fault after appearance, there shall be a special writ of inquiry for the value of the goods or cattle and damages. But where the taking was lawful, the damage shall be only for the detainer; as where goods are taken damage-feasant, and detained after amends tendered. If the plaintiff let judgment go by default, or become nonsuit, the defendant is entitled to his judgment pro retorno, and to a writ of inquiry, to assess his damages and costs; or if the defendant get a verdict, the jury may assess the damages, or if they omit so to do, a writ of inquiry may go (a). The judgment after verdict for the defendant need not express the return to be irreplevisable, because now it necessarily must be so, since the statute of Westm. 2. Therefore a judgment in replevin, "that the defendants have a return of the cattle, and recover their damages and costs assessed by the jury," &c. is good, either as a judgment at common law, though the return be not adjudged irreplevisable, or as a judgment under stat. 21 H. 8. c. 19. which entitles the defendants to damages and costs; but not under stat. 17 C. 2. (b). If the defendant upon the judgment de ret. hab. sue out a writ pro ret. hab, and the sheriff cannot find the cattle, he may have a capias in withernam upon the return of the elongata. But if the defendant have. judgment for a return irreplevisable, if the owner of the cattle or goods. tender all that is due on the judgment and it be accepted, he shall have a writ of delivery for the goods; so if he tender the whole upon the judgment which is ascertained upon the avowry, and be refused, he shall have detinue (c). In avowry for damage-feasant, defendant had a verdict, and adjudged that he shall have a ret, hab, for the cattle, and a ca, sa. for the damages; but if the party tender the costs and damages, the sheriff, after such tender, ought not to execute the ret. hab. But if, for want of such tender, he do execute the ret, hab, and afterwards the costs and damages be paid, a writ si constare poterit lies upon suggesting that the costs, &c. are paid, and this is to re-deliver the distress, and is called "a writ of restitution" (c). It is now settled, that pleadings in replevin are within the stat. 4 Ann. c. 16. therefore, where some issues in the replevin are found for the plaintiff which entitle him to judgment, and some for the defendant, the latter must be allowed the costs of the issues found for him out of the general costs of the verdict; unless the Judge shall certify that the plaintiff had probable cause for pleading the matters on which those issues are joined (c). An avowant shall pay costs on the special avowries found against (a) 2 Sell. Pract. 271-2. (b) Gamon v. Jones. 4 T. R. 509. (c) 2 Sell. Pract. 273. him; and shall not have costs on the affirmance of a judgment in his favour on a writ of error (a). If the plaintiff plead several pleas in bar, upon which issues are joined, and some issues are found for the plaintiff, and some for the defendant, the latter is entitled in C. P. to such costs of the trial as relate to the issues on which he has succeeded, as well as to the costs of the pleadings (b). But if a defendant after trial, and verdict for the plaintiff, obtain judgment non obstante veredicto, in consequence of the plaintiff's pleas in bar being bad, he is not entitled in that Court to any costs upon the pleadings, subsequent to the pleas in bar, because he should have demurred to them (c). The certificate of probable cause is not required to be made in Court, at the trial of the cause; and where the Judge refuses to grant it, the Court have not a discretionary power, whether they will allow the plaintiff any costs at all; but are bound by the statute to allow him some costs, though the quantum be left to their discretion (d). In an action of replevin between the assignees of a bankrupt (who was formerly tenant to A.) and the bailiff who distrained, one issue was, whether the assignees were tenants to A.: a verdict against the assignees, on such issue, is afterwards conclusive as to the tenancy of the assignees in an action brought by A. for rent (e). Where the bailiff of an executrix made cognizance in replevin for arrears of rent incurred in the life-time of the testator, and a verdict was found for the defendant, the Court would not permit the plaintiff to enter up judgment non obstante veredicto, on the ground that the record did not shew the executrix to be entitled to distrain, under the 32 Hen. 8. c. 37. s. 1. (ƒ). Where a replevin cause being