Pike v. Gandall

[153] By the Court, Savage, Ch. J. It is objected by the defendant in error, that a writ of error does not lie in this case, the judgment in the court below having been taken by default, and no motion made to, or question actually decided by that court. It has been held in several cases, that under such circumstances a writ of error does not lie from this court to the court for the correction of errors. That decision was founded mainly upon the constitution, which provides that where a writ of error shall be brought on a judgment of the supreme court, the justices of that court shall assign the reasons for their judgment. When all the proceedings pass silently through the clerk’s office, the judges have no reasons to assign; there was no decision actually made § nothing to re-examine and re-judge. That doctrine has never been applied, nor does it seem applicable to writs of error removing proceedings into this court from inferior courts. The first objection to the record is, that the plaintiff’s default for not pleading purports to have been entered some time before the suit was brought. The principal difficulty in the matter of form consists in giving day to plead until the second Tuesday of March last past; the time when this day was given was December term, 1827. This was no doubt a clerical mistake ; day should have been given to the second Tuesday of March next, and then there would be no great discrepancy in what follows, (applying the usual liberal principles of amendments,) by inserting a continuance for one year, and then awarding a writ of inquiry, returnable at the term of May then next, which would be in 1829, at which term the record seems to have been signed. Perhaps this is well enough. In Dumond v. Carpenter, 3 Johns. R. 184, it was held that the intervention of a term between the teste and return of a writ of inquiry did no prejudice, and was only a mis-continuance, which is cured by the statute of jeofails. The former statute of amendments and jeofails, 1 R. L. of 1813, p. 117, enumerates many errors for which judgment shall not be reversed, particularly after verdict, and authorizes the court to which a writ of error shall be brought, to reform and amend all that which shall seem to be the misprision of the clerks in [154] such record, so that the judgment shall not for such causes ]pe reversed. If, however, we have power to amend a matter of this kind, it should be upon motion for that purpose; •the truth "of the case should be presented to us : we should have something to amend by, more than mere conjecture. Besides, it may well be doubted whether the errors in this record- are cured by the statute. - - It is objected also that the writ of inquiry should have directed an inquiry into the amount of the rent due, and the value of the property distrained.' By the 11th section of the act to prevent delays in actions of replevin, 1 R. L. 94, where the plaintiff shall -be nonsuited before issue joined, the defendant may make a suggestion in the nature of an avowry, and on his motion, "the court shall award a writ of inquiry to ascertain the amount of rent due and the value of the distress; and upon the return of the writ, the defendant shall have judgment for the "arrears of rent, if the distress be of so much value; and if not, then he shall have judgment for the value of the property distrained.. This section is taken from the statute of 17 Charles 2, ch. 7. The third section of the act concerning" costs, 1 R. L. 344, is from the 21 Henry 8, ch. 19, and provides that in replevin, after avowry, or cognizance, if the plaintiff be nonsuited or otherwise barred, the defendant shall recover his damages and costs in the same manner as the plaintiff would'have done if the same had been found against the defendant. The words of this statute are broad, and seem to be applicable to every person making avowry or cognizance in any replevin, &c. The English statute is as follows: “ That every . avowant or other person making justification or conusance, as bailiff or servant in replevin, or second deliverance for rents, customs, services, damage feasant, or for other rent or rents, if the avowry, conusance or justification be found "for them, or the plaintiff be nonsuit or otherwise barred, they shall recover damages and costs, as the plaintiff should have done.”' By the English practice, as stated by Archbold, 2 Archb. Pr. 67 to 70, whenever the plaintiff is non-prossed, the judgment at common law is for a return of the goods. Where the plaintiff is non-prossed for want of a declaration, the defendant must make a suggestion, upon ‘which a [155] writ of inquiry issues* to inquire the amount of rent in arrear, and the value of the property distrained, according to 17 Charles 2, ch. 6. Where the plaintiff is non-prossed after declaration and .avowry or recognizance, then the defendant may either issue a writ of inquiry under the statute, 17 Car. 2, or under the statute, 21 Henry 8, ch. 19, by which the jury assess damages for the expense and trouble the avowant has undergone, Bac. Abr. Replevin, L., or the defendant may refuse to issue a writ of inquiry under either statute, and prosecute the replevin bond. In these cases of non-pross, a writ of second deliverance might be issued by the plaintiff, which would supersede the retorno hdbendo, but not "the writ of inquiry. The act regulating proceedings in the action of replevin, 1 R. L. 91, &c. made no provision for the assessment of damages, and consequently the writ of inquiry issued ip this case was unauthorized, and the judgment thereon is erroneous. At present our practice indifferent,having been modified by the revised statutes in several important particulars. The next ground of error is, that the two last cognizances do not shew the landlord’s title. An avowry or cognizance in the form adopted in these cognizances is authorized in England by the statute 11 Geo. 2, ch. 19, § 22; but no provision similar to it was adopted in this state until the last revision of the statutes, 2 R. S. 529, § 41. The revised laws of 1813, 1 R. L. 94, § 9, declare that where lands are holden by rents, &e. if the person of whom they are held shall distrain, and replevin be brought, such person may avow, or his servant make cognizance for taking the distress upon the said lands so holden, as in lands or tenements, within his fee. This statute,-however, does not much, if at all, relax the common law rule of declaring, as was decided in Harrison v. McIntosh, 1 Johns. R. 384, and Wright v. Williams, 5 Cowen, 340. These cognizances are therefore defective. There are three previous cognizances which are conceded to be good; they set out .the title to be in Isaac Low, as trustee, and then allege a demise from him to one Wright, and an assignment from Wright to Pike the plaintiff. The question then arises, what is the consequence in a case like this, where some of the cognizances are good and some bad ? If the cognizances of the defendant [156] are to be considered a declaration, and the person making conusance is to be considered the plaintiff, the judgment should be reversed ; for where judgment is entered upon a declaration containing several counts, some good and some bad, the judgment will be arrested, or, on error brought, reversed, If, however, the cognizances are to be considered pleas, then, I apprehend, the judgment should stand, three of them being good. At the commencement of the suit the plaintiff is the actor, and the defendant is merely such so long as he only pleads to the declaration; but when he avows or makes conusance, he then becomes a plaintiff, and the former plaintiff is put to his plea, in which he becomes a defeiidant. At this stage of the proceedings, the action is anomalous; both parties are plaintiffs and defendants the plaintiff is so in respect of his writ and declaration, and the defendant becomes so in respect of his avowry. The avowry, then, is not* strictly speaking, a plea; it more properly resembles a declaration, and considering it such, it must be governed by the rules applicable to declarations; and judgment having been entered generally upon an avowry or cognizance containing five counts, two of which are bad, it follows that the judgment should be reversed. Assuming, therefore, that the court can amend or overlook the errors of form in the record, here are errors of substance which require a reversal of the judgment. Judgment reversed, and cause remanded to common pleas to be proceeded in according to law.