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

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 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. Ld. 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

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

That there may not be any failure of justice, the fourth and last section of the statute directs, that in all the preceding 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.-Ar the common law, the plaintiff obtaining judgment in replevin was not entitled to costs'; but

t Baker v. Lade, Carth. 254.

u Cooper v. Sherbrook, 2 Wils. 116.

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

y Tidd's Pr. 863. ed. ed.

of the distress, amounting to less than the rent alleged to be due, and final judgment thereupon, in Mounson v. Redshaw, 1 Saund. 195.

(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

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.

2. As to the Defendant.-At the common law, if an avowry, or cognisance, or justification, was found for the defendant in replevin, or if the plaintiff was otherwise barred, the defendant was not entitled to costs; but now, by stat. 7 H. &. c. 4. s. 3., " persons making avowry, cognisance, or justification in replevin, or second deliverance for any rent, custom, or service, if their avowry, &c. be found for them, or if the plaintiff be otherwise barred, shall recover their damages or costs, as the plaintiff should have done if he had recovered.".

And by stat. 21 H. 8. c. 19. (which permits avowries, &c. in replevin and second deliverance to be made by the lord, &c. alleging the land to be holden of him without naming the tenant,) damages and costs are given to defendants in replevin, not only in the cases provided for by the preceding stat. of 7 H. 8. c. 4., but also in the cases of avowries, &c. for damage feasant, or for other rents, if such avowries, &c. be found for them, or if the plaintiff be otherwise barred.

Upon a distress for an heriot, the defendant will be entitled to costs, but not upon a distress for an amerciament, because the statute extends only to customs and services".

A replevin is not within the meaning of the statute 8 & 9 W. 3. c. 11. s. 1. which gives costs to persons who are improperly made defendants in actions or plaints of trespass, assault, false imprisonment, or ejectio firma.

Costs in Error.-By stat. 3 H. 7. c. 10, reciting that writs of error were often brought for delay, it is enacted, "That if any defendant or tenant, against whom judgment is given, sue any writ of error to reverse it, in delay of execution, if judgment be affirmed, &c., the person against whom the writ of error is sued shall recover his costs and damages for the delay and vexation."

This statute applies only to cases where the judgment below is for the plaintiff; and subsequent statutes, viz. 3 Jac.

z Porter v. Gray, Cro. Eliz. 300.

a Ingle v. Wordsworth, 3 Burr. 1295.

writ of second deliverance has been served. Pratt v. Rutledge, Salk. 95.

I. c. 8. and 16 & 17 Car. 2. c. 8., have not extended the description of persons to whom relief was meant to be given by the stat. 3 H. 7. c. 10.

Hence, where in replevin in C. B., the defendant made cognisance for rent in arrear, and had a verdict and judgment pursuant to the stat. 17 Car. 2. c. 7., which judgment was affirmed in B. R. on a writ of error brought by the plaintiff. On application to the court of B. R., that the defendant in error might be allowed interest on the sum recovered by the judgment below, by force of the stat. 3 H. 7. c. 10., the court refused to grant relief, observing, that the case of Cone v. Bowles, 4 Mod. 7, 8., had settled the question, that an avowant in replevin, for whom judgment below was given, which was afterwards affirmed in error, was not within the statute.

By stat. 8 & 9 W. 3. c. 11. s. 2., " Costs in error are given to the defendant where the judgment below is for him and is affirmed on error."

This statute applies only to those cases where judgment is given on demurrer for defendants below; consequently, where an avowant in replevin for rent arrear had a verdict and judgment below, which judgment was afterwards affirmed on error, it was holden that such defendant was not entitled to his costs under the preceding statute.

CHAP. XXXIV.

RESCOUS.

THE term rescous, as far as relates to the subject of this chapter (1), means the setting at liberty, against law, a person arrested by process or course of law'.

To recover a compensation for this injury the plaintiff may bring an action of rescous, or an action on the case, against the party guilty of the rescous. The action of rescous having fallen into disuse, the usual mode of proceeding is by an action on the case, to support which, it is necessary for the plaintiff to prove,

1. The original cause of action.

2. The writ and warrant, by the production of copies of them, sworn to be true copies by a witness who has compared and examined them with the originals.

3. The manner of the arrest, in order that it may appear to the court whether the arrest was legal or not; for without a legal arrest there cannot be a rescue.

Mere words only, as if the officer says to a defendant, "that he has a warrant against him, and that he arrests him," will not constitute an arrest", if the defendant afterwards escapes from the officer; but if the defendant acquiesces, and goes along with the officer, this will be considered as submitting himself to the process, and as complete an arrest as if the officer had touched the person of the defendant'.

An officer having two warrants in his pocket against the defendant, at the several suits of A. and B., laid his hands on the defendant, and said to him, "I arrest you by virtue of a warrant that I have;" but he did not shew the defendant the warrant, nor had it in his hand, nor told the defen

a 1 Inst. 160. b.

b Genner v. Sparks, Salk. 79.

c Horner v. Battyn, B. R. H. 12 Geo. 2. Bull. N. P. 62.

d Hodges v. Marks, Cro. Jac. 485.

(1) For rescous of distresses, see ante, tit. Distress, sect. VIII.