latter was not a competent witness to prove the amount of the rent due from the under-tenant to him a.

Where distinct cognizances are made for the same goods under several parties, not appearing to be connected in interest, if one of the cognizances be abandoned at the trial, the party under whom it was made is a competent witness for the defence b.

SECTION IX.

JUDGMENT.

If in replevin the verdict be found for the plaintiff, the jury assess the damages for the injury which he has sustained by the taking of the goods only; for we have seen, that the goods distrained are delivered to him by the sheriff on replevying, and the judgment is, that the plaintiff do recover from the defendant the damages assessed by the jury and costs. If the plaintiff has judgment upon demurrer, nil dicit cognovit actionem, &c., a writ of inquiry of damages shall be awarded; or by the consent of both parties, the court may assess the damages without such write.

If a verdict be found for the defendant, the judgment at common law is, that he have a return of the goods irrepleviable. As at common law the defendant was not allowed damages or costs in replevin d; it was enacted by 7 H. VIII. c. 4. s. 3, "that avowants and persons making cognizance for rents, customs, and services, if they obtain a verdict, or the plaintiff be nonsuited, or otherwise barred, shall recover damages and costs, as the plaintiff would have done if he had recovered.

Upton v. Curtis, 8 Moore, 52. 1 Bing. 210. In reference to this case, Lord Denman has said, "there is reason to suppose that the facts are not reported with perfect accuracy, and the court only held that an intermediate tenant, under whom cognizance had been made, (the distress being taken by the landlord,) was not admissible to prove the amount of

the subtenant's rent. And this may
have been because he had an interest
in reducing his own rent by raising
that of his tenant;" in King v.
Baker, 2 Ad. & Ell. 340.

b King v. Baker, 2 Adol. & Ellis,
333. 4 N. & M. 228.

1 Arch. K. B. Prac. 236. 2
Sell. Prac. 272.
d Wilk. 86.

1

The 21 Hen. VIII. c. 19. s. 3. extended this provision to avowries and cognizances, to distress damage feasant, or other rents, upon any distress taken in the lands and tenements."

The judgment, after verdict for the defendant, need not express the goods to be irrepleviable; it is sufficient either at common law, or under the preceding statute, if it be expressed in these terms, "that the defendant have a return of the cattle, and recover his damages and costs assessed by the jury," &c., because since the stat. Westminster 2, (13 Ed. I. c. 2. s. 3,) the return is, in point of law, in all cases irreplęviable a.

The proceedings in cases of distress for rent, are regulated by 17 Car. II. c. 7; sec. 2. of which enacts, “that whenever any plaintiff shall be nonsuit before issue joined in any suit of replevin, by plaint or writ, lawfully removed or depending in any of the superior courts, the defendant may make a suggestion in nature of an avowry or cognizance 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; of which inquiry the plaintiff'shall have fifteen days' notice b. 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. And if the plaintiff shall be nonsuit, after cognizance or avowry made, and issue joined ; or if a verdict shall be given against the plaintiff, then the jurors that are impannelled 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 above.

Sec. 3. gives the like remedy to the avowant, or party making cognizance for any rent, upon a judgment given for him on demurrer; and section 4 enacts, "that in all the preceding cases, where the value of the cattle 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."

This statute has not superseded the judgment at common

a Gammon v. Jones, 4 T. R. 509.

Burton v. Hickey, 6 Taunt. 57.

law; it only gives a further remedy to the avowant; who may
elect to proceed upon it, or take the remedy at common
law a.
It was formerly considered that the defendant must
either have judgment and execution for the sum settled by
the jury, pursuant to the above statute, or he must take the
usual remedy by writ de retorno habendo, and proceed under
11 Geo. II. b But in a modern case, it was decided that if
the defendant does not issue execution on his judgment under
the statute, or if the sum recovered be not paid before action
brought, he may still proceed on the replevin bond as a farther
and better security. Where the verdict is for the defendant, if
the jury have omitted to enquire at the trial as the statute
directs, judgment must be entered de retorno as at common
law; but if the jury have assessed the damages, but not the
amount of the rent, it may be entered as a judgment under 21
Hen. VIII. c. 19. d
The omission of the jury, who tried the
cause, to make the necessary enquiries, cannot be supplied by
a writ of enquiry; for the statute provides that the jurors who
were impannelled to inquire of the issue, should inquire con-
cerning the sum in arrear, and the value of the distresse.
in every case in replevin, except where the court is tied up by
17 Car. II. c. 7, which respects only rent in arrear, a writ of
inquiry may be granted in order to complete justice f.

