
    Bargamin v. Poitiaux Ex’or &c.
    April, 1833.
    (Absent Brooke, J.)
    Replevin — Avowry — Nonappearance of Plaintiff — Non-bnit. — In replevin, defendant makes avowry for rent dn e him from plaintiff, and then plaintiff failing- to appear and plead, is non-suit: Held,
    Same — Same—Same—Writ of Enquiry — Statute.—11 is proper, in such case, to award a writ of inquiry to ascertain avowant's damages, under the 23rd section oi the general statute of rents, 1 Rev. Code, eh. 113.
    Same — Same—Insufficient—Effect.—In such case, too, the avowry is to be considered as only a suggestion, and though it be faulty as an avowry, in not shewing the landlord’s title, yet as a suggestion, it is good and sufficient.
    5asne -dame - Same — Jeofails.—In such case, moreover, the statute oi ieofails would be applicable to cure alL detects in the avowry.
    Judgment by Default — When Statute of Jeofails Applicable.  — In general, the statute of ieofails is not applicable in case of a judgment by default for want of appearance; but If the party has once appeared, though he makes default afterwards, and then there is judgment against him by such default, the statute of jeofails is applicable.
    Poitiaux executor of Wercq having- dis-trained the goods of Bargamin, for 120 dollars rent claimed of him, Bargamin, sued out of the circuit court of Henrico, a writ of replevin of the goods, and gave bond with surety to perform the judgment of the court in case he should be cast, according to the statute 1 Rev. Code, cli. 113, \ 23, p. 451. The declaration was in the usual form, alleging the unjust taking- and detention of the goods against sureties and pledges.
    The suit was commenced as long ago as January 1820. But from October 1820, when the cause was, by order of *the court, transferred from the rules to the court docket, until March term 1826, it seemed to have been neglected by both parties, and was only continued by force of the provisions of the statute to prevent discontinuances. At March term 1826, Poitiaux filed his avowry, in these words:
    1! And the said Poitiaux executor of L. Wercq deceased, by H. C. his attorney, comes and defends the wrong and injury, when &c. and well avows the taking of the goods and chattels in the declaration mentioned in the said dwelling house in which &c. and justly &c. because he says, that he the said Poitiaux executor as aforesaid, for a long time to wit, for all the time during which the rent hereinafter mentioned was accruing due, and from thence until and at the said time when &c. was landlord to the said Bargamin of the said dwelling house in which &c. and the said Bargamin for a long time, to wit, for the space of two quarters of a year ending on &c. and from thence until and at the same time when &c. held and enjoyed the said dwelling house in which &c. with the appurtenances as tenant thereof to the said Poitiaux executor as aforesaid, under a certain demise thereof theretofore made, at and under a certain yearly rent, to wit, the yearly rent of 400 dollars, payable quarterly, on the first days of January, April, July and October, in every year, by even and equal portions; and because the sum of 120 dollars of the rent aforesaid for two quarters ending on the said 1st day of January 1820, and from thence until and at the same time when &c. was due and in arrear from the said A. Bargamin to the said Poitiaux executor as aforesaid, he well avows the taking of the said goods and chattels in the said dwelling house in which &c. and justly &c. as for and in the name of a distress for the said rent so due and in arrear to the said Poitiaux executor as aforesaid, in manner aforesaid, and which still remains due and unpaid. And this he is ready to verify &c. Wherefore, he prays judgment, and a return of the-said goods and chattels, together with his damages &c. according to the form of the statute in such case made and - provided, to be adjudged to him &c.”
    *To this avowry no plea was put in. And, at a subsequent term, the avowant appearing by his attorney, and the plaintiff being called and not appearing, on the motion of the avowant, it was adjudged, that the plaintiff be non-suited, and that the avowant go thereof without day; and on the further motion of the avowant, it was ordered, that a jury should inquire how much of the rent in the avowry mentioned was in arrear and unpaid at the time of the taking of the goods and chattels in the declaration mentioned: whereupon a jury was impaneled to make the inquiry, who found, that there was at the time of the distress made, 120 dollars of the rent in the avowry mentioned in arrear and unpaid: therefore, with the assent of the avowant, it was adjudged by the court, that the avowant should recover against the plaintiff, the sum of 120 dollars with interest after the rate of six per centum per annum from the 1st January 1820 till payment and his costs &c. and that the said avowant have execution thereof &c.
    
