IX. Of the Judgment:

1. For the Plaintiff.

2. For the Defendant.

1. For the Plaintiff.-As by the nature of the proceedings in replevin the goods distrained are delivered by the sheriff to the plaintiff; if he recovers, he can have judgment for damages only.

If the plaintiff has judgment on a demurrer, the form of entry is," that the plaintiff do recover his damages, by reason of the premises," whereupon a writ of inquiry is awarded to ascertain the damages, and on return of the inquisition, final judgment is entered for the damages found by the inquisition, and costs de incremento.

If the plaintiff obtains a verdict, then the jury on that verdict ascertains the damages and costs, and the judgment is, "that the plaintiff do recover against the defendant the damages assessed by the jurors, and costs de incremento."

2. For the Defendant.-At the common law, when the merits of a suit in replevin were decided by a verdict for the defendant, or judgment for him on demurrer, or confession by the plaintiff, the judgment for the defendant awarded him a return of the distress irreplevisable. A different rule obtained in the case of a nonsuit, for in that case the defendant was not entitled to this judgment. To remedy the inconvenience which proceeded from the plaintiff, in the case of nonsuits, having several replevins for one and the same cause, it was enacted, by stat. 13 Edw. 1. c. 2. that as soon as the return of the beasts should be adjudged to the distrainor, the sheriff should be commanded by a judicial writ to return the beasts to the distrainor, in which writ is to be inserted a direction to the sheriff not to deliver the beasts without a writ making mention of the judgment given by the justices (29).

x 2d Book of Judgm. 203.

y 2d Book of Judm. 203.

(29) It appears from the words printed in italics, and those which follow them in the statute, viz. "quod fieri non poterit nisi per breve quod exeat de rotulis justic' coram quibus deducta fuerit loquela," that the provisions of this statute are confined to those cases where the cause has been removed into the superior court,

By this statute, if the plaintiff in replevin be once nonsuit, he cannot have a new replevin, but must sue out a writ according to the directions of the statute. The writ is termed a writ of second deliverance. It is a judicial writ, issuing out of the court of record in which the nonsuit was had (30).

The writ of second deliverance is a supersedeas in law to the sheriff to forbear to execute the writ de retorno habendo (31) obtained on the nonsuit of the plaintiff, if delivered to the sheriff before return is made.

If upon the writ of second deliverance, the party replevying makes default a second time for any other cause, the statute has provided, that the distress shall remain irreplevisable for ever.

In the case of a distress for rent arrear, the statute 17 Car. 2. c. 7. has prescribed to the defendant a mode of proceeding in the four following cases:

I. If the plaintiff shall be nonsuit, before issue joined, in any suit of replevin by plaint or writ lawfully removed :

The defendant must make a suggestion in nature of an avowry or cognisance for the rent arrear, whereupon the court, upon prayer of the defendant, will award a writ of inquiry touching the sum in arrear at the time of the distress, and the value of the distress. On the return of the inquisition, the defendant will have judgment to recover the rent arrear, if the distress amounts to the value of it; if not, then to recover the value of the distress, with full costs (32).

z 2 Inst. 341.

and the plaintiff has been nonsuited there. If this be the true construction, it will follow, that so long as the cause remains in the county court, the plaintiff may replevy the distress after nonsuit there, and return made in infinitum, as he might before this

statute.

(30) See the form of this writ, Gilb. Repl. Cap. II. S. VII. 4. (31) But not to the writ of inquiry of damages on stat. 21 H. 8. c. 19. Salk. 95. or on stat. 17 Car. 2. c. 7. Ventr. 64. 2 Wils. 117.

(32) For the form of prayer, writ of inquiry, and judgment, where the distress amounts to the value of the rent, see Lilly's Entries, 3d edition, 1758, p. 610. For the form of the judgment where the distress is of less value than the rent, see Tidd's Practical Forms, 1st ed. p. 292. If the plaintiff be nonprossed after de

II. If the plaintiff shall be nonsuit, after cognisance or avowry made, and issue joined:

In this case the jurors that are impanelled to inquire of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears and the value of the distress, and thereupon the defendant is entitled to the same judgment as in case I.

III. If, after cognisance or avowry made, and issue joined, the verdict shall be given against the plaintiff':

As in the last case, the jurors that are impanelled to inquire of such issue shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the distress (33), and thereupon the defendant is entitled to the same judgment as in case I.

fendant has avowed, for want of a plea in bar, it seems unnecessary to add a suggestion, the cause of the distress being sufficiently ascertained by the avowry. See the form of the writ of inquiry in this case, in Tidd's Prac. Forms, 1st ed. p. 163, 164.