But

If the dedoes not issue exe

fendant

cution on

the judgment, he

may pro

ceed on the replevin

bond.

SECTION X.

COSTS.-PRACTICE.

By the statute of Gloucester, the plaintiff in replevin is entitled Costs. to costs; and the 7 & 8 Hen. VIII. c. 11, and 21 Hen. VIII. c.

19, give costs to every avowant and to any person making cog

Practice.

nizance or justifying as bailiff in replevin, for any rent, custom, or service, or for damage feasant, if his avowry, cognizance, or justification be found for him, or the plaintiff be otherwise barred.

By 11 Geo. II. c. 19. s. 22, a defendant in replevin, making avowry or cognizance upon distresses for rent, relief, heriot, or other service, is entitled to double costs, in case the plaintiff shall become nonsuit, discontinue, or have judgment against him. If a verdict be found for a defendant in replevin, upon an avowry generally, as landlord, he is entitled to his double costs under 11 Geo. II. c. 19. s. 22, though the replevin be brought solely for the purpose of trying the title to the premises a

A plaintiff in replevin is not entitled to security for costs, although the defendant is in insolvent circumstances; for, in point of fact, he defends the action b. The court will not stay proceedings in replevin, unless upon payment of the rent in arrear, together with the costs, though the arrears were tendered before replevin, with costs up to that time. Nor upon payment of costs upon the application of the defendant; for both parties are actors in replevin, and the plaintiff is entitled to his judgment. The plaintiff may pay the rent into Court, for which the defendant avows. Although a party cannot proceed for damages upon a plea of tender, after taking the money out of court, yet in a plea of tender to an avowry for rent, the plaintiff need not bring the money into court; as in replevin both parties are actors, and either party is at liberty to carry the cause down for trial. A defendant is not entitled to move for judgment, as in case of nonsuit, under stat. 14 Geo. II. c. 17. s. 1.g If, however, the defendant gives notice

and does not go on to trial, the Court will give costs against hima.

SECTION XI.

WRITS OF RECAPTION AND SECOND DELIVERANCE.

Ir after the goods are restored to the plaintiff by the sheriff, on Writ of replevying, and before the suit is terminated the defendant make recaption. a second distress of the same or of any other goods, for the same rent or duty, the plaintiff may sue out a writ of recaption, in which the defendant cannot avow as in replevin; but he may justify, as in trespass, the taking for another cause. If the defendant be convicted under this writ, he is liable to pay a fine to the crown, because by the second caption he takes himself to determine the justice and legality of the first, while that very point is under the consideration of the court in which the replevin depends b. If however the same cattle, or other cattle of the same proprietor, come on the land damage feasant, they may be distrained again, because such distress is for a distinct injury c.

upon

second de

At common law, if the plaintiff was nonsuited, the defendant Writ of was entitled to have the goods returned; but the plaintiff might liverance. replevy them as often as he thought proper; to remedy this evil the statute Westminster 2, restrained the plaintiff from replevying after nonsuit; but gave him a writ of second deliverance, which is in the nature of a new replevin. If, in this writ, the plaintiff does not prevail in his suit, the defendant shall have a return of the goods irrepleviable. The writ of second deliverance is a supersedeas, in law, to the writ of retorno habendo, but not to the writ of inquiry of damages, under 7 Hen. VIII. c. 4. and 21 Hen. VIII. c. 19, or under 17 Car. II. c. 7. When the distress is for rent, it seems that the latter statute has taken away the writ of second deliverance a.

a B. N. P. 61.

Gilbert. Rep. 227. Wilk. 131.
Id. F. N. B. 71.

d1 Saund. 195.

Wilk. 138. Gil

bert. Rep. 217. Bac. Ab. tit. Rep.
(E. 3.)