Albright v. Pickle

*By the Court. The issue joined is, whether any, and 5-* what rent is in arrear: and I do not see how the jury can be prevented from ascertaining it. Whether the verdict can be enforced by execution or otherwise, is another consideration. The statute of 17 Car. 2. c. 7, extends to cases, where a plaintiff in replevin, whose goods have been distrained for rent, is non-suited before, or after issue joined. The statute does not alter the judgment at common law, but gives a further remedy to the avowant. 2 Wils. 117. Carth. 253. On a verdict for the avow-ant, the jury in that verdict ascertain the damages, Gilb. on Dist. and Repl. 162. 2d ed. and then there needs no writ of enquiry ; but the judgment is entered, that the defendant have a return of the cattle or goods taken, and that he recover against the plaintiff 1. for his damages by the jury aforesaid in form aforesaid assessed, and also 1. for his charges and costs. Our act of assembly of 21st March 1772, 1 St. Laws 612, pursues in many particulars, the British statute of 11 Geo. 2. c. 19, and the nth sect, of the former is couched nearly in the same terms, with the 23d section of the latter. The sheriff is directed to take a bond in double the value of the goods distrained, conditioned to prosecute the suit with effect, and to return the goods distrained, in case a return shall be awarded; and the same being assigned to the avowant, he may recover thereupon in his own name, “ and the court where such action shall be “ brought, may, by a rule, give such relief to the parties upon “ such bond, as may be agreeable to justice and reason; and “such rule shall have the nature and effect of a defeasance “to such bond.” This mode of proceeding is now generally preferred, and is not affected by the former stat. of 17 Car. 2.. c. 7. Gilb. on Dist. 178. 2 Wils. 42. Therefore it would seem, that in such a case as the present, the avowant would not be without relief, to the extent of the penalty of the replevin bond. He is not bound to sue out his writ of retorno habendo, though a judgment of return is entered for him as a matter of course. Cited and followed with io S. & R. 94 where the facts were similar; also in 10 S. & R. 206. Cited in 13 S. & R. 178 to show that on the issue of no rent in arrear, if the jury find for the defendant in a certain sum, and judgment be entered generally, without finding the value of the goods, though it is informal, yet judgment may be entered fro retorno habendo, and the remedy of the defendant is, to issue that writ, or sue the replevin bond; but execution cannot issue on it. Cited in 2 Watts 203 and 33 Pa. 448 to show that interest may be recovered on rent in arrears. Cited in 2 Watts 432 to show that along with judgment for the rent, the judgment de retorno habendo is entered of course. Messrs. Duncan and C. Hall, pro quer. Messrs. Watts and D. Smith, pro def. It is not the usage in this state to allow interest on rent; but from the time the landlord distrains or sues for it, it is customary for the jury to make such allowance. The practice is right and proper in itself. Where one unreasonably and vexatiously delays another from the recovery of his just debt, the least compensation he can make, is to pay interest for the delay he has thus given? Verdict pro defendant for 121I. 6s. 6d. the rent in arrear, interest being calculated from the time of suing out the replevin. The plaintiff’s counsel afterwards filed reasons in arrest of '^judgment-. 1st. For that the jury have not found the r* ^ value of the goods distrained. 2dly. For that the avow- *- 2 ry is not for any sum certain; and does not state for what lands or tenements the same rent arises, or when the same became due. On argument, Yeates, J. adhered to the opinion he gave on the trial, and observed as' to the second reason, that it had been the uniform practice to enter such avowrys generally on the docket. Vid. 4 Term Rep. 509, Gamón v. Jones et al. Fie therefore overruled both reasons, and directed judgment to be entered for the avowant, according to the form he had mentioned.