    
      *Upon the petition of Bargamin to this court, a supersedeas to the judgment was allowed him.
    Leigh, for the. plaintiff in error, said the avowry was clearly naught; that it was framed upon the precedent in 2 Chit. Plead. 512, of an avowry under the statute of 11 Geo. 2, ch. 19, l 22, but there was no similar provision in the statute law of Virginia, and the avowry must be judged of by the common law rules of pleading; Southall v-Garner, 2 Leigh 372. He took the question to be, whether the defects of the avowry were cured by the statute of jeofails, 1 Rev. Code, ch. 128, § 103, p. 512, which after very strong provisions for curing defects after verdict (provisions which, he admitted, would cure the defects of the avowry here, if they were applicable to the case) provided, that “neither shall any judgment, entered by nil dicit or non sum informatus be reversed, nor a judgment after inquiry of damages be stayed or reversed, for any omission or fault, which would not have been a good cause to stay or reverse the judgment if there had been a verdict.” Now, *a judgment by nil dicit was, where a party appears, but does not plead; and a judgment by non sum informatus was, where a party appears by his attorney, but the attorney says he is not informed of any answer; but here the plaintiff in replevin, after filing his declaration, and after avowr3r by the defendant, made default and was nonsuit. It had often been decided by this court, that the statute of jeofails did not apply to cases of judgment by default; and in Roe v. Baker, in which the defendant appeared and obtained two continuances, without putting in a plea, and the cause was tried between the parties, both appearing, as if there had been a plea, and verdict and judgment rendered for the plaintiff, the court held, that this was a judgment by default, and that, therefore, the statute of jeofails had no application to the case, and reversed the judgment for defects in the declaration. And as to the circumstance of the judgment in the present case being a judgment after inquiry of damages, he said, the directing that inquiry was itself a palpable error. The english statutes, respecting the course of proceeding and the judgment in case the plaintiff in replevin be nonsuit, not being in force here, and there being no similar statutory provisions of our own in existence *when this suit was brought, the proceedings and judgment should have been according to the course of the common law ; and according to the common law, the only judgment that could have been given, was a judgment awarding a return of the goods distrained to the defendant, to be irreplevisable in future. 1 Esp. Ni. Pri. 376; 6 Bac. Abr. Replevin and Avowry, L. pp. 83,4; 1 Wms. Saund. 195a, note 3; 2 Id. 286, note 5. The avowry in this case, therefore, very properly, only demanded judgment for a return of the goods to the avowant. It was very obvious, that the proceedings after the nonsuit of the plaintiff, the award of the writ of inquiry, and the judgment of the court, were moulded upon the statute of Eebruary 1823; but that statute could give no warrant for such proceedings, because, 1. the statute was enacted after this suit was commenced; and 2. the statute applies only to actions of replevin brought by a person other than the tenant, to recover his own goods improperly distrained for rent due from the tenant.
    Scott, for the defendant in error, argued, that the statute of Eebruarj’ 1823, though it was enacted after the action was brought, was properly resorted to by the court, as a rule for its proceedings, and well warranted the writ of inquiry and the judgment, both of which were subsequent to the enactment; and if not, yet, that the statute of jeofails was applicable to the case, and cured all defects in the avowry.
    
      
      Replevin. — The principal case is cited in foot-note to Maxwell v. Light, 1 Call 117. See monographic note on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.
    
