don, the gover ly. And thereupon the faid P. J. by A. B. his attorney, comes and Cognizance as bailiff of the defends the wrong and injury, when, &c and for cognizance in corporation of this behalf he the faid P. J. as bailiff of the mayor, commonalty, the city of Lon- and citizens of the city of London, governo s of the poffeffions, nors of Bride revenues, and goods of the hofpitals of Edward the Sixth, king of well and St. England, of Chrift, Bridewell, and St. Thomas the Apostle, well Thomas's Hof- acknowledges the taking of the faid cattle, goods, and chattels, in pitals, for rent the faid declaration mentioned, in the faid place in which, &c. and in arrear under a demife by them justly, &c. ; because he says, that he took the faid cattle, goods, and to the plaintiff, chattels, at the faid time when, &c. in and upon a certain meffuto pay quarter- age, and in and upon certain lands and premifes, fituate, lying, and being at the faid place called New Crofs, in the faid declaration mentioned, and in which the faid cattle, goods, and chattels were thereby alledged to have been taken, and that the faid J. G. continually for a long space of time, to wit, for one year and an half next before and ending and ended on the feaft day of, A. D. 1785, and from thence until and at the faid time when, &c. enjoyed the faid meffuage, lands, and premises in which, &c. (amongst other tenements), with the appurtenances, as tenant thereof to the said mayor, commonalty, and citizens, governors aforefaid, by virtue of a certain demise thereof by them theretofore made, at the yearly rent of feventy-five pounds, payable quarterly, that is to fay, the feaft of, &c. &c. &c. by even and equal portions, and during all that time held the fame as tenant thereof to the faid mayor, commonalty, and citizens, governors aforefaid, and that because one hundred and twelve pounds ten fhillings of the faid rent for one year and the half of another year of the faid demife, ending and ended on the faid feast day of , in the year 1785, on that day, and from thence until and at the faid time when, &c. was in arrear and unpaid to the faid mayor, commonalty, and citizens, governors aforefaid, he the faid P. J. as bailiff of the faid mayor, &c. well acknowledged the taking of the faid cattle, goods, and chattels in, on, and upon the faid meffuage or dwelling-houfe, lands, and premises, at and in the faid place in which, &c. called New Crofs, and juftly, &c. for and in the name of a diftrefs for the said rent fo due, in arrear, and unpaid to the faid mayor, &c. which faid rent then remained due and unpaid to them; and this, &c.; wherefore, &c. and a return of the faid cattle, goods, and chattels, together with his damages, cofts, and charges, according to the form of the ftatute in fuch cafe made and provided, to be adjudged to him, 24 Cognizance, &c. And for further cognizance, &c. [like the preceding one, for rent in ar- only making M. B. tenant inftead of the plaintiff, and omitting the rear under a de- words in Italic. A third cognizance, differing from the firft only by mife by them to defendant's ftating himself to be a bailiff to M. B. inftead of the another person. governors; then followed a general demurrer to the cognizance; joinder in demurrer, and continuance to the day mentioned in the Judgment, that rule for a concilium.] On which day, before us at Weftininfter, the cognizance came the parties aforefaid, by their attornies aforefaid, whereupon all and fingular the premises being feen, and by our faid court before us fully understood, and mature deliberation being thereon was good. had had, it was confidered that the cognizance of him the faid P. J. by him above made in manner and form as the fame was above made, and the matters therein contained, were fufficient in law for him the faid P. J. to acknowledge the taking of the said cattle, goods, and chattels in the faid place in which, &c. to be juft as appears to us of record: And whereas the faid P. J. hath prayed our writ to enquire of the fum in arrear of the rent aforefaid, and the value of the distress aforefaid to be granted to him, according to the form of the ftatute in such case made and provided; therefore we command Writ to enquire you, that according to the form of the ftatute in fuch made and how much rent provided, by the oath of twelve good and lawful men of your the value of the in arrear, and County, you diligently enquire how much of the yearly rent afore- diftrefs. faid, at the faid time of taking and diftraining of the cattle, goods, and chattels