referred after issue joined and before jury sworn, the arbitrator found one issue for defendant, and awarded the payment of rent due to him, but ordered no verdict or judgment to be entered; held, that the defendant was not entitled, on motion, to enter up judgment in the action for the rent and costs of the action taxed for him (g). Where an avowry stated that defendant held the premises at a certain yearly rent, to wit the yearly rent of 72/., and the plaintiff pleaded, Ist, non tenuit, and 2dly, riens in arrère, and the first plea was found for the plaintiff; held, that the second plea became thereby immaterial, and that the proper course was to discharge the jury from finding any verdict upon it; but that if any verdict were entered upon it, it must be entered for the plaintiff (b). (a) 2 Sell. Pract. 273. (b) Cook v. Green. 5 Taunt. 594. 1 Mars. 234. S. C. (c) I Tidd's Pract. 616. (d) Ibid. 617. (e) Hancock v. Welsh. 1 Stark. 347- Of the Non Pros., Nonsuit, Verdict, and Judgment, under Stat. 17 Car. 2. c. 7. where the Distress was for Rent. If the cause have been removed into the superior Court by the plaintiff, and after the defendant has appeared he do not declare or proceed therein; or if the cause have been removed by the defendant, and a rule having been served on the plaintiff, he do not declare or proceed therein; the defendant may in these cases sign a non pros., enter up judgment pro retorno habendo, and, if the original distress were made for rent, he may proceed to execute a writ of inquiry of damages, which is the better way than taking out a writ pro retorno habendo, because that writ may be superseded by the plaintiff suing out a writ of second deliverance, as has been seen before (a). For the stat. 17 C. 2. c. 7. which is an Act for the more speedy and effectual proceeding upon distresses and avowries for rent, after reciting that "Forasmuch as the ordinary remedy for arrearages of rents is by distresses upon the lands chargeable therewith; and yet nevertheless, by reason of the intricate and dilatory proceedings upon replevins, that remedy is become ineffectual:" by Sect. 2. enacts, "That whensoever any plaintiff in replevin shall be nonsuit before issue joined in any suit of replevin by plaint or writ lawfully returned, removed, or depending in any of the King's Courts at Westminster, that the defendant making a suggestion in nature of an avowry or cognizance for such rent, to ascertain the Court of the cause of distress, the Court upon his prayer shall award a writ to the sheriff of the county where the distress was taken, to inquire, by the oaths of twelve good and lawful men of his bailiwick, touching the sum in arrear at the time of such distress taken, and the value of the goods or cattle distrained: and thereupon notice of fifteen days shall be given to the plaintiff or his attorney in Court, of the sitting of such inquiry; and thereupon the sheriff shall inquire of the truth of the matters contained in such writ by the oaths of twelve good and lawful men of his county; and upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods or cattle distrained shall amount unto that value; and in case they shall not amount to that value, then so much as the value of the said goods and cattle so distrained shall amount unto, together with his full costs of suit, and shall have execution thereupon by fieri facias, or elegit, or otherwise, as the law shall require: and in case such plaintiff shall be nonsuit after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff, then the jurors that are impannelled or returned to inquire (a) 2 Sell, Pract. 267. of such issue, shall, at the prayer of the defendant, inquire concerning the sum of the arrears, and the value of the goods and cattle distrained; and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution of the same by fieri facias, or elegit, or otherwise, as the law shall require." Sect. 3. gives the like remedy to the avowant or party making cognizance for any rent, upon a judgment given for him upon demurrer. Sect. 4. enables the party or his representatives to distrain again for the residue of the arrears, in case the value of the cattle, &c. taken by the first distress shall not be the full value of the arrears distrained for. By the above statute, in case of a nonsuit or non pros. before issue joined, defendant may enter a suggestion upon the record, in the nature of an avowry or conusance, and thereupon sue out a writ of inquiry; but in case of a nonsuit at the trial, or of a verdict for defendant, the jury at the trial must inquire of the rent in arrear, and the value of the goods distrained (a). If they omit to make such inquiry, no other jury can afterwards make it; no writ of inquiry therefore can go, the defendant cannot enter his judgment according to the statute and proceed to execution by fi. fa, or ca. sa, but must resort to his common law judgment, and sue out his writ de retorno habendo : and this if the jury omit to inquire either of the rent or the value of the goods, for they must assess both; as the statute must be strictly complied with (a).