    
      
       Judgments. — See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      In order to understand the disputed points of practice in this case, it is proper to mention, that none of the english statutes on the subject were in force in Virginia at the time this action was commenced. The statute of 7 Hen. 8. ch. 4, and 21 Hen. 8. ch. 19, providing that the avowant, in replevin, for rent, if the plaintiff be barred, shall recover damages and costs, had been repealed; and neither the statute of 17 Car. 2. ch. 7, directing the proceedings and judgment iji replevin, in case the plaintiff be nonsuit, or judgment be given for the avowant on demurrer, nor the statute of 11 Geo. 2, ch. 19, simplifying the form of the avowry or conusance in replevin, were ever in force in Virginia; nor had we any similar statutory provisions. The only statute, varying the proceedings and judgments in replevin, from the course ot the common law, was the provision in the statute of rents, 1 Rev. Code, ch. 113, § 23, p. 451, requiring bond and surety of the plaintiff, before suing out the writ, to perform and satisfy the judgment of the court, in case he shall be cast; and providing, that "if upon the trial of the suit, it shall be found that the rent distrained for was justly due, the party injured or delayed by suing forth the writ, shall recover, against the party suing forth and prosecuting the same, double the value of the rent in arrear and distrained for, with full costs of suit.” Hut after this suit was brought, namely in February 1838, a statute was enacted, whereby it was provided, that in all cases where property distrained or attached ior rent, shall be claimed by any other person or persons than the tenant or tenants, it shall b« lawful for the said person or persons to sue out his or their writ of replevin, directed to the sheriff; and upon the execution of a bond by the person or persons suing out the writ, with one or more sufficient securities, in double the amount of the value of the said property, to be ascertained by two disinterested freeholders, to be sworn before some justice of the peace, and conditioned to perform and sat • isfy the judgment of the court in such suit, in case he or they shall be cast therein, such sheriff shall proceed to execute and return such writ, as heretofore; and the jury that shall try the issue in such cause, shall also inquire of the value of the property, and of the damages sustained by the avowant, by occasion of the suing out the said writ, which in no case shall be less than the value of ten per centum upon such value; and judgment shall be accordingly rendered, if the plaintiff be barred, for the value so ascertained, with interest from the date of the writ, and the damages and costs. And if the plaintiff be nonsuit before issue joined, the court, upon the suggestion of the defendant, in the nature of an avowry, shall award a writ to inquire of the value and damages as aforesaid, which shall be ascertained by the jury, and'judgment shall be given accordingly.” — "And that so much of the twenty-fourth section of the aforesaid act, to which this is an amendment, as subj ects the party suing out the writ of replevin to the penalty of double the value of the rent in arrear, and distrained for, if he shall be cast in the suit, shall be, and the same is hereby repealed.” Sess. Acts of 1822-3, ch. 29; Supp. to Rev. Code, ch. 193, § 4, 5, pp. 254, 5. — Note in Original Edition.
    
    
      
      Roe v. Baker, was argued by Stanard for the plaintiff in error, and by Leigh for the defendant, and decided in December 1826 — it has never been reported. It was a suit brought by Baker against Roe upon an award. The declaration was, in many respects, fatally defective and faulty; this was admitted on all hands, and indeed was too apparent to be denied; and the only question was, whether the defects were'cured by the statute of jeofails? The defendant had appeared at one term, moved for, and obtained a continuance; appeared ag-ain at the next term, and„ obtained another continuance; and then at the third term, both parties appeared and went to trial, exactly as if the defendant had pleaded, and an issue had been regularly made up, though, in fact, he had never put in any plea; and there was a verdict for the plaintiff, on which the court gave him judgment. This court held that this was not a judgment by nil dicit, or non sum informatus, or an inquiry of damages, but a judgment by default, to which the statute of jeofails was not applicable, and, therefore, reversed the judgment for the defects of the declaration: dissentiente Green, J., who’(as the reporter well remembers) held, that the statute of jeofails was applicable in cases of judgments by default; a prop - osition which the counsel for the defendant in error had earnestly endeavoured to maintain. — Note in Original Edition.
    
   TUCKER, P.

