
    [Lancaster,
    June 2, 1823.]
    SMITH against AURAND.
    IN ERROR.
    In a replevin, on the issu'e of no rent in arrear, a finding by the jury of damages and costs, and a judgment thereon, that the defendant have a return of the goods, and recover the damages and costs, are regular.
    An avowry for rent in arrear, should name for what lands, how much was due, when and by whom due.
    Error to the Court of Common Pleas of Berks county.
    Replevin by Thomas B. Smith, plaintiff, against John Jlurand, defendant, to which the sheriff returned, replevied, and delivered to the plaintiff. The defendant made cognizance as bailiff of John Templin and others, for rent in arrear. The plaintiff replied, no rent in arrear and issue. The jury on the 16th January, 1823, found for the defendant, Jlurand, the sum of 1,117 dollars 79 cents, damages, and 6 cents costs, on which the court on the same day, entered judgment, that the defendant, J. Jlurand, have a return of the goods and chattels taken and replevied by the said T. 
      
      13. Smith, and that he recover against the said T. B. Smith, the sum of 1,117 dollars and 79 cents, for his damages, by the jury aforesaid, in form aforesaid assessed, and also the 6 cents costs., A fi. fa. was issued to April term, 1828, but was afterwards withdrawn by the defendant. With the record, was returned an affidavit, made by Charles Richards on the 20th February, IS23, and filed in the court below, on the same day, that after the jury had been called, and before they were sworn and affirmed, William Darling, Esq. attorney for the plaintiff, offered to enter a non-suit in the above case, but the court refused to enter a nonsuit, and being requested to file a memorandum of their opinion, declined to do so.
    
      Wright, for the plaintiff in error,
    now argued in support of the two first of the following errors that had been assigned, and withdrew the two last.
    1. That the verdict was illegal: it was in damages when the issue was rent in arrear or not.
    2. The judgment is not pursuant to the verdict.
    3. The execution does not pursue the judgment.
    4. The affidavit of William Richards proves, that the plaintiff offered to suffer a nonsuit, but was not permitted.
    
      Baird, contra,
    relied on Albright v. Pickle, 4 Yeates, 264, where on the issue of no rent in arrear, Yeates, J. held, the jury were to ascertain the sum due to the avowant for rent, and were not confined to the value of the goods distrained, and there the proper mode of entering the judgment on a verdict for the avowant, is stated to be precisely the form pursued in the present case. The statute 7 Hen. 8, which, in this respect, is in force in Pennsylvania, enacts in Sec. 3, that every avowant, and every person making cognizance, &c. shall, if it be found for them, recover their damages and costs, that they have sustained, as the plaintiff should have done if he had recovered. Roberts’s Dig. 118. The conclusion of an avowry or cognizance, when formally drawn, prays “judgment, and a return of the said goods and chattels, together with his damages, &c.” meaning by the &c. “costs and charges,” by him about his defence, in that behalf expended. 2 Chitt. Plead. 512, 561. And the jury ought to assess the damages on an avowry for rent. 2 Tid. 298, note P.
    
   The opinion of the court was delivered by

Duncan, J.

The defendant distrained the goods for which this replevin issued, as the bailiff of John Templin, James Newton, and Addison May, and made cognizance for rent in arrear, without stating for what lands, or how much was due, or when, or by whom due, to which the plaintiff replied no rent in arrear. The jury found for the defendantl, 117 dollars 9 cents damages, and judgment was entered, that the defendant John Aurand, have a return of the goods and chattels taken and replevied by the plaintiff, and that he .recover against the said Thomas B. Smith the sura assessed as damages. This case is, in every ¡espect, the same as Albright v. Pickle, decided by Mr. Justice Yeates, at a Circuit Court at Sunbury, 4 Yeates, 264; and I have carefully looked into the authorities referred to by him, and find they fully support him in the opinion he gave at the trial, and on the motion in arrest of judgment. The two first errors assigned in the verdict and judgment, were the very questions determined in that case. The two last errors have been abandoned by the plaintiff in error. The first, because the writ of error does not bring up the execution; and the second, because the matter alledged is founded on affidavit, and forms no part of the record. No objection was made as to the generality and uncertainty of the avovVry, and as it has not been assigned for error, the court, according to their late rule, will not take any notice of it, particularly as the parties went on to trial, and the plaintiff in error could not have been injured by it. It could be no surprise, and no injustice appears to have been done; that alone would justify the court, of their own motion, in reversing the judgment, for a reason purely technical, and where the plaintiff had not complained of it. Nothing but the unifoi'.-.-i practice staled by Judge Ye ates, could support an avowry so utterly defective as this, and we are pleased to find, that recently a correct avowry has been introduced in the District Court, in lieu of a pleading so vicious both in form and substance. Judgment is, therefore, affirmed.

Judgment affirmed.  