—But this is only in cases of rent within the statute; and not in those of nonsuit in other cases; indeed Lord Hardwicke has laid it down, that in every case, unless where the Court is tied up by this statute, a writ of inquiry may be granted in order to do complete justice (b). If the plaintiff become nonsuit, the defendant is not bound to take his remedy under the statute, but has his option either to proceed by writ of inquiry under it, or to bring his action against the plaintiff and his sureties on the replevin bond (a). Nor does the statute take away or alter the judgment at common law; it only gives a further remedy to the avowant. So that after a non pros. plaintiff may still enter his judgment pro retorno: but it is better to make a suggestion, and proceed by writ of inquiry; because if the plaintiff sue out a writ of second deliverance, it will operate, as has been observed, as a supersedeas of the ret, hab, but not so to the writ of inquiry: for by this statute, the legislature intended that the proceeding by writ of inquiry, fi. fa. and elegit, should be final for the avowant to recover his damages, and that the plaintiff should keep his cattle (4) 2 Sell, Pract. 269. (5) Valentine v. Fawcet. Ca. temp. Hardw. 138. notwithstanding the course of awarding a ret. hab. which is the right judgment, and is still entered up as before the statute (a). If plaintiff in replevin be nonsuited, the defendant is not bound to have his damages assessed by the jury under 17 Car. 2. c. 7. or to take the earliest moment to prosecute his writ de retorno habendo, and he may again distrain the same goods for rent subsequently accrued previously to executing his retorno habendo without waiving his action against the sureties in the bond (b). Where judgment is given on demurrer for the avowant in replevin, fifteen days' notice of the execution of the writ of inquiry should be given to the plaintiff, as in the case of nonsuit, on stat. 17 Car. 2. c. 7. (c). Where the judgment is for the defendant after verdict, if the jury have not inquired at the trial as the statute directs, it must be entered up as a common law judgment pro ret. hab. But if the jury have assessed damages, but not the amount of the rent, &c. it may be entered as a judgment under stat. 21 H. 8. c. 19.: and the Court will permit the defendant to amend his judgment if entered as under the statute, and not warranted thereby, to make it a common law judgment (d). Where the defendant made conusance for rent in arrear, and the jury found a verdict for him, and damages to the amount of the rent claimed in his conusance, without finding either the amount of the rent in arrear or the value of the cattle distrained, and judgment was entered for the damages assessed, the Court permited the defendant to amend his judgment, and to enter a judgment pro ret, hab, after a writ of error brought (e). In replevin the plaintiff avowed for a year's rent; verdict for the defendant; but no value found for the jury. It was moved for a writ of enquiry under the stat. 17 C 2. c. 7. to ascertain the rent in arrear and the value of the cattle. Gould, J. doubted whether it could be granted to supply a defective verdict in case of rent; though after a judgment by default it would certainly lie; and added, that Burrow's note of Andrews and James, M. 24. G. 2. B. R. appeared to be a judgment by default. However, no cause being shewn, the rule was made absolute (f). If there have been no avowry, the Court will set aside a writ of inquiry obtained, and the inquisition thereon; for the avowry is in the nature of a declaration, and is the only ground of an inquiry for the defendant in replevin (g). The stat. 11 G. 2. c. 19. s. 22. gives the defendant or defendants in replevin making avowry or conusance upon distress for rent, re (a) 2 Sell. Pract. 269. (b) Hefford v. Alger. 1 Taunt. 218. (e) Burton v. Hickey. 1 Mars. 444. S.C. 6 Taunt. 57. (d) Gamon v. Jones. 4 T. R. 509. |