At common law, in the action of replevin, after issue joined, both parties are plaintiffs, and therefore the plaintiff cannot suffer a nonsuit. Eggleton v. Smart, 1 W. Blacks. 375; Jones v. Concannon, 3 T. R. 661; Hodgkinson v. Snibson, 3 Bos. & Pull. 603. But, before issue joined, he is the only plaintiff; and he might therefore have suffered a nonsuit, and terminated the whole process. But when he did so, the judgment was not merely that he take nothing by his bill, as in other cases of nonsuit: for having, by his replevin, got what he principally wanted, that is, his goods, and then abandoned the process instituted to establish *his right to them, it was right he should be compelled to return them. Hence, the judgment, in case of nonsuit in replevin, went on to award that the defendant should have a return of the goods and chattels; Tidd’s Pract. Forms, p. 599. And this was equally the case whether the nonsuit was before or after avowry, as where it was for want of a declaration; Id. 586. If then the case at bar stood unaffected by any statute, the court ought to have given a mere judgment for a return of the goods, when the plaintiff stillered a nonsuit; and whether there was a good or bad avowry filed, or whether an avowry was filed or not, the judgment must have been the same.

In England, however, the common law has been modified by several statutes. Those passed in the reign of Henry 8, gave co the avowant damages for the vexatious replevin, either in case of judgment against the plaintiff upon demurrer on a nonsuit, or in case the jury found for the avowant; in which last case, the same jury might assess the damages; but if they failed to do so, a writ of inquiry might be awarded; and, in the first two cases, the avowant was always entitled to his writ of inquiry. 1 Wms. Saund. 195, c. in note. An extract from the statutes is to be found in the same note. They are, I presume, not in force at this time in Virginia. Next came the statute 17 Car. 2, the provisions of which may be found in the same note. But this statute never was in force with us, nor was the statute 11 Geo. 2, ch. 19, § 22, dispensing with the necessity of regularly setting out in the avowry the title of the lessor or landlord ; 2 Id. 284, c. But though the statute of 17 Car. 2, was never in force, yet_ we have long had a provision in our statute book making a great innovation in the common law: it will be found in the statute of 1769, ch. 4, 8 Hen. Stat. at Large 382, 3, and in the Old Rev. Code, Pleasants’s edi. ch. 89, § 15, and 1 Rev. Code, ch. 113, § 23, p. 451, and it was the law of the land at the time of the commencement of this suit. By this statute it is provided, that ‘ '"if upon the trial of the suit, it be found that the rent distrained for was justly due, the *party injured or delayed by suing for the writ of reple-vin, shall recover against the party suing forth and prosecuting the same, double the value of the rent distrained for, and full costs.” Vet, though this statute devolves upon the landlord a right to double rent, it makes no particular provisions for the mode in which the party is to proceed. It leaves the courts to mould the remedy to the right, or, what is much better, to follow the established course of proceeding in analogous cases at common law, or cases under analogous english statutes. It is to be wished, 1 think, that this court had pursued the latter course in Maxwell v. Light, 1 Call 117, instead of the practice established in that case, which seems to me both anomalous and inconvenient. Be this as it may, ihat case respected a trial where an issue had been made up between the parties: our concern is with the case of a nonsuit after avowry.

That the right of the landlord to a judgment for double rent, was confined to the case of an issue made up and trial thereof between the parties, and did not extend to a judgment in case of nonsuit or upon demurrer, does not seem to be a reasonable construction. The double damages were given as a satisfaction for the delay and injury of suing forth the writ, and the wrong is enhanced where the proceeding has been so frivolous, that the plaintiff himself has abandoned his pretensions. Upon nonsuit, therefore, or upon demurrer, I think the avowant is entitled to double rent if it shall appear that the rent distrained for was justly due. But how is that fact to be ascertained? I answer by a writ of inquiry. And how is the inquiry to be presented to the jury, where the plaintiff has suffered a nonsuit before the pleadings are made up? I answer, by filing a suggestion in the nature of an avowry. Now, this is precisely the course which was pursued under the statutes of Hen. 8. Those statutes gave the landlord a right to damages, but they said not a word as to the mode in which the party was to get at them. The courts therefore decided, that these damages were to be ascertained by writ of inquiry ; 1 Wms. Saund. *195, c. in note; 6 Bac. Abr. Replevin and Avowry, L. pp. 84, 6; 14 Petersd. Abr. 280. Bord Hardwicke seems, indeed, to have laid down a very broad and proper principle, that in every case where it may be necessary for the purpose of doing complete justice, a writ of inquiry may be granted; with the exception of the case of a jury failing to inquire of the rent in arrear under the statute of Charles, which in strong language, seems to tie up the inquiry to the jury impaneled to try the issue. But the courts also decided, under the same statutes, although they contain not a syllable about a suggestion, that if the landlord would, in the case of nonsuit, entitle himself to damages within the statutes, he must make a cognizance or avowry, or a suggestion pro retorno habendo; 1 Wms. Saund. 195, e.