aforefaid, was in arrear and unpaid, and how much the cattle, goods, and chattels aforefaid, fo as aforefaid taken and diftrained, were worth, according to the true value of the fame; and the inquifition which you fhall thereupon take you fend to us in five weeks from the day of Eafter wherefoever we fhall then be in England, under your feal and the feals of thofe by whofe oath you shall take that inquifition, together with this writ. Witnefs, &c. I am of opinion that the within writ of enquiry will operate as a fuperfedeas to a retorno babendo, and consequently preclude the avowant from proceeding against the bail; for they are only liable upon the default of the plaintiff making a rate of the specific goods diftrained upon, which he is not bound to do, the avowant having eketed to proceed under the statute 18. Cha. 2 c. 7. and not at common law, by which he would be entitled to the writ of retorno babendo, and upon return of elongatus be in a fituation to proceed against the bail; but under the ftatute the judgment is to recover the value of the goods diftrained against the plaintiff himself by either of the common proceffes of execution, and therefore be is entitled to take the goods notwithstanding the awarding of retorno babendo, according to the doctrine laid down in Cooper v. Sherbrooke, 2. Will. 117. and the reafon.ng in Pratt. Hutledge, 1 Salk. 95. where a writ of fecund deliverance is held not to be a fuperfedeas to an enquiry under the ftatute 21. Hen. 8. c. 19. because the damages affeffed by fuch enquiry were not the damages avowed, but merely fuch As to any deficiency in the value of Notwithstanding what is above obferved, it may be worth while in case there be no chance of obtaining the rent from the principal, to risk entering up the judgment as at common law, without taking any notice of the enquiry, and then to iffue a retorno babendo to warrant future proceedings against the bail if they are refponfible perfons. V. LAWES. DECLARATION in replevin, for feizing a quantity of hay, one waggon, feveral veffels with fome cyder in them, and five fheep. and And the faid Thomas and John, by A. B. their attorney, come Avowry and defend the force and injury, when, &c. and the faid Thomas cognizance, for H 4 in rent in arrear, on demife. Plea in bar, that came due, and before the tak the rent. in his own right well avows, and the faid John, as bailiff of the And the faid plaintiff, as to the faid avowry and cognizance of plaintiff, after the faid defendants by them above made, fays, by reafon of any the faid rent be- thing therein contained, the faid Thomas in his own right ought not to avow, and the faid John, as bailiff of the faid Thomas, ing of the dif ought not to acknowledge the taking of the faid cattle, goods, and trefs, tendered chattels, in the faid place in which, &c. to be just; because the faid plaintiff faith, that he the faid plaintiff, after the faid feaft of, &c. A. D. 1774, and before the taking of the faid cattle, goods, and chattels, in the faid place in which, &c. to wit, on, &c. at, &c. tendered and offered to pay unto the faid Thomas the faid fum of twenty-fix pounds of the rent aforefaid, which fum of twentyfix pounds, he the faid Thomas then and there refused to receive and accept And the faid plaintiff further faith, that he the faid plaintiff always from the faid twenty-fixth of December unti the time of taking the faid diftrefs, hath been ready and willing to pay to the faid Thomas the faid fum of twenty fix pounds, to wit, at, &c. and that before the time of taking the faid distress no requeft or demand was made by the faid Thomas, or any other perfon on his behalf of the faid rent or any part thereof, of him the faid plaintiff; and this he is ready to verify; wherefore inasmuch as the faid Thomas in his own right hath above avowed, and the faid John, as bailiff of the faid Thomas, hath above acknowledged, the taking of the faid cattle, goods, and chattels, in the faid place in which, &c. he the faid plaintiff prays judgment and his damages, by by reafon of the taking and unjust detaining thereof, to be adjudged to him, &c. F. BULLER. the tender. And the faid defendants fay, that they, by reason of any thing by Replication, the faid plaintiff above in pleading alledged, ought not to be bar- taking iffue on red from avowing and acknowledging the taking of the faid cattle, goods, and chattles, in the faid place in which, &c. to be juft; because they fay, that the faid plaintiff did not tender and offer to pay to the faid Thomas the said fum of twenty fix pounds