(33) It must be observed, that if the jurors give a defective verdict, e. g. if they find the value of the distress, but omit to find the sum of the arrears, this omission cannot be supplied by a writ of inquiry; because the statute directs that the jurors, who are impanelled to try the issue, shall inquire concerning the sum of the arrears. Sheape v. Culpepper, 1 Lev. 255. The case of Sheape v. Culpepper was recognised by Lord Hardwicke, C. J., in R. v. Kynaston, B. R. T. 10 G. 2. MS. where it was holden, that the court could not supply a defective verdict, where several traverses had been taken on a return to a mandamus, under the statute 9 Ann. c. 20. and the jury had omitted to find damages and costs for the plaintiff. See also Ca. Temp. Hardw. 297. This point was again moved in Freeman v. Lady Archer, 2 Bl. 763.; and Gould, J., then expressed a doubt, whether a writ of inquiry could be granted to supply a defective verdict for the defendant in the case of an avowry for rent arrear, It appears clearly, from the case of Sheape v. Culpepper, that it cannot. And in a more recent case, where the jury found a verdict for the avowant, and dainages to the amount of the rent claimed in the avowry, but did not find either the amount of the rent in arrear, or the value of the distress, and judgment was entered for the damages assessed; it was holden, that this judgment was erroneous, and could not be amended into a judgment under the statute, because the neglect of such inquiry by the jury could not be in any manner supplied*. Rees v. Morgan, 3 T. R. 349. In cases where the court is not restrained by

* But the court in this case permitted the defendant to amend his judgment by entering a common law judgment.

D

IV. If judgment be given upon demurrer for the avowant or person making the cognisance:

In this case the court, at the prayer of the defendant, will award a writ to inquire of the value of the distress (34), and upon return thereof the like judgment shall be given as in case I., that is to say, to recover the rent alleged to be in arrear in the avowry or cognisance, if the distress shall amount to the value of it; if not, then to recover the value of the distress, with full costs (35).

That there may not be any failure of justice, the fourth and last section of the statute directs, that in all the preceding

the express words of the stat. 17 Car. 2. c. 7. s. 2. (which relates to rent arrear only) an inquiry may be granted to supply omissions on the part of the jury at the trial of the replevin. Hence, where the defendant avowed, as overseer of the poor, for a distress for a rate under stat. 43 Eliz. c. 2. and at the trial the plaintiff was nonsuit, and the jury was discharged without any inquiry of the treble damages given by the 19th section of that statute to defendants in case of a nonsuit after appearance; an application was made to the court that the avowants might have a writ of inquiry awarded to supply this defect, which application, after much debate, was granted, Herbert v. Walters, Ld. Raym. 59. Salk. 205. Carth. 362. S. C.

A similar application was made in the case of Valentine v. Fawcett, 2 Str. 1021. Ca. Temp. Hardw. 138. where a verdict had been given for the defendant, who had avowed under the same statute 43 Eliz. c. 2. Lord Hardwicke, C. J., (with whom the rest of the court concurred) was of opinion, that a writ of inquiry ought to be granted, upon the ground, that the words of this section of the statute were sufficient to take in this case, viz. "that defendant shall recover treble damages, to be assessed by the same jury, or writ to inquire of the damages, as the same shall require." The case of Valentine v. Fawcett was recognised in Dewell v. Marshall, 2 BL R. 921. and 3 Wils. 442. in which the court awarded a supplemental writ of inquiry, after verdict found for the defendant, who had avowed under the statute 43 Eliz. c. 2.

(34) The amount of the rent alleged to be due in the avowry or cognisance being admitted by the demurrer, it is not necessary in this case, as it is in the three preceding cases, that the inquiry should extend to the amount of the rent in arrear.

(35) See the form of a judgment on demurrer for an avowant, prayer of writ of inquiry, award thereof, writ, return of the value of the distress, amounting to less than the rent alleged to be due, and final judgment thereupon, in Mounson v. Redshaw, 1 Saund.

cases where the value of the cattle (36) distrained shall not be found to the full value of the arrears, the party to whom such arrears are due, his executors or administrators, may, from time to time, distrain again for the residue.

It is worthy of remark, that this statute, which defines with so much accuracy the mode of proceeding to be adopted by a defendant, who succeeds in a replevin suit, has not superseded the judgment at common law, which may still be entered, if the defendant shall be so advised; for the statute is considered as giving a farther remedy, and not as extinguishing the remedy to which the defendant was entitled at common law. Under this view of the statute, it has been holden, that an avowant may enter a common-law judgment, and also pray a writ of inquiry under the statute. It ought, however, to be observed, that the remedy provided by the statute is attended with this advantage, that the writ of inquiry awarded under it may be executed, notwithstanding the plaintiff has sued out a writ of second deliverance (37); whereas the writ of second deliverance, if delivered to the sheriff before return made, operates as a supersedeas to the writ of retorno habendo issuing on the common law judgment.

X. Of the Costs, and herein of the Costs in Error.

1. As to the Plaintiff.-At the common law, the plaintiff obtaining judgment in replevin was not entitled to costs"; but now, by the stat. of Gloucester, 6 Ed. 1. c. 1. s. 2. the plaintiff is entitled to costs in all cases where he was entitled to damages antecedently to the statute of Gloucester; of course, therefore, the plaintiff is entitled to costs in replevin.

a Baker v. Lade, Carth. 254.
b Cooper v. Sherbrook, 2 Wils. 116.

c 2 Inst. 341. & S. P. per Holt, C. J., in Prat v. Rutleis, 12 Mod. 547.

d Tidd's Pr. 863. ed. 2d.

(36) The preceding clauses of this statute mention goods and cattle distrained, but this speaks of cattle only. The omission of the word "goods" in this clause appears to be casual.

(37) The same rule holds with respect to the writ of inquiry of damages under the 21 H. 8. c. 19. which may be executed after a writ of second deliverance has been served. Pratt v. Rutledge, Salk. 95.