Prom these analogies, I am of opinion, that where the landlord chooses to avail himself of the statute, he must in case of nonsuit before issue joined, file a suggestion in the nature of an avowry, and thereupon a writ of inquiry must be awarded to inquire of the value of the rent in arrear. He may, however, waive the statute, and take the common law judgment de retorno habendo, since the statute only adds to his remedy. 1 Wms. Saund. 195, c; Rees v. Morgan, 3 T. R. 349.

In this case, the parties have been supposed to have proceeded under the statute of February 1823. That statute cannot apply to an action brought before its commencement. For though, at first view, it may seem to affect the remedy only, it in fact most materially acts upon the rights of the parties. When l he lessee brought this suit, the landlord under the statute then existing, immediately became entitled to recover double rent, if the distress was found rightful. The statute of 1823 takes away the double rent, and gives in lieu of it, damages not less than ten per cent. It goes then to the right, and not merely to the remedy, and is obviously not binding upon the rights of the landlord. But if not in force as to the landlord, it cannot be in force as to the tenant. If it is law for one, it is law for the other. I consider *it therefore as not applying to this case. But I am not satisfied, that the proceeding is not perfectly reconcileable with the previous statute. By it, a writ of inquiry is rendered necessary for ascertaining whether the rent distrained for was justly due and in arrear. Now, that is the inquiry directed here, in effect; and the jury have found 120 dollars of rent in arrear, which is the amount avowed for. Upon this verdict, the landlord might have demanded judgment for double rent; but by his consent, judgment was entered for the rent in arrear with interest at six per centum only: thus waiving the heavy penalty which the law entitled him to insist on.

It is contended, however, that the avowry is bad, according to the decision of Southall v. Garner, 2 Leigh 372, in which it is declared that as the statute of 11 Geo. 2, ch. 19, § 22, is not in force in Virginia, the old common law strictness, as to setting forth the avowant’s title in the avowry, must be adhered to. Admitting this doctrine in its fullest extent, in its application to an avowry upon which an issue in fact or in law is made up, I do not think it can apply to a mere suggestion after a nonsuit, of which character the avowry in this case must be considered, as the plaintiff neither demurred nor pleaded to it. Where the parties go to issue upon the right of distress, there is more reason to demand that the title out of which the right grows, should be distinctly stated. But, in the case of a nonsuit, the plaintiff waives the contest, and acknowledges the right; and the writ of inquiry is only to ascertain the quantum of the demand. This is the general character of a writ of inquiry. See the cases collected 10 Petersd. Abr. 654, & seq. The suggestion, therefore, in this case, would seem sufficient. Why insert the title in detail, when the tenant cannot contest or traverse it in this stage of the proceeding. The landlord, indeed, must prove the tease, and the rent due; and the tenant is at liberty to controvert its being in arrear, by proving payments; but I apprehend he can no more plead in this case to the sug-gestión, than he could plead to *the suggestion of breaches after a judgment by default in debt on bond with collateral condition. See Bullythorpe v. Turner, Willes 435; Foot’s case, 1 Salk. 93; 14 Petersd. 268, in note; 1 Wms. Saund. 58, note 1. Upon looking into the forms of ' these suggestions, I incline to think, they were much more general than avowries, even before the statute of 11 Geo. 2, ch. 19. See Tidd’s Pract. Forms 586, which I take to be under the statute of Charles 2, and not of George 2. That is quite general.

Upon the whole, I am therefore for affirming the judgment, without thinking it necessary to resort to the statute of jeofails to sustain the avowry or suggestion.

CABFLU, J.