of the rent aforefaid, in manner and form as the faid plaintiff hath above in pleading alledged; and of this they put themselves upon the country. Michaelmas Term, 21. Geo. III. DECLARATION in replevin for taking household furniture. And the faid Charles, by A, B. his attorney, comes and defends Avowry the wrong and injury, when, &c. and well avows the taking of rent. the faid goods and chattels in the faid declaration mentioned, in the faid dwelling-house in which, &c. ; because he says, that the faid Richard, for one whole year next before and ending on the twenty-fifth of March 1780, and from thence until and at the faid time when, &c. held and enjoyed the faid dwelling-house in which, &c. with the appurtenances, as tenant thereof to the faid Charles under a demife thereof theretofore made by the faid Charles to the faid Richard, at the yearly rent of five fhillings of lawful money of Great Britain; and becaufe five fhillings of the rent aforefaid, due and payable by the faid Richard to the faid Charles for the faid one year ending on the twenty-fifth of March in the year aforefaid, on that day, in that year, and alfo at the faid time when, &c. were in ar rear and unpaid to the faid Charles, he the faid Charles well avows the taking of the faid goods and chattels in the faid declaration mentioned, in the faid dwelling-houfe in which, &c. and justly, &c. for and in the name of a diftrefs for the said rent fo being due, in arrear, and unpaid to the faid Charles as aforefaid; and this, &c.; wherefore, &c. and a return of the faid goods and chattels, together with his damages, costs, and charges in this behalf, according to the form of the ftatute, to be adjudged to him, &c. Drawn by MR. Crompton. the demife. for And the faid Richard, as to the faid avowry of the faid Charles Plea in bar, de by him above made, fays, that he, for any thing in the faid avowry injuria fua prop. alledged, ought not to avow the taking the faid goods and chat- and traverfe of tels in the faid declaration mentioned, in the faid place in which, &c. as just; because he fays, that the faid Charles, at the faid time when, &c. of his own wrong took the faid goods and chattels in the faid place in which, &c, and unjustly detained the fame against fureties and pledges until, &c. in manner and form as the Traverse. Replication, taking iffue on travelfe. ift avowry, for in arrear from the faid Richard hath above complained against the faid Charles; And the faid Charles, as to the faid plea of the said Richard by him above pleaded in bar to the faid avowry of the faid Charles by him made, fays, that the faid Charles, by any thing in that plea alledged, ought not to be barred from having and maintaining his faid avowry; because he the faid Charles, as before, fays, that the faid Richard, during the time in the faid avowry mentioned, held and enjoyed the faid dwelling-houfe in which, &c. with the appurtenances, as tenant thereof to the faid Charles under a demise thereof made to the faid Richard at and under the faid yearly rent payable as in the faid avowry is mentioned; and of this the faid Charles puts himself upon the country, &c. Drawn by MR. CROMPTON. DECLARATION in replevin, for taking goods and chattels, And the faid Charles Smith, by A. B. his attorney, comes four year's rent and defends the wrong and injury, when, &c. and well avows the of locus in quo taking of the faid goods and chattels in the faid place in which, who was defen. &c. and justly, &c.; because he fays, that one James Wilfon, dant's tenant; continually from and after the feaft of the Annunciation of the 2d avowry, for Blessed Virgin Mary, in the year of Our Lord 1774, until and four year's rent upon the feaft of St. Michael the Archangel 1778, and from thence until and at the faid time when, &c. enjoyed a certain mef J. W. before he became a bank- fuage, with the appurtenances, in Mill-ftreet, in the parish of rupt, and from St. George, Hanover-fquare, in the faid county of Middlefex, beplaintiff as his ing in the faid place in which, &c. and during all that time was affignees after his tenant thereof to the faid Charles under and by virtue of a cerbankruptcy. tain demife to him the faid James Wilfon thereof made by the faid Charles, at and under the yearly rent of fixty pounds payable half-yearly at the feaft of St. Michael and the Annunciation of the Blefied Virgin Mary in each and every year during that time, by even and equal portions; and becaufe two hundred and feventy pounds of the rent aforefaid for four years and the half of a year, commenc |