing out and executing these writs of fieri facias, ca. sa., or elegit, ante, Vol. I. 419, 420, 440, 449. Elongata. If, to the retorno habendo, the sheriff return that the goods, Proceedings &c., are eloigned (that is, conveyed to places unknown to on Return of him, so that he cannot execute the writ), the defendant may then sue out a capias in withernam (2), requiring the sheriff to take other cattle &c. of the plaintiff, to the value of the cattle &c. eloigned, and deliver them to the defendant, to be kept by him until the plaintiff should deliver to him the cattle &c. (f) Leominster Canal Company v. Cowell, 1 B. & P. 213; 7 T. R. 500, S. C. (g) 11 G. 2, c. 19, s. 22: see Lloyd v. Winton, Barnes, 148: 2 Wils. 28, S. C.: Lindon v. Collins, Willes, 429: Gurney v. Bulier, 1 B. & Ald, 670: Johnson v. LawBon, 2 Bing. 341; 9 Moore, 642, S C.: and as to costs upon double pleadings, see Dodd v. Joddrell, 2 T. R. 235: and see Book IV. Part I. Ch. 30. (h) Staniland v. Ludlam, 4 B. & C. 889; 7 D. & R. 484, S. C (i) See Wella v. Ody, 3 Dowl. 800; 2 C., PART I. BOOK III. Originally replevied. If this writ be returned nihil, the defendant may sue out an alias, and after that a pluries; and, if the pluries be returned nihil, the defendant may then sue out a scire facias against the plaintiff's pledges, to shew cause why the price of the cattle &c. eloigned should not be made of their lands and goods, and rendered to the defendant. If no cause be shewn to this scire facias, a writ issues to take the cattle &c. of the pledges. But if they have none, and the sheriff return nihil to the writ, the defendant may then have a scire facias against the sheriff himself, requiring him to shew cause why he shall not render to the defendant cattle &c. to the value of those eloigned (r). Or the defendant may, it should seem, proceed against the pledges by default, upon the scire facias above mentioned. Or, which is much the best and least circuitous method, if the sheriff have not taken pledges, or the pledges be insufficient, the defendant, upon the return of the elongata, may bring an action on the case against the sheriff, and recover damages, whether a scire facias have issued against the pledges or not(s). 5. Procced ings against the Sureties vin-bond. 5. Proceedings against the Sureties in the Replevin-bond. We have seen, ante, 792, that the sheriff in every replevin for a distress for rent is bound to take from the party replein the Reple- vying, a bond, with sureties, to prosecute the replevin suit with effect and without delay, and for returning the goods distrained, if a return be awarded. We shall now proceed to consider how that bond may be forfeited, and what proceedings may be taken thereon, against the sureties, by the defendant in the replevin suit. Replevinbond, when and how forfeited. Replevin-bond, when and how forfeited.] The replevin-bond is forfeited by not prosecuting the replevin suit with success, as well as by making default in the prosecuting of it: therefore, you may sue the pledges on their bond, or the sheriff for not taking pledges or not taking sufficient pledges, without suing out a retorno habendo (t); unless in the case of a distress damage feasant (u). The plaintiff in replevin, by not appearing in the county court immediately succeeding the execution of the replevin-bond, and then entering his plaint there, creates a forfeiture of the bond (x). So the bond will be forfeited if the plaintiff delay, or does not use due diligence in prosecuting the suit; as, if he delay proceeding for two years (y), or even for a less time, and though the suit be not determined (*). The bond may be forfeited notwithstanding the removal of the cause into the superior court (a). But the bond is not forfeited by the plaintiff's not declaring in the county court, if the defendant has not appeared therein to (r) Trevors v. Michelborne, Hut. 77; 1 (8) 16 Vin. Abr. 399, 400: Richards v. (u) Hucker v. Gordon, 1 C. & M. 58. (r) Dias v. Freeman, 5 T. R. 195. (y) Axford v. Perrett, 1 Moo, & P. 470; 4 Bing. 586, S. C. and see Dias v. Freeman, 5 T. R. 195. (2) Harrison v. Wardle, 5 B. & Ad. 146. (a) Gwillim v. Hollbrook, 1 B. & P. 410: Waterman v. Yea, 2 Wils. 41. |