The statute of jeofails declares, that no judgment entered by nil dicit, or non sum informatus, shall be reversed, nor shall a judgment after inquiry of damages be stayed or reversed, for any omission or fault which would not have been a good cause to stay or reverse the judgment, if there had been a verdict. I have never considered this statute as embracing any case of judgments by default for want .of appearance; whether those-judgments be final, as in case of office judgments confirmed in actions on bonds, bills or notes; or merely interlocutory, and afterwards completed by writ of inquiry of damages, as in actions on the case. That it does not extend to the former class of cases, is manifest from Nadenbush v. Lane, 4 Rand. 413. If this were not so, the plaintiff might bring his action on a. bond for 100 dollars, which the defendant, knowing it to be just, might fail to defend, in the full confidence that no judgment could be rendered, which the bond would not justify; and then the plaintiff might file his declaration on a bond, forged or paid, for ten times the amount, and recover a judgment which would be irreversible. I think it equally clear, that the statute does not apply to cases of judgments after writs of inquiry, where the writs of inquiry have been awarded on default for want of appearance. The principle is precisely the same in both cases, and it applies more forcibly *to the latter than to-the former; for in the latter, the plaintiff may, in his declaration, not only enlarge the amount claimed in his writ, but he may change the form of action altogether. He may bring his action on an uncontested account, and may then file his declaration, and go before the jury, for slander or assault and battery. But the-statute expressly embraces judgments by nil dicit and non sum informatus; which judgments, we know, are never rendered except where the party has previously appeared r and the party having once appeared, it is his own folly not to see that every thing-is correct, or to abandon the case before it is ended. The statute also embraces, in terms, judgments after inquiry of damages. But although these words are general, I, do not think they were intended to have a universal application. I think they were intended to apply only to those cases,, where, as in the cases of judgments by nil dicit and non sum informatus, there has, been a previous appearance by the party. But even this restricted application of the statute is sufficient to embrace the case-before us; for here the party had appeared. Therefore, I am of opinion to affirm the judgment.

CARR, J\

I am of opinion that this judgment should be affirmed. I concur in the opinion of the president generally. There is one point, however, taken by him, which I have not so carefully examined, as to justify a decided opinion upon it; such examination not being necessary to a decision of the case, in my view of it. That point is, whether the statute of February 1823 embraces the case? There is another point, too, on which the president has not given an opinion, which I must think a strong one in support of the judgment;' that is, the statute of jeofails. This, it must be observed, is not a case where there has-been no appearance, and where the defendant may be considered wholly ignorant of the proceeding; on the contrary, he was the original actor; he sued out the writ of replevin, and thereby got possession of the goods distrained, and put the ^landlord to his avowry. After this, he can by no means (I think) claim the exemption extended to one supposed to be wholly uninformed of the action. He ■comes within the meaning, as well as the letter of the statute. But it was said, unless you apply the statute of "February 1823 to this case, there should have been no writ of inquiry, and then the case would not have been within the statute of jeo-fails. The reasons given by the president answer this objection, and shew to my mind, that without the aid of the statute of 1823, the writ of inauiry was proper. It was said, that it was the settled law of this court, that the statute of jeofails does not extend to a case like this. I have considered the court as saying (in perhaps more than one case) that where there has been no appearance at all by the defendant, the statute does not embrace the case. Roe v. Baker was cited; and the record does certainly shew, though there had been no regular appearance, the defendant had in fact been in court so far as to obtain one or more continuances. I have no recollection of the argument, of the conferences, or the particular opinions of the court; I cannot therefore think that it was a case much argued or examined, by the bar or bench; or that we meant to settle the practice by it. X have looked in vain among my papers for a note of the argument, or my own remarks. It is, therefore, a naked decision, which, however I may have then decided, I must confess seems to me now to have been directly within the statute of jeofails. X have always thought, that (however we, in our private judgment, might suppose the legislature had covered too much ground by that statute) we were bound, nevertheless, to administer it, according to the spirit in which it was -passed, and extend its provisions to every case, within the view of the law makers.

TUCKER, P.,

then said, he concurred ■with the other judges, that the case was within the provisions of the statute of jeo-fails.

Judgment affirmed.  