The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Judgment.

If the Plaintiff counts upon a Detainer, and the Defendant appears and makes default, the other shall have Judgment for dammages and costs, and also for the value of the Cattel, Nat. br. 69. L. No. Lib. Intra. 610. C. Sect. 20. for by the default he confesseth the tort.

1. The Defendant said that the place is ancient demesn, &c. if the issue be found for him the Plaintiff shall not have a return, 21 Edw. 3.7. pl. 18.

2. If one justifies for Services and makes no Avowry, he shall not have a return, although it be found for him, 15 Edw. 4.29. 5 Edw. 4.6. 34 Hen. 6. Avowry 47. for there is difference be∣twixt Avowing and Justifying; Avowing sup∣poseth tenure, but Justifying doth not.

If one make a Conusance as Bailiff, he shall have a return, No. Lib. Intra. 591. A. sect. 9. viz. for his Master.

3. The Plaintiff in a Recaption dies, the Lord shall have return, if another Writ be purchased, 11 Hen. 6.14. pl. 3. Q.

If the Plaintiff be Nonsuited, the other shall have a return, Lib. Intra. 570. D. sect. 1, 2. 11 Eliz. Dyer 280. pl. 14. 35 Hen. 6.47. pl. 12. 17 Hen. 8. br. second Deliverance 15. 22 Hen. 7.92. pl. 7. Crooke; and this, although the other do make no Avowry, 16 Hen. 6. return of Cat∣tel 1. 2 Hen. 5.6. for the Nonsuit confesseth the Distress well taken, and so the Avowry is need∣less.

But otherways he may abate the Writ, by pleading 9 Hen. 6.4. pl. 10. 11 Hen. 6.5. B. Dan∣by, 35 Hen. 6.40. pl. 1.

But if the Count abate, or if he count not of the place of the taking, yet he shall not have a return before an Avowry, 35 Hen. 6.40. pl. 1. because that is but for want of good pleading, and he may have just cause of com∣plaint, notwithstanding for ought that appears to the Court.

The second Deliverance, he shall not have it without Avowry, per Newton, 16 Hen. 6. re∣turn of Cattel 1. for it is grounded upon a Title shewn.

The Defendant cannot claim a property in Re∣pleg. to have a return, because he ought to claim at the time of the Repleg. sued, 31 Hen. 6.12. pl. 1. and now it is too late.

The Plaint is removed, and it abates for default of the Sirname, there was a return awarded without an Avowry, 27 Hen. 6.3. pl. 35. for here is no right party complained of.

Repleg. against C and D, C pleads he took them not, D justifies in right of C, and found for him; yet he shall not have a return, 22 Hen. 6.52. pl. 27. because he justifies in the right of another, who disclaims the distress.

The Defendant pleads property in another, and found so; there he shall have a return without an Avowry, for the Plaintiff had deliverance without cause, 39 Hen. 6.35. pl. 47. Prisott, be∣cause the Cattel belonged to another.

One avows for rent at two days, one whereof is not come, the Plaintiff is Nonsuited; there shall be a return in respect of the rent due for one day, because he is not meerly an Actor, per 4. Justices against three.

But Newton said, he ought to have several A∣vowries. Q.

At the Common Law a return irreplevisable was but when it was found against the Plaintiff, by an issue tried, 36 Hen. 6.8. pl. 24. Babbington, for then the matter was fully tried.

If the Defendant doth not answer to the A∣vowry, there the Cattel shall be irreplevisable, Lib. Intra. 571. A. sect. 4. for he thereby con∣fesseth the distress lawful.

Return irreplevisable after Westm. 2. cap. 2. is but upon a Nonsuit in second Deliverance, 2 Hen. 4.23. pl. 9. Lib. Intra. 571. A. sect. 4, 5.

Upon a Nonsuit in Repleg. it shall not be, 24 Edw. 3.33. pl. 22. if it be not after verdict,

14 Hen. 7.6. pl. 14. for he may have just cause of complaint though he be Nonsuit; but by the ver∣dict it appears he had not.

If the Plaintiff be Nonsuited in a Replevin, and after in a second deliverance, there shall be a return irreplevisable before Avowry; but quaere, if he shall have dammages before Avowry, 10 Eliz. Dyer 280. pl. 14. It seems he shall, for this double Nonsuit admits the taking lawful.

If the Plaintiff be Nonsuited when the Jury comes again and gives their verdict, yet there shall not be a return irreplevisable, 34 Hen. 6.5. pl. 14. 14 Hen. 7.6. pl. 14. for it may be he hath better evidence, which he then failed of.

The Plaintiff in Repleg. makes default at the Nisi prius, they shall not be irreplevisable, be∣cause it is out of the Law, 3 Hen. 6.8. pl. 24.

The Plaintiff in a Repleg. is Nonsuited, and a return awarded, the King demises, the pledges being warned come not; quaere, if the return shall be irreplevisable, 1 Edw. 7. pl. 13.

Or upon a Return awarded in second delive∣rance, 2 Hen. 4.23. pl. 9. Q.

Or upon a judgment against the Plaintiff upon a Demurrer, 2 Hen. 4.23. pl. 9. 14. Hen. 7.6. pl. 14.2, & 3 Mariae, Dyer 118. pl. 77. Q.

Upon a Demurrer upon a plea to the Writ, and judgment for the Defendant, they shall not be irreplevisable, 34 Hen. 6.37. B. br. Repleg. 6. for that is not upon the merits of the cause.

Or upon issue tried, 2 Hen. 23. pl. 9. the Defendant in a Repleg. pleads to the Writ, and found by the Jury so, there shall be a return ir∣replevisable, the contrary upon a Demurrer up∣on

a Writ or Concession, 34 Hen. 6.37. B. br. Re∣pleg. 6. for a verdict is of a higher account than a Demurrer or Concession.

If the Plaintiff upon a second Deliverance suf∣fer the plea to be discontinued, there it shall be irreplevisable, 17 Hen. br. second Deliverance; for the Court will not be troubled with Suits to no purpose.

Note, that at this day dammages are given where the Plaintiff is Nonsuited, or found against him. or otherwise barred in Conusance, Avowry, or Justification, for Rents, Customes, or Services, per 7 Hen. 8. cap. 4. com. 82. B. Crokers case, 14 Mariae Dyer 141. pl. 46. 19 Hen. 8.11. pl. 7.

And for dammage feasant, per 21 Hen. 8. cap. 19.1, & 3 Mariae, Dyer 118. pl. 77. 4 Mariae, Dyer 141. pl. 46.

But if it be for an Estray he shall not have dam∣mages, because the Statute extends not to it, ••asch. 34 Eliz. Ban. Regis, Rot. 292. and being penal, it shall not be expounded by equity.

But at the Common Law the Avowant shall not recover dammages, 35 Hen. 6. pl. 12. for it was though enough for him to have return of the distress.

If one have a return irreplevisable upon a Non∣suit in second deliverance, it is doubted whether he shall have dammages before Avowry, 11 Eliz. Dyer 280. pl. 14. It seems he shall, because there needs no Avowry. Quaere tamen, for it appears not to the Court, that he had cause to distrain.

Notes

• Retorno ha∣bendo Null.
• Returno habendo.
• 1. Return ir∣replevisa∣ble, 1. At Common Law. 2. At the Statute Law.
• 2.
• Dammages by Sta∣tutes.